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Super Bowl/weekend open thread


It’s been a busy conference/travel weekend with Creating Change, so I haven’t had much time to write. Just got back in town. All I’ve really got to say is 24-16, Packers.

What say you, and how was your weekend?


  • 1. Kathleen  |  February 6, 2011 at 7:42 am

  • 2. Peterplumber  |  February 6, 2011 at 8:13 am


  • 3. Sarah  |  February 6, 2011 at 7:46 am

    Being a western PA native, I have to go with the Steelers on this one! 🙂

  • 4. Ann S.  |  February 6, 2011 at 7:59 am

    I hear maybe there's a football game or something on today?


  • 5. Sagesse  |  February 6, 2011 at 10:03 am

    I do believe so.

  • 6. Ann S.  |  February 6, 2011 at 11:16 am

    It turned out to be the perfect time to go to the grocery store.

  • 7. Sagesse  |  February 6, 2011 at 11:24 am

    That's funny. That's exactly what I did :). The store was very quiet.

  • 8. Tony Douglass in Ca  |  February 6, 2011 at 11:28 am

    The golf course was pretty deserted too, it was great!!!

  • 9. Ann S.  |  February 6, 2011 at 11:29 am

    I had a nice chat with one of the clerks. Luckily for him, since he had to work today, he's also not a big sports fan. He said it was completely crazy right before game time (as I had expected, and avoided).

  • 10. Chris in Lathrop  |  February 7, 2011 at 10:13 am

    Skipped out on the Super Bowl (or, at least tried to) by running off to Santa Cruz to see Rob Zombie play. Unfortunately, the restaurant (Aqua Bleu, nice place) had the game on and we were seated parallel to the TV. Zombie rocked the house, though! m//

  • 11. Gregory in Salt Lake  |  February 6, 2011 at 8:08 am

    I'm not interested in the game…but heard their is a "special Glee" on after the game so I just turned on the TV to see if SB was over yet. I've never seen Glee either but thought I would take a look after some of the videos Ronnie has posted about Glee and Ellen. Anyway, I turned on the TV to watch long enough to see some pre-game patriotic piece with Colin Powell how great America is and how we are all equal and united… How about a patriotic piece & cry for equality, highlighting how LGBT persons are discriminated by law and immigrants are treated with disdain?

    turning Fox TV back off until Glee at 8:30…

  • 12. Bob Barnes  |  February 6, 2011 at 8:36 am

    Ata boy!

  • 13. Ronnie  |  February 6, 2011 at 8:53 am

    I'm going to predict that the game goes to Sue Sylvester….wait…what?….. ; ) ….Ronnie

  • 14. Gregory in Salt Lake  |  February 7, 2011 at 5:13 am

    Wow…Sue was out of control last night!

  • 15. Ronnie  |  February 7, 2011 at 5:40 am

    "Slap yourself with a chicken cutlet" ~ Sue Sylvester……ROFL…. : ) …Ronnie

  • 16. Mark M - Seattle  |  February 7, 2011 at 6:20 am

    I spit soda out of my nose at that last night

  • 17. Anne  |  February 6, 2011 at 8:30 am

    Go Packers!

    Also…Creating Change was awesome. Great place to meet people and get excited about the cause again. I also loved how friendly/open minded everyone was (ex. asking people what their preferred pronoun was) but could have done with a little less of a church-y, we-all-rely-on-god feel (esp. at the Plenary).

  • 18. Larry Little  |  February 6, 2011 at 8:41 am

    27-20 Packers

  • 19. Sheryl Carver  |  February 6, 2011 at 8:46 am

    My wonderful brother lives in PA, so I gotta root for the Steelers, too!

    We often watch the Super Bowl "together" by using our unlimited weekend cell minutes. The only glitch has been that my TV broadcast appears a couple of seconds before his, so I have to try to delay my cheers & jeers so I don't ruin it for him.

  • 20. Richard A. Jernigan  |  February 6, 2011 at 8:52 am

    I will watch the Super Bowl again for the same reason I watched the last one I ever watched. When the Carolina Panthers are in the Super Bowl again!

  • 21. DazedWheels  |  February 6, 2011 at 9:08 am

    Hugs and love to you all. I feel so lucky to have gotten to know you. Thank you!!

  • 22. AnonyGrl  |  February 7, 2011 at 4:10 am

    Glad to know you too!! Hugs right back at you!

