Will California deny peoples' rights in November?

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Postby Swordsman_Of_The_Tower » Fri May 18, 2012 4:04 pm

I'll just wait here why y'all debate whether I get the same rights as everyone else.

That said it is nice and refreshing to have someone with as much stature as the president say something positive about you for a change instead of say your some sort of weirdo or whatever the bible says.
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Postby TheEllipticalDisillusion » Fri May 18, 2012 5:01 pm

portia wrote:A lot of the governmental "benefits" are pre-existing, and anyone who enters into that kind of contract gets the benefits. Participation is not necessarily limited to specific people, other than persons who want to enter into the contract.

I do not agree that the "reason" the government is involved in deciding who can marry is those benefits. It is merely a circumstance; how things have developed.


But the government has always been the force behind contracts. The government makes laws that people can be jailed, fined, etc. if they breach contracts. If the government didn't back the contracts, how would anyone recoup losses?

I don't disagree with you in terms of the pre-existence of the marriage benefits, but the government acts as the protector of those benefits. The government makes sure that everyone follows the rules as they are understood. The whole thing might be circumstantial, but it is how these things evolved.
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Postby AlexSnitzel » Tue May 22, 2012 6:55 am

Swordsman_Of_The_Tower wrote:I'll just wait here why y'all debate whether I get the same rights as everyone else.

That said it is nice and refreshing to have someone with as much stature as the president say something positive about you for a change instead of say your some sort of weirdo or whatever the bible says.


:thumbsup: It's easy for this to be debated on a "philisophical" level and forget that people are actively being hurt by lack of positive legislation for us. Tax benefits, visiting rights, that sucks. Insurance, that's where it can become life or death.
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Postby Frelga » Tue May 22, 2012 1:29 pm

Round here, many employers do provide insurance for same-sex partners. For immigration, there's no recourse, though.
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Postby Swordsman_Of_The_Tower » Tue May 22, 2012 7:46 pm

http://usnews.msnbc.msn.com/_news/2012/ ... fence?lite


Apparently now it was "a joke" :roll: Even if it was, it wasn't funny, lest we forget pink triangles not that long ago. Even more disturbing is that this is a mainstream church with people saying "AMEN" in the background. And for every one of them there are thousands more who would in their place.
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Postby portia » Fri Jun 01, 2012 8:26 am

The First Circuit Court of Appeals has stricken the "Defense of Marriage Act" as not providing equal treatment to all persons who are legally married under their state law, based on whether they are in a same sex marriage or heterosexual marriage.

I have problems on that law under the "Full Faith and Credit" clause, too, but an equal protection argument is stronger.

On to the Supreme Court.
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Postby TheEllipticalDisillusion » Fri Jun 01, 2012 1:49 pm

Swordsman_Of_The_Tower wrote:http://usnews.msnbc.msn.com/_news/2012/05/22/11813973-charles-worley-north-carolina-pastor-faces-backlash-outrage-over-call-for-gays-to-be-put-behind-electric-fence?lite


Apparently now it was "a joke" :roll: Even if it was, it wasn't funny, lest we forget pink triangles not that long ago. Even more disturbing is that this is a mainstream church with people saying "AMEN" in the background. And for every one of them there are thousands more who would in their place.


You don't get that putting gays and lesbians in a fenced-in area and maybe feeding them, then waiting for them to die off is just a new style of humor? Swordie, where's your funny bone... :P <---that indicates friendly sarcasm.

Another disturbing aspect of that video was that these parishioners who said "Amen" during his sermon don't see how even "jokingly" fencing people in is cause for alarm. Then again, too many christians do believe they are the most persecuted group in America.
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Postby portia » Sat Jun 02, 2012 7:02 am

I am repeating myself, but I can't get over how some people think that other people's private lives are their business.

