Radical Liberal Judicial Activist Usurps Democracy; Foundations Of Republic Itself Threatened

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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  1. Avatar Tom Van Dyke
    Ignored
    says:

    I recall Sen. McCain saying a constitutional amendment was unnecessary: DOMA would do the job.

    As for Judge White citing the floor debates, judicial review apparently applies to more than the actual laws now: Not only must the law have a “rational basis” in the judge’s opinion, but the lawmakers’ feelings in passing it must pass his muster as well.

    [Adam Smith, “Theory of Moral Sentiments.”  All is subjective, in the end: we judge not ideas but the people behind them.  Only if they pass our moral approval are their words or actions worthy.]Report

    • Avatar mark boggs in reply to Tom Van Dyke
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      says:

      It might also be that those arguments that originate from emotion first don’t always end up that rational.Report

    • Avatar Kimsie in reply to Tom Van Dyke
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      says:

      Well, who decided to make it a campaign speech, rather than a serious discussion with the other side? It seems like in a rational world, your goal is to persuade other people to vote for your bill. Perhaps persuasive argument is a stupid way to reference law…

      But don’t we read the federalist papers for guidance as to what our founding fathers were thinking?Report

      • Avatar Jaybird in reply to Chris
        Ignored
        says:

        Oh look. It’s this thread again.Report

        • Avatar Chris in reply to Jaybird
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          says:

          Given who Tom is, it’s going to be this thread a lot.Report

        • Avatar James Hanley in reply to Jaybird
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          says:

          All that is necessary for sophistry to triumph is for good men to say nothing:Report

          • Avatar Jaybird in reply to James Hanley
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            says:

            Best to shout it down before it even manifests.Report

            • Avatar Chris in reply to Jaybird
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              says:

              Or just note it after it does. Since that’s what we’re doing, I’m not sure what your objection is. I wonder why you’re more annoyed by two numbers than with a front pager who couldn’t argue in good faith if his life depended on it.Report

              • Avatar Jaybird in reply to Chris
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                says:

                This is the wacky thing. I’ve gotten into arguments with him before and managed to get someplace approaching somewhere with him.

                So understand that that’s my perspective on this.

                When he posts a comment that is representative of arguments that will be used, like, by real people who are, like, *IN CHARGE* of arguing this in front of the people that matter, I’d *INFINITELY* rather see an argument that results in him saying “well fine” and taking his ball and going home than in people just shouting him down before that point.

                I know that, from your perspective, that he’s just another thin-skinned right winger who is just going to bail on the discussion before your wit and rhetorical skill makes him say “I submit to your wit and rhetorical skill!” (or that’s what he *WOULD* say, if he had a shred of decency) but, from my perspective, he posted a fairly representative argument and it resulted in him being shouted down, followed by defenses of said shouting down because he’s dishonest anyway.

                Try to look at this the way someone else might.Report

              • Avatar Chris in reply to Jaybird
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                says:

                Yeah, dude, you’ve got me so figured out. Because I’m the smug one in this conversation, for sure!

                Look, if you can get something out of Tom, that’s great. You don’t have to agree with James or me. I doubt either of us will lose any sleep over it if you don’t. And you can psychoanalyze our position(s) on him however you want, too, if that makes you feel better. We’ve made our points in much more detail than “99,” and except for your decision to whine about it, we’d just leave it at 99 from this point on. You can just skip over any comment with those two numbers in it, and I promise my feelings won’t be hurt, and I doubt James’ will be either.Report

              • Avatar Stillwater in reply to Chris
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                says:

                If the choice is between ’99’ and long critiques of exactly why a comment is dishonest, then I’d go with the former.

                If the choice is between calling out dishonest comments and not calling them out, I’d go with calling them out.

                If Tom thinks the 99 is misapplied, he can argue for his view. Which is what the whole exercise is about anyway.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                Look at it from here.

                There are people out there who interact with people like Tom every day. In this scenario, however, they are not part of the overwhelming majority of the commentariat, they are instead the one guy who disagrees.

                Perhaps they read websites and comment threads, like this one!, for not only moral support but intellectual and rhetorical support.

                The “99” feels good but it doesn’t help argue against the meme.

                I’d rather the readers who see Tom’s arguments here see a bunch of counter-arguments of the form “you say this, the Constitution says THAT” or “your theory of Judicial Review was one that you fought against in *THIS* case… what is the difference between the two cases?” rather than “88” or “yeah, I am not even going to bother”.

                Assume a handful of readers are reading these comments and they’re relatively new to this stuff. Imagine that they’re trying to hammer this stuff out.

                Try to imagine what this looks like to them.Report

              • Avatar Chris in reply to Stillwater
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                says:

                Jaybird, apparently you’re not following the discussion. Either this one or the one that actually has to do with the post. You’re on a high horse, and you should feel free to stay up there as long as you like, but I think at this point, you’ve been answered sufficiently and you’re up there to be up there. Enjoy it, but watch out for nose bleeds.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                It’s odd how many defenses of poor behavior amount to “the person criticizing me is on a high horse” (though I’ve also seen “the person criticizing me is only pretending to be offended, they aren’t really”).

                Here’s a high horse that I intend to keep riding: I will do what I can to respond to any “99” post of yours with some variant of “oh look, it’s this thread again”.

                I look forward to playing this particular game with you.Report

              • Avatar James Hanley in reply to Stillwater
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                says:

                Jaybird,

                I get your point, but we’ve been hollered at for actually pointing out Tom’s argumentative games, too.  Sometimes when we do that we’re told we’re being mean to poor Tom. Others seem just to be bothered by the long drawn out explanation of exactly how Tom’s engaged in game-playing instead of reasoned debate.  That latter was what led to the idea for “99,” to spare them.  But then that gets criticized, on the one side by RTod who seems to think we shouldn’t be calling out Tom (as near as I can tell, anyway) and on the other side by you who seem to think we should be more explicit about why we’re calling out Tom.

                This is the nature of things, I guess, whenever you’re dealing with a sizable group, since each person has their own individual preferences. But it leaves me wondering what to do.  The “99” approach has obviously irritated enough people past the point of endurance that I’m willing to concede it may be a failed approach.  And yet I’m not willing to say nothing, because as BSK says, “if the choice is between not calling out dishonest comments and not calling them out, I’d go with the former.”

                It’s the calling out of intellectual dishonesty, the refusal to let that kind of thing pass for legitimate debate, that is the hallmark of the League. To not call it out will inevitably degrade the League.  If the frustration of some is that a particular person is being called out over and over, just maybe it’s because that particular person is doing it over and over.

                If the implicit rule is “do it often enough and you won’t get called on it because we’ll all get tired of the arguments,” then the dishonesty and game-playing has won.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                I’m not saying that you need to be more explicit in calling out Tom as much as I am saying that Tom’s arguments are arguments that ought to be argued against rather than having it pointed out that Tom, of all people, is making this argument and if he says something worth agreeing with that you have to preface with “I hate to agree with Tom, but” and if you disagree opening with “it’s little surprise that I’m disagreeing with Tom again” (or “99”).

                If someone who was not Tom showed up and said exactly what Tom said (to the comma), would you write a different post entirely arguing against the sentence(s) or paragraph(s) in question?

                If so: That’s Bad.

                I assure you, Tom’s viewpoints are hardly unique snowflakes falling from heaven to melt upon our webpage here.

                They’re representative.Report

              • Avatar Lady Lurker in reply to Stillwater
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                says:

                This.

                I admittedly am no fan of Tom. Let me emphasize, it is not about his views as there are other conservative FPers and commentariat here who do not get the grief he gets because they do not engage in the petty type of discourse he does. Why is that so hard to understand and so easy to dismiss? I sincerely ask why is his behavior acceptable and not 99? Although RTod may believe he can come up with an example of Tom and himself engaging in a positive discourse, I can think of the opposite scenario happening with far more frequency and and with numerous folks here. I don’t have the time or desire to go fishing through the archives, but come on how do you not see it?

                99 simply draws attention to Tom’s habitual dishonesty which seems to be ignored repeatedly by the powers that be here at the League. I approve of its message.Report

              • Avatar Pat Cahalan in reply to Stillwater
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                says:

                Let’s say for a minute that one of the reasons why Tom is here is to interject into certain discussion threads commentary that is, as Jaybird says, representative of a set of thoughts.

                Let me say, for quite some time when I first started hanging around in these parts, I was doing quite a bit of the same thing.  I can’t remember exactly how I put it but when called out on it once by Jaybird I said something to the effect of, “sometimes I’m arguing about something because it’s something I believe in, strongly.  Sometimes I’m arguing about something because I want to find out if you believe in it strongly.  Sometimes I’m arguing about something because I see someone using an argument they used yesterday to make a converse point today.  Sometimes it’s Tuesday.”

                I don’t really have a problem with the “99” thing.  If “talk to the hand” needs to be said (and hey, sometimes with some people talking to the hand is probably a better course than thumbing them directly in the eye) then go ahead and say it.  On the other hand, Jaybird responding with “Oh look. It’s this thread again,” is as legit as “99” is, for the same reasons, just one higher layer of abstraction.

                You know when I get somewhere with Tom?  When I call the rule and then play by the rule.  Half the time I think Tom posts things just to plant seeds… something I do myself.

                “Oh, so we’re saying the lawmakers’ feelings in passing it must pass his muster as well?”

                “Yes, Tom, and historically (here, here, here) that’s been the case.”

                “Oh (innocently)… so, what about this case?  Does it still hold?”

                “Well, shoot, hm.”  Does it?  Do I think it still holds?  If I don’t, do I have a good reason for thinking it still holds, or am I playing the game?

                Not all arguments put forth by Mr. Van Dyke are positive arguments for a case, I’d warrant.  Some of them are negative arguments for a case that his ideological opponents hold, he just wants to get there by a particular path.  Maybe that’s not a path you’re particularly into walking, but at least on a couple of occasions while strolling down the walk I’ve noticed that there’s a plant over here or a bird over there that’s the same plant or bird that someone else has shown me as being really important and boy did I think so then but now I don’t and hey, was I wrong then or am I wrong now or do I just have a smudge on my eyeglasses, or is this guy trying to fool me into thinking that’s a bird when it’s a bat?

                I’d say that lots of times people who jump on Tom are thinking that he’s always trying to fool them into thinking that’s a bird when it’s a bat.  I don’t think that’s commonly the case (although it does happen that sometimes what I think is a bird, Tom thinks is a bat).Report

              • Avatar James Hanley in reply to Stillwater
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                says:

                Pat,

                I’ve given specific examples of the types of things I call Tom out on. They aren’t the type of things you’re talking about.  As any good debater knows, you can of course present an argument you don’t actually believe in without violating the rules of legitimate debate.  You can of course try to draw out what others believe without actually engaging in any dishonesty.  Those types of things are not in dispute, nor are they the target of criticism.Report

              • Avatar Snarky McSnarkSnark in reply to Chris
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                says:

                Can someone ‘splain “99” to me?Report

              • Avatar RTod in reply to Jaybird
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                says:

                This.

                For those that claim that Tom won’t honestly engage when people disagree or challenge him, I offer my own interactions with him as proof to the contrary.  Actually, there are a lot of folks who manage to have quality discussions with TVD.

                So maybe it’s not all entirely absolutely unequivocally irrefutably 100% about what only Tom brings to the table.Report

              • Avatar Kim in reply to RTod
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                says:

                he half the time seems to just not respond to my comments. not sure if that’s becasue I’m late or what, though…Report

              • Avatar Chris in reply to RTod
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                says:

                RTod, I’ll ask you this, then. Can you provide a link to a discussion you had with Tom in which you disagreed with him and he argued/discussed your disagreements in good faith? I’d be happy to see it.Report

              • Avatar James Hanley in reply to RTod
                Ignored
                says:

                Tod,

                That’s great, but have you actually looked at the specifics of our criticisms of Tom?  I see you complaining that we criticize him, but I have yet to see you demonstrate in any case where we have criticized him were he has not done what we have claimed he has done.Report

              • Avatar RTod in reply to James Hanley
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                says:

                James, I understand your criticisms.

                And for what it’s worth, I don’t think having those kinds of criticisms are a bad thing to voice about Tom or anyone here.  I’m just not entirely sure that this is all I see.

                The site’s kind of down right now, but when it’s back up at full capacity, will I be able to search and find any comment of Tom’s that isn’t followed up by various people descending on him?  And not even good or bad arguments, but even, say, a comment where he simply pays someone a compliment… would I find that such a comment stood, or would it be followed by comment after comment chastising him for not complimenting the right way, or the right person, or whatever?  You all clearly have a history and it’s one that I’m not privy to, so I’m not going to pretend that I have some special insight to all of your relationships that you don’t.

                What I will say is that from the perspective of an outsider who doesn’t have share all of your history, it often has the appearance that you guys wait for him to say anything – anything – so that you can jump on him.  And the vibe I get from these interactions (again, not claiming to know what’s actually in your head, just how it sometimes looks) isn’t one of trying to stick up for quality discourse so much as having a lot of fun ganging up on one guy.  Which sometimes (not always) makes the criticisms of TVD sound less like observations and more like sneers.

                To a certain extent, as long as TVD is a FPer I kind of feel like being banged on is what comes with the job.  You post about politics or culture on blog with traffic, well hey – them’s just the breaks.  But on a more holistic level, I would like the League to be a place where anyone can come to have a discussion per the commenting policies and be made to feel welcome; I am not so sure everything I see in these circumstances meets that criteria.Report

              • Avatar Stillwater in reply to James Hanley
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                says:

                RTod, It’s not about Tom specifically or even personally. The focus of the criticism is about an argument style – a dishonest one. The reason Tom gets more attention than a random guy is because he’s an FPer and regular commenter.

                Now, I get that you don’t think Tom is engages in dishonest argumentation. And in fact, I think that even Tom doesn’t think he engages in dishonest argument. But it happens nonetheless. (Hell, I remember threads where even you’ve called him out for his dishonesty.)

                So there’s a tension here: you (and apparently others) don’t think Tom deserves the criticism he gets and some other commenters apparently do. A compromise of sorts was reached – the 99 – which is now being criticized. So, it seems to me we either permit people to challenge TVD on the legitimacy and justification of his views, or we don’t. And if we don’t, it’s because we hold a narrow view of civility above honesty and clarity. But if we do want to go back to the ‘criticize TVD on the merits of his claims’ strategy – which is what JB is advocating – then we can’t also criticize people for getting all up in it when Tom fights back by (dishonestly!) accusing people of sophistry.Report

              • Avatar James Hanley in reply to James Hanley
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                says:

                Tod,

                Without intending any real offense, I’m going to call bullshit.  I invite you to go through the critiques that Chris, BSK, and I have made, and find the ones where we attack him without it being about the nature of his argument.  Yes, some people attack him pointlessly, but I think you are making too grand a sweep if you include us in that group.  As I noted just the other day, I have defended Tom in the past against some of those claims. IIRC, there was one some months ago where someone accused him of being a racist–it wasn’t Chris, BSK, nor I, and I made a comment to the point that I was pretty much 100% sure Tom wasn’t a racist.  Still am pretty much 100% sure of that.  Nor is he simply a blindly ideological conservative.

