MA Judge rules DOMA is unconstitutional [MERGED]

[BostonPirate]

Okay, if you like. I'll leave your post as the last word on the subject between us.

But, for the record, coming to agreement is by no means the only reason I engage in discussion. I'm not very interested in trying to change anybody's opinion, and like most people I don't engage in discussion with the hope that I'll change mine, I'm much more interested in learning and informing for greater understanding.

Discussion of this nature provides the opportunity to learn all kinds of things. For instance, I've learned something about you that I hadn't recognized before; and maybe you have, about me, as well.

Thanks for engaging.

so you talk to people so they know how right you are. intellectual exchange is not even on the table?

you are primarily here to instruct us. to tell us how things really are when we are screwing up.

gee thanks

 

[construct]

Discussion of this nature provides the opportunity to learn all kinds of things. For instance, I've learned something about you that I hadn't recognized before; and maybe you have, about me, as well.

No. Not really. I don't think I learned anything new about you. Sorry.

Thanks for engaging.

You're welcome. Any time.

 

[NickCole]

so you talk to people so they know how right you are. intellectual exchange is not even on the table?

you are primarily here to instruct us. to tell us how things really are when we are screwing up.

gee thanks

Wow. Fascinating how you interpret my saying that I'm interested in learning and informing for greater understanding.

When someone says he's interested in learning, normally that's interpreted as a desire on his part to learn, to receive information, to acquire new knowedge and understanding.

 

[BostonPirate]

Wow. Fascinating how you interpret my saying that I'm interested in learning and informing for greater understanding.

When someone says he's interested in learning, normally that's interpreted as a desire on his part to learn, to receive information, to acquire new knowedge and understanding.

you're here to pick us apart, not exchange ideas.

thanks for that info. it explains alot.

 

[construct]

so you talk to people so they know how right you are. intellectual exchange is not even on the table?

you are primarily here to instruct us. to tell us how things really are when we are screwing up.

gee thanks

I don't know about him. I wouldn't presume. But I think I'll take the opportunity if you don't mind to look inward, you know, as an exercise in public self-examination. Perhaps I fall short, but at least you'll know what I'm falling short of.

I do, of course, want people to know how right I am, but I try not to be inflexible, at least in how goals are accomplished. I will even be instructed or corrected, particularly about things that I think matter.

I am certainly here to instruct, at least about things that I have some special knowledge of. I'll even take the risk of warning when someone is going wrong, if I think it'll do any good. I try to be pretty sparing with my advice unless I think it's asked for.

You know, Our Pal Nietzsche had an aphorism that he repeated several times in different books. I like it a lot. I remind myself of it from time to time because I think it works, at least for me.

Formula for my happiness--a yes, a no, a straight line, a goal.

 

[BostonPirate]

I don't know about him. I wouldn't presume. But I think I'll take the opportunity if you don't mind to look inward, you know, as an exercise in public self-examination. Perhaps I fall short, but at least you'll know what I'm falling short of.

I do, of course, want people to know how right I am, but I try not to be inflexible, at least in how goals are accomplished. I will even be instructed or corrected, particularly about things that I think matter.

I am certainly here to instruct, at least about things that I have some special knowledge of. I'll even take the risk of warning when someone is going wrong, if I think it'll do any good. I try to be pretty sparing with my advice unless I think it's asked for.

You know, Our Pal Nietzsche had an aphorism that he repeated several times in different books. I like it a lot. I remind myself of it from time to time because I think it works, at least for me.

You do have a specific knowledge that you pass on, not focusing on human nature, yada yada yada....and you make a good point.

what is a teacher that is unable or unwilling to learn? I know its not a teacher.

I am proud to say that I don't know everything. It gives me the opportunity to ask real questions from people that have knowledge I don't. knowledge is not personality driven. Information is pure. what we do with it is suspect.

 

[NickCole]

I don't know about him. I wouldn't presume. But I think I'll take the opportunity if you don't mind to look inward, you know, as an exercise in public self-examination. Perhaps I fall short, but at least you'll know what I'm falling short of.