People repeat this mantra about "defending marriage" as if it is self evident, but it certainly is not. If there is reasoning behind it, I can't imagine what it would be.
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Postby Arvegil » Tue Jun 05, 2012 8:35 am

portia wrote:The First Circuit Court of Appeals has stricken the "Defense of Marriage Act" as not providing equal treatment to all persons who are legally married under their state law, based on whether they are in a same sex marriage or heterosexual marriage.

I have problems on that law under the "Full Faith and Credit" clause, too, but an equal protection argument is stronger.

On to the Supreme Court.


I'm not so convinced that the "equal protection" argument is that strong either, considering that we are not dealing with a highly protected class.

Of course, I have a position almost guaranteed to annoy everyone: I do not believe that SSM is in any way a constitutionally guaranteed right, but I do consider it to be entirely sound and reasonable public policy whose time has come. Which is why I have consistently held that this is properly a legislative matter and it is high time that state legislatures figure out what century it is.
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Postby portia » Tue Jun 05, 2012 9:54 am

The Equal Protection argument is basically that if different groups of people are to be treated differently with regard to functions, benefits, and so on of government, there has to be an articulable reason, at least. Sometimes the reason has to be better than just articulable (articulateable?).

The full faith and credit argument is that the Constitution requires that states give "full faith and credit" to one another's laws. But there is an out. Congress is allowed to make laws to "enforce" this clause. The Defense of Marriage Act is, in my opinion, not a law enforcing the Constitution, but contradicting it, since it limits the full faith that one state has to give to the marriage laws of another.

The 9th Circuit announces this AM whether it will take another look at the decision, with the full group of judges. I can't wait, as I see reasons they could go either way.
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Postby Arvegil » Tue Jun 05, 2012 11:02 am

portia wrote:The Equal Protection argument is basically that if different groups of people are to be treated differently with regard to functions, benefits, and so on of government, there has to be an articulable reason, at least. Sometimes the reason has to be better than just articulable (articulateable?).

The full faith and credit argument is that the Constitution requires that states give "full faith and credit" to one another's laws. But there is an out. Congress is allowed to make laws to "enforce" this clause. The Defense of Marriage Act is, in my opinion, not a law enforcing the Constitution, but contradicting it, since it limits the full faith that one state has to give to the marriage laws of another.

The 9th Circuit announces this AM whether it will take another look at the decision, with the full group of judges. I can't wait, as I see reasons they could go either way.


I absolutely see your point regarding "full faith and credit." Personally, I saw DOMA as a repellent intrusion of federal busybodies into what was properly a state matter, but I am also aware that arguments of that type were tainted for a century by the mid-20th century southern congressional delegations. I do not see it as any attempt to enforce "full faith and credit" so much as a top-down directive.

Possibly the cleanest way to resolve the "full faith and credit" issue would be to find that any marriage validly formed in its state of origin is valid in all states and territories- period. This would, of course, force even the most anti-SSM states to recognize SSM to a limited extent within their jurisdictions, but so be it. Just as I do not think that there is a Constitutional right to SSM, likewise there is no Constitutional right to keep SSM out in the name of social purity. I also recognize that this principle could theoretically apply to plural marriage, but I am willing to deal with that if it arises later.

This issue seems "sexy" enough for en banc review. Gives more judges a chance to be in on the opinion.
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Postby portia » Tue Jun 05, 2012 11:44 am

Yes, I can see why more judges would like to have a say.

I agree that there is not a Constitutional right to SSM, or any particular type of marriages, or any marriage, as far as that goes. It has arisen in many ways, in different cultures. It seems to have gravitated to becoming enshrined in law.

http://en.wikipedia.org/wiki/Marriage

has comments on a number of origins and purposes for marriage.

We are trying to find a workable definition. It will be a long process.

Later: The whole 9th Circuit will not be reviewing the decision. On to the USSC.
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Postby Arvegil » Tue Jun 05, 2012 4:57 pm

portia wrote:Yes, I can see why more judges would like to have a say.

