Proposition 8 declared unconstitutional

[Tellos Athenaios]

If you change it's meaning that also means your parents and their parents, and in the end it doesn't mean anything anymore, it's theatre. As society has changed so should we, but it shouldn't be a mandatory celebration..

No you don't. The one great thing about tradition is how quickly it is established and how quickly it can, and does, change depending on circumstances. A somewhat telling example would be the practice of execution which was only formally abolished on 11 April 1982. Count the number of people who seriously make a point of it being reinstated. Does it change anything related to any parent or ancestor of yours being executed? Likewise: levée en masse is now suspended. Does that mean anything to any parent or ancestor of you who served or evaded service in the Dutch army? Does it make their contribution/sacrifices or lack thereof any more or less relevant? And let's not forget that our ancestors had few qualms about what their ancestors might have thought either: now, we no longer go to a great Oak thousands of years old to debate matters pertaining to our tribe or clan either, and we have dispensed with the practice of hijacking every English vessel that comes within our reach too. We no longer plot to attack the French and we even accept Catholic clergy again.

There is a definite problem with your (in general, not just yours in particular) reasoning somewhere if you cannot make the distinction between yourself and others, between yourself and your parents, close relatives, ancestors etc. etc. Saying that you “change” your parents or ancestors merely by changing something which may not even affect you directly (getting married is a bit of a big if nowadays) is rather absurd. To let what your ancestors hypothetically might feel have a direct impact on the lives of others when you do not even (actively) support their (now outdated) ideas on marriage is even more so.

Rather than focusing on an argument without substance (my dead ancestors from 2000 years ago couldn't care less either); I prefer to look at the group of people who have a very valid point when they protest that if their state does not deal in discrimination by its own admission, then how come it does marry some people but not them? It is either the one or the other, but not both. The issue arises only, of course, if you posit that marriage is before the state rather than any other institution (which any group might found) or a private affair or that the legal status is still a relevant distinction.

[Fragony]

Society changes never said it doesn't. Leave things be there is no need to kick in that door.

[Meneldil]

And let's not forget that our ancestors had few qualms about what their ancestors might have thought either: now, we no longer go to a great Oak thousands of years old to debate matters pertaining to our tribe or clan either, and we have dispensed with the practice of hijacking every English vessel that comes within our reach too. We no longer plot to attack the French and we even accept Catholic clergy again.

That is a mistake.

[Skullheadhq]

That is a mistake.

It is true, we Dutch are now focusing on the soon to be anschlusch of Flanders by destabilising Belgian cabinets and funding seperatists like De Weever. The best part is that the Belgians themselfves have absolutely no clue, but soon Flanders will be ours muhahaha

[Seamus Fermanagh]

You keep saying this... but what would it solve, really? Homosexuality's defining characteristic is a certain behavior. Whether it's something innate or acquired, what changes?

A reasonable question.

For me, it seems that most of the reasonable opposition to same-sex marriage in the USA objects for reasons that boil down to either moral traditionalism or religious convictions. It is my belief that, were it proven that being "gay" is an innate quality, that a goodly portion of the religious opposition and traditional opposition would have to re-think their whole attitude towards sexuality. Discriminating against a chosen behavior which you define as abhorent is more defensible -- in logical terms -- than is discrminating against an innate characteristic (not that humans haven't done that anyway throughout history). My hope would be that we'd address the whole issue more reasonably.

In truth, on a practical level, your implied criticism of my point is spot on. Regardless of the research, most folks would not change their viewpoint and would continue to revel in their own ill-informed opinions. So the research results would accomplish little at all and we'd still be stuck in this same dynamic.

It really boils down to the fact that many heteros have a visceral negative response to seeing same-sex behavior and want it closeted off and screened away by any means in order to further their own psychological comfort (no, they're not all closet homosexuals themselves, though a number are and are arguing against admitting such to themselves). That dynamic won't change, so neither will this debate.