                What you will find is places where I critique his claim (or what I interpret as his claim), then he says I am misrepresenting him, so I ask him to clarify, and he responds with something like, “you know what I mean” and a continued refusal to clarify himself and a continued insistence that I really do know what he means but am purposely misrepresenting him just for the sake of argument.

                Go back in time, particularly to the long lost Positive Liberty, and you will find him concluding arguments with, “I won, and you know it, you just can’t admit it.”

                Look at his argument with BSK in this thread, where he almost immediately goes into accusing BSK (BSK!) of bad faith (“your attempt to trap me”), denies the meaning of the direct quote of his own words that BSK provided, and then accused BSK of “arguing for the sake of arguing” (BSK! I mean, we’re not talking about me, we’re talking about BSK!).\

                But I certainly don’t want to leave the impression that I think Tom does this all the time, in every discussion. Find any thread where I haven’t criticized him for disingenuous argument and it will mean one of two things: either I just happened to miss that thread, or its one where he in fact didn’t engage in disingenuous argument.  I’ll never accuse him of it in a thread where I don’t think he’s done it.

                 Report

              • Avatar BSK in reply to James Hanley
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                says:

                JH-

                “Look at his argument with BSK in this thread, where he almost immediately goes into accusing BSK (BSK!) of bad faith (“your attempt to trap me”), denies the meaning of the direct quote of his own words that BSK provided, and then accused BSK of “arguing for the sake of arguing” (BSK! I mean, we’re not talking about me, we’re talking about BSK!).”

                My wife has a bone to pick with you.Report

              • Avatar James Hanley in reply to James Hanley
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                says:

                Tell her to get in line.Report

              • Avatar James Hanley in reply to Jaybird
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                says:

                Jaybird,

                Respectfully, our perspective is 3 -4 years experience with Tom, long predating the appearance of any of us at the League.  Regretably, Positive Liberty’s archives got destroyed, or we could take you in the way-back machine.

                But a case in point is right here.  He knows enough about legal interpretation to know that judicial review often involves consideration of the legislative history.  And yet he begins the thread with apparently…now,” which implies the review of legislative history is somehow unusual, perhaps illegitimate. His framing takes a form that he knows is false.

                Why is everyone so eager to give him a pass on this type of thing?  Seriously, the only reason we point it out so frequently is that he in fact does it so frequently, far more than any other regular around here. And what’s more, just about every other regular around here will ‘fess up to such a thing when called on it.  There is but one single person who, instead of admitting error, blames his critics for unfairness.Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                If you think I’m asking you to “give him a pass”, then you don’t understand my argument.

                I’m asking you to make him run off because his arguments have been engaged with, rather than you pre-emptively shouting him down.

                Because, from here, it seems like he’s given an argument that will be given by Important People on Important News Channels and your response is not “here is the problem with your premises and with your subsequent argument” but some variant of “I would rather spend ten minutes talking about you personally than two minutes talking about your argument”.

                Please try to think what your arguments would look like to people who aren’t you.Report

              • Avatar Chris in reply to Jaybird
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                says:

                Jaybird, two things. Below, you’ll note that James and I and others actually address Tom’s point. That usually happens. I can’t imagine you’re worried that it won’t. Second, what is the point of arguing with Tom over and over again when you and I both know that the best we’re going to get out of it is Tom yelling “Winning” and running off without changing his opinion. That may make your it worth your while, but it doesn’t make it worth mine. It seems much easier to just say “99” and let it stand in for that entire conversation. Again, if you don’t like it, you can skip it.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                JB, I get the point you’re making here. But what you’re suggesting – a lengthy critique of Tom’s assertion and why it’s dishonest – is what James and Chris (and others) have been dissuaded from doing by the readership here, which views the (objective) critiquing of Tom’s claims to be ‘uncivil’ or something.

                Hence the 99.Report

              • Avatar Chris in reply to Jaybird
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                says:

                Still, right. Jaybird gives away the game when he suggests the reason I do it is because Tom is conservative. There’s some sort of ideological affirmative action in places like this that makes calling conservatives on their bullshit verboten. I don’t care what Tom’s viewpoint is. That’s why Tom’s still commenting here, and even has a side blog and front page privileges, while the Balloon Juice types who act like Tom have been run off.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Ironically, when I think of “Balloon Juice types”, I don’t think of people who “act like” Tom.

                I think of people who act like Mike.

                In acting like Tom, they *CEASE* to act like “Balloon Juice types”.

                Again: try to imagine how this presents to someone who is not you. Progressives used to understand that argument.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Jaybird gives away the game when he suggests the reason I do it is because Tom is conservative.

                I’d be interested in seeing where I did this. (Though I will say that it presents pretty closely to you doing it because Tom is conservative. Saying that something “presents” a certain way and that something “is” a certain way are two different statements entirely.)Report

              • Avatar joey jo jo in reply to Jaybird
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                says:

                balloon juice types are marginalized here due to a preference for polite libruls who moderate their views rightward.  whether or not this is a good tactic by liberals is debateable.  i quite liked this article:  http://www.guardian.co.uk/commentisfree/2012/feb/06/right-stupidity-spreads-enabled-polite-left

                i know, LOOG is not “the right”.  it’s just my subjective opinion, but a lot of the discussions here read like a mcMEgan column.  start out with declaring that you’re a moderate but reach right wing conclusions using whatever rhetorical games you can.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                start out with declaring that you’re a moderate but reach right wing conclusions using whatever rhetorical games you can.

                I can see how you’d think that, but from the inside (to some extent), this strikes me as wrong. If there is a central theme at the LoOG, it seems to be this: present a picture of something happening in the world and judge judge whether it promotes/inhibits the expression individual liberty. In my experience, this movement is along a different axis than the one your suggesting.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Such as on wars of choice, “enhanced interrogation”, the war on drugs, gay marriage, Medicinal Marijuana, Immigration, and First Amendment issues?Report

              • Avatar BSK in reply to Jaybird
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                says:

                JB-

                Scroll down and you’ll see that Tom’s arguments were engaged.  And Tom has not yet responded.  Perhaps he is busy or whathaveyou, but there IS a pattern of him throwing rhetorical grenades into the tents and than fleeing under one pretense or another, which makes it difficult to take his argument sincerely.  He rarely seems interested in dialoguing and engaging, only making points or being pithy or upsetting liberals.  It is too early to say that is what he is doing here, but when a pattern starts to emerge, it is hard not to assume it will follow what it did previously.Report

              • Avatar James Hanley in reply to Jaybird
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                says:

                it seems like he’s given an argument that will be given by Important People on Important News Channels

                Yeah, exactly.  And here I thought that the League didn’t want to operate at such a dismal level.

                But seriously, it’s the repetitiveness of Tom’s behavior.  It’s the hopelessness of trying to get him to engage with full honesty.  And if he was just a drive-by commentor, I wouldn’t care. But he’s not, and therefore he needs to be addressed.  But addressing him seriously makes no in-roads and gathers lots of criticisms about how mean we’re being to him, so I opted for the simple reminder, the symbol that says, “that’s BS, but it’s not worth my time to try to seriously engage a game player.”

                I get your point about other readers, though.  Maybe it’s worth the time for others, including the silent majority of non-commenters, to ensure they’re not accidentally led astray by dishonest arguments.  But the predictable response to that is more claims of victimization by Tom, and more defenses that he’s really truly well-meaning, and Chris and I are just a couple of big bullies.

                Honestly, I don’t know what to do.  But anyone (not referring to you, JB) who says shut up and ignore it is both asking for dishonest argument to be legitimized at the League, and is being hypocritical because they obviously are unable to shut up and ignore our criticisms. Pots and kettles and whatnot.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Compare:

                Tom throws hand grenade. 8 people respond to the argument with counter-arguments that address the point that Tom relies on. Tom does not respond.

                Tom throws hand grenade. There are a handful of comments attacking Tom personally. 8 people respond to the argument with counter-arguments that address the point that Tom relies on after discussing Tom’s personal habits. Tom does not respond.

                 

                I would *MUCH* prefer the former, myself. I would very much prefer to have Tom’s arguments argued against as if “Long Time Reader, First Time Commenter” made them than to see “99”, “Oh it’s Tom again”, “I don’t understand why this person is allowed to be associated with this website”, and so on.

                 Report

              • Avatar joey jo jo in reply to Jaybird
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                says:

                stillwater, i have no reason to dispute your observations over a longer period.  i would say that putting the emphasis on “promoting individual liberty”, to me, moves the overton window rightward.

                jaybird, i have no data, but i’m going to speculate that those are the exceptions.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Make enough exceptions and you may find yourself in a need of a new category.Report

              • Avatar BSK in reply to Jaybird
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                says:

                “Tom throws hand grenade. 8 people respond to the argument with counter-arguments that address the point that Tom relies on. Tom does not respond.”

                This is done and done again.  And is increasingly hard to do when the initial “grenade” seems disingenuous from the start.

                I continue to try to engage Tom, despite our history.  I am not in the “99” club though am sympathetic to their feelings and goals.  Tom rarely responds to me any longer, even when I ask genuine questions intended to better understand his position so that I consider it fully on its merits.  I even came to his defense when a new commenter thought it witty to refer to him as Tom Van Rapist or whatever.  Tom chooses not to reply to any of these attempts at dialogue.  He is not obligated to, but it is hard to argue that we continue to engage him forthrightly when we get little to nothing in return.Report

              • Avatar Chris in reply to Jaybird
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                says:

                And now we know what you would prefer, Jaybird. And knowing’s half the battle.

                I still wonder, though, how “99” is so hard to ignore. It’s two numbers.Report

              • Avatar joey jo jo in reply to Jaybird
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                says:

                Jaybird, wouldn’t that depend on the total number of positions?  there isn’t just one number that is “enough” exceptions.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                i would say that putting the emphasis on “promoting individual liberty”, to me, moves the overton window rightward.

                “Rightward,” means in the direction of those who would deny abortion rights and gay marriage rights, who would require our children to say prayer in public schools, who want ever harsher prison sentences for a drug that is less harmful than alcohol, who cheer when police beat peaceful protestors, who are eager to use America’s military to dominate other countries….

                How exactly does promoting individual liberty move in that direction?Report

              • Avatar joey jo jo in reply to Jaybird
                Ignored
                says:

                BSK, Tom is useful to move each discussion rightward.  hence, he gets a lot of leeway.Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Then be the guy that asks honest, earnest questions that Tom Van Dyke does not answer and he can be the guy who states his position and refuses to so much as answer a clarification question.

                Let *HIM* be the guy who obviously lives in a echo chamber.

                 Report

              • Avatar joey jo jo in reply to Jaybird
                Ignored
                says:

                James,  correct, it doesn’t always hold and i posit above that those are exceptions.  but when the focus is on promoting one interest in lieu of a balancing of individual liberty and other policy concerns, the window is moved to the right.Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                JB-

                But if the powers-that-be aren’t reading each and every interaction, it is hard to see this undercurrent.  So we name it.  Again, I am not one for blaming and shaming.  I don’t participate in 99ing.  But I believe it right to call on people to be accountable for their actions and that begins by naming those actions.  And I do that.  And I think we ought to do it especially with someone given the privileges that Tom has here.  Maybe I’m alone, but I think it right to expect more of the bloggers here, especially those with front page privileges.  If Tom is going to act the way I’ve described and you summed up so nicely (without conceding its accuracy… I just like how you put it), shouldn’t the powers-that-be know this?Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                JB,

                I hear you, and maybe I’ll try it again.  It just gets old being called a sophist by somebody who doesn’t even know what the term means.  I’ll try remembering that it’s not actually about Tom, but about other readers who might benefit from being shown Tom’s disingenuous argumentative style.

                It just requires more patience than I normally have, and his continuing presence as a front-pager does, I think, demonstrate the League’s failure to demand adherence to its own claimed standards.  While I have not, and am not now, calling for his expulsion, it’s worth noting that the League has expelled authors for less.Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                I don’t think Tom should be expelled.  I do think he should be called to answer for some of the BS he puts forth and, as a result, I feel it would be prudent to demand some changes or revoke his blogging privileges.  My interactions with him have, at times, pushed me towards leaving the LoOG, which I would prefer not to do.  Please do not read this as a “him or me” stand by any means.  Just as a consequence of the permissibility and endorsement of his actions.

                And, for the record and umpteenth time, this has nothing to do with his politics for me.  Tim Kowal, his subblog partner, holds many beliefs I disagree strongly with.  Yet some of my best conversations here have been with him during which I’ve learned a ton.  Because he debates honsetly and genuinely.  There are many others who do not share my same political flavor (yourself included, on some issues) but whom I have the utmost respect for as partners and dialogue.  And, in at least one instance, I have steadfastly called out someone who likely was on my side of the aisle for egregious behavior (the TVR episode… I’d rather not repeat the awful slur more than is necessary).  I have my lenses and biases, no doubt, but they are not the driving force behind my objections.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                when the focus is on promoting one interest in lieu of a balancing of individual liberty and other policy concerns, the window is moved to the right.

                Joey, I disagree for two reasons.

                First, you’re assuming a simple left-right scale.  As a libertarian, I’m not represented on that scale.  I verbally push hard for individual liberty, and frequently argue against balancing against other policy concerns, but I’m not on the right.  I’m more scared of the right than I am of the left.

                Second, you’re implicitly suggesting that liberals are less interested in liberty than conservatives (which I disagree with), or that balancing policy against liberty is a distinctly left approach (which I also disagree with).  The right keeps asking us to balance the policy concern for traditional marriage against same-sex marriage rights, they keep asking us to balance policy concerns about drugs against free speech and individual’s liberty to make their own choices about their bodies, etc. etc.

                My essential point is that the right is not more pro individual rights than the left.  So a pro-individual rights approach does not in itself tell you which direction a person or group is tending.  You have to look at the particular set of rights they’re advocating, in order to make that determination.

                And I would hazard a guess that two of the most staunchly, most commonly, defended individual rights by citizens of the League are free speech and same-sex marriage–and that’s hardly right-wing, or even very right-leaning.Report

              • Avatar DensityDuck in reply to Jaybird
                Ignored
                says:

                For the record, Tom isn’t the first person that Hanley thinks should be banned.  (And I’m not the second.)Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                Joey,

                Just after hitting submit, it occurred to me that perhaps you’re referencing a communitarian vs. individualistic framework?  In that case I could better understand where you’re coming from, but I’ve never liked the communitarian left’s interpretation of individual liberty as being right-wing/conservative.

