Morning Report – Home Price Appreciation is moderating 2/25/14

Vital Statistics:

Last Change Percent
S&P Futures 1844.2 -1.7 -0.09%
Eurostoxx Index 3145.9 -11.4 -0.36%
Oil (WTI) 101.6 -1.2 -1.20%
LIBOR 0.234 -0.001 -0.32%
US Dollar Index (DXY) 80.08 -0.119 -0.15%
10 Year Govt Bond Yield 2.72% -0.02%
Current Coupon Ginnie Mae TBA 105.5 0.0
Current Coupon Fannie Mae TBA 104.4 0.2
RPX Composite Real Estate Index 200.7 -0.2
BankRate 30 Year Fixed Rate Mortgage 4.35
Markets are lower this morning on no major news. We had earnings from the Despot and Toll, who both reported better than expected numbers. Later on today, we will get numbers from mortgage REIT giant Annaly.
Case-Shiller reported home prices increased 13.42% year-over-year, while FHFA reported prices were up 7.7%. The FHFA index only looks at sales with a conforming mortgage so that accounts for the difference between the two indices. Case-Shiller includes distressed (cash only) sales as well as luxury sales. They noted that the month-over-month increases have been declining, signalling that momentum is starting to fall. That said, mid teens price appreciation is simply an unsustainable pace and a slowdown was inevitable.
McMansion builder Toll Brothers reported better than expected first quarter earnings with deliveries up 52% in dollars and 24% in units. Contracts however have slowed – they only rose 14% in dollars and dropped 6% in units. Toll is beginning to have some tough comps so the numbers will moderate a bit. Weather was a factor again, as roughly half of their business is in the Northeast, Mid-Atlantic and Midwest. Toll is optimistic on the spring selling season, which has been echoed by other builders like Horton and Pulte.
The hits keep coming… JPM is cutting 8,000 jobs in consumer and mortgage banking. Dimon said that JP Morgan sets goal of “fortress” compliance / control environment. That choice of words encapsulates the current relationship between regulators and the regulated perfectly.
John Boehner travels to the White House for a rare meeting with Obama. (the last one was in 2012). I am sure the subject will be the minimum wage and immigration reform which are contentious subjects to say the least. Obama intends to go hyper-partisan into 2014, and his budget was basically a left-wing wish list, so I don’t know what he intends to accomplish here, except to add a talking point that he met with House Republicans leaders and couldn’t get anywhere with them.

83 Responses

  1. Frist…………from the West Coast no less!

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  2. Brent, I really enjoy reading your Real Estate news. We’ve been watching the market very closely here and I think we’ve just about decided to sell the rental about this time next year, all things being equal! Then we can actually retire.

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  3. Thanks, Lulu… The West Coast market has been on fire… probably not a bad idea to ring the register

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  4. Scott, I have heard a little about it. There’s an outbreak of measles locally as well.

    Regarding the virus, I understood it wasn’t actually polio, which your piece also states, but that it may have to do with antibiotic resistance. I can’t remember where I read that though. If that’s true, I think it’s pretty scary.

    It’s a terrible disease. Thank God for the vaccine. I personally think that parents who don’t vaccinate their children are idiots.

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    • Tips for single women from 1938.

      Don’t drink too much, as a man expects you to keep your dignity all evening. Drinking may make some girls seem clever, but most get silly.

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  5. @limsinca: “I personally think that parents who don’t vaccinate their children are idiots.”

    You are correct. At the same time, I think large populations are always going to have outliers, and for good reason. Some outliers invent the iPhone. Or fire. Or agriculture. Or cure cancer.

    Most of them do stupid things like don’t vaccinate their kids because they think vaccinations cause disease or implant chips or whatever. Or move to shacks in Montana and send letter bombs. But the tendency serves some purpose in both individuals and larger populations, so while we lament the morons punishing their children by making them susceptible to diseases almost wiped out years ago, we like our iPhones.

    Also, the mentality that refuses vaccination is identical to the mentality that insisted on an outright ban on DDT. Questions of deployment make sense. There was no need for DDT to be easily available or widely deployed. However, DDT also prevented disease and saved lives on a massive scale. Great for frickin’ bed bugs, which are now becoming serious infestations in the US when they were almost wiped out. Fortunately, in the case of vaccinations, we recognize more easily the mistake these people are making. Thanks to Rachel Carson and Silent Spring, we did not recognize the mistake we were making with DDT.

    … I could say the same sorts of things about the wholesale withdrawal of Vioxx.

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  6. This truly is a recipe for lawlessness. It’s the new liberal version of nullification.

    “WASHINGTON — Attorney General Eric H. Holder Jr. on Monday injected the Obama administration into the emotional and politicized debate over the future of state same-sex marriage bans, declaring in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory.

    Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but said that officials who have carefully studied bans on gay marriage could refuse to defend them.”

    http://www.nytimes.com/2014/02/25/us/holder-says-state-attorneys-general-dont-have-to-defend-gay-marriage-bans.html?pagewanted=all

    This will come back to bite Democrats in the future.