  • 23. Ronnie  |  February 10, 2011 at 6:59 am

    (tackles DazedWheels)….xoxo….<3…Ronnie

  • 24. Rhie  |  February 6, 2011 at 9:24 am

    Curiouser and Curiouser…

  • 25. Marlene  |  February 6, 2011 at 10:20 am

    Sorry to say, but Christina absolutely botched the National Anthem.

    I'm rooting for the Packers, primarily because Rothlisberger has really screwed up his life, and because he's dropped using Findlay, Ohio as his hometown, which has pissed off almost the entire town, and I just happen to live about 20 miles away.

  • 26. Kate  |  February 7, 2011 at 1:51 am

    Oh. I thought that R guy was the pope. Shows how much I care about the super bowl. Or the pope.

  • 27. Ray in MA  |  February 6, 2011 at 10:44 am

    I'm still amazed by Zach Wahl's procress:

    Monitoring Zach Wahl YouTube…

    20 hours: 51,515 views

    1 Day: 130,598

    2 days: 563,762

    3 days: 1,025,247

    4 days: 1,363,732

    I find this more intersting than the Stupid Bowl!

  • 28. Gregory in Salt Lake  |  February 7, 2011 at 5:19 am


  • 29. Hanoumatoi  |  February 6, 2011 at 10:52 am

    So far the early leader is the Audi rich people ad, though the Kia Optima ad was pretty great too.

    And the sound guy from the halftime show should probably look for a new job.

  • 30. Ray in MA  |  February 6, 2011 at 11:02 am

    Instead of the Stupid Bowl, I watches a NetFlix film:

    "Lord, Save Us From Your Followers is a fast-paced, highly engaging documentary that explores the collision of faith and culture in America. After seeing Lord, Save Us From Your Followers, you’ll never talk about faith the same way again!"

    It did…it shows a how a very few Chritians are actually following the teachings of Christ…what they do reduced me to tears. And it showed that the ways of the majority of Christians will be their downfall.

    Not what this Athesit expected from this film.

  • 31. Ray in MA  |  February 6, 2011 at 11:03 am

    (Wow, my typos are getting BAD!!! sorry!)

  • 32. Ray in MA  |  February 6, 2011 at 11:12 am

    Bumper sticker:

    "Get the Hell out of my way, I'm going to Church!"

  • 33. Ray in MA  |  February 6, 2011 at 11:16 am

    "If we love somebody, we go out of our way to learn the best of who they are"

  • 34. Ray in MA  |  February 6, 2011 at 11:23 am

    You can watch it on Hulu… an hour and a half if you got the time!

  • 35. Straight for Equalit  |  February 6, 2011 at 11:45 am

    Ray, it sounds interesting. Thanks! I plan to watch it.

  • 36. Rhie  |  February 6, 2011 at 11:57 am

    Found it on Netflix. Plan to watch it later – thanks 🙂

  • 37. Straight for Equalit  |  February 6, 2011 at 12:02 pm


  • 38. JC (1 of the 18,000  |  February 7, 2011 at 4:50 am

    Me, too! Thanks so much!

  • 39. Cat  |  February 6, 2011 at 3:57 pm

    Ray, thanks for mentioning that film. We just finished watching it. Very engaging piece, some parts quite moving. The part where he apologizes for the acts of the churches against gay people was very emotional for me. I'll chew on this movie for the days to come, I suspect…

  • 40. Ray in MA  |  February 7, 2011 at 9:15 am

    That and washing the feet of the poor got to me. LOT to chew on.

  • 41. Ray in MA  |  February 6, 2011 at 12:04 pm

    I hope GB loses just so I can call my friend Pierre in SF and say: ha ha ha ha !

  • 42. Ronnie  |  February 6, 2011 at 12:05 pm

    D.C. Gay Flag Football League players say "It Gets Better"…..<3…Ronnie:

  • 43. Ronnie  |  February 6, 2011 at 12:17 pm

    Boston Flag Football League players say "It Gets Better"…..<3…Ronnie:

  • 44. Ronnie  |  February 6, 2011 at 12:24 pm

    Actor, Max Adler plays bully, Dave Karofsky on "Glee", the football player who gave Kurt Hummel (played by Chris Colfer) his first Kiss in the first half of this season (Season 2)…….Max Adler says "It Gets Better"..<3…Ronnie:

  • 45. Papa Foma  |  February 6, 2011 at 12:40 pm

    Thanks for the steady flow of videos for us. You make a difference in my life!!
    Cherepapashka (papa turtle)

  • 46. Ronnie  |  February 6, 2011 at 2:31 pm

    You're welcome…& thank you….<3…Ronnie

  • 47. Ronnie  |  February 6, 2011 at 2:14 pm

    Awesome "Thriller/Heads Will Roll" mash-up from tonight's "Glee" Superbowl special. (just audio w/ some pics)…..<3…Ronnie:

  • 48. AB  |  February 6, 2011 at 6:34 pm

    No way!!! That is so cool. And "Heads Will Roll" is one of ,y favorite songs. (Not to mention any of Michael Jackson.)

