counter statistics

Thursday, April 06, 2006

New Jersey Gay Marriage Case

Craig Westover has a link to the hearing. It's quite interesting.

If one really wants to understand how the arguments for and against gay marriage translate into legal arguments, this video is an excellent use of time.

Among the interesting things to note are first, how narrow the argument becomes in front of the court. The argument by the Lambda attorney focuses on a point of Jersey law that isn’t applicable in Minnesota, but the attorney is arguing state law, not federal law. The challenge, which is a due process/equal rights challenge, is made, however, under state law.

Similarly, the state of New Jersey makes no argument whether same-sex marriage is a “moral” issue or even whether or not it is beneficial for the state. The state attorney focuses on the content of the New Jersey constitution. He repeatedly makes the point that the state constitution implies the grant of authority to the legislature and that the court would be outside its bounds to -- again appealing to the same “balancing criteria” as defined by New Jersey law that the Lambda attorney addresses.

Further, it is interesting to watch the “inside baseball” being played by members of the court. You can pick up on a subtle secondary debate among the judges on the court during their questioning of the attorneys. One judge will ask a question and a second judge will follow-up, essentially framing the answer for the attorney, leaving him little to say except -- “Yes, you’re exactly right, your honor.” There is more to an appellate court case than meets the eye.

Bottom line, what I take away from the New Jersey argument is that (surprise) I still think I’m right on this issue. By far, the strongest case made is for same-sex marriage on all points with the possible exception of the one that counts -- how New Jersey law ought to be applied. The Lambda attorney's tactic on that point is to use the balancing criteria used in New Jersey law to put the burden of proof on the state.

(That contrasts with my view that the burden ought to be with those supporting same-sex marriage to prove benefit. The Lambda attorney's point, however, is valid under New Jersey law. It makes a tough case for the state attorney.)

By contrast, the state's attorney makes a good case that marriage definition belongs in the legislature, but when one of the judges gets him off onto the “balancing” criteria of New Jersey law -- weighing harm to the individual versus benefit to the state -- the state attorney has a tough time making a case for any benefit to the state of denying same-sex marriage. He fails to make a case for the abstract “protecting traditional marriage.” He insists such argument is not germane to the constitutional issue, but as one judge notes, by doing so he also undercuts the balancing criteria of New Jersey law that is at issue.

Chuck Darrell from the anti-gay activist group, Minnesota for Marriage comments:


So far no one in the media is willing to print the "L" word. (Lambda Legal) Looks like you will beat them to the punch again. Even Rachel Stassen-Berger twisted herself in knots to avoid printing the truth about Lambda's efforts.

Rachel wouldn't know a story if she was handed the trascript of a tape.

Chuck Darrell
Minnesota for Marriage
Chuck Darrell

Is he upset that Rachel Stassen-Berger didn't bite when they shopped the Dean Johnson to her? Did Craig Westover ask to hear more of the tape than just the clip Minnesota for Marriage provided?

I'd like to challenge Minnesota for Marriage to release the complete tape. Lavender Magazine has an article that goes after Dean Johnson big time as anti-gay because he's said he opposes gay marriage. The question is whether the Democrats will reprint this article and get it distributed in Dean Johnson's district. I wouldn't put it past Rick Stafford to advise such a thing. It's not the first time that Democrats have done such things. Lavender's website is down, so I can't link to the article.

In my opinion Democrats like Gene Pelowski, Al Juhnke, Elwyn Tinklenberg, Rebecca Otto, Collin "no gays live in my district" Peterson and Matt Entenza are Democrats who deserve much more criticism on this issue than Dean Johnson.

DFLer Patti Fritz, who represents half of Republican Ray Cox's Senate
district in the Faribault area, campaigned with the mantle of Paul Wellstone. How ironic that a self-proclaimed Wellstone DFLer voted for bigotry, when her Republican counterpart did not.

Another disappointing vote for the amendment came from DFLer Bev Scalze from Little Canada, who had lots of GLBT and progressive help to get elected in what should stay as a winnable district for her. But when it came to standing up for equality and fairness, Scalze deserted her political supporters. It is unlikely that progressives and GLBT activists will be around to help her get reelected next time.

