Proposition 8 declared unconstitutional

[Lemur]

Yup, Orin Kerr is delivering a very gussied-up and well-dressed version of the slippery slope fallacy.

Meanwhile, going back to the notion that the Prop 8 supporters pretty much threw the trial, here's a little hard data:

Challengers of Proposition 8 presented 17 witnesses at the trial. ProtectMarriage called only two, and those witnesses made several damaging concessions during cross-examination. In his ruling overturning Proposition 8, Walker complained about the dearth of evidence from ProtectMarriage.

A little more detail:

ADF CANCELLED all of their pertinent witnesses except two: David Blankenhorn and William Tam.

Proponents elected not to call the majority of their designated witnesses to testify at trial and call not a single official proponent of Proposition 8 presented to voters and the arguments presented in court. [...]

Both witnesses were deemed completely unacceptable by the judge. They had no pertinent academic credentials and they both had ties to the George Reeker scandal as well. When asked about sources for a statement, William Tam gave one of the most anemic answers in trial history "I found it on the internet."

While they were supposedly acting as proponents for the State of California (NOT Protect Marriage), they did nothing to prove that the State of California would be harmed in any way by same-sex marriages. NOTE: Judge Walker has been known to weigh heavily on economic impact in cases like these. They certainly didn't do their homework.

[...] the defense folded before everyone's eyes.

[Sasaki Kojiro]

William Tam gave one of the most anemic answers in trial history "I found it on the internet."

[Rhyfelwyr]

they did nothing to prove that the State of California would be harmed in any way by same-sex marriages.

Why is any of this relevant? I thought this issue was whether or not gay marriage was a constitutional right, not whether or not gay marriage is a beneficial thing to have for society.

Why have people attacked the opposition for subjecting the idea of gay marriage to common views, only to go on to appeal to... common views when making their argument in favour of it.

Bottom line: Homosexual marriage isn't a constutional right, nor is any kind of marriage. It is a privilege given to heterosexual families because they were once the basic social unit.

I cannot see the discrimination angle as being relevant given this, especially when asexuals and single people will still be discriminated against given the strange concept of 'discrimination' that makes heterosexual-only marriages discrimination against gay people.

[Lemur]

Rhyfelwyr, IANAL, but as I understand the legal reasoning it is thus:

1. Prop 8 denies a state-sanctioned condition to a minority of the population (marriage and teh gayzorz)
2. To make this denial valid, there must be a reason for it
3. The defenders of Prop 8 claimed they were going to demonstrate 22 "specific" harms that gay marriage would cause the State of California (& citizens)
4. They didn't articulate even one
5. Hence the judicial/legalshut-out

[Rhyfelwyr]

Rhyfelwyr, IANAL, but as I understand the legal reasoning it is thus:

1. Prop 8 denies a state-sanctioned condition to a minority of the population (marriage and teh gayzorz)
2. To make this denial valid, there must be a reason for it
3. The defenders of Prop 8 claimed they were going to demonstrate 22 "specific" harms that gay marriage would cause the State of California (& citizens)
4. They didn't articulate even one
5. Hence the judicial/legalshut-out

Yeah I have to admit the opposition quite spectacularly imploded. The only thing I would disagree with on your list is with point 2, since I think it confuses the order of things.

Marriage, when it was institutionalised into the legal system as a "state-sanctioned condition", was commonly accepted by all as meaning the union of one man and one woman. That the meaning of the word 'marriage' has changed with the views of society does not mean the legal system must follow suit, and when we discuss the legal status of marriage, we have to remember the context, with the fact that marriage specifically meant the set up with one man/woman when it was first given legal status.

In that sense, the 'marriage' idea that modern folk have as being between any two adult people, was never given legal status, and since homosexual couples never came within the standard bounds of marriage, there is no reason to validate your second point, which is "To make this denial valid, there must be a reason for it". It makes it sound as if homosexuals were deliberately removed from the institution of marriage, when really they were never a part of it to begin with.

Rather, since marriage was granted as a privilege to heterosexual couples, surely the burden of proof lies on those who wish to see the institution extended to homosexuals?

The reason for the old heterosexual marriage was obvious. The nuclear family was the basic social unit. The man worked, the woman kept the house in order, and they generally reproduced. IMO, the burden of proof is on those who support homosexual marriage, if they wish to provide reasons why the legal privileges once given to heterosexual couples ought to be extended to their homosexual counterparts.

[Sasaki Kojiro]

IMO, the burden of proof is on those who support homosexual marriage, if they wish to provide reasons why the legal privileges once given to heterosexual couples ought to be extended to their homosexual counterparts.

A quick search finds this list of legal privileges associated with marriage:

1. Joint parental rights of children
2. Joint adoption
3. Status as "next-of-kin" for hospital visits and medical decisions
4. Right to make a decision about the disposal of loved ones remains
5. Immigration and residency for partners from other countries
6. Crime victims recovery benefits
7. Domestic violence protection orders
8. Judicial protections and immunity
9. Automatic inheritance in the absence of a will
10. Public safety officers death benefits
11. Spousal veterans benefits
12. Social Security
13. Medicare
14. Joint filing of tax returns
15. Wrongful death benefits for surviving partner and children
16. Bereavement or sick leave to care for partner or children
17. Child support
18. Joint Insurance Plans
19. Tax credits including: Child tax credit, Hope and lifetime learning credits
20. Deferred Compensation for pension and IRAs
21. Estate and gift tax benefits
22. Welfare and public assistance
23. Joint housing for elderly
24. Credit protection
25. Medical care for survivors and dependents of certain veterans

Don't you think at least most of these apply just as well to same sex marriages as they do to straight marriages?