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  7. I caught AG Herring basically saying that a few weeks ago. Constitutional is just shorthand for whether or not you support a given policy.

    And they’re doing it b/c they think they are invincible

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  8. The amusing thing about Herring is that he voted for the ban that he now views as indefensible. If in fact “no plausible argument” can be made that it was constitutional, then presumably that disqualifies him from holding his current office, given that he missed it at the time.

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  9. Re: The oral argument and Justice Thomas debate from earlier. Apparently oral argument is needed so that the Justices can help the litigants rewrite their briefs to include precedents that they omitted:

    ““Reading your brief,” Kennedy told the administration’s lawyer, “I couldn’t find a single precedent that strongly supports your position. . . . What are the cases you want me to cite if I write the opinion to sustain your position?”

    “I think Morton v. Ruiz comes the closest,” Verrilli replied.

    “But that’s not cited in your brief, is it?” Roberts asked.

    Verrilli conceded the point.”

    http://www.washingtonpost.com/opinions/dana-milbank-at-the-supreme-court-a-royal-mess-for-king-barack/2014/02/24/4de3ac46-9dae-11e3-9ba6-800d1192d08b_story.html?hpid=z2

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  10. @jnc4p: “declaring in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory”

    Holy shit. Then anything I think is discriminatory: against, say, conservatives or Republicans or gun owners or pro-lifers or Tea Partiers, I don’t have to uphold it. The IRS will be most displeased.

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  11. @ScottC: “Don’t drink too much, as a man expects you to keep your dignity all evening. Drinking may make some girls seem clever, but most get silly.”

    Remains a good tip today.

    And don’t fix your make up in the mirror. Man needs it in driving!

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  12. Kevin: The PPACA clearly discriminates. It must be unconstitutional.

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  13. “Fear of ‘Designer Babies’ as F.D.A. Weighs Fertility Procedure

    By SABRINA TAVERNISEFEB. 25, 2014

    GAITHERSBURG, Md. — The Food and Drug Administration is weighing a controversial fertility procedure that involves combining the genetic material of three people to make a baby free of certain defects, a therapy that critics say is an ethical minefield and could lead to the creation of designer babies.”

    http://www.nytimes.com/2014/02/26/health/fda-meeting-considers-controversial-fertility-procedure.html?hp

    “KHAN: Captain, although your abilities intrigue me, you are quite honestly inferior. Mentally, physically. In fact, I am surprised how little improvement there has been in human evolution. Oh, there has been technical advancement, but, how little man himself has changed.”

    http://www.chakoteya.net/startrek/24.htm

    Edit: Interesting Jacobin piece on the same thing:

    https://www.jacobinmag.com/2014/01/theres-a-gene-for-that/

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  14. We have reached the end of law and of constitutional order in the U.S. There is no hyperbole or even exaggeration in that statement. When judges rule that same-sex marriage is a constitutional right, that men and women are interchangeable and sex irrelevant to marriage, and attorneys general not only adopt those positions but refuse to fulfill their legal duties to defend the laws against that madness, the downward spiral has gone as far as downward can go.

    The joinder of man and woman is the one and only constant and essential that marriage ever had in human society. It takes a special kind of arrogance and irrationality to say that is the very thing that requires marriage to be redefined as a matter of law. Eric Holder is the worst and most lawless AG in history, and no one even comes in second to him. History will judge him that way.

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  15. Jesus.

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  16. http://www.washingtonpost.com/blogs/worldviews/wp/2014/02/25/the-most-surprising-thing-at-yanukovychs-estate-he-has-relatively-good-taste/?hpid=z1

    clearly, the writer is unfamiliar with Ukrainian grandmothers and the ass kicking that would result from looting or other such behavior.

    Mine campaigned for a local candidate once. and voted for the other guy, lest her preferred candidate win by too large a margin and get too full of himself.

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  17. Mark Rich is enthusiastic in his support of AG Holder

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  18. Rich is actually deceased.

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

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  19. For about a decade, Gene Weingarten as part of his weekly chats has wanted to do an unscientific reader poll about pubic hair grooming. He has been rebuffed several times but has finally gotten permission to run the poll. The results broken down by gender and age group are interesting.

    http://live.washingtonpost.com/chatological-humor-140225.html

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  20. Wow, Debbie Dingell is only 60. What the hell does she see in the old guy? Interesting survey but they asked different questions of male vs female…………telling in itself. I didn’t even know men did that to themselves………………….LOL. I guess they should have an over 60 category.

    edit………I can’t even repeat what Walter said when I asked him about it!

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  21. Do progressives really think conservative media is that powerful or is it just Obama’s Emanuel Goldstein?