I agree that there is not a Constitutional right to SSM, or any particular type of marriages, or any marriage, as far as that goes. It has arisen in many ways, in different cultures. It seems to have gravitated to becoming enshrined in law.

http://en.wikipedia.org/wiki/Marriage

has comments on a number of origins and purposes for marriage.

We are trying to find a workable definition. It will be a long process.

Later: The whole 9th Circuit will not be reviewing the decision. On to the USSC.


Kind of surprised about the lack of en banc review.

Of course, this is exactly the kind of narrow decision the SCOTUS just loves to deny cert on...
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Postby portia » Tue Jun 05, 2012 5:06 pm

Yes, it definitely could be. They have limited time, and only CA, as far as I know, would be affected. Stay tuned.
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Postby Voronwe_the_Faithful » Wed Jun 06, 2012 9:10 am

Arvegil wrote:Kind of surprised about the lack of en banc review.



The conservative members of the court issues a scathing dissent to the denial of the petition. That is almost unheard of.

The only thing keeping me from agreeing that the SCOTUS will adopt the limited argument made by the Ninth is the fact that they also have the First Circuit's DOMA decision to deal with. If they consolidate the cases it may result in a more sweeping decision. One way or the other.
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Postby portia » Thu Jun 07, 2012 7:04 am

If they are consolidated it would have to be a more sweeping decision, IMO. The Ninth Circuit tried to avoid the question of federal rights or other state's treatment of same sex marriages. It emphasized that the rights of civil union couples are exactly the same as the rights of heterosexual married couples, with only the name of "marriage" being different.

However, the First Circuit's decision showed that there is, in fact, unequal treatment at the federal level and interstate level, between same sex marriages and heterosexual marriages, even if the couples were married under the same state law. I think that casts a different light on the Ninth Circuit's decision.

Does the First Circuit's decision undermine the reasoning of the Ninth Circuit?
Can they be reconciled some way?
Is this too narrow an issue to have to be decided by the Supreme Court?

No answers, now, from me. I am too busy otherwise, but if I let it rest in the back of my mined, I may have another comment, later.
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Postby Voronwe_the_Faithful » Thu Jun 07, 2012 7:10 am

Here's my off-beat, outside the box comment.

If the court overturns the healthcare reform law, they may end up ruling that prohibiting same sex marriage is unconstitutional to counter-balance the impression that this is a court with a radical conservative agenda. I know it is not suppose to work that way, but sometimes it does.
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Re: Will California deny peoples' rights in November?

Postby portia » Mon Dec 03, 2012 8:00 am

Today, the US Supreme Court is expected to announce whether it will take up the "Defense of Marriage Act" cases and the petition for Cert. on the Prop 8" case (Oops. Just announced: there will not be an announcement today.)

IMO, it is less likely that the USSC will take up the Prop 8 case, as it arises from almost unique facts. On the other had the Defense of Marriage Act cases affect many, if not all, states.

Stay tuned.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Wed Dec 05, 2012 3:52 pm

portia wrote:Today, the US Supreme Court is expected to announce whether it will take up the "Defense of Marriage Act" cases and the petition for Cert. on the Prop 8" case (Oops. Just announced: there will not be an announcement today.)

IMO, it is less likely that the USSC will take up the Prop 8 case, as it arises from almost unique facts. On the other had the Defense of Marriage Act cases affect many, if not all, states.

Stay tuned.


Current estimate is Friday or Monday for the word...
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Re: Will California deny peoples' rights in November?

Postby portia » Wed Dec 05, 2012 9:04 pm

If I were a betting woman (I am not, but what the heck?) I would put down fairly serious money that the Court would deny cert. to the California Prop 8 case, letting the Ninth Circuit decision stand and probably grant cert to one or more DOMA case(s). California's case is unique (tho' another state--Colorado, I think--has a similar situation), while the DOMA cases affect all states, one way or the other.
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Re: Will California deny peoples' rights in November?