I do, of course, want people to know how right I am, but I try not to be inflexible, at least in how goals are accomplished. I will even be instructed or corrected, particularly about things that I think matter.

I am certainly here to instruct, at least about things that I have some special knowledge of. I'll even take the risk of warning when someone is going wrong, if I think it'll do any good. I try to be pretty sparing with my advice unless I think it's asked for.

Since I'm drawn into this through BP's and this post, I'll comment that what you say about yourself, above, is true of me as well (seems, at least in part, self-evident), and I think of some others as well.

I'll just add that for me, interacting with others or just reading/hearing what they have to say, is at least as much about learning as instructing. I've learned a lot here; not so much facts and figures, those are easily learned any number of places, but about my favorite subject.

Anyway, good post.

 

[bankside]

On a loosely related tangent, people over the last several decades have learned to understand why interracial marriage is obviously acceptable.

However it didn't used to be obviously acceptable. It is a learning process. And even though I do feel entitled to equality whether someone accepts it or not, gets it or not, learns it or not - no one is entitled to my deference on matters of equality - I do manage some kind of respect for someone who does learn it. I do manage to feel warm regard for someone who does change his mind and finally get it.

Slowly, the light bulbs are turning on across the United States, and we might as well enjoy the light without worrying why the switch wasn't flipped before.

 

[construct]

On a loosely related tangent, people over the last several decades have learned to understand why interracial marriage is obviously acceptable.

However it didn't used to be obviously acceptable. It is a learning process. And even though I do feel entitled to equality whether someone accepts it or not, gets it or not, learns it or not - no one is entitled to my deference on matters of equality - I do manage some kind of respect for someone who does learn it. I do manage to feel warm regard for someone who does change his mind and finally get it.

Slowly, the light bulbs are turning on across the United States, and we might as well enjoy the light without worrying why the switch wasn't flipped before.

Point well taken.

 

[NickCole]

On a loosely related tangent, people over the last several decades have learned to understand why interracial marriage is obviously acceptable.

However it didn't used to be obviously acceptable. It is a learning process. And even though I do feel entitled to equality whether someone accepts it or not, gets it or not, learns it or not - no one is entitled to my deference on matters of equality - I do manage some kind of respect for someone who does learn it. I do manage to feel warm regard for someone who does change his mind and finally get it.

Slowly, the light bulbs are turning on across the United States, and we might as well enjoy the light without worrying why the switch wasn't flipped before.

True, it's a good idea to enjoy the light rather than obsessively worrying over the shadows that remain.

However.

In practical terms, at a certain point the wheels of justice turn faster in changing people's attitudes about, for instance, interracial marriage or same sex marriage, when a courageous and bold leader of the government steps in and forces civil change. Hillary Clinton got a lot of crap from the Kennedys and from Obama supporters when she pointed out the vital role LBJ played in civil rights but she was spot-on. And we're seeing right now, not only with gay rights but across the board of change we need from energy to the economy, how different the results are with a different sort of President even when he was elected a Democrat and promising to be our fierce advocate.

 

[construct]

True, it's a good idea to enjoy the light rather than obsessively worrying over the shadows that remain.

However.

In practical terms, at a certain point the wheels of justice turn faster in changing people's attitudes about, for instance, interracial marriage or same sex marriage, when a courageous and bold leader of the government steps in and forces civil change. Hillary Clinton got a lot of crap from the Kennedys and from Obama supporters when she pointed out the vital role LBJ played in civil rights but she was spot-on. And we're seeing right now, not only with gay rights but across the board of change we need from energy to the economy, how different the results are with a different sort of President even when he was elected a Democrat and promising to be our fierce advocate.

LBJ had absolutely nothing to do with overturning interracial marriage restrictions. That was accomplished by the Supreme Court deciding a criminal case in favor of the defendants. No courageous and bold leader (apart from the ACLU) stepped in and forced civil change as far as I can tell. Of course, I notice that neither you nor candidate Clinton said that LBJ stepped anywhere near the issue of interracial marriage. Indeed it was the "wheels of justice" (in this case, the Supreme Court) that brought about that change eight years after the Lovings were arrested.