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  22. Esquire piece on Rham Emanuel trying to fix Chicago’s finances.

    http://www.esquire.com/features/rahm-emanuel-interview-0314?click=smart&kw=ist&src=smart&mag=ESQ&link=http://www.esquire.com/features/rahm-emanuel-interview-0314

    Edit: He sounds like a Republican here:

    “The issue, in Rahm’s view, isn’t city workers who signed a contract filled with promises; the issue is that those promises were never real to begin with, and the only choice he has is to replace them with something that actually might happen. “Life is a series of choices,” Rahm says. “You may have to work longer, and that is pain. And it is also certainty. My view is I would like to give more certainty to more people, which doesn’t exist today.””

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  23. Why doesn’t he just raise taxes to cover it?

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  24. @Troll: “Do progressives really think conservative media is that powerful or is it just Obama’s Emanuel Goldstein?”

    Nah, but how do you get your folks to broadly disseminate propaganda without calling it that, or saying that’s what you are doing? You publicly tell them to correct the “misinformation” of the other side, and (in a neat bit of embedded PR) just state as accepted fact that the “low marks” of your program is not the fault of the program itself (how silly), but because of “misinformation” being fed to a stupid and gullible public by dastardly saboteurs.

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  25. “Why doesn’t he just raise taxes to cover it?”

    Raising taxes to fix stuff doesn’t work when you plan to still be in power when the fix is supposed to be in. Because it’s difficult to keep saying: “Oh, I said it was going to fix things to raise taxes, but, you know: Republicans! So I need to raise taxes again. But only on the wealthiest 57%.”

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  26. @lmsinca: “Wow, Debbie Dingell is only 60.”

    So? Dingell is only 82! What’s a 22 year difference? If I was on the market now, you can be sure I’d be shopping from 22 years younger to about 10 years younger. My own age? Hell no! I’m a guy. Our sexual marketplace value increases with age. It’s lowest when women’s is highest and just keeps getting higher until we turn about 60 (note, Dingell robbed his particular cradle when he was 62, right?). Any single 60 year old whose dating a woman over 40 is selling himself short. Just sayin’.

    Besides, when you get older, you want a woman who has the flexibility to bend over and pick shit up off the floor, help you button up your shirt, that kind of stuff.

    As to what his wife sees in him? It probably has something to do with his enormous schvahnstucka.

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  27. If he’s only 82, why is he retiring? Unfortunately he looks like he’s about 92! I’ve personally never gone for older guys, probably because I wouldn’t like picking up after them or buttoning their shirts. I’ll do it for Walter if I have to but I won’t be happy about it! I imagine Scott has it right………………….it’s the money! Although I hate to think about it in those terms…………………maybe it’s his position……………….lol.

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    • lms:

      maybe it’s his position

      Kissinger said that power is the ultimate aphrodisiac. But you don’t need to be married to enjoy that. Marriage gives you access to the $$$.

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  28. lmsinca: Age is interesting. Some folks look like they are 80 at 60. My wife works with a woman who is her age who easily looks 20 years older. Maybe it’s hard living, but I think genes have a lot to do with it. I think one of the big reasons some people live to 75 and others to 95 is they aren’t aging at the same speed. I remember seeing a movie about “living forever” and they interviewed a 101 year old guy who had spent his life drinking and smoking. He had lived hard enough, and he could have easily passed for 70. My step father just died recently, and he both looked and exhibited the ailments of someone in their 80s or even 90s, and he was 70. My mom had gone several years younger (6, I think) in order to make sure she didn’t end up taking care of some old guy, and she ended up doing it, anyway. And she should have known, given she’s a geneticist, or was.

    ” I imagine Scott has it right………………….it’s the money! Although I hate to think about it in those terms…………………maybe it’s his position……………….lol.”

    Or maybe it’s that he has an enormous schlong. That still counts for something.

    Possibly his sense of humor. That always helps.

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    • So? Dingell is only 82! What’s a 22 year difference?
      {snip}
      note, Dingell robbed his particular cradle when he was 62

      That would have put Dingell right at the edge of the Half Your Age Plus Seven Rule when they hooked up.

      Any single 60 year old whose dating a woman over 40 is selling himself short. Just sayin’.

      Since I just turned 50, I use the Half Plus Seven Rule to comfortably feel I don’t need to do anything to try to impress any ladies in their 20s. Just a waste of time and effort.

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  29. @ScottC: “He should have done married/unmarried, too.”

    Or actively dating/have stopped looking. I would think grooming tends to correlate highly with actively dating.

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  30. @markinausting: “We stopped at the notion that it might be painful to maintain the lawn. Probably won’t -uh- come up again.”

    Shave in the shower. No more difficult than maintaining anything else, when it comes down to it.

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  31. @yellojkt: “Since I just turned 50, I use the Half Plus Seven Rule to comfortably feel I don’t need to do anything to try to impress any ladies in their 20s. Just a waste of time and effort.”

    Yup. 30 plus. Also, ladies in their 20s are at their highest SMV. Like a brand new apartment building on the upper east side (is such a beast is possible), the rent is too damn high!

    In your early 50s, your SMV is getting comfortably higher while ladies in their 30s are getting uncomfortably lower. The pressure is on them as their options shrink and your options expand (or are expanded and comfortable, while hers are shrinking). You get to have more deal breakers and she gets to have fewer, and that’s how you want it!