  • 49. AB  |  February 6, 2011 at 6:31 pm

    Ohh… I am all sorts of nervous and excited to see what the CA Supreme Court does!!! Any bets/predictions on that?

  • 50. Peterplumber  |  February 6, 2011 at 10:59 pm

    I am predicting that they will say "no standing".

  • 51. chris from co  |  February 6, 2011 at 11:34 pm

    What's the chances DOMA will play a part in the 9th circuit ruling regarding the prop8 case giving it a limited ruling to CA only.

  • 52. Kathleen  |  February 7, 2011 at 1:34 am

    DOMA doesn't control whether or not Prop 8 is constitutional. DOMA simply says (1) the feds won't recognize ss marriages and (2) that states needn't recognize those marriages performed in other states. That has nothing to do with whether California has a right to amend its own state constitution to deny ss couple the right to marry in California.

    When you see discussions of the ruling in Perry only applying to California, it's recognizing two possibilities of the way things could play out. The first is that if the decision can't be appealed because no one who has standing to appeal is willing to, then the decision will only cover the district court's jurisdiction, i.e., the state of California. The second possibility is that the 9th Circuit could rule that Prop 8 is unconstitutional, but based on facts that really only exist in California. In that case, the ruling will technically apply to all states w/in the 9th's jurisdiction, but as a practical matter wouldn't be useful as precedent because no other state presents the same set of facts.

  • 53. Peterplumber  |  February 7, 2011 at 1:38 am

    Is Utah in the 9th’s jurisdiction?

  • 54. Lesbians Love Boies  |  February 7, 2011 at 1:44 am


    * District of Alaska
    * District of Arizona
    * Central District of California
    * Eastern District of California
    * Northern District of California
    * Southern District of California
    * District of Hawaii
    * District of Idaho
    * District of Montana
    * District of Nevada
    * District of Oregon
    * Eastern District of Washington
    * Western District of Washington

  • 55. Peterplumber  |  February 7, 2011 at 1:47 am

    Darn, I was hoping to see LaVar Christensen suffer.

  • 56. Kate  |  February 7, 2011 at 1:48 am

    Interesing that they don't just list "California" (same with Washington).

  • 57. Lesbians Love Boies  |  February 7, 2011 at 1:51 am

    There is a good map (pdf) file showing all of the district territories here:

  • 58. Lesbians Love Boies  |  February 7, 2011 at 1:44 am

    I think Utah is in the 10th

  • 59. Kathleen  |  February 7, 2011 at 2:05 am

    Yes. Utah's in the 10th

  • 60. grod  |  February 7, 2011 at 12:48 am

    Last September the Pacific Justice Institute brought before the CA Supremes an emergency request that Schwarzenegger and Brown defend the voter approved initiative (Prop8). The institute had argued that the attorney general and governor were required to uphold all laws, including initiatives passed by voters.
    Lawyers for Brown and Schwarzenegger filed letters with the court maintaining state officers have authority to choose which laws they challenge or defend in court. Deputy Attorney General Tamar Pachter wrote on Brown's behalf "Although it is not every day that the attorney general declines to defend a state law, the state Constitution or an initiative, he may do so because his oath requires him (to) support the United States Constitution as the supreme law of the law,"

    California's Supremes refused to order Brown and Schwarzenegger to appeal a federal ruling that overturned the state's same sex marriage ban. Having made that ruling, it is difficult to reason that they would say the prop8 organizers would have 'standing'.

    Could it be that the Appeal Court, in seeking Cal. Supremes declaration, was anticipating their own decision ‘against standing’ would be heard by the full district court (en blanc) or appealed to the US Supreme Court and was just covering its bases?

  • 61. Peterplumber  |  February 7, 2011 at 1:01 am

    I have no idea what the three judge panel was thinking. But I was asked to make a prediction, so I did.

    My thinking is that if the CA Supreme court rules that proponents do have standing, then it will open the door for a mess of lawsuits in the future.

