No* Only one judge I have ever appeared before has ever done me this courtesy: stating in writing the questions, he’s going to ask days before the oral arguments. In this case, though, I suspect it’s because there are no good answers to several of those questions.
* I forgot. One judge once sent opposing counsel and I a short note asking us to be prepared to discuss one case that neither side had mentioned in any of our respective briefs. Not surprisingly, that particular case was the basis for the judge’s ultimate decision. Nothing as elaborate as this, though.
Burt, my reading suggests he’s already bought one set of arguments [pro-SSM] lock stock and barrel, and has ORDERED the other side to attempt to refute them or STFU. Is this your reading as well?
[I find several of the questions irrelevant, such as requiring the DOMA defenders to “prove” how gay marriage would harm man-woman marriages. He knows no such proof exists that can’t be rebutted to the satisfaction of an SSM sympathizer, and further, if it’s a “rights” issue [as he indicates it is], even effective proof would be irrelevant.]
Yes, the questions strongly suggest he’s leaning in favor of finding DOMA unconstitutional.
Some of the questions, like the one you point to, are calculated to elicit evidence applicable for particular issues that come up within different standards of evaluating issues before the court, like a balance-of-harms analysis.
This is an interesting issue, though — what harm to man-woman marriages to SSM opponents perceive? I’m unlikely to find such a showing persuasive, and all I’ve seen out there in the sociology is a correlation, without causation, of declining marriage rates when SSM is adopted. The correlation does not explain similarly-declining marriage rates in non-SSM jurisdictions, though.
I’ve heard tell of an idea that adopting SSM somehow diminishes or dilutes the value of OSM, but I just plain don’t understand that argument, as in, every time I have heard I have literally concluded it was nonsense.
I’m not a fan of that argument either, Burt, if only for the reason that no proof for it would ever be sufficient to a skeptic. Further, that if it’s a rights issue, negative effects are irrelevant. We put up with negative effects all the time for constitutional reasons [Nazis in Skokie, the right to bear arms, etc.]. Further, that it’s a policy argument by nature [is this a good idea?] rather than a legal/constitutional one.
Basically, the argument is that heteros have made such a joke out of marriage, one more won’t hurt. But the real argument is that the state has no compelling interest in any sexual behavior that can’t produce babies, obviating the rights issue completely. The Constitution permits both SSM and the states declining to institute it. Where the Constitution is silent, it is silent. If there were no such thing as babies—and the state’s compelling interest in them—the same would apply to all sex stuff.
But the judge doesn’t want to hear that. By ORDER.
The argument for SSM? This isn’t it:
“Basically, the argument is that heteros have made such a joke out of marriage, one more won’t hurt.:
Speaking of questions, what’s the deal, was Kim Jong-Il moonlighting as your Monday Trivia writer? 🙂
My bad. I wrote it last night but hit “Save” rather than “Publish.”
Finding good material for the Monday trivia, which can be presented in a challenging but ultimately solvable fashion, is a challenging enough task. Will’s been doing a really good job with it and I for one am enjoying being challenged as a player rather than as the quizzer.