                But perhaps that’s got no relation to what you’re arguing.Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                There are just as many issues where “the left” fall on the side of individual liberty as “the right”.  In my very amateur opinion, it seems that “the right” has co-opted the notion of being sole defenders of individual liberty.  To me, that position holds very little water, with their opposition to a group such as the ACLU (with the word “Liberties” right in the name) as exhibit A.

                Both groups have strengths and weaknesses when it comes to individual liberty.  Neither side has a monopoly on its defense.Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Here is my perspective:

                I work with a huge number of Tom types. Very conservative Catholics (Deacons!). Very conservative Protestants. Young Earth Creationists.

                The wacky thing is that I was also raised to be one of them (well, Protestant, anyway). Through such things as patient people using the tools of philosophy and wisdom, I was coaxed into, for lack of a better metaphor, looking into the telescope.

                When I was a teenager wearing jeans and a t-shirt asking complete strangers on the beach if they knew the 10 Commandments and if they knew where they would go when they die, we regularly had meetings back at our homebase where we were told that we would be treated by “the world” a certain way.

                You know how I was told we’d be treated? The way I see you guys treating Tom.

                Now, I am certain that I am going into this with a lot of baggage but I suspect that there might be someone out there who is noticing that his elders at the homebase is right about how he will be treated by “the world” instead of noticing, for lack of a better term, the telescope.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                Duck,

                Twice this wee I’ve explicitly said that I’m not calling for Tom’s expulsion as a League author, so I’m sure as hell not calling for his banning. Nor have I called for you to be banned here.

                So if there is any truth to your statement, it is in that you and Tom are neither the first nor second persons I’ve called for banning, since that number is, to date, “0.”

                If I remember correctly, I did consider banning you from my blog because you began your participation there with some of your, shall we say, less intelligible, arguments.  You write those less often these days, and more often than not I find you have something sensible to say.  Unfortunately, today is not one of those times.Report

              • Avatar joey jo jo in reply to Jaybird
                Ignored
                says:

                James,

                I agree, the simple left-right scale isn’t the best assumption.  I appreciate that you attempt to balance.  However, I was replying to the statement that the focus (paraphrasing) of LOOG is on individual liberty.  I understand where you are coming from but I am not saying that people on the left do not care about individual liberty.  I am saying  that they (generalizing) do not focus on individual liberty at the expense of other concerns.  It is my opinion that the right self brands as the party of individual liberty but asks people to ignore that for a second when other issues are at stake.  To head off the tu quoque, I freely admit that the left and right use individual liberty when convenient as a cudgel to advance other interests.  However, (again wholly subjective), I find that many conservatives rebrand themselves as libertarians without really changing any of their stances materially.  the hackneyed joke I have written here before is that libertarian is just a synonym for conservative with an extra syllable.  that joke lumps the different types of libertarians together.

                re: commutitarian, i lean that way.

                sorry for the rambling but i appreciate your thoughts and arguments.

                 Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                Jaybird,

                All I can say in response is, it’s not about the things Tom believes or the positions, but about the false games he plays in debate.Report

              • Avatar North in reply to Jaybird
                Ignored
                says:

                Only a couple things I’d like to toss into this discussion. Firstly that this is generally probably too meta. Second and more substantively I do not believe we’ve ever banned anyone liberal or otherwise for debating or arguing in the manner Tom does (I agree incidentally that Tom has some debating strategies, tics and tendancies that drive me crazy and sometimes make me think he’s purposefully dishonest). I’m liberal leaning myself so I’d think I’d remember. Anyhow I don’t think we’ve ever banned (or even had) a liberal version of Tom. I wish we did have one, the two of em would probably fight like scorpions in a bag.

                Also for the record I don’t think Tom should be banned for the way he argues, as he’s wont to say the readers read the threads and draw their conclusions though yes sometimes I find him very uncharitable and it can get tiring pushing back his spin on things (and then trying to be temperate when he accuses you of spinning in turn).Report

              • Avatar Chris in reply to Jaybird
                Ignored
                says:

                By chased off, I did not mean banned. I can think of two banned people, one because he’s loopy and one because he just insulted people. By coincidence, one was conservative and one liberal. By chased off, I just meant that they were criticized widely for their tone and/or style and left of their own devices.

                Now, when I say that they’re like Tom, I mean that they argue only in bad faith and insult those who disagree with him. One of Tom’s qualities that makes it slightly more difficult to spot his bullshit is that he’s a fairly good writer. So instead of calling people idiots (though he does that sometimes), he usually calls them sophists or imply that they’re not smart enough to understand his argument. The difference between a regular troll and a well-spoken troll, apparently, is that a well-spoken troll becomes one of the blog’s front page authors. 😉Report

              • Avatar North in reply to Jaybird
                Ignored
                says:

                I’m terrible with names and handles but also very curious Chris, do you have anyone in particular in mind? This isn’t a challenge, just genuinely curious.Report

              • Avatar Chris in reply to Jaybird
                Ignored
                says:

                North, no, the Balloon Juicers generally come and go pretty quickly, so I can’t think of any names off the top of my head. There will be more, though, next time Balloon Juice gets ahold of a League post.Report

              • Avatar North in reply to Jaybird
                Ignored
                says:

                Power to them the darlings. I like having some red meat liberals around. It helps me and my weak tea liberalism feel more fiesty.Report

              • Avatar Kenneth in reply to Jaybird
                Ignored
                says:

                So if I read this right, your solution to a FP’er who engages in rank dishonesty is to let him be a FP’er still while chiding those who are so fed up with his shenanigans that they have assigned a NUMBER to his standard dishonest argument… while simultaneously banning people who were so fed up with his bullshit that they simply called TVD on it instead.

                Did I miss something, or is this as stupid as it sounds?Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Who has been simultaneously banned?

                The only bans I know about are Matoko_Chan, Good_Lord_The_Comedian’s_Incompetent, Mike, and That Other Guy That I’m Not Going To Mention.

                None of whom were particularly related to TVD in any way.Report

              • Avatar karl in reply to James Hanley
                Ignored
                says:

                Glad there’s only one.  But can someone p[lease tell me what “99” means?Report

              • Avatar karl in reply to James Hanley
                Ignored
                says:

                Glad there’s only one, but can someone please tell me what “99” means? (Yes, I get it in context but why “99”?)Report

              • Avatar Rufus F. in reply to karl
                Ignored
                says:

                No clue. I thought it was how teens signal that the parents are present.Report

              • Avatar James Hanley in reply to karl
                Ignored
                says:

                Karl,

                In entering research data into statistical software, 99 is often used to indicate missing data.  Chris and I are both social scientists, so it’s a bit of a geeky joke.Report

              • Avatar karl in reply to karl
                Ignored
                says:

                Thanks, James — you geeks, I swear you’ll be the death of me.Report

              • Avatar Plinko in reply to Jaybird
                Ignored
                says:

                I’m quite uncomfortable with the anti-TVD theme that’s been around lately, but this whole thread seems to be a case of the backlash against a backlash – the reaction has outgrown the problem.
                I’m not sure why we should care if the Professor and Chris want to call out ’99’ all the time  – if it drives Tom to engage better that’s great. If it doesn’t it’s a throwaway comment that affects no one.In either case it hasn’t coarsened the discourse at all until folks devolve into arguing about whether or not it’s a useful tactic.

                To deal with the topic – I despise orginalism, no less so here than when Scalia wields it. The law should stand or fall on it’s merits. Now, if the Judge found DoMA could not meet those seven criteria well enough, good! But the arguments of legislators on the floor shouldn’t mean diddly-squat except to their re-election chances.Report

            • Avatar Tom Van Dyke in reply to Jaybird
              Ignored
              says:

              200+ comments and comment #1 still stands.  Knock yourself out, James.  It’s just a blog.Report

              • Avatar Michael Drew in reply to Tom Van Dyke
                Ignored
                says:

                How would we have known had it been knocked from its perch, just out of curiosity, Tom?Report

              • Avatar James Hanley in reply to Michael Drew
                Ignored
                says:

                Defenders of Tom Van Dyke, please consider the above comment.  This is precisely what we critics are objecting to.  Notice the complete lack of substance.  He simply asserts that his first comment still stands, but he ignores all of the substantive responses that were made–he does not actually make any attempt to address even one of them in any way at all.

                It is this emptiness, and the dishonest pretense that nobody has made a substantive critique of his first comment, that is what makes “99” an appropriate response.Report

              • Avatar Jaybird in reply to James Hanley
                Ignored
                says:

                It almost makes one wish that one had saved one’s attacks on Tom for this comment instead of the one in which he responded to the original diarist with an on-topic comment.Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                JB-

                I hope you see what Tom is doing here.  As someone (Mike, I believe?) spelled out, there might be a certain amount of attention seeking to Tom’s shtick.  It is pretty clear that this latest comment is intended to “poke the bear”, so to speak.  We are all riled, perhaps wrongly so, and Tom lobs in another grenade to feed a dark fire.  And, again, this isn’t some ne’er-do-well commenter.  It is a goddamn front page blogger for the site.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                If one goes back to the top, one will see that I did in fact respond to Tom’s original point with a substantive critique.  And yet Chris’s “99” was apropos because Tom’s initial argument was itself made in bad faith, as Tom cannot plausibly be ignorant of the concept of legislative intent.  So I am confident that both the substantive and the dismissive responses were appropriate.Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Tom’s comment there? I wouldn’t try to defend it… and, indeed, had Chris’s “99” comment showed up after that one, I probably would have just grimaced and moved on… and any subsequent pile-on of Tom is one that I probably would have ignored.

                As it stands, those who responded to Tom with substantive arguments (and good for you) have the last word in your thread with him and your responses to his arguments, indeed, stand.

                That, to me, is far more damning of Tom and his arguments than “99”.Report

              • Avatar Tom Van Dyke in reply to James Hanley
                Ignored
                says:

                To JB, et al.:  If there are principled disagreements to my comment #1, pls forgive me for not sorting through the rest of the disruptions on this thread.  You understand my disinterest in reading through it.

                Perhaps next time.  The legal theory of casting out laws for their intent—mindreading the legislature or electorate—is starting to appear in appeals courts and there will be ample occasion to revisit this topic.Report

              • Avatar BSK in reply to Tom Van Dyke
                Ignored
                says:

                Mindreading is a deliberately dishonest description of what transpired.  The judge quoted floor debate.  No mind reading was necessary.Report

              • Avatar James Hanley in reply to Tom Van Dyke
                Ignored
                says:

                Mr. Van Dyke,

                Herehere and here.  (You’re welcome.)Report

      • Avatar wardsmith in reply to Chris
        Ignored
        says:

        Go ahead, color me stupid, but I have no fishing idea what “99” means.Report

        • Avatar James Hanley in reply to wardsmith
          Ignored
          says:

          Look up above about two comments.Report

          • Avatar wardsmith in reply to James Hanley
            Ignored
            says:

            See that’s what happens to us top-down guys. I started at the top, saw 99 for the umpteenth time, and immediately replied. Then I just now slogged my way through the thread to this point (admittedly making a phone call, brewing two cups of tea and looking at some other pages in the meantime).”99″ missing data, ok I get it.

            The constant accusations of “dishonesty” I don’t really get, I really think you three are arguing more to past phantoms than present ones. I’m really disappointed  because I’ve wanted to make a slightly off-color joke about Galinski’s wife’s name and my (very real) dyslexia, but I just can’t now.Report

            • Avatar James Hanley in reply to wardsmith
              Ignored
              says:

              Ward,

              It’s been quite recently that I responded to Tom and that he claimed I had misrepresented his argument.  A fair enough response (I make it frequently enough myself). The question in each case is whether the mis-representer lied, whether s/he did not read carefully, or whether the author did not write clearly.  All three are possible, and the last is the most defensible.  So I accepted at face value that I had not understood his position, upon re-reading I couldn’t figure out where I had gone wrong, and so I asked him to clarify.  He refused to, claiming that I knew all along what he really meant.  That is an example of dishonesty in argumentation.

              In this very thread, by beginning with an implication that he has to know to be false, he engaged in dishonesty.

              Whether the dishonesty is intentional, due to negligence, or resutls from lack of understanding, I can’t speculate.Report

            • Avatar Chris in reply to wardsmith
              Ignored
              says:

              ward, by the way, is a conservative with whom I can engage, even though I suspect he agrees with Tom about 95% of the time. I don’t like ward’s positions, I think he’s wrong pretty much all of the time (though we have similar views of the evilness of both political parties and their politicians), but I don’t think I’ve ever seen ward been dishonest or employed cheap rhetorical tricks to score debate points. In short, I don’t think ward’s a sophist, so while I might not be giving ward any buttefly kisses, I know that I can actually talk to him if I’m so inclined.Report

      • Avatar Burt Likko in reply to Chris
        Ignored
        says:

        As of the time of this comment, there were 95 previous comments. Seventy of them had nothing to do with the subject matter of the original post and instead were complaints about Tom Van Dyke and/or complaints about complaints about Tom Van Dyke followed by self-justifications rebutting complaints about complaints about Tom Van Dyke.

        I know Tom Van Dyke. I’ve drunk beers with the man and consider him a friend. I do not agree with everything he says. That is not important. What is important is that a recent legal event prompts us to examine and discuss things like…

        • Same-sex marriage.
        • The appropriate role for the judiciary in a democracy.
        • Which standard should be used to compare legislation to the Constitution.
        • When a judge crosses the line into impermissible “judicial activism.”
        • The advisability of the legislature as opposed to the executive participating in the judicial process.

        …all of which are wonderful cultural, legal, and philosophical subjects upon which we can agree, disagree, spar, parse, analyze, hypothesize, and even play. And those are just the subjects I thought of. Instead, people who don’t like TVD used the fact that TVD made a comment to complain about him in my post which was intended to spark discussion on, you know, the sort of thing that makes this blog great.

        Instead, we get the sort of thing that makes a blog dreary and dreadful.