  • 62. Kathleen  |  February 7, 2011 at 1:43 am

    I don't see the California Supreme Court opting out of compelling the AG and/or governor to appeal as giving any indication how the Court might answer the questions the 9th Circuit has put to it regarding the rights of initiative proponents. I see these as distinct legal issues.

    And I know this is nit-picky of me, but the CA Supreme Court will not be determining whether the Proponents have standing in a federal court. They will be answering questions the 9th Circuit judges have asked about California law — questions that the 9th Circuit judges want answered in order to assist them in deciding whether Proponents have federal standing.

  • 63. Kate  |  February 7, 2011 at 1:50 am

    I love your legal nit-picking, Kathleen. It keeps us on track in reality, even if it's a reality we don't especially like. At least we know it's ACCURATE.

  • 64. Peterplumber  |  February 7, 2011 at 2:13 am

    I have just re-read some of the letters written to the CA SC regarding the issue of standing, and I have formed a personal opinion.
    Article 11, Section 8 of the California Constitution says something about state officials enforcing ballot initiatives. With regard to Prop 8, the State of California IS enforcing it.
    State officials defended the initiative in court, but when they lost, they declined to further appeal.
    IMHO, proponents should not be allowed to pick up the ball and run with it after the play is whistled dead by the officials.
    Again, this is just my personal opinion.

  • 65. Kate  |  February 7, 2011 at 2:30 am

    I love it! I'll vote with you, Peterplumber.

  • 66. Michelle Evans  |  February 7, 2011 at 3:49 am

    And remember that Disney is playing host to the Pacific Justice Institute for a conference at the Grand Californian Hotel in April. I hope others will contact Disney about allowing this borderline hate group the use of their facilities.

  • 67. Rev. Will Fisher  |  February 7, 2011 at 12:51 am

    While its too bad a pro-equality star like Saints LB Scott Fujita wasn't playing, it was a great game. Thanks for all the great work you do Adam, even if you're too young to remember all four of Buffalo's Super Bowl losses.

    Super Bowls

  • 68. adambink  |  February 7, 2011 at 5:32 am

    Oh goodness, I definitely was not too young. I was born and raised in Tonawanda and remember every somber party.

  • 69. Josh  |  February 7, 2011 at 1:10 am

    A question for anyone here at P8TT. “mightymoose” at the following link from the LA Times insists that Baker V Nelson should be law in the Prop8 case.

    My question is if that case is valid to uphold Prop8, why didn’t it come up as a MAJOR argument for Prop8? He says that it was brought up to dismiss this case, but it was rejected. Would that prevent Baker V Nelson from being brought up by the pro Prop8 side in the trial? He goes on to say that DOMA is the real issue to be fought, but he’s just another nom type who doesn’t want to appear as against GLBT rights, but he/she is. More lies, distraction, and sugar-coating as usual.

    And Yay PACKERS!! 🙂

  • 70. Kathleen  |  February 7, 2011 at 1:23 am

    Baker was brought up in the district court in a request for summary judgment. You can read Walker's discussion of why the case wasn't controlling in the transcript for that hearing, available here (do a .pdf "find" search for the relevant sections):

    There is nothing stopping the parties from continuing to bring up Baker. In fact, I think Proponents continue to do so, as do many amici.

  • 71. Josh  |  February 7, 2011 at 2:26 am

    Why wasn't it brought up in the case if the pro8 side thinks it's so binding? I would think that they should have talked about it at length in the case, it's not like they had a lot of witnesses to present.

  • 72. Kathleen  |  February 7, 2011 at 2:58 am

    They did. Walker decided it wasn't controlling.

    To put Baker in perspective, remember that this was brought to the Supreme Court back in a day when certain cases were guaranteed review by SCOTUS. That is no longer the case; now the Supreme Court has complete discretion over which cases it wants to take.

    The Supreme Court didn't write an opinion in the case. It was merely a one-sentence statement: "The appeal is dismissed for want of a substantial federal question." If today's rules had been in effect back then, the Court likely just wouldn't have granted cert. But because they had to weigh in, given plaintiffs' right to mandatory review, they just said there was no federal question to be answered.

    If cert had been denied, we wouldn't be looking at a denial of cert as Supreme Court precedent. But, again because of the mandatory review, this dismissal is treated as the Court having spoken on the merits. However, as Walker pointed out, "it is not entitled to full precedential weight." (see summary judgment transcript, pg 76).

