Proposition 8 declared unconstitutional

[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.

[Rhyfelwyr]

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...

The is an important difference in the way PVC and myself presented these points though. PVC (IIRC) argued the point with producing children in order to justify the relevance of heterosexual marraige today. On the other hand, I was putting it more in a historical context, since I had just made the points on the meaning of marriage when it was institutionalised into the legal system, and explained the role of the traditional nuclear family etc.

I was saying that our idea of marriage has its roots in the nuclear family, although it is no longer justified by these. Historically, heterosexual couples generally produced children, they generally functioned very well as a social unit etc.

Because of these functions, we have over the centuries gained our understanding of what marriage is. Whether or every heterosexual couple actually produced children, or functioned well as a family, they generally had one thing in common - the one man and one woman.

This is the 21st century, much of the practical side of the old hetersexual marriage is irrelevent. A lot of people can't be bothered with kids, their role in life is not longer determined by their position in the extended family. But it is because of these historic functions that marriage came to be what it currently means to us.

And I was in reply mode before I was able to read what seamus wrote.

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.

Although religious ideas are intertwined in the minds of those who opposed gay marriage, our arguments have never been based on them, but have been strictly secular. I never said gay marriage should be illegal because God says it is an abomination.

The question here remains simply whether or not homosexual couples deserve legal status as being 'married'. They are, of course, free to have a ceremony in their own church/gay person's club/whatever, and carry out a ceremony there, and call it marriage, if they feel so inclined.

[Xiahou]

The is an important difference in the way PVC and myself presented these points though. PVC (IIRC) argued the point with producing children in order to justify the relevance of heterosexual marraige today. On the other hand, I was putting it more in a historical context, since I had just made the points on the meaning of marriage when it was institutionalised into the legal system, and explained the role of the traditional nuclear family etc.

I was saying that our idea of marriage has its roots in the nuclear family, although it is no longer justified by these. Historically, heterosexual couples generally produced children, they generally functioned very well as a social unit etc.

I think it's pretty apparent that one of, if not the only, primary reason for legal recognition of marriage was foster stable environments for the upbringing of children. Should that mean sterile people can't get married? No, the state never required that level of invasiveness for a legal union. To actively search out sterile marriages would be needlessly difficult and an invasion of privacy. I mean, if PVC wants to push for automatic dissolution of childless marriages, he can- but why? People in favor of same-sex marriage are free to argue that society will benefit from the stability that would bring- convince enough people and they'll get what they want.

But again, the entire point is that this is not a Constitutional issue. And it is not an issue that should be decided by the courts.

[PanzerJaeger]

People in favor of same-sex marriage are free to argue that society will benefit from the stability that would bring- convince enough people and they'll get what they want.

I agree that minds have to be changed as well as laws, but keep in mind that right now somewhere in this country a gay man or woman is being denied visitation access to his or her partner in the hospital. I read a particularly compelling story where a woman was barred from being at her partner of 23 year’s side as she lay dying of cancer.

This is all conceptual to us. Is it constitutional or isn’t it? To these people though, it is a stark reality. They’re living the discrimination, and I can definitely see why they would feel like second class citizens.

[a completely inoffensive name]

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.

Did you even the report? If so, quotes please that support your statement.

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.

He did. For every point that the Prop 8 supporters brought up he challenged the Prop 8 opponents to prove that it was false, otherwise there would be a reasonable basis to deny same sex marriages. It turned out that that every point brought was proven false.

[Philippus Flavius Homovallumus]

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...
.

What logical hopsctoch?

A man's inability to perform on the wedding Night is also grounds for annullment, or did you just ignore that?

Marriage is a legal contract, intended to be indisoluable, designed to provide a stable environment for the couple's children, and to afford those children legal protection.

[miotas]

What logical hopsctoch?

A man's inability to perform on the wedding Night is also grounds for annullment, or did you just ignore that?

Marriage is a legal contract, intended to be indisoluable, designed to provide a stable environment for the couple's children, and to afford those children legal protection.

What if an infertile couple planned to marry and adopt, would you allow that or do you believe the children they are raising must be biological?

[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...

[Beskar]

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...

In otherwords - Patato/Potato ?

[Reenk Roink]

In otherwords - Patato/Potato ?

In other words, even though marriage has largely lost it's "sacred" sense and meaning, the idea of a state privilege of marriage still permeates through society, and thus it is pretty easy to see why calling heterosexual unions one thing and homosexual unions another, despite them having the same benefits, would piss off one group.

[Lemur]

it is pretty easy to see why calling heterosexual unions one thing and homosexual unions another, despite them having the same benefits, would piss off one group.

Being "pissed off" is not really the issue; if there are two separate conditions with two separate meanings, laws that apply to one will not apply to the other unless explicitly written to do so. So the many privileges associated with being married will have to be re-written, one by one, to apply to domestic partnership or whatever you want to call it. Or, more likely, they will not be re-written.

