Thursday, January 20, 2005
Via Howard, I see the Indiana Court of Appeals has decided the gay marriage case.
update: that link isn't working anymore. here's a pdf version.
I'm a little confused about the status of the opinion. By Barnes, it is the opinion of the court, but the other two judges seem to concurr only in the result. So what makes his the court's opinion rather than Friedlanders? Anyway.
As expected, plaintiffs lose. Maybe filing this case seemed like a good idea at the time, but after 11/2004, it didn't look good.
Plaintiffs raise three state constitutional claims:
Equal privileges (Art. I sec 23) Life liberty and pursuit of happiness (Art. I sec 1)
and due course of law (Art I sec. 12).
The court says, nobody ever wins under collins v day, the section 23 standard.
The court says, those cases about economic liberty under section 1 are old, lochner era, scoff scoff, and we don't think section 1 even really means anything anymore.
The court says, plaintiffs' section 12 argument is pretty weak, saying it's sort of like due process - but same sex marriage is a loser as a due process claim.
I think the court is pretty much right in its analysis of the case law.
The current indiana supreme court has given us a potempkin constitution. It sounds nice on paper, but don't try to actually use it.
There are exceptions now and then, but this case isn't one of them.
I think the court is badly wrong in its policy argument. Friedlander seems to pick up on this and concurrs seperately, saying he is bound by the case law.
There's a bunch of insanely wrong stuff in there about how gay couples can't get pregnant.
My words not theirs: Because we all know lesbians can't get raped, or come home drunk from a party not remembering quite what happened, or have an affair, or engage in prostitution. And bisexual boy-boy couples never ever screw around resulting in an accident.
If it isn't clear, I think this part of the opinion is stupid, not just evil.
The gay couples I know tend to have kids. Not all of them, but too many to deny those kids families, or to make their families illegal.
If my child hadn't died in a miscarriage, he or she wouldn't be quite 18 yet. If we'd had the kid, maybe my girlfriend wouldn't have left, but she did. The only person I'm anywhere close to marrying right now is another guy. We haven't discussed marriage, but are going to try living together. Single parenthood is tough. On both the parents and the kids. Denying a kid a second parent is just damn unfair.
This part of the opinion could have used some peer review. Don't these state appellate judges have clerks?
A note on biases: I know plaintiff's lawyer. He's a busy guy, and we don't hang, but I respect him immensely and we have friends in common. I've met the plaintiffs in this case. The guys are cute - conservative republicans. The woman rubbed me the wrong way; she's a public employee, a firefighter, and seemed focused on extracting more from her benefits package at taxpayer expense - I don't think that helps win the case. I know one of the defense lawyers, he's been opposing counsel in one of my cases, and I don't respect his ethics. The various amici seem to be the most convincing evidence that the legislature was prompted by invidious discrimination.
If I were the judge, I think I'd concur in the result, while deploring the statute.
I don't agree with Thomas's dissent in Lawrence v Texas, but he took this sort of approach.
update: that link isn't working anymore. here's a pdf version.
I'm a little confused about the status of the opinion. By Barnes, it is the opinion of the court, but the other two judges seem to concurr only in the result. So what makes his the court's opinion rather than Friedlanders? Anyway.
As expected, plaintiffs lose. Maybe filing this case seemed like a good idea at the time, but after 11/2004, it didn't look good.
Plaintiffs raise three state constitutional claims:
Equal privileges (Art. I sec 23) Life liberty and pursuit of happiness (Art. I sec 1)
and due course of law (Art I sec. 12).
The court says, nobody ever wins under collins v day, the section 23 standard.
The court says, those cases about economic liberty under section 1 are old, lochner era, scoff scoff, and we don't think section 1 even really means anything anymore.
The court says, plaintiffs' section 12 argument is pretty weak, saying it's sort of like due process - but same sex marriage is a loser as a due process claim.
I think the court is pretty much right in its analysis of the case law.
The current indiana supreme court has given us a potempkin constitution. It sounds nice on paper, but don't try to actually use it.
There are exceptions now and then, but this case isn't one of them.
I think the court is badly wrong in its policy argument. Friedlander seems to pick up on this and concurrs seperately, saying he is bound by the case law.
There's a bunch of insanely wrong stuff in there about how gay couples can't get pregnant.
My words not theirs: Because we all know lesbians can't get raped, or come home drunk from a party not remembering quite what happened, or have an affair, or engage in prostitution. And bisexual boy-boy couples never ever screw around resulting in an accident.
If it isn't clear, I think this part of the opinion is stupid, not just evil.
The gay couples I know tend to have kids. Not all of them, but too many to deny those kids families, or to make their families illegal.
If my child hadn't died in a miscarriage, he or she wouldn't be quite 18 yet. If we'd had the kid, maybe my girlfriend wouldn't have left, but she did. The only person I'm anywhere close to marrying right now is another guy. We haven't discussed marriage, but are going to try living together. Single parenthood is tough. On both the parents and the kids. Denying a kid a second parent is just damn unfair.
This part of the opinion could have used some peer review. Don't these state appellate judges have clerks?
A note on biases: I know plaintiff's lawyer. He's a busy guy, and we don't hang, but I respect him immensely and we have friends in common. I've met the plaintiffs in this case. The guys are cute - conservative republicans. The woman rubbed me the wrong way; she's a public employee, a firefighter, and seemed focused on extracting more from her benefits package at taxpayer expense - I don't think that helps win the case. I know one of the defense lawyers, he's been opposing counsel in one of my cases, and I don't respect his ethics. The various amici seem to be the most convincing evidence that the legislature was prompted by invidious discrimination.
If I were the judge, I think I'd concur in the result, while deploring the statute.
I don't agree with Thomas's dissent in Lawrence v Texas, but he took this sort of approach.
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