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	<title>Comments on: Supreme Court Nominee Addresses Same-Sex Marriage &#8212; Sort Of</title>
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	<description>News, analysis and fact-checking of anti-gay rhetoric</description>
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		<title>By: Michael Ejercito</title>
		<link>http://www.boxturtlebulletin.com/2010/06/30/23900/comment-page-1#comment-73011</link>
		<dc:creator>Michael Ejercito</dc:creator>
		<pubDate>Mon, 19 Jul 2010 18:31:02 +0000</pubDate>
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		<description>Baker had been cited in state and federal court rulings, such as Hernandez v. Robles, 2006 NY Slip Op 05239 [7 NY3d 338] and Wilson v. Ake, Case No. 8:04-cv-1680-T-30TBM, and Adams v. Howerton,  673 F.2d 1036. 

As for cases to cite to justify banning gay marriages, there are plenty to cite aside from Baker. The anti-bigamy Supreme Court cases (Reynolds v. United States, 98 U.S. 145, Murphy v. Ramsey, 114 U.S. 15, and Davis v. Beason, 133 U.S. 333). The most significant is Murphy, which was cited in Davis. 

From Murphy:

&quot;f we concede that this discretion in Congress is limited by the obvious purposes for which it was conferred, and that those purposes are satisfied by measures which prepare the people of the territories to become states in the Union, still the conclusion cannot be avoided that the act of Congress here in question is clearly within that justification. For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.&quot;

This quote was cited as a justifying rationale in Davis, which upheld a law prohibiting bigamists from voting against a First Amendment challenge. First Amendment challenges use a level of scrutiny at least as high as the level of scrutiny used in equal protection claims, so the rationale in Murphy should be sufficient to uphold gay marriage bans.

And one last thing to remember is that neither Baker, Reynolds, Murphy, or Davis would be sufficient to stop passage or ratification of a gay marriage amendment, except as their arguments can persuade the members of Congress and the state legislatures, any more than Minor v. Happersett stopped the passage and ratification of the Nineteenth Amendment.</description>
		<content:encoded><![CDATA[<p>Baker had been cited in state and federal court rulings, such as Hernandez v. Robles, 2006 NY Slip Op 05239 [7 NY3d 338] and Wilson v. Ake, Case No. 8:04-cv-1680-T-30TBM, and Adams v. Howerton,  673 F.2d 1036. </p>
<p>As for cases to cite to justify banning gay marriages, there are plenty to cite aside from Baker. The anti-bigamy Supreme Court cases (Reynolds v. United States, 98 U.S. 145, Murphy v. Ramsey, 114 U.S. 15, and Davis v. Beason, 133 U.S. 333). The most significant is Murphy, which was cited in Davis. </p>
<p>From Murphy:</p>
<p>&#8220;f we concede that this discretion in Congress is limited by the obvious purposes for which it was conferred, and that those purposes are satisfied by measures which prepare the people of the territories to become states in the Union, still the conclusion cannot be avoided that the act of Congress here in question is clearly within that justification. For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.&#8221;</p>
<p>This quote was cited as a justifying rationale in Davis, which upheld a law prohibiting bigamists from voting against a First Amendment challenge. First Amendment challenges use a level of scrutiny at least as high as the level of scrutiny used in equal protection claims, so the rationale in Murphy should be sufficient to uphold gay marriage bans.</p>
<p>And one last thing to remember is that neither Baker, Reynolds, Murphy, or Davis would be sufficient to stop passage or ratification of a gay marriage amendment, except as their arguments can persuade the members of Congress and the state legislatures, any more than Minor v. Happersett stopped the passage and ratification of the Nineteenth Amendment.</p>
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		<title>By: Burr</title>
		<link>http://www.boxturtlebulletin.com/2010/06/30/23900/comment-page-1#comment-71772</link>
		<dc:creator>Burr</dc:creator>
		<pubDate>Sat, 03 Jul 2010 16:38:33 +0000</pubDate>
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		<description>Kagan is a bad pick for several other reasons (especially as regards the first amendment), but these hearings are just a charade anyway..</description>
		<content:encoded><![CDATA[<p>Kagan is a bad pick for several other reasons (especially as regards the first amendment), but these hearings are just a charade anyway..</p>
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		<title>By: Priya Lynn</title>
		<link>http://www.boxturtlebulletin.com/2010/06/30/23900/comment-page-1#comment-71771</link>
		<dc:creator>Priya Lynn</dc:creator>
		<pubDate>Sat, 03 Jul 2010 15:52:58 +0000</pubDate>
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		<description>But Ginger, Kagan has previously come out and said there is no constitutional right to equal marriage.</description>
		<content:encoded><![CDATA[<p>But Ginger, Kagan has previously come out and said there is no constitutional right to equal marriage.</p>
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		<title>By: Ginger</title>
		<link>http://www.boxturtlebulletin.com/2010/06/30/23900/comment-page-1#comment-71761</link>
		<dc:creator>Ginger</dc:creator>
		<pubDate>Sat, 03 Jul 2010 01:19:35 +0000</pubDate>
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		<description>Reading between the lines here, I think that means that it doesn&#039;t have any significant precedent.  We also know she is pro gay from her D.A.D.T. answer.</description>
		<content:encoded><![CDATA[<p>Reading between the lines here, I think that means that it doesn&#8217;t have any significant precedent.  We also know she is pro gay from her D.A.D.T. answer.</p>
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		<title>By: Thomas Kraemer</title>
		<link>http://www.boxturtlebulletin.com/2010/06/30/23900/comment-page-1#comment-71647</link>
		<dc:creator>Thomas Kraemer</dc:creator>
		<pubDate>Thu, 01 Jul 2010 17:19:46 +0000</pubDate>
		<guid isPermaLink="false">http://www.boxturtlebulletin.com/?p=23900#comment-71647</guid>
		<description>I was a member of Jack Baker&#039;s gay liberation group when he was taking his marriage case to the U.S. Supreme court and I clearly recall two things:

First, Baker bragged about using a &quot;loophole&quot; that forced the U.S. Supreme Court to actually issue a ruling on his case. Baker knew that the court typically refuses to hear a case and merely allows the lower court ruling to stand. My understanding is that the legal trick Baker employed is no longer available. It appeared that the Supreme Court was irritated by this law student&#039;s gamesmanship and so they responded, with equal gamesmanship, by issuing a very unusual and ambiguous one sentence ruling. As a result, for several decades afterward, no court fully recognized Baker&#039;s case as being precedent. No court cited Baker as central to their rulings on numerous gay rights cases, even though anti-gay lawyers have always cited Baker&#039;s case in their arguments. All courts have viewed this case as being merely a law student&#039;s gay activism project, which was not supported by the mainstream legal community. Courts have correctly viewed the ruling as having little legal reasoning behind it.

Second, I recall that Baker was angrily denounced, by both straights and virtually all gay people, for seeking to legalize gay marriage. The straights hated him for the same homophobic reasons as today, and virtually all younger gay people thought that marriage was contrary to the goals of sexual and gay liberation at that time.

Another law student friend of mine took me to his constitutional law class one day when a very liberal law professor expressed his fear that Baker&#039;s then pending marriage case would set a dangerous precedent and would setback gay rights efforts in the future. This professor told Baker that a more successful path would be to pursue a series of incremental gains in civil rights for gay people instead of trying to win the most controversial gay rights first. Fortunately, the professor was wrong about Baker&#039;s case setting gay rights back, but he was correct that the case would be cited for decades to come. Hopefully, no future court will cite it as the reason to ban gay marriages.</description>
		<content:encoded><![CDATA[<p>I was a member of Jack Baker&#8217;s gay liberation group when he was taking his marriage case to the U.S. Supreme court and I clearly recall two things:</p>
<p>First, Baker bragged about using a &#8220;loophole&#8221; that forced the U.S. Supreme Court to actually issue a ruling on his case. Baker knew that the court typically refuses to hear a case and merely allows the lower court ruling to stand. My understanding is that the legal trick Baker employed is no longer available. It appeared that the Supreme Court was irritated by this law student&#8217;s gamesmanship and so they responded, with equal gamesmanship, by issuing a very unusual and ambiguous one sentence ruling. As a result, for several decades afterward, no court fully recognized Baker&#8217;s case as being precedent. No court cited Baker as central to their rulings on numerous gay rights cases, even though anti-gay lawyers have always cited Baker&#8217;s case in their arguments. All courts have viewed this case as being merely a law student&#8217;s gay activism project, which was not supported by the mainstream legal community. Courts have correctly viewed the ruling as having little legal reasoning behind it.</p>
<p>Second, I recall that Baker was angrily denounced, by both straights and virtually all gay people, for seeking to legalize gay marriage. The straights hated him for the same homophobic reasons as today, and virtually all younger gay people thought that marriage was contrary to the goals of sexual and gay liberation at that time.</p>
<p>Another law student friend of mine took me to his constitutional law class one day when a very liberal law professor expressed his fear that Baker&#8217;s then pending marriage case would set a dangerous precedent and would setback gay rights efforts in the future. This professor told Baker that a more successful path would be to pursue a series of incremental gains in civil rights for gay people instead of trying to win the most controversial gay rights first. Fortunately, the professor was wrong about Baker&#8217;s case setting gay rights back, but he was correct that the case would be cited for decades to come. Hopefully, no future court will cite it as the reason to ban gay marriages.</p>
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