[Reenk Roink]

Being "pissed off" is not really the issue; if there are two separate conditions with two separate meanings, laws that apply to one will not apply to the other unless explicitly written to do so. So the many privileges associated with being married will have to be re-written, one by one, to apply to domestic partnership or whatever you want to call it. Or, more likely, they will not be re-written.

Oh for sure, I understand the practical obstacles to enacting such policies, and knowing the way things work when people realize they cant stop something they just try to tie it up in court. I was merely pointing out why there would be reasonable opposition to calling essentially the same thing two different things.

[drone]

So the 9th Circuit Court retains the same-sex marriage ban until their hearing starting December 6th.
http://www.cnn.com/2010/US/08/16/sam...ex.html?hpt=T1
Interesting decision, I wonder if this was done to postpone flak before the elections. Because it's a forgone conclusion that the 9th will uphold Walker's ruling.

[Xiahou]

The "standing" issue is really unsettling to me. You have a majority of voters pass a proposition. One person can challenge it in court and if the attorney general of the state isn't interested in supporting the proposition, it gets overturned by default? That really seems to short-circuit the democratic process. This would mean any referendum passed by the people can be tossed aside if the current government doesn't support it.

On another note- isnt the AG shirking his duty here?

[Tellos Athenaios]

Which would be the case, if the law in question (prop 8) had actually been valid within the legal framework it must fit in (Californian constitution, and the USA one). Remember that in the USA federal laws trump state laws, and constitutions trump “lesser” laws. But prop 8 isn't and that is the meat of the ruling (that the AG isn't interested in defending it is merely a mildly interesting sideshow).

Now the Judge has noted two things: (1) that the defense for prop 8 failed to make a case why prop 8 is not in fact unconstitutional, (2) that prop 8 does indeed appear to violate applicable constitutions and law. So (2) might have been considered differently had (1) not been the case however (2) still applies which is (a) also the contention brought before the court by the plaintiffs, and (b) the argument which I still haven't seen anyone giving a sound counter-argument to.

Finally, remember that it is the job of the courts to check the excesses of lawmakers (be that popular vote or politicians making hay while the sun is still shining on a Mosque in NYC): that is why you should be grateful not to live in any “democracy” (or rather mob-rule) but in a country where laws can be scrutinized and acid-tested before a court. It gives minorities protection from arbitrary decisions imposed on them by a majority, if they can prove them to be unjust/unfair.

[Seamus Fermanagh]

The "standing" issue is really unsettling to me. You have a majority of voters pass a proposition. One person can challenge it in court and if the attorney general of the state isn't interested in supporting the proposition, it gets overturned by default? That really seems to short-circuit the democratic process. This would mean any referendum passed by the people can be tossed aside if the current government doesn't support it.

On another note- isnt the AG shirking his duty here?

Depends on whether you view elected officials in Jeffersonian or Burkean terms. Jefferson held that an elected official should reflect the will of her constituency. Burke held that an elected official should work for the long term best interests of their constituency EVEN if that meant opposing the will of that constituency in the short term. I would venture to guess that most of the officials in California believe that restricting marriage to hetersexual unions is morally wrong and that they are duty bound to oppose the short-sighted electorate on the issue.

[rory_20_uk]

Interesting. I'm sure everyone thinks of themselves as Burkean in nature, as after all this enables one to override all opposition as the other side clearly needs saving from itself.

[Xiahou]

Depends on whether you view elected officials in Jeffersonian or Burkean terms. Jefferson held that an elected official should reflect the will of her constituency. Burke held that an elected official should work for the long term best interests of their constituency EVEN if that meant opposing the will of that constituency in the short term. I would venture to guess that most of the officials in California believe that restricting marriage to hetersexual unions is morally wrong and that they are duty bound to oppose the short-sighted electorate on the issue.

For just a moment, set aside the gay marriage issue. The logical extension of this is that any law passed by the legislature or by referendum can be cast aside as long as the Governor and AG oppose it. Take any law, challenge it in court, have the AG no-show, and the law gets overturned. The referendum process becomes meaningless if the current regime doesn't support it.

Interesting. I'm sure everyone thinks of themselves as Burkean in nature, as after all this enables one to override all opposition as the other side clearly needs saving from itself.

I'm pretty sure the AG's oath of office is to support the laws of the state. Not to support only the laws he likes. The California Supreme Court already determined that the law was legally enacted- which is why it was elevated to the federal courts. As a duly passed amendment to the state's constitution, I don't see where he can get off on just saying "pass".

[Beskar]

Interesting. I'm sure everyone thinks of themselves as Burkean in nature, as after all this enables one to override all opposition as the other side clearly needs saving from itself.

Indeed.

[Seamus Fermanagh]

Xiahou:

I would suggest that that is exactly the system that obtains. If Schwarzeneggar and enough of the legislature wish to do elsewise, then elsewise it shall be. The voters may turn them out of office via recall or at the next balloting if they are scandalized enough. Unfortunately, enough will forget before the next balloting that this may not motivate the representatives enough to support the constitutional choice of a modest majority of Californians.