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  32. There is an episode of Entourage where Vince and Turtle and E have a conversation about male grooming. The consensus was that a little was a good idea but you don’t want to look like you’re trying too hard.

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  33. I do think age is interesting. Our daughter’s boyfriend is 5 years younger than she is. I suppose 5 years doesn’t seem like too much but I think it bothers her a little, just not enough to walk away, especially since he’s not bothered in the least.

    My cousin who recently died (age 60) married a girl 25 years younger than him. He became a father at 51 but was old for his age I always thought. Not sure why she married him except that he was an all around great guy, it sure wasn’t for money. I think she might have regretted it though in the last 5 years or so when he started having health issues.

    Mark, that sounds like a pretty funny conversation between you and Roseanne. Walter seemed a little surprised that men would want to do that……………..lol. I don’t think it ever crossed his mind. He knows what I do, mums the word from me, but I’ve been a swimmer my whole life…………………and I’ve even shaved my arms before…….hahaha

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  34. Very true Scott!

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  35. @lmsinca: ” I think she might have regretted it though in the last 5 years or so when he started having health issues.”

    Well, that’s when you would regret it. Re-marriers often have a similar lament, especially late-age re-marriers: I was out scot free, I only married you to take care of me and look I’m spending it taking care of you and then I’m going to be alone again anyway, that was stupid.

    But you aren’t thinking about that when you’re in love, May/December romance or not. And you get a little trapped because you don’t want to abandon them, even though technically they aren’t exactly the person you married: ill, immobile, often tired, possibly incoherent. That’s no fun!

    But, as my mom proved, even you marry young to avoid being the one having to take care of someone, you can be sadly mistaken, and the end up getting ill and need to be taken care of anyway, even though they are younger than you!

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    • People really need to think through the “in sickness and in health” part of the vows. Those are real landmines.

      My uncle had his first and only child with his then-in-her-30s girlfriend at the age of 59. They got married and the daughter is now in high school. So my first cousin is a good ten years younger than my son.

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      • yello:

        People really need to think through the “in sickness and in health” part of the vows. Those are real landmines.

        I wouldn’t call them landmines. In these days of quick, no-fault divorce, vows are pretty easily abrogated whenever one feels like it.

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        • vows are pretty easily abrogated whenever one feels like it.

          The “for better or for worse” part of the vows is already pretty inoperative. Once things get worse, the desire to cut losses often meets a great deal of sympathy. Dumping a person for bad health is still considered gauche.

          We just recently learned that a casual friend of ours just lost her husband at the age of fifty to early onset Alzheimer’s after having it for over ten years. We were actually shocked to learn she was married as her husband never came up as a topic when we discussed her job or son.

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        • I think most marriages that die do so because of betrayals, real or imagined, big or little. Obviously gambling away the family savings, or agreeing to parenting but then showing no interest in it, or drug or alcohol addiction, or physical cruelty, or even constant incessant nagging, as well as common infidelity are stories we are all familiar with. FWIW, I have seldom seen a marriage fail purely because of a health or money issue. If the couple has bonded as a team – if neither has felt the stings of betrayals – I see them stick it out through hell and high water. YMMV.

          A young couple I know is facing an early crisis. They expressly agreed that both would work outside the home and both are good earners. Now they have had a child and she is totally babystruck and intends to quit work. Her plan is for them to move into a garage apartment his parents own because they will have to sell the 3400 sq. ft. home that requires their combined incomes to cover the mortgage. His parents would be OK with this if he were, but he feels completely betrayed.

          OTOH, one could feel betrayed, not by one’s spouse, but by life itself, if one’s spouse lost her/his mind to Alzheimer’s.

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        • See pp. 24-32. I still think the dismissal of a rational basis for state denial of SSM is an overreach, but the USDC WDT,SA Div develops the “no rational basis” theme well in response to the State’s arguments.

          I now think in the light of the DOMA case that implicitly every state will have to give FF&C to the marriages legally entered into in other states.

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        • I now think in the light of the DOMA case that implicitly every state will have to give FF&C to the marriages legally entered into in other states.

          I’ve never understood how DOMA isn’t a blatant violation of the full faith and credit clause, but as they say on the internet, IANAL.

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        • yello:

          I’ve never understood how DOMA isn’t a blatant violation of the full faith and credit clause

          If California decided to redefine the term “year” to mean 300 days for the purposes of its laws, would the FF&C clause require the federal government (and every other state) to recognize all people who had been alive for 5400 days as eligible to vote, since they define the voting age as 18 yrs old?

          If not, why do you think the FF&C clause requires that the federal government and all other states recognize two men as married simply because Massachusetts has changed the definition of marriage for the purposes of its laws?