[Seamus Fermanagh]

Sasaki:

None of those things in your 25 point list should be prohibited to a same sex couple. If such privileges are extended to an officially designated heterosexual pairing, there can be little or no reasonable grounds NOT to extend the same benefits to an officially designated homosexual or lesbian couple -- or for that matter a platonic couple. Any pair of consenting adults should be able to form such a union.

The problem for the religious is that marriage (at least to them) is more than these civil benefits. It represents a sanctified joining that is sacramental and spiritual as well as legal and physical. Since many (most?) faiths do not consider same-sex unions to be sanctifiable, they oppose same-sex marriage on that basis. A few view homosexuals as actively sinning against the will of God, making such unions not only unsanctifiable but actively blasphemous.

Civil unions required of all who would claim/enjoy the legal benefits of such a union and marriage reserved to the dictates of the various faith groups would seem to be an equitable re-structuring. But it won't happen that way. Hardliners on both sides of the issue abhor such a compromise and want victory thrown in the face of their opposition. A bit too much "so NyahQ take that!" going both ways if you ask me.

[Reenk Roink]

None of those things in your 25 point list should be prohibited to a same sex couple. If such privileges are extended to an officially designated heterosexual pairing, there can be little or no reasonable grounds NOT to extend the same benefits to an officially designated homosexual or lesbian couple -- or for that matter a platonic couple. Any pair of consenting adults should be able to form such a union.

The problem for the religious is that marriage (at least to them) is more than these civil benefits. It represents a sanctified joining that is sacramental and spiritual as well as legal and physical. Since many (most?) faiths do not consider same-sex unions to be sanctifiable, they oppose same-sex marriage on that basis. A few view homosexuals as actively sinning against the will of God, making such unions not only unsanctifiable but actively blasphemous.

Civil unions required of all who would claim/enjoy the legal benefits of such a union and marriage reserved to the dictates of the various faith groups would seem to be an equitable re-structuring. But it won't happen that way. Hardliners on both sides of the issue abhor such a compromise and want victory thrown in the face of their opposition. A bit too much "so NyahQ take that!" going both ways if you ask me.

Really good post on the insights of the mindset of the religious opposition. The problem I see with the anti gay marriage religious viewpoint is that, as mentioned before, the institution of marriage has become SO watered down from whatever it used to mean spiritually and religiously, that even though they may have a point about sanctification in THEIR eyes, it simply is hard to see for all others. The civil institution of marriage with all it's benefits has basically become what "marriage" is for the majority of people.

And yet, despite this, the word marriage still has enough of a "meaning" behind it that as you anticipate, same sex couples will simply not accept having "unions" with all the same benefits except for the name "marriage". And I can more than understand their "separate but equal" criticism of it...

[Rhyfelwyr]

Don't you think at least most of these apply just as well to same sex marriages as they do to straight marriages?

Well they can't perform the primary function of producing children, and I still do not believe having two fathers/mothers is good for children. But otherwise, yes, homosexual couples can do all the rest of the stuff. But why not make do with a civil partnership? Everything on your list could just as easily be performed by any two people living together in any sort of relationship, the question is why must it then be granted the legal status of a marriage?

[Sasaki Kojiro]

Well they can't perform the primary function of producing children, and I still do not believe having two fathers/mothers is good for children. But otherwise, yes, homosexual couples can do all the rest of the stuff. But why not make do with a civil partnership? Everything on your list could just as easily be performed by any two people living together in any sort of relationship, the question is why must it then be granted the legal status of a marriage?

The primary function isn't producing children. That's the logical hopskotch that pvc went through where he claimed infertile women shouldn't be allowed to marry. As for calling it a civil partnership, that's seamus's point too, so...

Civil unions required of all who would claim/enjoy the legal benefits of such a union and marriage reserved to the dictates of the various faith groups would seem to be an equitable re-structuring. But it won't happen that way. Hardliners on both sides of the issue abhor such a compromise and want victory thrown in the face of their opposition. A bit too much "so NyahQ take that!" going both ways if you ask me.

A lot of opposition to civil unions is because the proposed laws regarding them have left many rights off the table, and have often not been applicable outside of the state that granted them (I believe).

Atheists can get married right? But isn't that non sacramental?

Essentially, religions have no more right to object to non-holy marriages than they do to atheists and non-christians celebrating christmas. They don't have to call it x-mas, or "civil gift giving holiday". I can't help but find it a petty objection. You have to live and let live more than that.

[Beskar]

Civil Union is "Marriage", since "Marriage" in legal speak becomes a "Civil Union" and they are not held seperately.

It is not really a compromise, since the Union still occurs. It is fighting over what to call it.