[ajaxfetish]

I think I made the best post earlier in the thread, which I have seen no one comment on, except for Rory, who referenced part of it, when I said about 'marriage' being unnatural.

I'd say it was only the third best post.

Ajax

[Rhyfelwyr]

Don't forget, gay marriage will lead to the niece of Martin Luther King Jr. becoming extinct, why would someone support this genocide?

[Xiahou]

In truth, on a practical level, your implied criticism of my point is spot on. Regardless of the research, most folks would not change their viewpoint and would continue to revel in their own ill-informed opinions. So the research results would accomplish little at all and we'd still be stuck in this same dynamic.

It's not even that. Having a genetic predisposition to something still doesn't force others to approve of your behavior. What if arsonists were found to be born with that tendency? Would anyone think less of their behavior?

Furthermore, an innate instead of acquired trait would raise further questions- can it be screened for? Can it be cured? I really don't see how it would settle any part of the debate.

------
On the subject of the ruling- the more of it I read, the dumber I feel like it's making me. The opinion reads like it was written by the plaintiff. The judge ticks off an entire laundry list of "facts" that have no bearing on the decision and tries to use them to find in favor. Homosexuals can lover each other, they can raise children... who cares? The issue he was supposed to decide is whether or not Prop8 violates the US Constitution. Much of the ruling reads like it's more about justifying gay marriage than ruling on the constitutionality. It'd make more sense if he was trying to decide a case where the plaintiff was challenging a ruling allowing gay marriage, but that's not the case before him. Considering that he'd originally wanted to air the whole proceeding on YouTube, it really sounds like he was more interested in a show trial than a fair hearing of both sides.

[PanzerJaeger]

PJ I don't know you as someone deliberately missing the point, not that I disagree with you, but it isn't about the specifics but the institution itself. If you have a certain outlook on it, the centuries old one, then how is it not a perversion of that institution. It's an empty word for me, but can those who care keep it real? Why can't they have that? How much value will a gay marriage have for the gays once I can marry my cat anyway, really love my cat.

In order to see it as a perversion of the institution, I would have to view homosexuals, and their relationships, as somehow worth less than heterosexual relationships. I just don't.

On the other hand, as mentioned, the heterosexual divorce rate that hovers around 50% in the Western World has made marriage essentially nothing more than one level up from boyfriend/girlfriend. Yet somehow it's the gays that are going to render marriage meaningless? That happened a long time ago.

It's not even that. Having a genetic predisposition to something still doesn't force others to approve of your behavior. What if arsonists were found to be born with that tendency? Would anyone think less of their behavior?

Would it not depend on the behavior? Arson is destructive. There are victims and damages involved.

It takes a much more advanced form of mental gymnastics to justify a negative attitude toward a naturally occurring, non-chosen behavior that affects no one.

Don't forget, gay marriage will lead to the niece of Martin Luther King Jr. becoming extinct, why would someone support this genocide?

As worthless as her uncle.

[Lemur]

Considering that he'd originally wanted to air the whole proceeding on YouTube, it really sounds like he was more interested in a show trial than a fair hearing of both sides.

From what little I've read, it looks as though the defendants didn't really show up, hence the one-sided ruling. They promised something like twenty-two specific harms that same-sex marriage caused; they provided none. They promised expert testimony; they provided none. In judicial terms it was a no-show shut-out.

We have an adversarial system of justice. What to do when one team throws the game?

[Xiahou]

We have an adversarial system of justice. What to do when one team throws the game?

Write a sensible ruling.

[a completely inoffensive name]

Write a sensible ruling.

How can you write a sensible ruling for both sides when there is only one side? Make up valid points for the Proposition 8 legal team? That's not his job. His job is to rule in favor of the side with the most convincing argument, whether we like it or not Prop 8 failed to have a better argument (or in this case an argument going by the judge's 138 page report).

[Xiahou]

How can you write a sensible ruling for both sides when there is only one side?