          The problem, I think, is that you don’t see that what is happening is basically just a change of definition in terms. You think that, for the purposes of law throughout the nation, the word “marriage” has always meant a legal contract between two people, and that all that is happening is that the right to enter this contract is being granted to people who heretofore have not had it. But that is totally incorrect. The fact is that “marriage” has always meant, both in law and in common historical usage, a legal contract between a man and a woman, and so to suggest that two men can be “married” to each other is literally non-sensical, and would requires a change in the definition of the term in order to make sense.

          So that is what is going on here….some states are changing the legal definition of the term with regard to its own laws. And it makes no sense to believe that just because Massachusetts changes what it means by a term within its law, that the constitution requires all other states and the federal government to follow suit.

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        • Great line from Ace, on Lawless Holder’s nullification advice to states.

          At this point I’m convinced that Eric Holder could take a bribe and do a line of coke off of an under-aged hooker on live TV and nothing could be done about it.

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        • Mark:

          I now think in the light of the DOMA case that implicitly every state will have to give FF&C to the marriages legally entered into in other states.

          So Scalia was right. The majority’s decision made this inevitable, despite its disingenuous claims to the contrary.

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        • Mark:

          I read the pages you suggested in the Texas opinion. A couple of points.

          The court’s claim that limiting marriage to opposite sex couples “causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted” is wrong. In the first place, it is a conceptual error, indicative of the courts failure to consider the issue objectively, to say that such couples are being “targeted”. Same-sex sexual relationships are only one of many types of relationships that are not recognizable under the law as a marriage. In fact it is far more accurate to say that it is certain opposite-sex sexual relationships, to the exclusion of all other types of relationships, that is “targeted” by a law that limits marriage to just those relationships. In the second place, same-sex relationships simply cannot and do not produce children that can be needlessly stigmatized and humiliated. The only way that a same-sex couple can ever acquire children at all is for the state itself to legally transfer the rights of the two biological – and necessarily opposite-sex – parents to the same-sex couple. If the state feels that a child will suffer needless stigmatization and humiliation as a result of being raised by such a couple, then it need not grant the couple rights over the child in the first place. These are not, after all, rights that could ever be said to exist naturally and hence protected by the state, as they are with regard to opposite-sex couples who can and do produce children for themselves without the state’s approval. So it simply cannot be sensibly said that limiting marriage to opposite-sex couples produces any stigmatization or humiliation for children of same-sex parents. This limitation pre-dates same-sex parenting by centuries, so any stigmatization or humiliation derives from granting same-sex couples parenting rights, not from a failure to recognize their relationship as a “marriage”.

          (As an aside on this same point, the court at one point approvingly references another ruling which makes the inadvertently hilarious claim that “…there is simply no rational connection between Ohio’s same-sex marriage recognition bans and the asserted goal of responsible childrearing, given that Ohio’s ban does not prevent gay couples from having children.” Correct, it is not Ohio’s ban that prevents it, it is biology that prevents gay couples from having children, and it would be only the blessing of the state that allows them to circumvent that natural prevention.)

          Also, the inescapable implication of the court’s 3-stage determination that there is no rational basis to limit marriage recognition to opposite sex couples is essentially that there is no rational basis to limit marriage in nearly any manner whatsoever. After all, if, as the court claims, the existence of marriages involving a sterile man or post-menopausal woman proves that the ability to procreate is not a qualification for marriage, and hence no reason to exclude same-sex couples, then surely the existence of marriages in which sex does not take place (impotent men as just one example) also proves that a physical relationship is not a qualification for marriage, and hence no reason to exclude literally any type of two-person relationship whatsoever. What possible rational basis could the state have for excluding people who are not having a physical relationship from getting married? Not its interest in child-rearing, since the courts proclamation that “the denial of recognition of and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parents” applies equally to what I guess we can call no-sex couples, too. Not its interest in procreation, as the court has already pointed out that it already allows to be married people who do not – indeed cannot – procreate. And not its interest in tradition, since the court agrees that “tradition” is “just a kinder way of describing the State’s moral disapproval…”, which the court says is “not a legitimate reason”.

          So, again inescapably, the court’s logic pretty much eliminates any possible state restriction on who can and cannot get married to who. Who in their right mind thinks that this is what the constitution requires?

          Finally, and more broadly, I think the court’s opinion is a good indication of how perverted modern legal thinking has become, so divorced it is from document that it ostensibly is supposed to be applying and interpreting. It is personal preference in dictating a constitutional rationalization, not constitutional interpretation dictating the result. No one can seriously think that for over 200 years virtually everyone in the nation misread the constitution and mistakenly thought that it allowed states to limit marriage to opposite-sex couples only, and that it is only the keen and insightful minds of 5 Supreme Court Justices that recently uncovered this heretofore hidden meaning. Nor can anyone seriously think that the FF&C clause was intended to allow a single state to dictate to all other states what the word “marriage” must mean in its own law. To claim, as the court does, that moral disapproval of something cannot be the basis of a legitimate constitutional law is so contradicted not only by our history but even by current law that it defies belief that a serious jurist could say such a thing. Laws against prostitution, animal cruelty, selling body organs…..laws that are based on nothing but moral disapproval abound. Are they really all unconstitutional?