    Walker's analysis is in line with a series of cases from the Supreme Court that have fleshed out how much weight these summary dismissals should be granted.
    I don't usually cite to Wikipedia, but they actually do a pretty good job with this case. See especially the section titled "Application of the Baker precedent."

  • 73. Josh  |  February 7, 2011 at 12:20 pm

    Hi Kathleen,
    I followed the trial quite closely and I don't recall any testimony about Baker in the actual trial.

    I'm sorry if I'm misunderstanding you and missing something very obvious that you said, but even though they brought it up in the request for summary judgment, if they think it is of such significance, why wasn't it discussed in the trial? They had two witnesses, why not put in one to talk about Baker? Did they avoid it in trial so they could drag this out and hopefully force it to the USSC where they then thought Baker would win this case for them?

    Hopefully that "moose" guy at the link in my OP is totally wrong on the importance of Baker. That's where this all started from, I guess "moose" did his job getting me all riled up :$

  • 74. Kathleen  |  February 7, 2011 at 12:42 pm

    The argument about whether a past case is relevant to the current case is an argument made by the attorneys to the judge. Baker is cited time and time again in Proponents' legal filings and in those of the amici in support of Plaintiffs' position. There really would be no reason to bring it up in the testimony phase of the trial. What would someone testify to? There's no evidence to present about it.

    Be sure to read the transcript, especially starting at pg. 75, line 19. Proponents were trying to say that they should have received summary judgment because this wasn't a matter for the federal courts. Walker disagreed, gave his reasons and then they proceeded from there.

    Does that answer your question? If not, I'll be glad to try again.

  • 75. Ann S.  |  February 7, 2011 at 1:56 pm

    Josh, I'll take a crack at it, too. The significance of prior case law is not really a matter for testimony. The attorneys certainly presented arguments about it in their motion for summary judgment. There are lots of arguments about it in the various pleadings and briefs.

    A witness is for testimony about a factual matter — "I saw the car strike the pedestrian". Witnesses do not testify as to prior case law.

    Hope that helps.

  • 76. Kathleen  |  February 7, 2011 at 2:02 pm

    Thanks, Ann. You explained much more succinctly what I was trying to say.

  • 77. Josh  |  February 8, 2011 at 10:31 am

    Hi Kathleen and Ann,

    Yes, that makes sense now. Thank you. Sorry, that link you gave looked to be a long PDF file which seem to lock my computer up forever so I didn't want to open it, but I did want to read it. Thanks again! 🙂

  • 78. Leo  |  February 7, 2011 at 1:40 am

    There are two issues here: (1) whether Baker v Nelson is still good law (in light of more recent cases), and (2) whether it's enough to sustain Prop 8.
    (1), it seems to me, will be guesswork until the case gets to SCOTUS, who can either explicitly overturn or reaffirm it.
    On (2), there are issues unique to California (taking away an existing right; granting all marriage rights except for the title). Proponents say those don't matter, opponents say they do.

  • 79. Peterplumber  |  February 7, 2011 at 1:21 am

    This question was posted in another thread on this last, but I think it got lost once Karen Grube came to visit us.
    She also had mentioned that case.
    I reminded her that the case was over 40 years old, and we are living in a different world today. Also that none of the SCOTUS justices on the bench then are on the bench now. So who's to say how it may play in?
    Perhaps Kathleen has an opinion…

  • 80. Kathleen  |  February 7, 2011 at 2:01 am

    Technically, neither the fact that the case is 40 years old nor the fact that the composition of the Court has changed has any bearing on whether the case should control. Brown v. Board of Education is nearly 60 years old but is still binding precedent.

    To see why Walker doesn't think Baker controls here, see the transcript of the hearing for Summary Judgment here:

    See especially starting pg. 75, line 19.

  • 81. Peterplumber  |  February 7, 2011 at 2:14 pm

    I think my point was about the fact that SCOTUS never really ruled on Baker. IANAL, but the way I understand it, SCOTUS only said they dismissed the case for lack of federal standing.
    Does that mean that Baker would mean the case should never have gotten to Walker's court? Cuz it made it past Walker to the 9th. If either court was taking Baker to mean a case like this should never get to federal court, does it now mean that since two federal courts have taken it that precedent was broken? Or that new precedent was set??
    So what if the case goes beyond the 9th to SCOTUS? Will they play the Baker card then? Could Baker have a trickle down effect and negate Walker’s decision? Conversely, if the 9th rules Prop 8 unconstitutional, and proponents have standing, and they appeal to SCOTUS, could Baker work in our favor and have the cased dismissed at that point?

