Proposition 8 declared unconstitutional

[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