In the specific instance of California, I think their simple majority rule for Constitutional changes is coming back to haunt them here. The gov is not seeking another term so he feels free to do as he sees fit. Moreover, he can get political support because the majority that voted YES on this issue was modest -- and many in the legislature know that not enough of their voters will turn on them over this to be decisive. If Cali had a 2/3 rule for such changes, they'd be less frequent but VERY hard to ignore. 67% is not just a majority choice, its a mandate.

[PanzerJaeger]

The ruling has been upheld by the federal appeals court. On to the Supreme Court.

[a completely inoffensive name]

I would be surprised if the Supreme Court took it. The ruling by the federal appeals court is very narrow and only specifically concerns the state of California, not the status of same sex marriage for the entire country. Prop 8 supporters would gain more by leaving it as is instead of risking a nationwide SCOTUS ruling.

[Whacker]

What logical hopsctoch?

A man's inability to perform on the wedding Night is also grounds for annullment, or did you just ignore that?

Marriage is a legal contract, intended to be indisoluable, designed to provide a stable environment for the couple's children, and to afford those children legal protection.

Wrong. Marriage is a method for two people to join themselves legally, which affords them certain legal rights and privileges.

I agree that minds have to be changed as well as laws, but keep in mind that right now somewhere in this country a gay man or woman is being denied visitation access to his or her partner in the hospital. I read a particularly compelling story where a woman was barred from being at her partner of 23 year’s side as she lay dying of cancer.

This is all conceptual to us. Is it constitutional or isn’t it? To these people though, it is a stark reality. They’re living the discrimination, and I can definitely see why they would feel like second class citizens.

Indeed, I hear stories like that quite often, and it does become reality for me when I hear the sadness and pain in my friend's voices. Treating this like it's not an issues of rights is ridiculous.

[ICantSpellDawg]

This just doesn't make sense. Marriage is a civil institution singling out the monogamous relationship between 1 man and 1 woman as special. We, as a society, have agreed on this. If we are no longer able to agree that this type of relationship should be singled out, then we should no longer single out types of relationships. The sensible reaction to these pressures is not to single out another type of relationship which most people don't believe is special, but rather to stop doing it at all. This is a false choice.

Long story short, if we can't all agree on what type of a relationship is special, what are we doing with this thing?

Congratulations, anyone can now marry anyone else, for any reason. We should just do away with the special recognition and allow any one person to leave their social security benefits with any other person and be done with it. From this point forward, I only recognize marriages recognized by the Roman Catholic Church; the term "civil marriage" means nothing other than any 2 people leaving their state and Federal benefits to one another for an undetermined period of time, nothing else.

[Whacker]

I don't see how it would make the institution any less special. People with rabid "Marriage is SACRED, Man+Women ONLY!" arguments need to step back and read your own argument again, because it amounts to "If they can do it, then the rest of us NORMAL people won't feel as special!"

My personal experience is that everyone who falls into the rabidly "Marriage is SACRED..." category are all strongly- to ultra-religious and have a strong holier-than-thou streak.

[a completely inoffensive name]

This just doesn't make sense. Marriage is a civil institution singling out the monogamous relationship between 1 man and 1 woman as special. We, as a society, have agreed on this.

No, we haven't. That's why there is a gay marriage movement.

If we are no longer able to agree that this type of relationship should be singled out, then we should no longer single out types of relationships. The sensible reaction to these pressures is not to single out another type of relationship which most people don't believe is special, but rather to stop doing it at all. This is a false choice.

Long story short, if we can't all agree on what type of a relationship is special, what are we doing with this thing?

Congratulations, anyone can now marry anyone else, for any reason. We should just do away with the special recognition and allow any one person to leave their social security benefits with any other person and be done with it. From this point forward, I only recognize marriages recognized by the Roman Catholic Church; the term "civil marriage" means nothing other than any 2 people leaving their state and Federal benefits to one another for an undetermined period of time, nothing else.

IF I CAN'T HAVE IT, NOBODY CAN!

How can we put social pride in finding love and unity with another if we don't establish RANKS on which love is more special????


Lol, your ways are dying and you want to burn the house down out of spite.

[Veho Nex]

The ruling has been upheld by the federal appeals court. On to the Supreme Court.

CLEAR! *Shocks thread* It's alive!!!

[naut]

This just doesn't make sense. Marriage is a civil institution singling out the monogamous relationship between 1 man and 1 woman as special. We, as a society, have agreed on this. If we are no longer able to agree that this type of relationship should be singled out, then we should no longer single out types of relationships. The sensible reaction to these pressures is not to single out another type of relationship which most people don't believe is special, but rather to stop doing it at all. This is a false choice.

Long story short, if we can't all agree on what type of a relationship is special, what are we doing with this thing?

Congratulations, anyone can now marry anyone else, for any reason. We should just do away with the special recognition and allow any one person to leave their social security benefits with any other person and be done with it. From this point forward, I only recognize marriages recognized by the Roman Catholic Church; the term "civil marriage" means nothing other than any 2 people leaving their state and Federal benefits to one another for an undetermined period of time, nothing else.

That's either really good satire.