          It really is depressing to read these opinions and know that our constitution has become a mostly meaningless document, useful only as a prop to be twisted and mangled by imperial judges forcing their own policy preferences on the rest of us.

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        • Mark:

          From the court’s opinion:

          Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so demean their dignity for no legitimate reason.

          Legally speaking, how does a court go about establishing “dignity” and whether it has been “demeaned”? And what does the concept of “dignity” have to do with constitutional law?

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        • I pretty much agree with you Scott, but would state it differently, I think.

          The “rational basis test” has never meant what Garcia implies it means. A state does not have to regulate marriage at all. Under the notions of “rational basis” [previously] it would be rational to permit only marriages of males with females, and who are adults who are not close blood relatives. Rational basis is a very low hurdle for a legislature for a reason. It presents a high hurdle for a Court to clear. For example, no one has ever questioned that insurers can use actuarial charts to charge males more than females for life insurance, by the same company.

          To get to the Judge’s conclusion I think requires finding that sexual orientation is a suspect classification and that the SSM bans require heightened or strict scrutiny. Which is why black men cannot be charged more for life insurance than white men of the same age/health, by the same company.

          I don’t think the 5th Circuit or the Supremes will destroy the rational basis standard to twist this case.

          On dignity: this too is related to what level of scrutiny applies. If “rational basis” applies, this has no meaning, at all. OTOH, if we assume some sort of strict scrutiny, we do so because we think sexual preference is a suspect classification. If we think it is a suspect classification we do so because we think there is a history of mistreatment to back that up. If we think there is a history of mistreatment then that includes affronts to dignity. “Dignity” itself is a makeweight but one that has a history in the law. We talk about ilegally unfair suffering as from torture or racial discrimination imposing indignities.

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        • Mark:

          I don’t think the 5th Circuit or the Supremes will destroy the rational basis standard to twist this case.

          Let’s make a bet, then, because I agree with Scalia that the majority’s opinion in the DOMA case was written with precisely this eventuality in mind, despite it’s claims to the contrary. The standard bet?

          BTW, in all seriousness, what does “suspect classification” actually mean and from where does it derive its place in constitutional law? The phrase does not actually appear in the constitution as far as I know, and so I have the suspicion that it was just invented by judges as an excuse for doing something that they otherwise couldn’t justify based on what the constitution actually says. But I am genuinely curious about the origins of this particular legal concept.

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        • Scott, one would think the suspect classifications would be the plain English way of referring to the classifications in the 15thA – race, color, or previous condition of servitude.

          First time the Supremes used the phrase was in the Japanese internment cases in WW2.

          Congress added classes under its power to write enabling statutes under the post-Civil War Amendments. Thus all the statutory classes were added to the mix. The heirarchy was originally “strict scrutiny” for the 15thA classes and “heightened scrutiny” for the statutory classes.

          Sexual preference is not a FEDERAL statutory classification, so these courts are trying to stretch “rational basis” to cover. I don’t know if the Court has added a wholly court made class yet but I do not think it has done so. QB?

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        • Mark:

          Scott, one would think the suspect classifications would be the plain English way of referring to the classifications in the 15thA – race, color, or previous condition of servitude.

          If it derives from the 15th amendment, then how can the concept be applicable to anything other than laws pertaining to the ability to vote, which is what the 15th amendment is about?

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        • Consider it as guidance for the 14thA. The enabling statutes under the 14thA first went to race, than to religion and national origin, and later to age and gender.

          I think that religion and national origin have joined race in the highest category of suspect classification, but age and gender have not. They get mid-level scrutiny. I do not recall if that is a function of the statutes or if the Supremes decided the level of scrutiny in each case.

          Rational basis – like discriminating against felons by locking them away – gets virtually no scrutiny.

          Congress has actually added a lot of classes. Native Americans religious use of peyote, inter-ethnic adoptions, and more.

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        • Mark:

          Can you give me an example of an “enabling statute” with regard to race?

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        • Civil Rights Act of 1866, CRA of 1875, CRA of 1964, CRA of 1966, …

          Sample from 1870 reenactment of 1866 CRA – http://www.law.cornell.edu/usc-cgi/get_external.cgi?type=statRef&target=date:nonech:nonestatnum:16_144

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        • JNC, correct me if I have this backward, but I think Congress passed the three 1866 Amendments and the 1866 CRA at the same time, then it took two years to ratify the Amendments, and an argument arose over “relation back” doctrine. That is, a statute that was authorized before the Amendment was saved in 1868 by “relation back”. To put the controversy to rest, Congress reenacted the 1866 CRA in 1870 – the page I linked to in another comment.

          Congress thought its power over commerce, coupled with its newly created power over the states, gave it plenty of authority. In 1875, IIRC, it passed a public accommodations statute not unlike the one 90 years later. Well, at some point, maybe around 1885, the Supremes threw that one out on the grounds the commerce power combined with the 13th, 14th, and 15th A.s didn’t extend that far and interfered with private property rights – again, from memory. I don’t recall the names of the cases or of the lead case but they were called “The Civil Rights Cases” and the first Justice Harlan wrote the dissent.