        Congratulations on a successful threadjack. You’ll excuse me if I’m a bit irritated that this happened.Report

        • Avatar greginak in reply to Burt Likko
          Ignored
          says:

          +1 Burt. The only think worse then having a mediocre discussion is talking at length about the process and people in a mediocre discussion.Report

        • Avatar Tod Kelly in reply to Burt Likko
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          says:

          My apologies for my part, Burt. Should have let it lie.Report

        • Avatar Sam in reply to Burt Likko
          Ignored
          says:

          For whatever it’s worth, I was dead serious when  asked about why we have to pretend that DOMA was anything other than what it plainly was.Report

        • Avatar Chris in reply to Burt Likko
          Ignored
          says:

          I don’t really apologize. The 99 is, in my mind, legitimate (you can disagree). Jaybird clearly didn’t like it, and he and I got into it a bit. Then others joined in. Clearly, it’s something that people wanted to discuss. Now that we’ve gotten it out of the way, we probably won’t have to discuss it again.

          p.s. I’m sure Tom is a perfectly nice person, and perhaps he and I could have a good time over a couple of beers or a nice bottle of Scotch. That doesn’t make anything said here about him untrue.Report

        • Avatar James Hanley in reply to Burt Likko
          Ignored
          says:

          Burt, I am sorry and don’t blame you for being irritated.  I’m sure there’s nobody here who’s not aware of my position, so in future I’ll try to avoid responding to those who object to the practice of challenging bad arguments.  And I sincerely hope the required or desired solution is not an end to the practice of challenging bad arguments.Report

          • Avatar Jaybird in reply to James Hanley
            Ignored
            says:

            I’m sure there’s nobody here who’s not aware of my position, so in future I’ll try to avoid responding to those who object to the practice of challenging bad arguments.  And I sincerely hope the required or desired solution is not an end to the practice of challenging bad arguments.

            Perhaps we could challenge bad arguments with good arguments instead of challenging bad arguments with bad arguments.

            Too high a bar? Easier to paint people who argue that position as people who oppose challenging bad arguments?Report

            • Avatar James Hanley in reply to Jaybird
              Ignored
              says:

              Here’s my first chance to demonstrate that I’m not going to respond.

              Does this count as success or failure?Report

            • Avatar Kenneth in reply to Jaybird
              Ignored
              says:

              When one of your FP’ers is being so routinely dishonest that the people infuriated with his behavior assigned a NUMBER to it, the problem isn’t them, it’s him.

              And as a side note I’m still waiting on a response. You recently protected TVD when he annoyed someone else to the point where they just gave up and called him directly on his bullshit, going so far as to issue an outright ban.

              From where I stand, this is downright stupid. TVD lacks the qualifications to be a FP’er, period, and banning anyone who says so won’t change the truth.Report

              • Avatar Jaybird in reply to Kenneth
                Ignored
                says:

                When one of your FP’ers is being so routinely dishonest that the people infuriated with his behavior assigned a NUMBER to it, the problem isn’t them, it’s him.

                From my perspective, it’s more that they’ve moved from “I’m no longer going to engage with this person but instead devote comments to how I am not going to engage with this person.”

                And if Tom writes a post that, had “Long Time Reader, First Time Poster” posted it that they would respond to differently? Then the problem is, in fact, on them.

                And as a side note I’m still waiting on a response. You recently protected TVD when he annoyed someone else to the point where they just gave up and called him directly on his bullshit, going so far as to issue an outright ban.

                I responded to you above… but when did I ban someone? I can list the four bans I know about again, if you’d like.

                From where I stand, this is downright stupid. TVD lacks the qualifications to be a FP’er, period, and banning anyone who says so won’t change the truth.

                From my perspective, Tom posts something, these guys go nuts, we have a threadjack, we talk about Tom, we don’t talk about the topic of the post, and I only know of four bans, none of which had to do with TVD.

                I look forward to a response that claims that you’re still waiting for a response and that I’ve banned people.Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                JB-

                As I’ve pointed out, Tom often refuses to engage. Meaning we can attempt to engage and get no response. After a few go arounds with that, I think it fair to include critiques of his methodology along with critiques ofnhis ideology (something I do not think 99ing does… It often lacks the latter). If we cannot do even that, we are left to waste our e-breath critiquing the arguments of an interlocuter who is not interested in engaging honestly -or- leaving his comments unchallenged, which amounts to a tacit endorsement of them. Neither oneof these works in the spirit of the type of community I believe is sought here. And comparing Tom to a FT,LT doesn’t really work… Not only is he a regular commenter with a long history with many ofus here, but he has posting privileges which I think ought to include higher standards and accountability.

                Honestly, if you want me to treat Tom with kid gloves but not allow me to call him a child, I can do that. But it will likely mean I have to excuse myself from any conversation he wades into, which seems to make preferable his approach overthose of us looking for open, homest, and sometimes critical dialogue.Report

              • Avatar Jaybird in reply to BSK
                Ignored
                says:

                Honestly, if you want me to treat Tom with kid gloves but not allow me to call him a child, I can do that.

                This is not what I am asking you to do *AT ALL*.

                Seriously, is that what you got from all that I said above? “Treat Tom gently?”Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                Elsewhere you said I ought to voice my disagreement and let Tom’s response stand on its own for people to judge. That is not how I would treat you, JH, Tod, Will, or anyone else I felt was arguing in bad faith. If I see BS, I call BS. If I see games being played, I call that, too. If I shan’t do that with Tom, instead taking the “higher road”, then I do comsider that a de facto call for treating him gently.

                See the comment thread JH linked to in which Tom questioned my intentions when I quoted him verbatim and how quickly he stepped away when I questioned his, based on his own words. Did anyone jump to my defense, insisting Tom not make unfounded personal swipes (arguing that my position was based on an uncharitable reading of his comments)? No. And I’m fine with that. I’m a big boy… I’ve got the pants to prove it. He can dish it and can’t take it. It is fair to call him on that. Asking me not to is asking me to treat him gently, as far as I see it.Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Well, then, when TVD says “Here’s an argument: unfounded premise, unfounded premise, implied and unsound conclusion”, then tell him “your premises are unfounded and you seem to be implying the following conclusion without outright stating it and that’s bullshit”.

                I am 100% down with that. I believe I’ve done it myself.

                I am *NOT* telling you to not call TVD out on any bullshit.Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                Then we are in agreement! I do believe that his conduct and credentials as an FPer ought to be reviewed. But I’ll leave that to the powers that be.Report

              • Avatar James Hanley in reply to BSK
                Ignored
                says:

                I am no longer certain what Jaybird wants.  He doesn’t want “99,” but he also doesn’t want critiques of argumentative methodology, but he also doesn’t want us to treat Tom with kid gloves.  He did say he wanted us to present facts to Tom, but in my opinion the most relevant facts often are the flaws in his argumentative style.  For example, above in this thread, the only relevant fact to present is is failure to address substantive arguments.

                @BSK,
                we are left to waste our e-breath critiquing the arguments of an interlocuter who is not interested in engaging honestly -or- leaving his comments unchallenged, which amounts to a tacit endorsement of them. Neither one of these works
                Yes. This. Well said.Report

              • Avatar Jaybird in reply to James Hanley
                Ignored
                says:

                I think it’s fairly simple for me to describe what I would like.

                Tom leaves a comment that is a response to the main post. The comments that then respond to this comment should be of the form “Your argument sucks and here’s why and that’s bullshit” rather than “Tom Van Dyke is a jerk who never engages and that’s why I don’t have to address any point he makes”.

                Now, you may read the above as me saying “when Tom posts a comment saying nyah nyah nyah I don’t have to engage with any of you little people then you have to respond to his comment with pinkies extended discussing the main post”. You could then go on to complain about how all of my posts defending Tom had to do with how he needs to be treated with kid gloves even as we banned Matoko_Chan and Mike and Good_Lord_The_Comedian’s_Incompetent for saying “BOO!” to him. You could even go on to wonder how in the world I could possibly hold those viewpoints while presenting a facade of intellectual honesty that we all know is millimeter-thin.

                And, of course, it wouldn’t surprise me.

                But, I’ll say again: Here’s what I want.

                Responses to Tom’s posts as if they were written by Long-Time-Reader, First-Time-Commenter and for the 15 posts arguing against whatever points he’s brought up being arguments against whatever points he’s brought up… rather than talking about how Tom is this, Tom is that, and Tom is this other thing.

                Does that clear any confusion or are you still wondering why I banned Mike?Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                The comments that then respond to this comment should be of the form “Your argument sucks and here’s why and that’s bullshit” rather than “Tom Van Dyke is a jerk who never engages and that’s why I don’t have to address any point he makes”.

                Respectfully, I can’t agree.  For a person who only occasionally writes an argument that is bullshit, and particularly for the first-timer, writing, “here’s why your argument sucks” is appropriate.

                For someone who repeatedly writes bullshit arguments, the response of “you are once again, as you do repeatedly, making a bullshit argument,” is entirely legitimate.  To not do so is to fail to address a habitual behavior.  I can’t see what’s wrong with pointing out a habitual errror.

                Consider an analogy to posts that contain no substance but are pure personal attacks.  Nobody’s going to ban the first-timer who jumps in and says nothing but, “you’re a right-wing fishwad!”  But the person who habitually submits such posts, even if they also submit other substantive posts as well, risks getting banned.  You seem to be arguing for not addressing the pattern of behavior, and I respectfully disagree, and think that its precisely the pattern itself that needs to be addressed.Report

              • Avatar Jaybird in reply to James Hanley
                Ignored
                says:

                And we’re back to Tom’s arguments not merely being Tom’s arguments but arguments *REPRESENTATIVE* of an entire world-view.

                The attitude that says “I care more about the fact that Tom, of all people, is making this argument” than “this argument needs to be refuted and refuted hard” is doing it wrong.

                When it comes to the pattern, the pattern that I’ve noticed is the pattern that apparently was set back in Positive Liberty. Tom says something, Tom is jumped on because Tom said something.

                When that carries over here, the pattern I see is not “Tom argues inappropriately” but “Tom and his groupies have a habit of arguing with each other in ways that rely primarily on personal attacks, personal history, and personal drama… this argument that is taking place right now is one that has taken place 1000 times before.”Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                “Responses to Tom’s posts as if they were written by Long-Time-Reader, First-Time-Commenter…”

                I’m sorry, JB, but no.  Tom is a front page blogger.  He has privileges that few others do.  With those privileges comes a greater accountability.  Tom isn’t just another poster.Report

              • Avatar Jaybird in reply to James Hanley
                Ignored
                says:

                It seems to me that a counterargument holds him a hell of a lot more accountable than a personal attack.

                When one responds to him with a personal attack, one may find that one cannot tell the difference between Tom and one.Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                JB-

                Agreed.  I’m not advocating for personal attacks.  But I think a FT/LT should receive a gentler response, giving them the benefit of the doubt and a bit of a “grace period” to find their voice.  Furthermore, they have not established a pattern.  Tom has a clear pattern.  You seem to advocate that we keep doing the same thing and hoping he changes.  Isn’t there a quote about that approach and insanity?Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                And we’re back to Tom’s arguments not merely being Tom’s arguments but arguments *REPRESENTATIVE* of an entire world-view.

                ??? I wasn’t aware that a pattern of bad argument by a single person counted as “an entire world view.”  In fact, upon further reflection, I’m pretty sure it doesn’t.

                The attitude that says “I care more about the fact that Tom, of all people, is making this argument” than “this argument needs to be refuted and refuted hard” is doing it wrong.

                That may be your perspective, but that’s not actually what my attitude is.  I can’t speak for the others…maybe you shouldn’t, either.

                It seems to me that a counterargument holds him a hell of a lot more accountable than a personal attack.

                Once again, the only counterargument to a non-argument is to point out that it’s a non-argument.  And pointing out that a particular person engages in non-arguments regularly is not, in my mind, illegitimate.

                We’re at the point now of repeating the same arguments to each other.  If there are no new arguments for either of us to make, we’re at an impasse.Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                JB- Would my response here first your expectation?  If so, what if it goes unanswered?  Like the last 3 times I have engaged Tom in exactly the same way and got nary a response, while he continued to respond regularly in the same thread.  Do you think that an appropriate handling of dialogue for a FPer?  One of the things most maddening about Tom is that he seems to deliberately take on the weakest counter-arguments, essentially ignoring the strongest objections.  Honestly, (to everyone, not just JB) what are the standards for a FPer here?  Are they different from a reader/commenter?

                Tom Van DykeFebruary 25, 2012 at 5:02 pm

                To JB, et al.:  If there are principled disagreements to my comment #1, pls forgive me for not sorting through the rest of the disruptions on this thread.  You understand my disinterest in reading through it.

                Perhaps next time.  The legal theory of casting out laws for their intent—mindreading the legislature or electorate—is starting to appear in appeals courts and there will be ample occasion to revisit this topic.

                BSK February 25, 2012 at 5:26 pm

                Mindreading is a deliberately dishonest description of what transpired.  The judge quoted floor debate.  No mind reading was necessary.

                Report

              • Avatar Jaybird in reply to James Hanley
                Ignored
                says:

                BSK, your response was *PERFECT*. It seems to me that if someone read Tom’s statement and then your response, that your response would stand as a pretty good takedown of what Tom said.

                <i>Honestly, (to everyone, not just JB) what are the standards for a FPer here?  Are they different from a reader/commenter?</i>

                I’ve never been told to explicitly do much of anything here. I have seen people complain about the amount of cursing I do and sheer number comparisons to Hitler I make and so I have done what I can to tone that down. I read the commenting policy and do what I can to follow it. I now try to stay away from the nine words that got Lenny Bruce arrested (and, if I fail, I do my best to make sure they happen after the first 100 characters so they’re not there in the comment sidebar). For the most part, I try to argue against arguments rather than against people. Those are rules for myself, I’ve never been explicitly told (not that I can remember, anyway) to say or not say anything.

                Now, I see a COMPLETE AND TOTAL difference between commenting and front-page posting. There are arguments that I would make in the comments that I would never never never ever make in a post on the front page. That’s on me, though. I’ve never been told to do or avoid any particular behavior (other than those in the commenting policy, anyway).Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                Thanks, JB.  One question lingers…

                “BSK, your response was *PERFECT*. It seems to me that if someone read Tom’s statement and then your response, that your response would stand as a pretty good takedown of what Tom said.”

                And when that same someone sees Tom with a front page forum and me without, what does that communicate to him about the LoOG?  That is why I object to Tom’s authorship… not because it annoys me, but because it disparages the LoOG itself.

                 Report

              • Avatar Jaybird in reply to James Hanley
                Ignored
                says:

                Write a guest post. A week or two after, write another.

                Look at the masthead. Pretty much everybody on it got their privs by being Respected Community Members who did guest posts. I can’t imagine that it wouldn’t happen that way a seventeenth time.Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                JB-

                I’m sure that could happen, though I’m not really looking to be an author (for a whole host of reasons).  But if I stumbled upon this blog, saw the way Tom acted, and saw that he was a main author, I’d think, “Hmmm… I guess that is the way things are done here” and would think twice about staying.  Now, that’s just me.  And that wouldn’t be fair to the League.  But if you play with pigs, you’re going to get muddy.  Tom’s presence as an author and how he conducts himself, not only in comments, but in his role as an author (see some of his recent “Off-the-Cuff” posts which I don’t know how to link to once they get pushed off the front page) sullies the name of the other authors here, who I have always found to carry themselves forthrightly.  This is really probably a conversation to have with the “powers-that-be” and I don’t mean to make you answer for decisions beyond your control.  I’m just taking your suggestion to a logical consequence, which, if realized, I think does all the honest people here, yourself included, a disservice.Report

              • Avatar E.D.Kain in reply to Kenneth
                Ignored
                says:

                Who was banned over this? Be specific. Provide a link. Provide a name. Otherwise this is meaningless.Report

              • Avatar Kenneth in reply to E.D.Kain
                Ignored
                says:

                As I recall, you banned Mike because he regularly and forthrightly called right-wingers Tom and Kuznicki on their bullshit, and wasn’t afraid to mince words about it and be “polite” about calling their bullshit for bullshit.