    Law is mind boggling. I am glad I am a low life plumber.

  • 82. Ann S.  |  February 7, 2011 at 2:19 pm

    Technically, they dismissed it for want of a federal question. Standing is a different issue.

    No doubt the Baker card will still be played at the SCOTUS if and when the Perry case gets there. If it is dismissed at SCOTUS for lack of a federal question, I believe that Walker's decision will be vacated, unfortunately.

    If there's no federal question, the federal courts do not have jurisdiction. Clearly Walker and the 9th Circuit thought there was a federal question, but the SCOTUS may have a different view.

  • 83. Peterplumber  |  February 7, 2011 at 10:33 pm

    Either way, isn't this case about whether a new state law is unconstitutional? Not whether SSM is descrimination? That alone should leave Baker out of it because the case is totally different. Right??

  • 84. Ann S.  |  February 8, 2011 at 1:36 am

    @Peterplumber, the facts of Baker and of Perry are different from each other, but some of the same principles apply. I think that if Walker or the 9th Circuit panel thought Baker applied, we wouldn't still be waiting for their decision. However, I could be wrong.

  • 85. Peterplumber  |  February 8, 2011 at 1:42 am

    I started reading Walker's opinion yesterday, but got overwhelmed with my work. I hope today I can get a break long enough to read that.

  • 86. Ann S.  |  February 8, 2011 at 1:56 am

    @Peter, the Walker decision is great reading. However, if you're looking for references to Baker, I don't believe there are any in there. Judge Walker dealt with that in denying the motion for Summary Judgment.

  • 87. Kathleen  |  February 8, 2011 at 2:23 am

    @Peterplumber, while the challenge is to a state law, the challenge is based on the claim that denying ss couples access to marriage is impermissible discrimination.

    Walker's decision essentially said any law which denies ss couples the right marriage is unconstitutional, but the appeals courts might narrow the application. They could still agree that Prop 8 is unconstitutional but base the decision on facts that are unique to California.

  • 88. Peterplumber  |  February 8, 2011 at 4:03 am

    OK, I had some time to read the section Kathleen pointed to, beginning at page 75, line 19.
    Walker writes, "In addition, there appear to have been significant
    15 doctrinal developments on both Equal Protection and Due Process
    16 grounds since Baker was summarily dismissed in 1972.
    Which is what I was saying the other day, about how much time has passed and how the world has changed since then.

    Walker goes on to say, "Finally, doctrinal developments appear to have
    18 altered the landscape for plaintiffs' sex discrimination claim.
    19 Baker was decided before the Supreme Court applied intermediate
    20 scrutiny to gender discrimination claims. Contemporary Equal
    21 Protection doctrine emerged after Baker.

    Walker also goes on to describe how he sees Perry as different from Baker, and thus not subject to Baker's control,
    23 Baker, plaintiffs challenged a statute which was interpreted to
    24 prohibit same-sex marriage, but was neutral on its face. That
    25 is, as stated by the Minnesota Supreme Court, the Minnesota
    1 statute at issue in Baker did not contain an express statutory
    2 prohibition against same-sex marriage.
    3 Proposition 8, by contrast, is not neutral with
    4 respect to same-sex and opposite-sex marriage, but expressly
    5 distinguishes them, and limits marriage to the latter.

  • 89. Kathleen  |  February 8, 2011 at 4:14 am

    Yes, Peter, I understand. The point I was making is that just because a decision is old doesn't automatically make it bad case law. But as I've stated here several times, in a case like Baker which was decided by a simple summary dismissal, a judge in a lower court is acting well within the confines of case law by giving it less deference than a case accompanied by a full opinion and looking to see if there are doctrinal developments since the original case was decided.

    And just so no one gets confused, the document Peterplumber is quoting is a transcript of a hearing on Summary Judgment from back in Oct, 2009, not Walker's written decision from Aug, 2010.

  • 90. Kathleen  |  February 7, 2011 at 2:55 pm

    Wheh. Let me see if I can sort out all the questions. 🙂

    First, the plaintiffs' case in Baker wasn't dismissed for lack of standing. The Court dismissed the case for "lack of a federal question." That doesn't mean the plaintiffs didn't have standing to bring the appeal; it means that the subject matter wasn't something that was of concern to a federal court, i.e., it lacked jurisdiction over the subject matter.