          Addendum: I might be confused on the commerce clause part because as I think about it when they passed the 1965[?] CRA they included commerce as authority to back the statute maybe because the 1875 CRA did not? IDR.

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        • Mark/jnc (or anyone else who wants to answer):

          The 14th amendment says:

          All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

          Presumably the 14th amendment applies to the judicial branch just as much as to the legislative and executive branches. So if, when judging a claim that the 14th amendment has been violated, a court applies varying standards or degrees of “scrutiny” to that judgement depending upon the “classification” of the citizen making the claim, how is the court itself not in violation of the equal protection clause? Even if (perhaps especially if) the varying standards are required by federal statutes?

          It seems to me that, by applying varying standards of “scrutiny” to a case depending on the characteristics of the specific individual making the claim, the court’s action is the very epitome of treating citizens unequally before the law, ie a violation of the equal protection clause.

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  36. At the time, one of the strangest things my father ever said was that he hoped my mother died first. I didn’t understand it until he said he’d rather take care of her than she him. Then it made perfect sense to me. It didn’t work out that way though. The way things stand here, I’m the healthier one (at least for now). I think about that sometimes. Of course I would never change anything but I know it might be hard. I’m more worried about being bored out of my mind if he goes first!

    Yikes, look where this light hearted conversation lead us. Maybe I should delve back into politics.

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  37. @ScottC: “I wouldn’t call them landmines. In these days of quick, no-fault divorce, vows are pretty easily abrogated whenever one feels like it.”

    But if you plan on making it all the way to the home stretch, it something to think about. Hopefully, you’ll be compatible, and marry someone who doesn’t want to take care of you when you are old and feeble, while you do not want to have the person you marry stuck taking care of you.

    @lmsinca: “At the time, one of the strangest things my father ever said was that he hoped my mother died first. I didn’t understand it until he said he’d rather take care of her than she him.”

    Great minds think alike. I didn’t even read the second sentence before I was saying: because he didn’t want her taking care of him, he didn’t want to be leaving her behind. Which I understand and agree with. I’m pretty sure, unless something unexpected comes up, I will outlive my wife: my parents are both still alive and kicking and getting older, and hers are both dead, as is her sister (her sister due to MS and probably care taking negligence by her husband, but still, goes in the stats). She probably has a generally healthier lifestyle cumulatively than I have had over the years, so that may tip her over. But she also has a heart condition and weird degenerative hip disease.

    Anyhoo, I’m still expecting she will die before I do, and that’s how I would prefer it. And that’s how she would want it, too. So, we’re compatible!

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  38. @markinaustin: “or even constant incessant nagging, as well as common infidelity are stories we are all familiar with. FWIW, I have seldom seen a marriage fail purely because of a health or money issue”

    Oh, hell. If you’re a man married to a woman who never nags? You’re not going to abandon that diamond because of health or money issues! 😉

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  39. @markinaustin: “His parents would be OK with this if he were, but he feels completely betrayed.

    I would like to be sympathetic with the man. I normally am. I mean, sympathetic with the male. Men get the short end of the stick, and, quite frankly, don’t get the respect from our womenfolk that we’re due, in my opinion. 😉

    However, in this case, I can’t. If he feels betrayed, he’s betrayed by his own fantastical expectations that there wasn’t at least a 70/30 chance that a hundred million years of nature would kick in and the mother would want to be a woman and mother her kid. He may feel betrayed, but if he helped get her pregnant then he was a victim of his own irrational optimism and fantastical thinking.

    Or, put another way, like many people: he understood well that men and women are different when it was convenient and fun for him to understand it, but completely ignored it when it was convenient to pretend that men and women are the same. Like that mothers don’t (often) get gripped with a desire to mother their offspring after they have them.

    She could skip it, not become a stay-at-home mom, and be miserable. But she’s going to like that about as much as he’d enjoy never having sex again. We have natural drives and confounding them is not a recipe for happiness.

    Of course, there are women out there who are convinced that sex is what you do to get the man married to you, and once you’re married, that’s all over with. So there are irrational optimists everywhere!

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    • Kev – notice I said “betrayals real or imagined”. Yep, he was too naive to figure the chances she would be babystruck, as opposed to her promise.

      I suspect LMS has a marriage like R and I do where no one ever says “the trouble with you is…” or “how come you never…”, etc. I knew I had lucked out when R and I were dating and I was driving around looking for a destination and expecting her to say “why don’t you get directions from someone?” Nope.
      I said I thought our destination was “right over there” and she said “no hurry, I won’t have to pee for at least an hour.”

      And Kev, do you use a battery driven shaver in the shower or are you talking ’bout using a freaking blade?

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      • “how come you never”?

        Man, that must be nice.

        “I was driving around looking for a destination and expecting her to say “why don’t you get directions from someone?””

