Why California’s Proposition 8 Would Make Jesus Weep (1 Viewer)

[scoobygang]

Re the bolded: using this logic, what's to keep a state from prohibiting the marriage of any two people incapable of having children?

The voters.

 

[Maurile Tremblay]

I'm sure many of you have seen this on Facebook already, but I'll add it.

CA Proposition 8 - Eliminates Rights of Same-Sex Couples to Marry

Primary argument in favor of Prop 8: "Legalizing gay marriage violates the sanctity of marriage."

"sanctity" definition - State or quality of being holy, sacred, or saintly

"sacred" definitions - 1) Connected to God or to a religious purpose. 2) Religious rather than secular. 3) Embodying the laws or doctrines of a religion.

First Amendment to the Constitution of the US: "Congress shall make no law respecting an establishment of religion."

It's federally unconstitutional for sure.

I'm glad about Prop 8 getting shot down and all, but that's the weakest argument I've ever seen. Even for Facebook that's pretty terrible.

You must feel Prop 8 is not the establishment of a religious doctrine?What other reason exists?

The argument you posted starts with "Primary argument in favor of Prop 8", and then uses the definition of a word in the definition of another word in the argument the original author came up with to refute to invalidate the argument. That's like a double straw man. The word "sanctity" isn't in the text of the proposition.

Here's the entire text of Prop 8:

Section I. Title

This measure shall be known and may be cited as the "California Marriage Protection Act."

Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

If you're going to throw around conclusions like "federally unconstitutional for sure", that conclusion should be based on something close to reason. "It's unconstitutional because a guy who's against it said a guy who supports it used a word that is tangentially related to religion" is not a reasonable argument.

Right. Especially because one of the trial judge's findings of fact was that marriage is a civil matter, not a religious matter. The idea that Prop 8 is unconstitutional because it violates the Establishment Clause is, as you said, ludicrous even by Facebook standards.

 

[scoobygang]

You must feel Prop 8 is not the establishment of a religious doctrine?

What other reason exists?

I think Christo posted a line of reasoning earlier in this thread, or possibly another, that went something like:The State has an interest in marriage. The state's goal is to create a stable and increasing population and views marriage, which produces offspring, essential to the future and the furtherance of the state's goals. To that end, the state routinely prevents marriages which do not produce proper offspring: some states require blood tests before marriage to eliminate passing on diseases, and restrict marriages between genetically related couples.

Again, I don't support Prop 8. I voted against it. I've been to gay weddings. But I understand the other side's argument better than "a guy said another guy said a word that has 'religion' in the definition, so they're wrong'.

Not all marriages produce offspring and what about single parents?

This is why the level of scrutiny matters and so much depends on how the question is framed. Under rational basis scrutiny, there is no requirement that the law not be underinclusive, such as by banning gay marriages but allowing infertile people to marry. If we apply a stricter level of scrutiny, the analysis is much more searching.

 

[Maurile Tremblay]

We just have to show that under California law, a civil union is treated identically to a marriage. If I understand the state Supreme Court case, there was at least some suggestion that there were differences but I'm not sure the factual question was resolved.

The biggest difference is that a minor can be married with parental consent, but can't enter a domestic partnership with or without parental consent until he turns 18. Or something like that. The other differences are completely trivial — like you have to file a marriage certificate in one government building, but a certificate of domestic partnership in some other government building.

 

[timschochet]

Re the bolded: using this logic, what's to keep a state from prohibiting the marriage of any two people incapable of having children?

The voters.

You're saying that if the voters in one state decided that no one over the age of 65 would be allowed to get married, and this law was challenged, the Supreme Court would uphold it?

 

[Maurile Tremblay]

If the Supreme Court finds that there's no rational basis or legitimate purpose for Prop 8, would that ruling apply to all states with discriminatory marriage laws, or just California?

It depends on what the Supreme Court holds. It could hold that there's no rational basis for excluding same-sex couples from marriage, period. In that case, it would apply to all states.Much more likely, it would hold that there's no rational basis for excluding same-sex couples from "marriage" when they can already become "domestic partners" (in which case the arguments summarized by sarnoff would not apply). In that case, it would concern only California.