We're getting these same-sex marriage cases (Perry and Gill) to the Supreme Court as fast as we can.

 

[NickCole]

LBJ had absolutely nothing to do with overturning interracial marriage restrictions. That was accomplished by the Supreme Court deciding a criminal case in favor of the defendants. No courageous and bold leader (apart from the ACLU) stepped in and forced civil change as far as I can tell. Of course, I notice that neither you nor candidate Clinton said that LBJ stepped anywhere near the issue of interracial marriage. Indeed it was the "wheels of justice" (in this case, the Supreme Court) that brought about that change eight years after the Lovings were arrested.

We're getting these same-sex marriage cases (Perry and Gill) to the Supreme Court as fast as we can.

There's a good reason neither Clinton nor I said LBJ "stepped anywhere near the issue of interracial marriage," and good reason he didn't: there were other issues at the forefront of civil rights concerns when he was President, in power to push the enactment of the bold change he did.

Today the issue is same sex marriage.

Whether it's inclusion in the military or the right to vote or marry or equal access to employee benefits, each step forward happens as a result of bold moves by someone in power. Right now we have a President who promised to be our fierce advocate and who used repeal of DADT and DOMA and passing ENDA as reasons we should vote for him.

It is reasonable to expect Obama to be a fierce advocate for gay rights rather than defending discriminatory laws like DOMA that he said should be repealed.

 

[palemale]

Edit to add: I notice that I previously said that cases from one jurisdiction are persuasive authority in other jurisdictions. I should have been clearer. That statement is true with respect to opinions of courts of appeal. It is not true with respect to trial court opinions.

Excellent posts, construct, but I have to disagree with you on this point. Any case can be persuasive authority. It really is a question of degree. A court of appeals decision is binding (or mandatory) authority on the subject for all courts within its jurisdiction. While a federal district court case is not binding authority, any court can cite it as persuasive authority.

Indeed, US courts sometimes find cases from other countries to be persuasive authority. A perfect example of this is the evolution of the case law regarding employee status verse independent contractor status. The legal concept in American jurisprudence developed during the industrial revolution and was derived from English cases. The English courts developed the law first, and the US imported it here. Of course, the English cases were in no way binding or mandatory, but the courts here found them to be persuasive.

District court cases may have very powerful, persuasive authority in an area of the law that has rarely been litigated and where you have few, if any, Court of Appeals or Supreme Court cases. In an area of the law that has been extensively litigated, and has many Court of Appeals decisions, District Court cases have much less persuasive authority.

Another factor, obviously, is whether the District Court case is published. Now, with extensive electronic research cites like Westlaw and Lexis, lawyers can find unpublished cases. Those would generally have less persuasive authority then a published case.

Federal courts often cite state court cases as persuasive authority where federal courts have yet to weigh in on a subject, or where there is a new federal statute that is similar to a state statute. There, the federal courts import state court precedent to establish federal common law.

 

[hotatlboi]

Right now we have a President who promised to be our fierce advocate and who used repeal of DADT and DOMA and passing ENDA as reasons we should vote for him.

And had Obama not made DADT repeal the top item on the agenda for gays at the start of this year, I can assure you that we would not be where we are now on it.

You're delusional if you think all those can be done at once.

That's not how Congress works, especially in an election year.

 

[NickCole]

And had Obama not made DADT repeal the top item on the agenda for gays at the start of this year, I can assure you that we would not be where we are now on it.

You're delusional if you think all those can be done at once.

That's not how Congress works, especially in an election year.

Obama was elected in November 2008.

2009 was not an election year.

 

[construct]

Excellent posts, construct, but I have to disagree with you on this point. Any case can be persuasive authority. It really is a question of degree. A court of appeals decision is binding (or mandatory) authority on the subject for all courts within its jurisdiction. While a federal district court case is not binding authority, any court can cite it as persuasive authority.