                And you recently threatened James for pointing out that Tom was, in fact, defending state-sanctioned rape as such, even removing his posts to protect Tom.

                Look, if this is a place of honest debate, let’s have honest debate. If this is a place where the rules are different for the right-wing side because TVD, Bob and Kuznicki  need some sort of a handicap to make up for their mental deficiencies – sort of like how Rush Limbaugh or Sean Hannity will never, ever, ever engage on even turf debate-style, only on their own home show where they can reliably count on hitting the dump button when someone points out logically how stupid their position is – then say so.

                But don’t piss on my leg and tell me it’s raining. That’s just as dishonest as what Tom does all the time.Report

              • Avatar Jaybird in reply to Kenneth
                Ignored
                says:

                No, that’s not why Mike was banned.

                He was banned for ugly and antisocial behavior, he was told that he was engaging with ugly and antisocial behavior and told to stop it or be banned, he didn’t stop it, he was banned.

                He was closer to Matoko/Samara in his behaviors than not. Now, of course, perhaps you see Matoko/Samara as forthright in her argumentation against ED and Freddie. Fair enough.

                That’s not the kind of thing we want… and the fact that, over the course of years and years, it’s resulted in only four bans? I think we can make the case that we don’t ban people lightly over trivia.Report

              • Avatar Tod Kelly in reply to Kenneth
                Ignored
                says:

                “As I recall, you banned Mike because he regularly and forthrightly called right-wingers Tom and Kuznicki on their bullshit [and] threatened James for pointing out that Tom was, in fact, defending state-sanctioned rape as such, even removing his posts to protect Tom.”

                Then your recollection is faulty here.  Mike wasn’t banned for disagreeing with Tom or Jason, any more than Elias, Sonmi451 or any other of the many, many people around here that disagree with either Tom or Jason whenever they post anything political are banned.

                Mike was banned for repeatedly making comments that called people “sub-human pieces of s**t” while not bothering to make an argument or contribution to the discussion.  There are, I think, about a million places on the intertubes that both welcome and foster that kind of stuff, but this site just isn’t one of them – which is why we have a commenting policy.  He was warned several times, and apparently decided that he was OK with being banned.

                More recently, I think if you’ll go back and read the threads with James you’ll see his comments were not deleted because he was against state-sancitoned rape.  In fact, I think you’ll see that in the Virginia Bill threads folks here were almost universally against that bill, finding it horrifying.  Come to think of it, I think all of the OP posts were horrified with Virginia.  James was referred to the commenting policy because he was calling certain people commenting here rapists, people who liked raping women, etc. – and again without really making arguments or contributing to the conversation.

                To the larger point, though, I have to say that if people that come across this site are unable to tell the difference between, say, arguing against state-sponsored rape and shouting something akin to “YOURE A FASCIST PIECE OF S**T THAT RAPES WOMEN” to people they have never met, they’re probably not going to be happy hanging out at the League long term anyway.Report

          • Avatar Michael Drew in reply to James Hanley
            Ignored
            says:

            James, I have been stuck on whether to weigh in here because I do basically agree that repeat, intentional promulgators (or even repeat unintentional offenders, however much it gets their hackles up ;-)) of unfair or manipulative argumentative tactics need to be called out here if we want this place to be the kind of forum for argument we’d like it to be.  But at the same time, there are diminishing returns after the point at which it is clear there will be no response to negative reinforcement.  I think what’s been devised is pretty elegant, since complete acceptance is not really itself acceptable, but clearly it’s not to the liking of everyone.  (It should be noted that you didn’t make the first expression of disapproval for the argument initially given here, though you expressed approval for it.)  But what I think this thread demonstrates, beyond diminishing returns, is the danger of rewarding the individual with what he seeks in terms of group recognition and attention for precisely the behavior we seek to discourage.  I think that rather clearly means that, this time out, it wasn’t worth it.

            That being said, this discussion fanned out not because objectors to the behavior were excessively vocal, but because there was a vocal response to what has been settled as the most-restrained-possible expression of disapproval of continuing to fail to meet desired argumentative standards, substance aside.  If “99” is not acceptable as a way to express such disapproval, then clearly silence is the only accepted response.  (Responding to argumentative shenanigans with earnest substantive argument is precisely silence on the shenanigans – it’s ceding what we want to be a smooth, level field to bad actors who put divots and stray objects in the way of the players.)

            Silence is not an option, but “99” is – it’s the closest we can come.  People can respond negatively to it, and they should if they feel that way about it, but beyond that, I think engaging the topic shouldn’t progress.  That’s the point of “99.”  It says that the behavior did not go un-noted, and that’s the purpose set out for the locution: to mark an objection without giving it full exposition.  After all, even where the argumentative form is substandard, there might well be a worthy piece of substance that the argument has tacked ungracefully to the board.  The point of 99 is to be able to move on and avoid derailments while not be ingforced into silence about argumentative chicanery.  So when we use it, that’s exactly what we should do.Report

            • Avatar Chris in reply to Michael Drew
              Ignored
              says:

              This is excellently expressed. Thank you.Report

            • Avatar James Hanley in reply to Michael Drew
              Ignored
              says:

              Michael, this is an excellent, elegant expression of why I initially adopted the “99” approach.  You’ve expressed my thoughts perfectly, but better than I have said it, or perhaps even could say it, myself.

              If “99? is not acceptable as a way to express such disapproval, then clearly silence is the only accepted response.  (Responding to argumentative shenanigans with earnest substantive argument is precisely silence on the shenanigans… That’s the point of “99.”  It says that the behavior did not go un-noted,… to mark an objection without giving it full exposition. 

              Quoted just to emphasize that this is precisely what I intended, and what my concern is with the combined “don’t complain at length” and “don’t use 99” responses. To give in to both would be to let bad behavior win.Report

            • Avatar Michael Drew in reply to Michael Drew
              Ignored
              says:

              Chris & James –

              Glad i was able to find the words.

              Now, not to be an ant in the porridge (is the the phrase?), but as it happens on this one I would not have been inclined to call any kind of foul on Tom (or anyone else) for this particular comment.  At the same time, I don’t have the history with him to feel confident that he has subject matter understanding that he was pretending not to have in saying what he said.  So my inclination was to leave well enough alone for myself in this particular instance.  But that doesn’t mean I don’t think there have been enough example to warrant the development of this shorthand.  And the point of the shorthand is not even primarily to lessen the drag on the site of dealing with the egregiousness or even the frequency of the substandard argumentation, but instead to insulate threads against the overwrought victim-posing that tends to be this person’s response to having his tactics challenged, and the purely personal bickering that tends to ensue from those responses.Report

            • Nob Akimoto Nob Akimoto in reply to Michael Drew
              Ignored
              says:

              I’m so now tempted to make an avatar of Phoenix Wright shouting “99!” instead of his trademark “OBJECTION!”Report

        • Avatar Stillwater in reply to Burt Likko
          Ignored
          says:

          Well, Burt, I’ll cop to part of what you say here. But the thing I wanted to respond to was this:

          Judge White proceeded to analyze each of the seven grounds proffered, and found them both wanting in relation to the arguments actually considered by Congress when debating DOMA, irreconcilable with objective reality, and not congruent with reason and logic.

          and then I read Tom’s comment, which seemed to exemplify the position you paraphrased Judge White as actually arguing, which led me to want to criticize Tom’s argument on precisely the same grounds, but I was late to the game and only got in on the tale end of the ‘leave Tom alooooone’ campaign.

          So I apologize for not directly responding to your post, even tho what I wanted to write about is exactly what we ended up discussing in the hijacked threads: that conservative arguments on this topic – and more generally! – are often irreconcilable with objective reality and are often not congruent with reason and logic.

           Report

        • Avatar E.D. Kain in reply to Burt Likko
          Ignored
          says:

          Burt, Tom, et alia. I don’t know. I’m of two minds here. In a “meta” post like the one I posted a while back I thought the piling-on against TVD was very unwarranted and unfair. In this thread, from what I’ve read of it, this seems less of a problem. A debate has ensued. People are trying to determine if in this instance all parties are fighting fair. I’m not sure whether we can police this sort of thing. This is a comment thread on a blog and unless people are calling names or stating things that are blatant falsehoods, or smearing the author of the post or other authors or commenters with off-topic comments, I can only suggest that everyone duke it out accordingly. Or spend their time arguing about more important things.

          The threadjack claim is warranted enough, but then again conversations veer. It’s hard to control them – especially when you consider the inevitabile clashing of personalities and ideas on a diverse blog.

          If we don’t want our posts to get threadjacked, let’s work to right the conversation sooner with some early gentle nudges. Beyond this, we have to just get along or not get along but do it as civilly as we can.Report

          • Avatar Burt Likko in reply to E.D. Kain
            Ignored
            says:

            We can’t always police the threads; real life often calls with demands to eat, sleep, spend time with significant others, work, etc. For me, it’s about fostering a comment culture where too much of this sort of thing becomes condemned early on. I can be as meta as the next blogger, but this was never intended to be a meta thread and below all the meta-ness there is actually some interesting substantive discussion going on — in a direction I would never have anticipated myself.Report

          • Avatar Chris in reply to E.D. Kain
            Ignored
            says:

            Look, I feel bad that a real discussion of this issue was derailed by a conversation that my own behavior initiated. However, as I said above, this was clearly a conversation that needed to be had. There appear to be 4 main positions: Tom is what he is and should be addressed with 99’s, Tom is what he is and he should be addressed somehow, but not with direct engagement, Tom is what he is and he should be directly engaged so that he serves as an example, and Tom isn’t at all what the first 3 say he is. Most people commenting fall into the first 3 groups, and since Tom is a front pager and frequent commenter, I think it is important to work out how to deal with him so that standards can be maintained without letting bullshit go unaddressed. I’m still debating whether I’ll continue to use 99, but Michael’s defense of it in this thread is better than anything I could have written, and it’s pushing me towards continuing, but I’m still open to arguments otherwise. Jay’s haven’t convinced me, perhaps because he and I are coming from different places, personally: him from discussion with evangelicals, me from discussions with new atheists (both of whom, it should be noted, have severe persecution complexes). He has made me think about it, however, as has BSK. And I will continue to do so.
            To see why something needs to be done about Tom, not officially, but within the comment culture itself, merely look at his response here. His comment is directly addressed below: it is pointed out that he isn’t honestly representing or addressing what the judge did. How does Tom respond? By ignoring those comments, and telling us that his comment still stands. Why? Because that is what Tom does. He’s #winning, as he likes to say. This, again, is why this discussion needed to be had. I’m sorry that it derailed a post, though, because I think the actual discussion could have been interesting.Report

        • Avatar Simon K in reply to Burt Likko
          Ignored
          says:

          +5 to Burt. I had a substantive response in mind to Tom’s comment, which actually seems to raise a valid point, which I just happen to disagree with. I don’t see why several pages of meta-crankiness was necessary.Report

          • Avatar wardsmith in reply to Simon K
            Ignored
            says:

            By my count Tom made a single post, the “cranks” made about 80.

            Getting back to the OP, I reread it and noticed Golinsky actually works for the 9th Circuit. Shouldn’t the 9th have recused themselves, given that they are arguing a case about a co-worker they meet in the hallways and have coffee with in the lunchrooms?Report

            • Avatar Burt Likko in reply to wardsmith
              Ignored
              says:

              Ah, but quite the opposite — Chief Judge Kozinski injected his own instructions into the matter at an early stage. While there’s no doubt that Judge Kozinski has his research attorney’s back, I think he might need to recuse himself when the matter goes before the 9th because his own early opinions were key developments.

              As for the other judges, someone’s got to decide the inevitable appeal. Maybe they’ll pull up a whole panel of district judges to hear it by designation.Report

              • Avatar James Hanley in reply to Burt Likko
                Ignored
                says:

                Here’s an interesting comment on the “reverse benchslap” of the District Court judge rejecting Kozinski’s ruling.

                Added bonus; if you follow the proper link, you (or at least I) finally understand the title of Burt’s blog.Report

    • Avatar North in reply to Tom Van Dyke
      Ignored
      says:

      It’d probably help is the SSM prohibitionists could muster up some witnesses to offer some concrete testimony on the stand that stands up to the factual requirements of testifying under oath. Been a pretty sparse field there for a long while. Poor Blackenhorn made an effort in the CA case but ended up reversing himself on the stand on all the particulars, poor fellow. The transcript was really uncomfortable to read, I actually felt some sympathy.Report

    • Avatar James Hanley in reply to Tom Van Dyke
      Ignored
      says:

      Not only must the law have a “rational basis” in the judge’s opinion, but the lawmakers’ feelings in passing it must pass his muster as well.

      Legislative history has always played a role in judicial analysis, so there’s no good  basis for criticizing it in this instance,

      If lawmakers want the Court to start treating their anti-gay legislation as legitimate, they need to stop making speeches about how they’re doing God’s work.  It sort of gives away the game and actually sort of forces the judges’ hands against them.Report

      • Avatar Chris in reply to James Hanley
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        says:

        What’s more, the judge actually reviewed the case on its merits, based on the level of scrutiny he deemed appropriate, so this throwing up of hands in exasperation is just for show.Report

      • Avatar Pierre Corneille in reply to James Hanley
        Ignored
        says:

        I don’t particularly want to defend Tom’s argument, but I had thought judges have been traditionally wary of analyzing the legislative history, at least when it came to what was said on the floor when the legislation was passed.  This, however, is just my impression.Report

        • Avatar James Hanley in reply to Pierre Corneille
          Ignored
          says:

          It’s actually pretty common.  Interestingly, in Church of the Lukumi Babalu Aye v. City of Hialeah, Florida, Scalia’s concurrence criticizes looking at legislative history for the motivation behind laws, but that’s a recognition that the Court does it, and did it in that case, and even he says, “Perhaps there are contexts in which determination of legislative motive must be undertaken.”  So even the originalist hero accepts that legislative motive is within bounds, although he might legitimately disagree as to whether it is in a particular case.Report

          • Avatar Pierre Corneille in reply to James Hanley
            Ignored
            says:

            I would have thought that one who professes to follow “original intent” would be particularly open to looking at legislative motives, especially inasmuch as some of them claim somehow to know what the founders meant.  In fact, in my original comment, I almost said “except originalism.”Report

            • Avatar James Hanley in reply to Pierre Corneille
              Ignored
              says:

              Well, true.  I guess where Scalia would probably try to distinguish is between “purpose” and “motive.”   He’d look in legislative history for the first, but is dubious–although as the quote shows, not wholly dismissive–of the search for motive.