Postby Voronwe_the_Faithful » Thu Dec 06, 2012 1:34 pm

There is a new wrinkle that could, possibly, delay things even more.

As noted by SCOTUSBlog, yesterday a group sponsoring Nevada's same-sex marriage ban petitioned the SCOTUS to directly hear an appeal of a District Court decision upholding that ban, instead of having the Ninth Circuit first hear that appeal. As you guys know, it is extremely unusual for the high court to accept an immediate appeal from a District Court, without first having the Court of Appeal issue a decision. But the Nevada proponents have argued that this case presents the perfect opportunity for the Hight Court to issue a final decision on the question of same sex marriage.

I doubt the court will actually agree, because I don't think they are ready to make a final decision on the question of same sex marriage. But I think that there is good chance that this will lead them to consider the whole thing longer, and delay a decision about what to do to a future date.

The SCOTUSBlog article is at: http://www.scotusblog.com/2012/12/court ... iage-case/
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Fri Dec 07, 2012 1:05 pm

Voronwe_the_Faithful wrote:There is a new wrinkle that could, possibly, delay things even more.

As noted by SCOTUSBlog, yesterday a group sponsoring Nevada's same-sex marriage ban petitioned the SCOTUS to directly hear an appeal of a District Court decision upholding that ban, instead of having the Ninth Circuit first hear that appeal. As you guys know, it is extremely unusual for the high court to accept an immediate appeal from a District Court, without first having the Court of Appeal issue a decision. But the Nevada proponents have argued that this case presents the perfect opportunity for the Hight Court to issue a final decision on the question of same sex marriage.

I doubt the court will actually agree, because I don't think they are ready to make a final decision on the question of same sex marriage. But I think that there is good chance that this will lead them to consider the whole thing longer, and delay a decision about what to do to a future date.

The SCOTUSBlog article is at: http://www.scotusblog.com/2012/12/court ... iage-case/


In all honesty, I see the odds of the SCOTUS granting direct cert to be about as high as my winning the Powerball, getting struck by lightning, and then kidnapped by supermodel/ninjas, all in the same day.
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Re: Will California deny peoples' rights in November?

Postby portia » Fri Dec 07, 2012 5:59 pm

The US Supreme Court has taken the whole bunch; DOMA and Prop 8.
Information will leak out over the coming months about what the sides are arguing.
Should be interesting.

About all that I am willing to say is that the Court would not have taken the Prop 8 case if it weren't thnking of doing something with it.
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Re: Will California deny peoples' rights in November?

Postby Voronwe_the_Faithful » Fri Dec 07, 2012 11:07 pm

But we know already what the parties need to argue about. In both the Prop 8 case and the DOMA case, the court ordered the parties to brief standing issues that may well prevent the court from reaching any of the substantive issues. In the Prop 8 case, the court ordered the parties to revisit the issue of whether the initiative proponents had standing to appeal the District Court decision after the governor and attorney general refused to do so. Similarly in the DOMA case, the court ordered the parties to brief whether the House Republicans had the right to defend DOMA once the administration refused to do so. Beyond that, the court ordered the parties to brief the substantive issues in the broadest possible sense. In the Prop 8 case, there is almost no chance that the court is going uphold the Ninth Circuit on the same grounds that Justice Reinhardt used to invalidate Prop 8 on the narrow grounds applicable only to California. Either it is going to make a very narrow, technical decision on the standing issue, or it is going to issue a sweeping, decision that either validates or invalidates a state's right to prohibit. As for the DOMA case, it is unclear as to how a ruling that DOMA violates the equal protection clause by treating married same-sex couples differently than other married couples would effect the underlying issue of whether there is a fundamental right of same sex couples to marry the partner of their choice. Right now, it is looking like the Prop 8 case has the potential more far-reaching impact, if the court reaches the substantive issue.
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Re: Will California deny peoples' rights in November?