Indeed, US courts sometimes find cases from other countries to be persuasive authority. A perfect example of this is the evolution of the case law regarding employee status verse independent contractor status. The legal concept in American jurisprudence developed during the industrial revolution and was derived from English cases. The English courts developed the law first, and the US imported it here. Of course, the English cases were in no way binding or mandatory, but the courts here found them to be persuasive.

District court cases may have very powerful, persuasive authority in an area of the law that has rarely been litigated and where you have few, if any, Court of Appeals or Supreme Court cases. In an area of the law that has been extensively litigated, and has many Court of Appeals decisions, District Court cases have much less persuasive authority.

Another factor, obviously, is whether the District Court case is published. Now, with extensive electronic research cites like Westlaw and Lexis, lawyers can find unpublished cases. Those would generally have less persuasive authority then a published case.

Federal courts often cite state court cases as persuasive authority where federal courts have yet to weigh in on a subject, or where there is a new federal statute that is similar to a state statute. There, the federal courts import state court precedent to establish federal common law.

Yes, you are right. District court cases that are published can be cited.

There was also a change in the Federal Rules of Appellate Procedure in 2007. Now, even unpublished cases can be cited with precedential value. I was behind the times on that. I'm sorry.

Citation back and forth between state courts and federal courts is not new to me. When a federal court is deciding a diversity suit based on state law, it would of course cite that state's case law. Where there's not a state case on point, the federal court makes its best guess as to how that state's courts would decide the case. The reverse is also true.

I have also seen opinions in which cases from other jurisdictions are cited for reasoning where the laws are similar or where similar questions are presented. I have seen this both in federal and in state court opinions.

Foreign law has been a contentious subject in some circles. Some justices such as Scalia take strong exception to its citation. Others such as Kennedy find it very helpful in dealing with recent developments.

Mandatory authority is still a top down concept, though. Supreme Court opinions are mandatory over all federal courts and over state courts with respect to federal questions. Circuit court opinions are mandatory only over courts within that circuit. District court opinions are mandatory nowhere. Everything else is more or less persuasive depending on the level of the court issuing the opinion and how far removed it is from the court to which it is cited.

I guess in a roundabout way I'm saying that I agree with everything you wrote.

 

[NickCole]

In that year, Congress did pass a big ticket item the LGBT community wanted

And the President did sign the bill it was attached to, unlike the veto threat his predecessor threatened.

Our "fierce advocate" did nothing but sign legislation that was waiting, done, on deck. And it's revealing that the only gay rights legislation our "fierce advocate" has signed only helps us if we're murdered or assaulted. And no law discriminated against us on that score anyway.

This year we are going to have DADT repealed, with Obama's big ass signature all over it.

And if not we'll have your big ass excuses all over Obama's failure.

 

[hotatlboi]

Obama was elected in November 2008.

Yes he was. An outcome you opposed. Had he not been elected, DADT would not be getting repealed.

 

[Kulindahr]

Our "fierce advocate" did nothing but sign legislation that was waiting, done, on deck. And it's revealing that the only gay rights legislation our "fierce advocate" has signed only helps us if we're murdered or assaulted.

And freedom of speech "only" helps us if we have something to say.
And the prohibition against self-incrimination helps us "only" if we get arrested.

It's the nature of laws to help "only" in this situation or that. But that makes them no less useful or important. Believe me, the value of the Matthew Shepard Act to those of us living where people still like to get artistic in rearranging bones of guys who like guys cannot fit into your belittling "only". It's nice to know that the rednecks have been notified that it's no longer "open season".

 

[NickCole]

And freedom of speech "only" helps us if we have something to say.
And the prohibition against self-incrimination helps us "only" if we get arrested.

It's the nature of laws to help "only" in this situation or that. But that makes them no less useful or important. Believe me, the value of the Matthew Shepard Act to those of us living where people still like to get artistic in rearranging bones of guys who like guys cannot fit into your belittling "only". It's nice to know that the rednecks have been notified that it's no longer "open season".

It's no more illegal now to assault or murder gays than it was before that legislation.