    Also, understand that even though in Baker the Court didn't write an opinion, that summary dismissal is treated in the law as a ruling on the merits. However, for reasons that Walker discusses (and also are explained in the wikipedia article), a summary dismissal in a case that came to the Court under mandatory review isn't given the same precedential weight as a ruling that involves a written opinion.

    The Proponents have argued that Baker stands for the proposition that Plaintiffs can't bring this suit in a federal court–that the fact that Plaintiffs are being denied marriage doesn't present an issue that impacts federal law. Proponents made that argument in a motion for summary judgment. Walker denied the Proponents' motion and proceeded with the trial.

    Secondly, there haven't been two courts that have decided Baker doesn't control. Only Walker's court has made that determination. The 9th Circuit can't decide whether Baker means that Plaintiffs don't have a federal case until/if they take up the case and decide on the merits. They haven't gotten there yet because they haven't decided if there's anyone who has standing to even bring the case to their court.

    I'm quite certain Proponents will continue to rely on Baker in their arguments. The question of whether Baker means that Walker should have dismissed the case (or granted Proponents' motion for summary judgment) is something that will be reviewed by each appeals court that reviews the case on the mertis, including the US Supreme Court.

    And no, it wouldn't be helpful for Plaintiffs to use Baker to dismiss the case – that would mean Plaintiffs shouldn't have won their case in Walker's court and Walker's decision would be reversed or vacated.

  • 91. Kathleen  |  February 7, 2011 at 3:03 pm

    Ann may be correct that the 9th Circuit has (at least implicitly) determined that the subject matter is within its jurisdiction, thus rejecting Proponents' argument that Baker controls. The technical nature of whether this can be determined before standing has been ruled on gets into areas of procedure that I'm really, really, woefully weak on. 🙁

  • 92. Ann S.  |  February 7, 2011 at 3:13 pm

    Kathleen, I'm only guessing that if they saw right off that there was no federal question, they'd have used that reason to clear the case off the calendar.

  • 93. Kathleen  |  February 7, 2011 at 3:14 pm

    Makes sense. I just don't know.

  • 94. Sagesse  |  February 7, 2011 at 10:15 pm

    Kathleen and Ann S.

    Doesn't Perry raise a valid federal question in the same way Romer did and Lawrence did? Do constitutional protections extend to discrimination based on sexual orientation? I would have thought that sometime in the last 40 years that ship has sailed?

  • 95. Ann S.  |  February 8, 2011 at 1:32 am

    @Sagesse, I think there's a federal question, certainly.

  • 96. Kathleen  |  February 8, 2011 at 2:12 am

    There's no question in my mind that it's appropriate subject matter for a federal lawsuit. But the point the opposition keeps trying to make by bringing up Baker is a claim that the US Supreme Court has already spoken on the matter of marriage, saying there is no federal claim here. They keep trying to say that Bakers requires Walker to dismiss the plaintiffs' suit and by not doing so, Walker (and maybe other judges) are ignoring binding precedent and trying improperly to overturn a US Supreme Court decision.

    That's why I keep referring people to Walker's discussion of Baker – it explains why Baker is not dispositive of this current case (Perry). Also, read the discussion in the Wikipedia article on the US Supreme Court case law on how much precedential deference should be granted to a past case that was resolved through summary dismissal, as Baker was. You'll see that Walker's discussion of Baker is completely in line with US Supreme Court precedent.

    One of the considerations is whether "Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment." And, as you point out, Sagesse, that's clearly the cases here.

  • 97. Richard A. Jernigan  |  February 8, 2011 at 2:21 am

    You may be a plumber, but hardly lowlife, LOL! A good plumber, who is also reliable and truthful, can be a miracle worker and a lifesaver! You have one of those jobs Mike Rowe brags about on his show!

  • 98. Lesbians Love Boies  |  February 8, 2011 at 2:23 am

    Plummers are in high-demand right now with the cold and all the water pipes bursting. Hope you have time to keep posting – love your posts.

  • 99. Peterplumber  |  February 8, 2011 at 2:27 am

    Actually, I don't work with the tools anymore. I work in an office doing design and estimating work now. The pay isn't as good (I only make $53 an hour doing this) But the A/C is on and I don't get as dirty….till the weekend.

  • 100. Ann S.  |  February 8, 2011 at 2:55 am

    My husband is a general contractor, and knows (as I do) that a good plumber is worth his weight in gold!