               Report

          • Avatar Jeff in reply to James Hanley
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            says:

            It’s my belief that Scalia forms an opinion, then works backwards, forcing “originalism” down the road to that opinion.  Sometimes that raod is a long and winding one.Report

            • Avatar joey jo jo in reply to Jeff
              Ignored
              says:

              did you enjoy your clerkship with justice scalila?  because that is spot on.Report

              • Avatar James Hanley in reply to joey jo jo
                Ignored
                says:

                A fair number of legal scholars would say that’s what all justices do.Report

              • Avatar Michael Drew in reply to James Hanley
                Ignored
                says:

                If they’re right, what do you think we should do about it?Report

              • Avatar karl in reply to Michael Drew
                Ignored
                says:

                That’s easy, we vote for politicians who will appoint and confirm judges who reverse-engineer decisions we approve of.  That’s how democracy works.Report

              • Avatar James Hanley in reply to karl
                Ignored
                says:

                +1, Karl.

                More seriously, I don’t propose we do anything about it.  The claim essentially is that this is inevitably how it works; it’s not necessarily a normative critique, but an objective observation. It doesn’t even require that justices be doing it consciously.

                That said, while I’m highly sympathetic to it, I think it’s a bit overstated.  Each justices does have some general principles they’ve developed and use as guides, and each one’s particular principles will lead to certain outcomes with more logic and clarity than to certain other outcomes; so while the result is in a sense pre-determined, it’s not necessarily reverse-engineered.  And there are examples, if not exactly lots of them, of justices deciding a case in a way that surely goes against their policy preferences, showing that at least sometimes they expressly chose not to reverse engineer.  Not that I’m a fan of Scalia or will defend his approach in general, but one of the few famous examples of that is his siding with the majority in Texas v. Johnson, that declared flag burning protected speech.Report

              • Avatar Michael Drew in reply to karl
                Ignored
                says:

                Fair enough, Karl & James, and I agree with your skepticism, James.

                I don’t have much experience to base this on, but my impression is that judges are not at all comfortable with the idea that they have the discretion to just make whatever decision they prefer on the policy rather than the legal merits, which is basically what that view alleges, and rather that they much prefer to see themselves as constrained by law (though that might mean concluding in a given case that they do not have the constitutional basis to hold that a legislature was without the necessary authority to take some action as is being advocated to them).  I can see the argument that this need not be conscious – and I’m sure that phenomenon does exist, the issue is, is it the prevailing reality – but that seems like a highly convenient dodge. It would require a remarkable degree of uniform self-delusion going on throughout the Supreme Court across generations  in order for the claim to hold while not being an allegation of mass abuse of authority against the institution.

                Incidentally, you don’t give Scalia enough credit to just straight-up have no strong inclination to wish that flag-burning could be made illegal if it weren’t for the damn First Amendment?  He’s inconsistent enough in applying his principles in other ways that it doesn’t really matter, but I don’t see much reason from the rest of his record to think he wasn’t pretty much on board with that outcome from the standpoint of personal political inclinations. It wasn’t about children’s speech rights, and it wasn’t about drugs.  I don’t give him credit for overriding personal preference on that one sans clear evidence.Report

              • Avatar James Hanley in reply to karl
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                says:

                Michael,

                I’m pretty much in agreement with you here.  But to make the devil’s advocate case that a strong legal realist would make… what if judges are fooling themselves?  It’s comforting to think you’re properly constrained, but since in the great majority of cases a ruling for either party is entirely justifiable, judges will naturally make the ruling that satisfies them, and–even if they don’t do this consciously–they will have little to no trouble making reasonable arguments to support their conclusion.

                Take that as you will.  There’s a lot of truth underlying it, but whether that in fact is what judges do–either consciously or unconsciously–is more or less an untestable hypothesis.

                Re: Scalia.  All I really meant was that I assumed Scalia probably has less personal inclination to view flag burning as within the bounds of propriety than most of the other justices he sided with, but unlike his fellow conservatives he didn’t fall back on hand-waving about how special the flag is.  Whether, in the absence of a 1st Amdmt, he’d support a law banning flag burning, I don’t know (I’d like to think not).  But you’re right to make me clarify that.

                 Report

              • Avatar Michael Drew in reply to karl
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                says:

                James, this raises some really interesting issues.  I’m at the Apple store right now so let me get to more supportable writing platform, but I do want to expand on this.  Suffice to say, in the absence of correct legal answers, I think that the formulation that judges just go with their policy preferences and trick themselves about it is highly ungenerous absent strong evidence.  Now, looking at the overall situation and deciding that devising an interpretive framework that tends to led to workable outcomes (where have we heard this formulation?) is something that could perhaps be described that way – but, again, only ungenerously, and perhaps flat-out unfairly or inaccurately.  At some point, judges have to devise some reliable way to approach the law – how many tens of thousand feet up do they have to get to before we’re willing to say they’re not just picking outcomes and then doing the justification dance?  I read jjj’s suggestion (aimed at Scalia and generalized by you – I don’t think either is fair – Scalia’s fairly small number of inconsistencies don’t demonstrate complete bad faith about his approach) to be that the charge is that they do it more or less on a case-by-case basis, which I think just isn’t supportable by evidence.  But of course, the counter would be that of course, they must know they need to cover their tracks better than that. 😉

                On second thought, maybe that is sufficient to get the point across.  I’ll clarify more later if I feel it’s needed.Report

              • Avatar James Hanley in reply to karl
                Ignored
                says:

                Michael,

                To be fair, I’m a bit out of the academic legal scholarship loop anymore, and I’m not sure how many hard core legal realists are left.  I think they’re a dying breed.

                I agree it’s an ungenerous approach.  I think justices can have a sincere well-ordered approach to interpretation that naturally leads to some predictable results, as any coherent theory should.  They may find those conclusions satisfying, but that’s natural, too, since they’re the product of a mode of legal reasoning that they think is appropriate and proper.

                Of course it is true that we tend to be drawn toward thinking of particular modes of legal reasoning as “appropriate and proper” when they produce a constitutional understanding we like, and tend to be repelled by those that produce a constitutional understanding we don’t like, so I can’t go so far as to say that policy preference doesn’t play a role.  I just think that role is not so much case-by-case as it is in the adoption of an overall interpretive theory.Report

              • Avatar joey jo jo in reply to James Hanley
                Ignored
                says:

                it would be interesting to see the split between originalists and non-originialists on that.  also, political identification.Report

              • Avatar Jeff in reply to James Hanley
                Ignored
                says:

                Perhaps, but most don’t make such a big deal over being “originalists”.    If Scalia didn’t take such a hard-line approach to being  an “originalist”, he wouldn’t have to tie himself in such knots to get to his decisions.  Justice Thomas, for example, just asks Scalia what his opinion should be and decides accordingly.Report

              • Avatar James Hanley in reply to Jeff
                Ignored
                says:

                Justice Thomas, for example, just asks Scalia what his opinion should be and decides accordingly.

                Yeah, that’s a pretty popular myth.Report

              • Avatar Jaybird in reply to Jeff
                Ignored
                says:

                Given Gonzales v. Raich and Gonzales v. Oregon, I’m pretty sure that the whole the old “Thomas does what he’s told” argument doesn’t stand up. His dissents are very interesting in those cases.

                (There’s also the argument that Souter and Ginsburg agreed more often than Thomas and Scalia do but what jokes can you make about that dynamic?)Report

              • Avatar Michael Drew in reply to Jaybird
                Ignored
                says:

                If Thomas would have spoken up at oral even occasionally during his tenure, this impression never would have taken hold so strongly.  I actually think it’s a pretty fair knock given that, though ultimately the straight-up charge that he’s Scalia’s second vote is not well-founded.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                I cannot fathom why he would not talk during oral arguments. I come here for pleasure, right? How awesome would it be to sit at the bench and ask the best and brightest pointed questions poking holes in their defenses? Oh, that’d be a feast. (Associate Supreme Court Justices make $213,900… They could pay me, oh, *HALF* that for the job.)

                That said, the reasons Thomas has given for why he doesn’t talk make sense to me as much as any “I don’t enjoy the stuff you enjoy” explanation makes to me.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                I cannot fathom why he would not talk during oral arguments….That said, the reasons Thomas has given for why he doesn’t talk make sense to me

                ??Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                The part after the part that you quoted? The part that didn’t have a period at the end of it? If you read those words, they may be able to clear up some of what you’re wondering.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                Hmm, ok.

                You seem to have quite the Bork-esque vision of being on the Court (an intellectual feast), whereas Thomas has a much more pragmatic view (do the orals provide any information that’s not in the briefs).

                That’s not a criticism.Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Though Bork claimed to want such a thing, I suspect (given his bibliography since) that he would have had agendas that superseded the quest for Truth. (For example: Imagine what he would have said for Gonzales v. Raich… would he have agreed with Thomas? I can’t see it.)Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                The reasons he might give really don’t matter, especially if it’s a hyper-functional view that the orals provide him nothing he thinks he needs to make his decision.  That’s not what the orals are for.  The orals exist to give the Court some degree of a public institutional face and window into the justices work.  It’s exactly a forum for the justices to use to create a collective and individual public profiles.  It’s exactly what Thomas might have used to combat or head off this negative impression of him, it exists exactly for that reason, and that he haughtily refused to play that game (is he in fact required to attend?) given such ample opportunity means he has essentially no basis for complaint (nor we on his behalf) over people, lacking a profile actively created by him, filling in their impression of him with… their impression of him.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                Michael,

                I’d never thought of orals that way.  It’s a good though.Report

    • Avatar Shannon's Mouse in reply to Tom Van Dyke
      Ignored
      says:

      First, if you’ve got a problem with the rational basis, intermediate scrutiny, strict scrutiny tests in equal protection jurisprudence, just say so.  If that’s the case, your criticism of “lawmaker’s feelings” sounds a bit like “this food sucks, and the portions… so small!”

      If you don’t have a problem with rational basis tests, then what’s the specific problem with looking at the legislative history?

      Can you maybe clue us in on the proper way to adjudicate claims that a law violates the equal protection clause?

      If anti-gay activists wish to enshrine second-class status for gay people, they probably should fight to add “…except for fags” to the 14th Amendment.

       

       Report

  2. Avatar RTod
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    says:

    I’m not sure what the objection is here, Tom.  Are you suggesting that if he never mentioned the motivations of those that passed the law, those motivations wouldn’t exist – or that they were irrelevant?  In either case, it seems an odd objection.  I might suggest that there is a difference between the objective of a law, and how legislators “feel” about passing the law.  You seem to be saying the judge was doing the latter, when it seems clear he was focused on the former.

    (I’m reminded of the case with the Dover, PA school board a few years ago.  They lost specifically because there was public record of them saying that the reason they were changing curriculum was to evangelize Christianity in public schools.)Report

  3. Avatar Luke Bennette
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    says:

    I am particularly interested in this theory of legislation being made based on historical context, but if that is the case it might bear mentioning that a vast majority of decisions, in the end, are geared towards the transfer of money from one hand to another. In this case, the one seeking to gain health care, the other seeking to deny it. Whether the person is worth anything to you or whether you are obligated to pass the buck. While most of the arguments are geared towards the resolution of this initial argument I find it necessary to make sure that the initial argument is first understood by those that would resolve it. Though even understanding doesn’t solve the problem when you are opposed to the other on a matter of principle because of who they are and what they stand for; which ought not to happen in the pro marriage, pro life camps, if they place so much value on a person. With regards to the Judicial system I can’t be certain, I am no lawyer, judge, or legal attorney; and I certainly don’t know the intimate details of both sides. From observation of American life, as a general principle,  everything is taken too fast, reacted to too fast, we move to fast in a race for what we regard as necessary for ourselves, based on our personal background, without pausing to consider a second or third option that doesn’t throw the entire country into a tizzy fit. While I agree with traditional values placed on marriage between a man and a woman to a large extent, and disprove of the marriage of homosexuals (I hope that is not an offensive term here) I can’t say that the party preventing their access is doing anything good for the economy, and their reactions appear to be based on greed, though I could be mistaken. Such greed can only lead to an inevitable end; the destruction of their system. Perhaps this is a very base or cynical view and doesn’t bear mentioning?Report

  4. Avatar RTod
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    says:

    “Perhaps this is a very base or cynical view and doesn’t bear mentioning?”

    I would suggest, rather, that it is that rarest of things these days: someone using reason to come to a decision that doesn’t fit into their pre-determined political viewpoint.  So while I’m not a judge or attorney, I can’t really speak to how good a legal argument this is (I’ll leave that to Burt), I will say this:

    Bravo.Report

  5. Avatar mark boggs
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    says:

    Only if they pass our moral approval are their words or actions worthy.]

    I’m not sure if you’re using Smith’s words as a critique or a defense, but the phrase you use of his seems to cut both ways, no?  In other words, the legislators are okay passing laws based simply on their moral disapproval and a bunch of doomsday scenarios that they envision, but the judge is out of line to do the same with their arguments?

    Report

    • Avatar Chris in reply to mark boggs
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      says:

      Those aren’t Smith’s words. It’s not really even what Smith said. I assume Tom is referring to Smith’s view of sympathy and its role in judgment, but Tom’s gloss is inaccurate. That he uses it, as he often does, as a condemnation should clue you into that fact.Report

  6. Avatar Sam
    Ignored
    says:

    The justification for DOMA is “Ewww, gays are totally icky.” Why do we have to pretend like it is anything more substantive or serious than that? We all know that there’s no evidence that gay marriage harms society or harms marriage. We all know that generational and religious and cultural hostility to homosexuality underpinned this bill (just as it had when it an issue of interracial marriage). Is much to be gained from pretending this law wasn’t written by lawmakers whose substantive critique of gay marriage is, “Gross! Fags!”Report

  7. Avatar DensityDuck
    Ignored
    says:

    Someone explain why White’s reasoning doesn’t invalidate animal-abuse laws.Report

    • Avatar mark boggs in reply to DensityDuck
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      says:

      Not entirely sure I understand your point, but if you’re saying that animal abuse laws were crafted merely out of the emotional stress humans feel about beaten animals, I’d recommend to you the howls of the animal while it is beaten.Report

      • Avatar DensityDuck in reply to mark boggs
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        says:

        A: So you might say that animal-abuse laws are motivated by moral disapproval of animal abuse?  Judge White would suggest that this wasn’t a good reason for a law.