He could explain in detail how Prop.8 violated the US Constitution instead of prattling on about how gay marriage will be beneficial to society and how all the haters have bad arguments. It's like the judge had it 180 degrees backwards and thought it was the defense that had the burden of proof and not the plaintiff. Here's where the plaintiff said how great gay marriage will be and you didn't disprove any of them, so you lose.
That's not what the case was about.

[Seamus Fermanagh]

How can you write a sensible ruling for both sides when there is only one side? Make up valid points for the Proposition 8 legal team? That's not his job.

Actually, in appelate law at the constitutional level, judges are expected to ask critical and probing questions of the advocates and to more or less cross-examine their assertions. Effectively, the judge should have "argued the other side" as part of her/his query into the complaint's constitutional implications. I have not read the transcript, so I acknowledge that the judge may have done just that.

[Sasaki Kojiro]

He could explain in detail how Prop.8 violated the US Constitution instead of prattling on about how gay marriage will be beneficial to society and how all the haters have bad arguments. It's like the judge had it 180 degrees backwards and thought it was the defense that had the burden of proof and not the plaintiff. Here's where the plaintiff said how great gay marriage will be and you didn't disprove any of them, so you lose.
That's not what the case was about.

Don't they always comment on more than just the constitutional part?

[Philippus Flavius Homovallumus]

A reasonable question.

For me, it seems that most of the reasonable opposition to same-sex marriage in the USA objects for reasons that boil down to either moral traditionalism or religious convictions. It is my belief that, were it proven that being "gay" is an innate quality, that a goodly portion of the religious opposition and traditional opposition would have to re-think their whole attitude towards sexuality. Discriminating against a chosen behavior which you define as abhorent is more defensible -- in logical terms -- than is discrminating against an innate characteristic (not that humans haven't done that anyway throughout history). My hope would be that we'd address the whole issue more reasonably.

In truth, on a practical level, your implied criticism of my point is spot on. Regardless of the research, most folks would not change their viewpoint and would continue to revel in their own ill-informed opinions. So the research results would accomplish little at all and we'd still be stuck in this same dynamic.

It really boils down to the fact that many heteros have a visceral negative response to seeing same-sex behavior and want it closeted off and screened away by any means in order to further their own psychological comfort (no, they're not all closet homosexuals themselves, though a number are and are arguing against admitting such to themselves). That dynamic won't change, so neither will this debate.

While I think that youy might, theoretically, have a point - I don't think it matters theologically for most religions. The "big three" all view the world and humanity as inherrently fallen and corrupted; ergo homosexuality is just another form of corruption.

Oh, and before all you "Liberals" jump down my throat, this is not my personal opinion, but my theological opinion with regard to others' opinions, ok?

[Lemur]

The "big three" all view the world and humanity as inherrently fallen and corrupted; ergo homosexuality is just another form of corruption.

Oh, and before all you "Liberals" jump down my throat, this is not my personal opinion, but my theological opinion with regard to others' opinions, ok?

Well, not every branch of Christianity believes in original sin, and I know not every Judaic tradition does so. Does Islam? I don't know. So no, on the face of it your statement is false, demonstrably false. Liberals, in quotes or out of them, have nothing to do with it. Not all of the big three believe that man is fallen.

[Crazed Rabbit]

From Orin Kerr, a blogger at the Volokh Conspiracy, comes the following question. The basis is that the right to gay marriage declared by the judge comes from 14th amendment, passed in the 1800s.

This is a follow-up to my post below on the reader polls about attitudes toward same-sex marriage. In the fourth of the four polls, I asked readers who think that the Constitution requires states to recognize same-sex marriage to say when the Constitution began to require it. Slightly more than half the readers who answered that poll answered that the requirement began before the year 1900.

Here’s a follow-up question, specifically address to readers who did or would answer the poll that way. Here’s the question: What conduct or statuses have not yet been recognized as protected by the Constitution; are in fact presently protected by the Constitution; and would trigger widespread shock among a wide range of the public today if they knew the Constitution protected it?