        Bliss. Ah, well. If I date any as a widower in 20 or so years, I’ll know what to look for. 😉

        Bic disposable razor. Occasionally scissors before the shower. Depending on the season. 😉

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  40. It was very interesting two years ago when Walter and I both thought I was going to die for awhile. I loved seeing how he reacted and treated me. He called it an adventure………………lol…………..I’ll say!

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  41. @limsinca: “I loved seeing how he reacted and treated me. ”

    Very nicely, I hope!

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  42. I imagine you’d be correct Mark. How can you not love a man who wears swim goggles when he chops onions or saves your life. 😉

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  43. @ScottC: given that Ohio’s ban does not prevent gay couples from having children.

    And all the time I thought biology had something to do with it. Live and learn.

    While, at this point, I am pretty much 100% positive that we’ll have gay marriage (and before nationwide legalization of marijuana, something I thought would have already happened!), and that those opposed to gay marriage will be seen, in retrospect, to have been “on the wrong side of history” . . . I think the tortuous pretzel logic and lack of same that was used to get to the point of nationally recognized same sex marriage, and the sometimes near incoherence of the legal advocate for same sex marriage, will be forgotten.

    We’ll just be back on to single payer healthcare as a right being cruelly denied us by bigoted healthophobes.

    @markinaustin: no one has ever questioned that insurers can use actuarial charts to charge males more than females for life insurance

    Am I off in my belief that it might be different if women were the ones getting charged more for being women?

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    • Kev – women pay more for health insurance under the same actuarial charts. At least they did before ACA. But that is not an equal protection issue.

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      • mark:

        women pay more for health insurance under the same actuarial charts. At least they did before ACA.

        Isn’t that based not on actuarial charts but simply on increased coverage? I always thought that women get charged more because they have to be covered for more/different risks (eg pregnancy) that men do not incur, but that based on actuarial tables for the same risks that also apply to men (eg lung cancer, heart disease), they actually are less risky than men.

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        • Scott – I have never thought about the distinction between what the actuarial results were and how women naturally have more medical risks. Does that make a difference here? It is still a rational basis for various premiums based on gender. In other words, the package of risk protection a woman buys is by nature a bigger shopping bag than the one a male buys. Right. No invidious discrimination based on gender. And summary judgment against the woman who complains that United Health Care overcharged her compared with men of the same age and general health.

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        • Mark:

          Does that make a difference here?

          Not for me, but I think an insurance company should be able to use any method that it thinks is appropriate to set its premiums, regardless of whether the buyer falls into a “suspect classification” or not.

          In other words, the package of risk protection a woman buys is by nature a bigger shopping bag than the one a male buys. Right. No invidious discrimination based on gender.

          Yes, I agree with that. But if actuarial tables show that black men are a greater insurance risk than white men, and therefore insurance companies adjusted premiums as a result, I wouldn’t call that invidious discrimination based on race, either.

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        • But if actuarial tables show that black men are a greater insurance risk than white men, and therefore insurance companies adjusted premiums as a result, I wouldn’t call that invidious discrimination based on race, either.

          We became oversensitive to that one by reason of having freed a whole population that had been slaves. You are logically correct. Historically, the law, since 1964 especially, has over-corrected in response to the previous blind eye it gave.

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  44. I thought one reason for The Abomination was the horrific injustice of charging users of more healthcare services a higher rate then those that use less?

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  45. Civil Rights Act of 1866 probably qualifies.

    http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866

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    • jnc:

      Your link says that:

      Since 1866 it has been illegal in the U.S. to discriminate in jobs and housing on the basis of race. However, federal penalties were not provided for, so that remedies were left to the individuals involved.

      It is not entirely clear, but I assume this means that it was the Civil Rights Act of 1866 that made it illegal. How can making job/housing discrimination illegal be construed to be enabling that 14th amendment, which relates only to laws passed by states, not employment standards used by employers?

      (Also, as an aside, it seems the CRA of 1866 was passed before the 14th amendment was passed.)

      Basically I am trying to understand how an “enabling statute” can necessitate the creation of special classifications which require judges to treat claims of a 14th amendment violation from some people entirely differently than it treats the same claim from other people. For example, if a state passed a law that said that homosexuals are not allowed to vote in state elections, I don’t think that a claim that this law violated the 14th amendment ought to be treated any differently by the court than the same claim about a law that declared blacks are not allowed to vote in state elections. The fact that an “enabling statute” specifically outlawing the latter but not the former exists (thus giving special “suspect class” treatment to one but not the other) is irrelevant to my determination of whether or not the law is a violation of the 14th amendment.

      Likewise, if insurance company actuarial tables suggest that both blacks and gays represent greater insurance risks than non-blacks and non-gays, the fact that an “enabling statute” specifically disallows insurance companies from using that info in its premium pricing for blacks but no such statute exists with regard to gays does not imply to me that a court should apply a different 14th amendment standard to the former than the latter.

      So what am I missing?

      Like

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