        B: Pigs scream when they know they’re gonna die, but we sure do love our bacon.Report

        • Avatar James Hanley in reply to DensityDuck
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          says:

          Judge White would suggest that this wasn’t a good reason for a law

          You’re missing half the analysis; e.g., the purpose, and whether it’s legitimate.

          Funny thing, but the Courts seem to find stopping people from hurting animals to be a more legitimate government purpose than stopping people from taking care of their loved ones.Report

        • Avatar BSK in reply to DensityDuck
          Ignored
          says:

          You can make an argument of harm done to the animals.  You can’t make much of an argument of any harm done to the straights.Report

          • Avatar Murali in reply to BSK
            Ignored
            says:

            Since when were animals the kind of beings properly protected by the state? If they were, by extension of current laws protecting people, killing most animals would be illegal.Report

            • Avatar BSK in reply to Murali
              Ignored
              says:

              Murali-

              In my comment below, I acknowledge fully that your questions are germane.  However, the justification that people put forth for animal cruelty laws is rarely “It offends me!” and is usually “It hurts the animals!”  There is no denying harm to the animals.  The question is, ought this be considered?  I see arguments both ways.  (Personally, I lean towards the removal of animal cruelty laws, which are largely arbitrary and based on individual offense based on the species… which would ultimately fail this type of scrutiny.)

              With gay marriage, I see little evidence that it harms ANYONE… outside of offending those with delicate sensibilities.Report

        • Avatar mark boggs in reply to DensityDuck
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          says:

          I wasn’t saying that it wasn’t morally problematic to say on one hand that you can’t abuse animals but on the other to say that killing them en masse for food is just fine.  My point was, as BSK and James point out, that you can point to a discernible harm with animal abuse as opposed to the mere offense of gay marriage.  Thus, the purpose of legislation against animal abuse.Report

          • Avatar DensityDuck in reply to mark boggs
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            says:

            A: Describe the harm that is caused to me by someone else harming an animal.  Be careful that you don’t use “moral outrage”, because if you accept the reasoning of Judge White then mere moral outrage is insufficient to restrict behavior.

            B: If discernible harm is the issue, then people certainly point to discernible harm that results from gay marriage.

            “But they’re wrong!”

            That’s your opinion.Report

            • Avatar Sam in reply to DensityDuck
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              says:

              I believe there’s a distinction to be made between “They’re wrong!” and “They’re bigots!”Report

            • Avatar Chris in reply to DensityDuck
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              says:

              Murder laws! Right out, with this ruling, right?

              Seriously, you’re missing a substantial portion of the judge’s reasoning.Report

            • Avatar mark boggs in reply to DensityDuck
              Ignored
              says:

              I’m pretty sure the harm is done to the animal.  Call me quirky, but I don’t know a single person who argues that we shouldn’t abuse animals because it hurts person X’s feelings.  As I said before, listen to the howling dog.

              When the point is to maximize liberty and equality, we don’t usually weigh the offense a person takes to a certain behavior where no discernible harm is done above the freedom of another to do that offensive thing.

              As Chris points out, when people in New York are murdered, I’m not harmed by that, it doesn’t follow though that laws against murder (save my own) should be abolished.

               

               Report

            • Avatar mark boggs in reply to DensityDuck
              Ignored
              says:

              And as far as them “being wrong”, whereas I do believe they are wrong, their wrongness is not why I believe gays should be able to marry, it’s because they should have every right that every other person has to enter into contract with the person they love to guarantee certain legal protections of property, visitation rights, etc. 

              That’s the beauty of our country, you can believe any damn thing you want, but if that belief correlates with a need to restrict the freedoms and liberties of others for no other reason than the offense you take to that behavior, the onus is gonna be on you to show how that behavior is anything more than merely an offense.Report

            • Avatar BSK in reply to DensityDuck
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              says:

              DD-

              I said there was harm done to animals, not humans.  The harm is undeniable.  Now, I do think there is a legitimate conversation about whether we should consider the harm done to animals… but, it is hard to argue that there isn’t harm done to animals.  Harm to humans?  Much harder to say.

              My marriage is not impacted by gays getting married.  Personally, I’d argue it’s enhanced because it legitimizes the institution by removing the bias in it as currently practiced.

              Mark Boggs has some great points below.  But your first response either misunderstood me or was a strawman (I assume the former… though I know you to sometimes be deliberately provocative, I don’t think you would willingly engage in such an obvious strawman)… I don’t think that one person’s taking offense to something justifies legislating against it.Report

              • Avatar DensityDuck in reply to BSK
                Ignored
                says:

                “I said there was harm done to animals, not humans.  The harm is undeniable.”

                And that we consider this harm unacceptable is a moral choice.

                “I don’t think that one person’s taking offense to something justifies legislating against it.”

                Except for, y’know, animal abuse and photographing children and stuff like that.Report

    • Avatar James Vonder Haar in reply to DensityDuck
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      says:

      DOMA implicates fourteenth amendment equal protection guarantees.  Animal abuse laws do not.  Not every law is subject to a rational basis test, and for good reason: we want to minimize the amount of judicial interference in legislative prerogative.  It is regrettably necessary in the case of 14th amendment jurisprudence to distinguish between unnecessarily invidious laws and perfectly kosher ones.

      If there were some reason for animal cruelty laws to be subject to a rational basis test, you’d have the beginnings of an argument (not a particularly good one, as the comments below would suggest).Report

  8. Avatar wardsmith
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    says:

    Amy Cunninghis?

    C’mon is that a real name?

    Ok, there I said it.Report

  9. Avatar b-psycho
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    says:

    It seems plain to me that the rhetoric of the backers of DOMA is relevant to ruling its constitutionality precisely because of how contradictory the stated point of it was to the Constitution.  Come on, the establishment clause is sitting right there and they push legislation on “gawd doesn’t like it”?

    I’m starting to think Keith Ellison should toss up a joke bill banning bacon just to point out why this kind of crap is out of bounds.Report

  10. Avatar Sam The Sham
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    says:

    (Edited to remove spam from banned user.) EDKReport

    • Avatar BSK in reply to Sam The Sham
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      says:

      Sounds like marriage is a disaster there and the gays were smart enough to avoid the sinking ship.Report

    • Avatar James Hanley in reply to Sam The Sham
      Ignored
      says:

      Not only have these self-identified gays and lesbians not taken advantage of the opportunity to marry, that society is rapidly rejecting marriage altogether.

      Wait, so even though gays aren’t actually getting married, those not-marriages are still destroying straight marriage?  Wow, who knew the gay was so powerful?  I wonder how I’ve managed to resist it all these years…and how is it that my Dutch wife and I are still married?  It just defies logic!

      Remove females from the equation, and within a generation, the human race would vanish from the earth–

      Yeah, that would happen if we removed females from the equation, too, doncha know.Report

      • Avatar Jaybird in reply to James Hanley
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        says:

        The arguments against gay marriage that I find most persuasive (which is not the same thing as saying that I find them persuasive, mind) all are variants of the whole “it’s very important that we lock the barn door now that the horse is stolen”.

        The problem (if you want to assume it’s a problem) with the Netherlands was not *CAUSED* by gay marriage and opposition to gay marriage won’t fix anything associated with what the Netherlands is experiencing (assuming anything is broken, of course).

        That said, marriage is a very important thing for a society and a society that abandons such will find itself with more than a few sustainability issues down the road. That’s down the road, though. (And atheist god only knows what laws could possibly result in the horse coming back in order to be properly locked inside of the barn.)Report

    • Avatar greginak in reply to Sam The Sham
      Ignored
      says:

      Where are getting that data from? I’m not saying i question it…but i do heavily wonder about it without a source?

       Report

      • Avatar b-psycho in reply to greginak
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        says:

        The part in quotation marks is direct from the conclusion of this [PDF]. Looked it up.Report

        • Avatar greginak in reply to b-psycho
          Ignored
          says:

          Well that was weak sauce. That gay couples are choosing to get married at a high rate is irreverent to whether they should be allowed to. The second question the study looked at “How is marriage as an institution fairing generally?” is a political question not a decent social science hypo. Near the end the authors note their results don’t bolster the conservative case for gay marriage. At some level this was more about politics then finding a social science result. There are some value judgements mixed in and the quoted paragraph does not mention the facts that don’t support their case.Report

          • Avatar greginak in reply to greginak
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            says:

            I shouild have added IReport

            • Avatar greginak in reply to greginak
              Ignored
              says:

              Not sure what happened to the above comment. I don’t know whether to yell at my fingers, my comptuer, the intertoobz themselves or blame it on the LOOG server.

              Anywho, i should have added that imapp, the group the did the paper the quote comes from labels itself as non-partisan. However it is run by Maggie Galagher, who is a loud and firm opponent of gay marriage. That suggests reports from the group need a higher level of scrutiny and scepticism since they come from a partisan group and were not published in a peer reviewed journal.Report

          • Avatar James Hanley in reply to greginak
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            says:

            The key element in the article is the second to last paragraph, here quoted in its entirety.

            As noted above, correlation does not prove causation.

            The decline in heterosexual marriage rates in the Netherlands predates the legalization of same-sex marriage, and for causation to occur, the alleged independent variable must precede the dependent variable.

            Also, the paper notes that divorce rates are steady, not increasing.  So the real overall conclusion is, “allowing same-sex marriage has neither slowed the pre-existing trend of decline in heterosexual marriage nor increased the rate of divorce.”  In other words, it’s had no effect except on those gay couples who want to get married.  (And as greginak notes, it doesn’t matter how small that percentage is–we don’t recognize rights only because large proportions of people want them.)Report

            • Avatar Burt Likko in reply to James Hanley
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              says:

              IIRC, marriage rates have declined across Europe, in rates that demonstrate no recongizable pattern between nations that allow SSM, that have civil unions or analogues thereof, and those that have no substantial legal institutions for same-sex couples. Declining marriage rates seem more likely to be casued by the overall secularization of European society and the structure of social welfare benefits provided by these various nations in a way that inadvertently discourages marriages.

              IIRC, marriage rates are declining in the USA too, in states that have SSM, states that have civil unions, and in states that have nothing. Again, with no particular correlation to the presence or absence of these institutions. Meanwhile, the USA’s closest cultural analogue, Canada, has not seen any deviation from its pre-existing trends in marriage rates since it adopted SSM nationally seven years ago. Nor has Canadian culture and civilization altered in any appreciable way since then.

              As James points out, these trends against marriage predate even the creation of civil unions, a phenomenon that largely started in the 1990’s.Report

  11. Avatar Jaybird
    Ignored
    says:

    I’d more say that it’s a fair conclusion to reach that homosexuals in Scandanavia don’t want to marry. The United States is a *LOT* of things but one thing we are *NOT* is “particularly Scandinavian”.Report

  12. Avatar greginak
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    says:

    One thing i don’t know and which may have a major affect on how many gays marry in Scandinavia and other countries is whether or not they have the full slate of legal benefits and protections already or need to get married to obtain them. Here is the US gay couples can’t get the significant legal benefits of being married. If gays in Denmark already can get the contractual benefits of marriage then they have less of a need to marry. I imagine a good comparison between countries would need to account for that.Report

  13. Avatar BSK
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    says:

    “I think the major point that hasn’t been discussed is the legal ramifications of legalizing same-sex marriage. By signing same-sex marriage into law, that is a tacit endorsement and affirmation of homosexuality as a morally acceptable lifestyle, thus forcing Jews, Christians, and Muslims to accept something that is deeply, undeviatingly offensive and against their teachings.

    Mustn’t all laws enacted be legal AND moral? Or at the least give the appearance of such?”

    There will always be people who disagree with the morality of the law. People found slavery moral and its abolition immoral. People found interracial dating immoral and its restrictions moral. Most people agree on these issues now, but if you think they are universally accepted, I’ll give you some google search terms that will demonstrate otherwise. Heck, I’ll give you some people’s phone numbers who disagree with interracial dating, though they’d probably stop short of saying it should be legally banned (at least publicly).

    Laws ought to be moral, but that does not mean they must fit the Judeo-Christian moral code. That is but one of many moral frameworks which, thankfully, our secular system is not explicitly bound by.

    As for making an apples-to-apples comparison between the Netherlands and the US, there are some questions to answer? Does “marriage” confer the same legal, social, and economic benefits there as it does here (including but not limited to spousal privilege, preference for adoption, and tax benefits, to name one from each category)? Do gays there face the same level of social and legal stigmatization, something that legitimizing their relationships through marriage might help?

    Finally, as others have pointed out but I don’t think it can be stated enough, the legitimacy of a right is not grounded in the frequency of its exercise. I do not sadrifice my 2nd Amenmdnent rights because I’ve fired a gun exactly one time in my 28.5 years on earth.

    Oh yea, regarding Federalism, our government was never intended to be a full democracy and the only reason that gay marriage has shifted to ublic referendum/initiative is because that is the only battleground its opponents felt they could win on. See New Jersey, where Gov. Christie vetoed a bill passed democratically through the state legislature and insisted it go to a ballot initiative. He lost by the common mechanism for passing laws in his state so he changed the game they were playing.Report

  14. Avatar karl
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    says:

    “By signing same-sex marriage into law, that is a tacit endorsement and affirmation of homosexuality as a morally acceptable lifestyle, thus forcing Jews, Christians, and Muslims to accept something that is deeply, undeviatingly offensive and against their teachings.”

    No, it is an acknowledgment of homosexual marriage as a legally acceptable lifestyle and it forces no one to accept anything except a valid marriage certificate.  If you need more clarity, does the legality of pork-eating force Jews and Muslims to accept pork-eating?  Does the legality of war accept Quakers to accept war?Report

    • Avatar Tod Kelly in reply to karl
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      says:

      This is an excellent point.Report

    • Avatar Katherine in reply to karl
      Ignored
      says:

      Given that Quakers have to pay taxes which fund the military…arguably yes.Report

      • Avatar Tod Kelly in reply to Katherine
        Ignored
        says:

        I’m not sure that I agree.  I’d be hard pressed to imagine that there’s anyone that agrees with every law or government policy, and yet things change all the time – precisely because people don’t accept them.Report

        • Avatar Katherine in reply to Tod Kelly
          Ignored
          says:

          Yes, because they’ll be abolishing the Department of Defence any day now.Report

          • Avatar Tod Kelly in reply to Katherine
            Ignored
            says:

            Heh.

            But isn’t that just a byproduct of representational government?  That some people are going to want the government to do something (the Quakers disbanding the military, perhaps, or certain fundamentalists wanting to deport Muslims and not allow Jews or Catholics to hold public office) and are just not going to get their way?

            Our differences here might be simply semantic, but just because you can’t get the government to change doesn’t mean it’s unchangeable.Report

      • Avatar karl in reply to Katherine
        Ignored
        says:

        Risking sophistry here.  Paying taxes which fund the military doesn’t imply acceptance of war as war is not a direct consequence of military spending.  And if you don’t accept that argument then consider the place of civil disobedience to register one’s noncompliance in other ways.