Here’s why I ask. One of the interesting aspects of saying that the Constitution required states to protect same-sex marriage before 1900 is the implication that the requirement existed back when the idea of same-sex marriage would have seemed utterly shocking. I gather the folks who believe that the same-sex marriage right existed back when it was shocking also believe that there are other rights that presently exist in the Constitution, currently unrecognized, that are as shocking to us today as same-sex marriage would have seemed in the 1700s or 1800s. My question is, what specifically are those other rights? Alternatively, are there no more presently-unrecognized rights in the Constitution — is the Constitution all tapped out rights-wise? Or perhaps those other rights are there, but we can’t see them yet — and if so, why can’t we see them?

Well?

CR

[Sasaki Kojiro]

I gather the folks who believe that the same-sex marriage right existed back when it was shocking also believe that there are other rights that presently exist in the Constitution, currently unrecognized, that are as shocking to us today as same-sex marriage would have seemed in the 1700s or 1800s.

Where on earth does he gather that from? It doesn't follow.

Does he believe that womens voting and slavery being immoral would have been "shocking" back in the day? If so then he has the same "problem" he's babbling about here.

[Tellos Athenaios]

Indeed it does not follow. However his ultimate concluding thought for the day if you will is that “are there any rights encoded in the [USA] constitution which we [in the USA] currently do not recognize”.
However it is a bit of a moot point because we cannot know since we would not recognize them. That's for the social/moral pioneers to find (not figure) out.

[Crazed Rabbit]

Where on earth does he gather that from? It doesn't follow.

Does he believe that womens voting and slavery being immoral would have been "shocking" back in the day? If so then he has the same "problem" he's babbling about here.

If the constitutional right for gay marriage came into being during the 1800s (due to the 14th amendment), then that means the right to gay marriage has existed since then. So gay people should have been able to marry since that time.

But gay marriage would have been a very shocking idea and concept to the people of the 1800s.

Furthermore, assume that there are yet unrecognized rights in the constitution, similar to how the foundation for gay marriage existed since the 1800s but is only now recognized.

Mr. Kerr is asking for thoughts on what consitutional rights may exist now but are unrecognized, similar to the situation of gay marriage in the 1800s.

I think that just becuase they are unrecognized does not mean they are impossible for people, understanding what the constitution promises and where society is headed, to give an educated guess as to what rights may exist, unrecognized.

CR

[Tellos Athenaios]

I'm not saying you cannot make (educated) guesses, or even pretty good predictions. I'm saying that just because you “guess” that something is a right does not make it so until you can verify that it passes the acid test of a few court cases, or a political campaigns. And that requires more than just theorizing about it, so unless someone invents the time machine sharpish it remains a bit of a moot point.

[Sasaki Kojiro]

If the constitutional right for gay marriage came into being during the 1800s (due to the 14th amendment), then that means the right to gay marriage has existed since then. So gay people should have been able to marry since that time.

But gay marriage would have been a very shocking idea and concept to the people of the 1800s.
Furthermore, assume that there are yet unrecognized rights in the constitution, similar to how the foundation for gay marriage existed since the 1800s but is only now recognized.

Mr. Kerr is asking for thoughts on what consitutional rights may exist now but are unrecognized, similar to the situation of gay marriage in the 1800s.

I think that just becuase they are unrecognized does not mean they are impossible for people, understanding what the constitution promises and where society is headed, to give an educated guess as to what rights may exist, unrecognized.
CR

This is entirely a false dilemma based on the various definitions of "right". Women had the natural right to vote (equality) before they were given the legal right to vote. That's usually how it goes, we see that people have a certain right and then we encode it in our laws.

Kerr's going for a cloaked version of the "but if we legalize gay marriage, then something-something might become legal next!" slippery slope argument.

If there is an accidental loophole in the constitution that gives a legal right where it shouldn't be given (where there is no natural right), that is unfortunate but irrelevant to the gay marriage situation (where the legal right should be given).

If I'm mistaken and he isn't interested in any gay marriage angle, but just in possible interpretations of the constitution, then this is all off topic.

[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.