Postby portia » Sat Dec 08, 2012 8:50 am

I certainl;y do not have a stellear track record of predicting how the Court will rule. But, since I believe we are all entitled to our opinions, I will comment.

While I think that the Cal Supreme court was on proper ground in saying that, under CA law, there was no diffrence between Marriage and Civl Union, except the name, once the case entered the federal system differences because of DOMA became relevant.

So, one possibility is that the court will look at the broad issue and say that, as to Prop 8, there are differences between a marriage and a civil union under federal law, and to deny a same sex couple the federal benefits of marriage cannot be done without satisfying some level of scrutiny. Same sex couples are not a protected class under federal law. But I expect that all will argue that "marriage" is a fundamental relationship and, therefore, some level of increased scrutiny is proper, or, at least, inescapable. So, it is possible that the Court will define that level of scrutiny and proceed to see if different treatment of same sex marriages satisfies it.

I would not place any reliance on the argument that boils down to "marriage has always been between one man and one woman." In the first place, that argument isn't even factually accurate. Maybe an argument that "marriage has always involved people of different genders" would be accurate. But the more important point is that, offhand, I do not recall an instance where a practice or law that was challenged as violating people's rights has been upheld on the grounds that "we've always done it that way." I see no reason for that argument to prevail, now.

As to decide to throw out the cases based on the proponents of Prop 8 or the Republicans in Congress not having standing: I do not see it. If the Court has requested briefing, it will get briefing, but deciding such a big issue on that basis, after granting cert. just is not the way the Court does business. The most I can imagine on this basis is a decision that Cert. was improvidently granted (implying that there was no standing); not a full opinion.

Gee are we entering the field of talking heads trying to guess what the court will do? And we are not even getting paid or getting our faces on TV!
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Re: Will California deny peoples' rights in November?

Postby Voronwe_the_Faithful » Sat Dec 08, 2012 11:48 am

portia wrote:As to decide to throw out the cases based on the proponents of Prop 8 or the Republicans in Congress not having standing: I do not see it. If the Court has requested briefing, it will get briefing, but deciding such a big issue on that basis, after granting cert. just is not the way the Court does business. The most I can imagine on this basis is a decision that Cert. was improvidently granted (implying that there was no standing); not a full opinion.


That's precisely what people were saying about the big Pledge of Allegiance case a few years ago, which was a big deal (though admittedly not as big as this). And yet that is exactly what the Court did. The thing about the Prop 8 issue is that the Court traditionally doesn't like lower courts going against its own specific statements, even when those statements are in non-binding dicta. And that is exactly what happened here, with the California Supreme Court and the Ninth Circuit combining to find standing in contradiction to the explicit statement that the Court made in the Arizonans for Official English that "this Court [has n]ever identified initiative proponents as [constitutionally]-qualified defenders of the measures they advocated. . . . We thus have grave doubts about whether [the initiative sponsors] have standing under Article III [of the Constitution]. . . " I could very, very easily see the Court granting Cert for the explicit purpose of confirming that in fact initiative proponents do not have standing to appeal in these situations.

On the other hand, I would be very surprised if the Court resolved the DOMA case on the standing issue.
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Re: Will California deny peoples' rights in November?

Postby portia » Sun Dec 09, 2012 7:31 am

Voronwe_the_Faithful wrote:
portia wrote:As to decide to throw out the cases based on the proponents of Prop 8 or the Republicans in Congress not having standing: I do not see it. If the Court has requested briefing, it will get briefing, but deciding such a big issue on that basis, after granting cert. just is not the way the Court does business. The most I can imagine on this basis is a decision that Cert. was improvidently granted (implying that there was no standing); not a full opinion.