Four veteran DFLers in fairly safe seats could have shown some leadership, but did not mostly it seems, out of some sense of representing religious conservatives in their district, or out of some personal distaste for GLBT Minnesotans.

That list includes 22-year veteran Bernie Lieder of Crookston and 10-year
veteran Mary Ellen Otremba of Long Prairie, both darlings of the right-to-life crowd.

Two other DFLers stand out for their vote: Gene Pelowski of Winona and Al Juhnke of Willmar.

Pelowski, a 20-year veteran, won his last race by nearly two-to-one over his Republican opponent. However, he also has the Winona State campus in his district, which is not as conservative as other parts of the state. Perhaps a Green Party candidate or a DFLer in the primary will take him on, and make him defend his vote.

Now in his fifth term, Juhnke represents half of the Willmar-area district Johnson represents in the Senate. Juhnke won his last race by fewer than 1,000 votes over an unknown Republican candidate, but DFL Party members in the district have been heating up the e-list postings over his vote.

Juhnke has responded with sanctimonious calls to come together on issues we all agree with, and to stop crucifying those who vote in deference to our own personal worldviews.

Time will tell whether the voters of his district want Juhnke's personal worldview represented for them in St. Paul.

Certainly, more than 1,000 DFLers disagree with Juhnke's antichoice, antigay, antienvironment positions.

The House vote shows what might have happened if everyone, not just most DFLers and a few Republicans, had stood up for principle.

House DFL leader Matt Entenza said that the DFL Caucus had no position on the antigay constitutional amendment, and that members were free to vote their conscience.

Why didn't the DFL Caucus take a position on an issue that clearly has been part of the DFL Party Constitution?

With the help of three House Republicans, a caucus that stood together would have had the votes to defend GLBT Minnesotans from Sviggum's attacks. Michael Krause, the Gay Agenda, Lavender, April 2005

Remember, Michael Krause is a partisan DFLer.

Senator Betzold and the Democrats on the Judiciary Committee deserve thanks for voting this nonsense down. House democratic leadership has been missing in action on this issue.

MN Publius has an interview with Elwyn Tinklenberg. Tinklenberg was promoting the 95/10 plan from Democrats for Life. Democrats for Life sounds like an extremist, rather than mainstream pro-life group. From the website:

On February 1, 2006, Kristen Day addressed members of the media at a press conference urging members of Congress to bring Holly's Law, H.R. 1079, to the House floor for a vote. Holly's Law, named in honor of a victim who died from taking RU-486, calls for a ban on the distribution of the drug until the FDA can reconsider the potentially deadly side effects.

In her remarks, Day pointed out the dangers of the abortion drug, noting that women are at risk of serious bleeding problems and even death. Day acknowledged the Democrats who have co-sponsored this life-saving legislation: U.S. Representatives Lincoln Davis, Daniel Lipinski, Alan Mollohan, Gene Taylor and Bart Stupak.

It's the extremist anti-abortion people who oppose RU 486 and Emergency Contraception.

I'd like to hear where Elwyn Tinklenberg stands on this.

In latest news the Democrats for Life have this:

Disability Rights Advocates Mark Anniversary of Terri Schiavo's Euthanasia

I'd like to hear what Elwyn Tinklenberg thinks of the Terri Schiavo situation.

Janet Robert - who is promoting the Dems for Life in Minnesota is an extremist on this issue - she wouldn't let stem cell research be discussed on her "progressive" radio station.

That 95:10 plan sounds pretty bogus - Elwyn Tinklenberg needs to be asked if he supports bogus claims - such as the so-called "abortion breast cancer link".

Tinklenberg comes accross as a reasonable person on this issue. He should know better than to fall for nonsense such as that promoted by Democrats for Life.

MN Publius asked Tinklenberg a bunch of questions about how he felt about Patty Wetterling changing her mind and getting back into the 6th District race. I'd like to hear why El Tinklenberg thinks he's the stronger candidate. I'm really sick and tired of his whining about Patty Wetterling.