        Are you writing that living here and paying taxes makes, at best, every principled person who doesn’t leave a whore to the status quo and at worst, little Eichmanns?  (Never went Godwin before — it feels great!)Report

  15. Avatar Tod Kelly
    Ignored
    says:

    Sam – I think that the difference between the way you see and others see it (including myself, actually) is that one group views it as a civil rights issue, and the other doesn’t.  Most of us don’t think that civil rights should be left to the states, and consequently bristle at the idea that Texas might stand tall and say “no.”

    Most people I know would be bent out of shape if they were told that in a particular state they were not allowed to be married to their spouse.  It’s just that it’s only an actual thing to deal with for some.Report

    • Avatar BSK in reply to Tod Kelly
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      says:

      I was told by a Catholic priest that my marriage to a non-Catholic was not real. True story. Should we ban interfaith marriages on the same basis?

      Also, it sucked. Real bad. Of all the things the Church has done to piss me off, that was a big one (which is saying something given my list of gripes). I can only imagine how degrading it must be to get that same message from your government. Ugh…Report

      • Avatar Tod Kelly in reply to BSK
        Ignored
        says:

        Aside from all of the ways I find that wrong, that actual phasing is especially odd.

        “Not real.”  Like it’s a story you made up to tell yourselves while you were living in sin.  People are funny.Report

        • Avatar BSK in reply to Tod Kelly
          Ignored
          says:

          I might be conflating two situations. When I’m off the iPad, I can search for the email and the actual quote. The other situation involved the homily at a Catholic wedding where the priest spoke of how the only real love is bewtween a Catholic man and Catholic woman. I leaned over to my then-fiance and said, “I knew you’ve been faking.”

          And if I am conflating, let’s not pretend that that “oddness” is not exactly what people are thinking when opposing gay marriage. Many think the gays don’t have real relationships andjust want toplay “dress up”.Report

          • Avatar Tod Kelly in reply to BSK
            Ignored
            says:

            Many think the gays don’t have real relationships andjust want toplay “dress up”.

            Maybe, but at the risk of having all kinds of folks come down on me later for saying this, I suspect it’s less rational and more primal than that.  I really think it has to do with an inherent dislike and distrust of “the other,” and all the excuses just become window dressing around that.

            I’m remembering now, I think it was maybe my second guest post here was on that.  Art Deco (what ever happened to him?) had said “yuck” about a picture of two lesbians, and I wrote that that reaction was actually a lot more honest and easier to deal with than all the other crap.Report

        • Avatar BSK in reply to Tod Kelly
          Ignored
          says:

          The actual phrase was “invalid”.  The homily did in fact tell us that our love was not real.

          FWIW, his remark was in reply to an email seeking to invite a local priest to attend the wedding and offer a blessing over dinner, to appease my Catholic mother.  We were not asking for him to preside over the service.  So, given the choice of having a free dinner and including my family’s Catholic faith in my generation of the family’s first wedding and risking somehow tacitly acknowledging a loving but invalid marriage as valid -OR- making my mom cry the eve of the wedding and eliminate any and all chance (however slight it was) of raising our children Catholic, he chose the latter.  Swell.

          And, again, an overwhelming majority of our society, including all levels of government, acknowledge the validity of our marriage.  I can only imagine how shitty it is to have an equally valid and loving coupling be called invalid and immoral by your own government and a large swath of your neighbors.Report

          • Avatar Tod Kelly in reply to BSK
            Ignored
            says:

            Invalid is good too.  It makes me think of not answering the Jeopardy clue in the form of a question.

            All that aside, I’m actually really sorry to hear that this was a thing you guys had to deal with.  I remember that the whole wedding thing was often pretty stressful for my wife, and her family especially.  And we had nothing but well wishers.  Having to deal with the stuff you guys dealt with must have been rough.Report

            • Avatar BSK in reply to Tod Kelly
              Ignored
              says:

              Eh.  We didn’t care.  It was really for my mom.  And she moved on when I showed her the email (not from the faith… but from its essential absence from the wedding).  I’m not looking for a pity party (and I don’t think you are offering one… I do appreciate your genuine thoughts).  My larger point was that I had a mere hint of what gay couples have to deal with and it ain’t fun or pretty.  Building on your point, it makes it a hell of a whole lot easier to insist on denying marriage rights if you yourself have never had your marriage questioned or denigrated.  Which most people thankfully have not.Report

  16. Avatar North
    Ignored
    says:

    Hi Sam, I’d like to hop in here and offer some responses since this is an area where I’ve some experience. A warning this is likely going to be a tch lengthy, apologies in advance; off we go!

    “Not surprisingly, I seem to have interpreted the Duncan article differently. The data, at least to me, seems to suggest that homosexuals don’t really want to marry after all. More likely is the case that symbolism, marriage equality, civil rights, what have you, largely trump the walking down the aisle reality of marriage.”

    The issue of marriage rates in the Netherlands specifically and the Scandinavians in general is considerably more muddled than Maggie’s crew generally prefers to let on. For instance (and quite importantly) the options on the menu in the Scandanavian regions (and the Netherlands in particular) are not get married or not. In fact there are four options:

    1-Don’t get hitched in any way, live single.

    2-Co-habit informally. You’re considered in an “Unregistered partnership” there are various legal rights involved here particularily revolving around property rights based on when the property was acquired.

    3-Co-habit formally. This involves registering as a geregistreerd partnerschap or, in essence, a civil union. There are more ramifications and rights involved here more than unregistered partnerships but less than full on marriage.

    4-Marriage: maximal level of commitment and obligations but not a lot more rights really than #3.

    So if you recognize this situation it becomes considerably more understandable why gays (and heterosexuals for that matter!) in the Netherlands (and Scandanavian countries in general are choosing less marriage; they have more options than the binary married/single systems elsewhere. If you include homosexuals who’re choosing options #2,3 AND 4 you get numbers pretty much the same as everywhere else that has instituted SSM. If any lesson is to be learned from this it’s that if marriage is important to you them instituting a series of marriage lite alternatives is probably a bad idea. In other news water is wet and the sun rises in the east.

    MA is not really comparable on the other hand because what they have isn’t really marriage but again a sort of marriage lite arrangement. None of the Federal implications of marriage are involved in MA marriages (and won’t be courtesy of DOMA).

    I think the major point that hasn’t been discussed is the legal ramifications of legalizing same-sex marriage. By signing same-sex marriage into law, that is a tacit endorsement and affirmation of homosexuality as a morally acceptable lifestyle, thus forcing Jews, Christians, and Muslims to accept something that is deeply, undeviatingly offensive and against their teachings. Etc…

    This actually doesn’t parse well at all. Consider, for instance, that there are currently religious groups (Universalists, Episcopalians…) who do allow SSM and bless those unions. By forbidding SSM the government currently is forcing those religious groups to condemn something they consider acceptable. If you open up this can of worms it simply doesn’t work. You will never be able to set public policy in a way that’ll please all groups of faithful all the time.

    Mustn’t all laws enacted be legal AND moral? Or at the least give the appearance of such? The Scandinavian model accounts quite well for recent rise of marriage in those countries: newly married couples who were previously divorced; couples marrying much later in life; the slow, inexorable separation of marriage and parenthood.

    Laws are by definition legal but as for morality it depends on who you’re asking. Some Christian groups consider blood transfusions immoral, or vaccinations, or modern medicine, if you’re talking to one of those groups the current laws aren’t moral. The assertion falls apart under its own weight. Fortunately the country sorted this problem out long ago by banishing the theological dogma from the public square for the most part. Officially anyhow you need to be able to make arguements for policy on practical secular grounds. It’s not enough that Jehova doesn’t approve of this or that (depending on who you ask) you have to be able to convince everyone that a policy is good or bad without bringing up someone we can’t ask you to show your work or give a reference that doesn’t date back to 325 AD.

    It wasn’t that long ago, that Andrew Sullivan was screaming from the mountain tops, just give us Federalism, let the states determine whether or not same-sex marriage should be legal and recognized. We’ll accept the will of the people.

    Sullivan has indeed been a long time advocate of SSM. Amusingly it’s the anti-SSM side that has been shifting goalposts on this subject pretty much from the get go. When Vermont rolled out judicially mandated civil unions the SSM opponents screamed Why can’t they just accept nothing? When MA instituted SSM by judicial decree the SSM opponents howled why can’t this just be left to the legislature?? But now suddenly legislatures are approving SSM and suddenly opponents of SSM have lost their reverence for those institutions of the republic and insist that the only legitimate authority to enact SSM is by the clunky method of direct democratic vote of state populations in referenda?  That’s a lot of goalpost shifting and if current public perception and democratic trends continue they’re going to loose that one too. The referenda have been increasingly “by their fingernails” in many states. When SSM is accepted by a referendum then what’s next? Jesus has to descend on a fiery chariot and say gay marriage is cool by him?

    Well, guess what? That’s exactly what happened. And 11 states, by substantial margins, passed amendments defining marriage as the union of one male with one female. Hey, you still have 39 states to work on. Would that be acceptable? Is anything acceptable among the proponents of same-sex marriage that does not have Federal recognition of same-sex marriage?

    I don’t see why you feel that gays need, for some reason, to not have federal recognition for their unions inasmuch as heterosexuals do. Is there a reason to treat same sex unions different from opposite sex ones that doesn’t rest on a holy text or some group of church elders puckered disapproval?

    So far in the courts SSM opponents haven’t been able to muster up… well.. anything really that can withstand cross examination. This is harsh but court rules are strict: things you assert have to be demonstratably true, you need empirics and numbers and you have to show your work.

    In the public and political square SSM opponents have a better run of it. Allusions, gut feelings and dark veiled pronouncements about uncertain futures can be deployed without worrying about some judge or lawyer making you look like a fool on the court record. But even in this more friendly venue the ground is being ceded at a historic rate.

    Now personally I’m amicable to federalism myself as a sop to the fundamentalists. My own preferred federal level solution would be to make a short list of rights and obligations and say that any resident of a state that provided SSM or a civil union equivalent that met those criteria would also be able to access the assorted federal rights and obligations of marriage. Those residents in states that didn’t have it or have banned it would be out of luck (and preferably should relocate their energy and talent to a less antediluvian locale). But as always SSM opponents are going for all the marbles.

    In my own lifetime their saga has been one of repeatedly spurned golden opportunities; if they’d have rolled out some kind of positive agenda during the Hawaii and Vermont days then some sort of civil union arrangement could have been instituted nationally. Gays by and large would have settled and straights would have considered the matter settled. Had some sort of compromise been offered from the commanding heights of the culture war they commanded at that time then SSM would probably have become a left wing issue that the majority mostly ignored. Unfortunately for them (and fortunately for SSM supporters and gays [like myself]) their line of “No, no arrangement, no allowance, no legal standing, nothing ever for your kind. Please either pretend to turn straight or at least disappear” has never played well with the undecided. Soon my own position may well be considered the right wing position.

    As for the gays, well it’s obnoxious really how unremarkably normally they’re doing. The religious fundies of the right and the queer studies professors of the left can scrunch up their collective faces in unified horror at how gay kids are growing up increasingly normal and unremarked upon by their peers; at how gay adults nesting, adopting kids and assembling families; at how the former gay enclaves and refuges are dissolving as it’s becoming generally safe and comfortable to live anywhere you’d like. Yes the gays aren’t coming anymore; they’ve arrived, and they’ve brought neither the societal collapse (and locusts) that the preachers on the right predicted nor the upending of mundane social order and the rewriting of sexual mores that the professors on the left feveredly imagined. Both sides are probably going to have to get over their disappointments, Maggie Gallagher will eventually have to find a new shtick (I’m sure she’ll land safely back on her home turf of hectoring heterosexual couples) and as for me, I have to unload the dishwasher before I turn in.

    All the best.Report

  17. Avatar Jon Rowe
    Ignored
    says:

    If you give marriage to the states (federalism) you will end up with mixture.  We are a “democratic-republic,” and that means we have democratical and republican elements to all of our governments (federal, state and local).  Small r “republican” government seems more on the side of same sex marriage than small d “democratic” government.  Legislatures seem far likelier to grant same sex marriage full marriage rights than “the people” voting at ballot measures.  The Federal Constitution is very difficult to amend in a “democratic” sense, but not all of the state governments’ constitutions are.Report

  18. Avatar Katherine
    Ignored
    says:

    There’s a lot of entertaining judicial snark in this one.  My favourite is the use of understatement:

    The ‘bare desire to harm a politically unpopular group’ is not a legitimate [governmental] interest.

    the preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program. 

    The fourth argument (revenues) was one where I actually did a double take and thought, “Wait, they actually used that argument?”  It’s so inherently ridiculous (no, you can’t say “we’re not going to provide x group with the same benefits everyone else gets, because it’s cheaper that way!) that it amazes me someone would actually take it to court.

    Although this line is also awesome just for the great old-fashioned terminology (despite the fact that most religions would regard the ‘state of sin’ as existing wrt homosexual relationships regardless of legal definitions of marriage):

     “Discouraging gay marriage serves only to force gay couples to live in a ‘state of sin’ rather than in a lawfully-recognized ‘state of connubial bliss’ “

    Report

  19. Avatar Burt Likko
    Ignored
    says:

    Mustn’t all laws enacted be legal AND moral?

    Why, no, not at all. Not unless you are a subscriber to the jurisprudential philosophy of natural law and within that philosophy you adhere to the idea that natural law and morality are necessarily congruent.

    The idea of a law being procedurally valid but fundamentally immoral is not an intellectual problem at all for a legal positivist or a legal realist. This does not mean that the positivist or the realist discards moral judgment of the law; for the positivist it is rather a recognition that he who has the guns, makes the rules and for the realist, the rules are what he who has the guns actually does, and everything else is a prediction.

    If this sort of thing interests you, see here.Report

    • Avatar Mopey Duns in reply to Burt Likko
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      says:

      I just finished reading Hart’s [b]Concept of Law[/b] so I would be forced to quibble with your definition of positivism, given that I think he does an excellent job of refuting Austin’s idea of law as merely a prohibition backed by force.

      I think a better way of putting it is that a positivist recognizes that what people accept as the rules are the rules. Criteria of validity or otherwise are best settled by reference to second order rules of recognition.Report

  20. Avatar b-psycho
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    says:

    Marriage was not always a government issue.  The current status of it as something having anything to do with the State was a deliberate choice somewhere along the line.  What we now have as a result is a muddle, contracts and religion in a blender, creating conflict.

    If it were entirely my call, this connection would simply be severed. Government would completely exit the business of backing or rejecting relationships at all.  You want to combine assets, call a lawyer; you want a religious ceremony, go to church. Problem solved.Report

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