That's precisely what people were saying about the big Pledge of Allegiance case a few years ago, which was a big deal (though admittedly not as big as this). And yet that is exactly what the Court did. The thing about the Prop 8 issue is that the Court traditionally doesn't like lower courts going against its own specific statements, even when those statements are in non-binding dicta. And that is exactly what happened here, with the California Supreme Court and the Ninth Circuit combining to find standing in contradiction to the explicit statement that the Court made in the Arizonans for Official English that "this Court [has n]ever identified initiative proponents as [constitutionally]-qualified defenders of the measures they advocated. . . . We thus have grave doubts about whether [the initiative sponsors] have standing under Article III [of the Constitution]. . . " I could very, very easily see the Court granting Cert for the explicit purpose of confirming that in fact initiative proponents do not have standing to appeal in these situations.

On the other hand, I would be very surprised if the Court resolved the DOMA case on the standing issue.


The Court could use the Prop 8 case to reinforce cases like the Arizona case and hold that standing is a real requirement, and has to be satisfied. But I hope not. The courts want to stay out of cases unless they absolutely have to intervene. But I think it does the Court, and the legal system, no good when courts decide important issues, that affect many people, on procedural matters (especially ones that are primarily judge-created) like standing that put the matter entirely out of court. People, generally, expect the courts to try to resolve issues so that there is an answer that others can use to make decisions about their future behavior.

I think that Jerry Brown and the Obama Admin. made the wrong decisions in deciding not to defend Prop 8 and DOMA respectively. IMO, they have a responsibility to defend the decisions of co-equal branches of government (or the initiative process) and make whatever legal and factual points they can ethically make. The proponents of the laws in question will certainly be allowed to file amicus briefs making points the Attorneys General felt that they couldn't make. If the Court decides that the Prop 8 proponents have no standing, I hope the Court will add a comment about the CA Attorney General's office not doing its proper duty.
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Re: Will California deny peoples' rights in November?

Postby Voronwe_the_Faithful » Sun Dec 09, 2012 8:59 am

I agree with your first paragraph, but I strongly disagree with your second paragraph. Elected officials should not be forced to defend laws that they understand are egregiously unconstitutional violations of citizen's rights. That situation should not, and does not, come up very often, fortunately, but this is one of those rare cases (or two of them, though related), and I admire Schwarzenegger, Brown and Obama for doing the right thing.
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Re: Will California deny peoples' rights in November?

Postby portia » Sun Dec 09, 2012 5:58 pm

I see an analogy to criminal defense. Even the most horrible murderer is entitled to have his/her rights defended and all legal arguments that apply put forward. Even if the attorney knows that the person did the acts of which he is accused, taking the case means that the person has to be defended as well as circumstances permit. Keeping in mind ethics (such as not putting someone on the witness stand who one knows will lie).

Attorneys General should, and I hope they did, argue to the proponents of Proposition 8 that the measure was not constitutional. But, if they did, it was only their opinion. The Governor and Attorney General are not and should not try to be judges. They chose to be advocates. The people of the State of California decided to pass Prop. 8 (wrongly, but so what?). Those people are Jerry Brown's and Arnold Schwarzenegger's clients and they abandoned them.* There are many agile minds in the California Attorney General's office (Including, for 26 years in the past, Mr. Portia). They could raise whatever arguments exist for the Proposition, and should have.

But this controversy and difference of opinion has gone on forever, and is unlikely to be resolved.

*The people who voted for Prop 8 are voters and also taxpayers and pay the A.G.'s and Governor's salaries. They have a right to services. I am not suggesting anything unethical, but there are always some arguments that can be made.
Last edited by portia on Wed Dec 12, 2012 8:49 pm, edited 1 time in total.
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Re: Will California deny peoples' rights in November?

Postby Minardil » Wed Dec 12, 2012 10:10 am

I see an analogy to criminal defense. Even the most horrible murderer is entitled to have his/her rights defended and all legal arguments that apply put forward.


The criminal deserves to have his rights protected, certainly, but don't they sometimes plead "Guilty" or "No Contest"? Seems that's what has happened here, to continue your analogy.
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