  • 101. Peterplumber  |  February 8, 2011 at 2:58 am

    WOW, I weigh a lot more after sitting in the office for the past 10 years than I did when I worked for a living. I must be worth a LOT more now!! 😉

  • 102. Ann S.  |  February 8, 2011 at 3:09 am

    I'm sure you are, but I feel your pain on the office job / weight gain front.

  • 103. Ed  |  February 7, 2011 at 3:00 am

    OT…..but this just makes me soooo fucking mad!! (Along with the inevitable gloating sure to come from NOM)….

    Marriage (in)equality in Indiana….

  • 104. Kathleen  |  February 7, 2011 at 3:29 am

    UPDATE Perry:
    Proponents' Reply letter to the California Supreme Court.

  • 105. M L  |  February 7, 2011 at 3:56 am

    It was 31 – 25, Packers !!

  • 106. Lesbians Love Boies  |  February 7, 2011 at 4:23 am

    Maggie Gallagher interview:

    This is a religious site – you have to read the comments. The people are speaking up for marriage equality.

  • 107. DazedWheels  |  February 7, 2011 at 4:42 am

    Yay for anonygrl, and thanks for the link, LLB!

  • 108. DazedWheels  |  February 7, 2011 at 4:45 am

    for the comments, not for the Maggie interview.

  • 109. Ray in MA  |  February 7, 2011 at 9:37 am

    … my post may be awaiting moderation.

  • 110. Peterplumber  |  February 7, 2011 at 11:12 am

    Maggie: The District of Columbia is not a state. It is under the direct control of Congress and Congress has given it a constitution which gives some state’s rights to the people who live in D.C. One of those rights is to overturn laws passed by the City Council through a referendum process, much as you have in the state of Oregon. The city council passed a law that said the referendum process could not be used to repeal any decision they make that has to do with the human rights code. In this case, not allowing the people the right to decide whether to repeal the city council’s decision to allow same-sex marriage.
    The case was sent to the D. C. Court of Appeals. By a close 5-4 decision, they denied voters the right to vote on the marriage issue. The U.S. Supreme Court has refused to consider the case and we are saddened by their decision because this is not a case about gay rights. It is about whether politicians can vote to take away the right of the voters to control the laws given to them in their own constitution

    Sure that's all you care about, Maggie. >coughbullshitcough<
    If it weren't about gay marriage, you wouldn't even KNOW about it.

  • 111. LCH  |  February 7, 2011 at 5:02 am


  • 112. LCH  |  February 7, 2011 at 5:16 am

    O.T. @Richard A. Jernigan. I tried to post a comment to your blog but it doesn't seem to want to go through. Your discussion on a previous thread has my interest piqued and I would like some sources for further reading. You can contact me via my FB (hope this works)!/rainbowromances

  • 113. Larry Little  |  February 7, 2011 at 9:38 am

    I am not, but I'm repulsed by Regilion and their (homosexuality hatred) message as if it was a disease that needs a major dose of prayer for the cure. The below article is a chapter of their sick message.

    In my opinion (I'm 81 years old) nobody bullies better than the church, who is more wrong than the church, who is more hateful than the church. all these haters raise tax free money and you need a politician to revoke their tax fee license if they become political or promate hatred instead of religion. Religion (The Church) is your only enemy.

    "Religious Right Slams the Purportedly "Homosexual Message" of Anti-Bullying Efforts in California Schools (2/3)

    With greater awareness among policymakers about the problem of pervasive anti-gay bullying in schools, the Religious Right has stepped-up their efforts to misleadingly label anti-bullying policies as “homosexual propaganda.” Focus on the Family warned of “activists who want to promote homosexuality in kids,” David Barton dismissed accounts of bullying and condemned alleged “homosexual indoctrination,” and the Minnesota Family Council blamed the LGBT community for bullying by endorsing an “unhealthy lifestyle.”

    Now, the California Family Council (CFC) is escalating its own attacks against anti-bullying initiatives in schools. The CFC is affiliated with Focus on the Family and was highly involved in the campaign to pass Proposition 8. The CFC is now turning its attention to combating what it calls the new “cause célèbre of homosexual activists,” implementing anti-harassment policies. The CFC’s Rebecca Burgoyne spoke to the American Family Association’s news service OneNewsNow about their work fighting anti-bullying policies under the guise of protecting free speech…

    "Nobody wants a child to be bullied," she acknowledges. "Nobody wants a child to [be] hurt. Most people say 'Oh, great! We're teaching our children not to bully each other' — which is a good thing. But it's being used instead to push the homosexual message."

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