 

[dparker713]

We just have to show that under California law, a civil union is treated identically to a marriage. If I understand the state Supreme Court case, there was at least some suggestion that there were differences but I'm not sure the factual question was resolved.

The biggest difference is that a minor can be married with parental consent, but can't enter a domestic partnership with or without parental consent until he turns 18. Or something like that. The other differences are completely trivial — like you have to file a marriage certificate in one government building, but a certificate of domestic partnership in some other government building.

Yeah, the opinion that overturned the first referrendum stated there were no substantive differences between a marriage and a domestic partnership in California, other than those imposed by federal law. The distinction was still deemed to violate the California Constitution because it fostered prejudice or something along those lines.

 

[scoobygang]

Re the bolded: using this logic, what's to keep a state from prohibiting the marriage of any two people incapable of having children?

The voters.

You're saying that if the voters in one state decided that no one over the age of 65 would be allowed to get married, and this law was challenged, the Supreme Court would uphold it?

Discrimination on the basis of age is evaluated under rational basis scrutiny. I don't predict hypotheticals, but I think it's far more likely that the SCOTUS would uphold such a law than that the voters would allow such a law to pass. Not every bad idea is unconstitutional.

 

[TobiasFunke]

Re the bolded: using this logic, what's to keep a state from prohibiting the marriage of any two people incapable of having children?

The voters.

You're saying that if the voters in one state decided that no one over the age of 65 would be allowed to get married, and this law was challenged, the Supreme Court would uphold it?

Probably, as long as they can slow a rational basis for the state law.Law review article on age discrimination

 

[Maurile Tremblay]

It'll be interesting to see how much deference the Supreme Court gives to the trial court's findings of fact. (Normally, the findings of fact are accepted unless they are clearly erroneous.)

The Prop 8 backers might argue that California has a legitimate interest in promoting unions between opposite-sex couples instead of same-sex couples so that children can have both a mommy and a daddy. Applying the higher-status "marriage" label only to opposite-sex couples serves that interest by giving bisexuals some marginal inducement to settle down with a partner of the opposite sex.

The trial judge explicitly found, however, that same-sex couples are no less competent than opposite-sex couples as parents. Is that finding clearly erroneous? Will the Supremes defer to it?

 

[dparker713]

It'll be interesting to see how much deference the Supreme Court gives to the trial court's findings of fact. (Normally, the findings of fact are accepted unless they are clearly erroneous.)The Prop 8 backers might argue that California has a legitimate interest in promoting unions between opposite-sex couples instead of same-sex couples so that children can have both a mommy and a daddy. Applying the higher-status "marriage" label only to opposite-sex couples serves that interest by giving bisexuals some marginal inducement to settle down with a partner of the opposite sex.The trial judge explicitly found, however, that same-sex couples are no less competent than opposite-sex couples as parents. Is that finding clearly erroneous? Will the Supremes defer to it?

They can just entirely ignore the findings of fact and treat the case as a denovo review of the law.

 

[Maurile Tremblay]

Here's the opinion. I haven't read it yet.

 

[scoobygang]

Here's the opinion. I haven't read it yet.

I'm not a big fan of Reinhardt's reasoning.He states that:

1) Proposition 8's only effect was to strip the designation (the name) marriage from homosexual relationships.

2) Hence, Prop 8 cannot possibly have been intended to advance state interests in advancing procreative relationships or strengthening families; but

3) The "equal dignity and respect" afforded the institution of marriage is at the "core" of the marriage right.

If Proposition is 3 is correct, however, than giving homosexual unions a name traditionally afforded less "dignity and respect" could conceivably advance an interest in advocating procreative unions. In fact, the state could argue, IMO, that it is the most narrowly tailored means of doing so (as the distinction doesn't even touch any substantive legal rights) and should thus survive even intermediate scrutiny. So the opinion strikes me as logically inconsistent.

 

[dparker713]

Here's the opinion. I haven't read it yet.

I'm not a big fan of Reinhardt's reasoning.He states that:

1) Proposition 8's only effect was to strip the designation (the name) marriage from homosexual relationships.

2) Hence, Prop 8 cannot possibly have been intended to advance state interests in advancing procreative relationships or strengthening families; but

3) The "equal dignity and respect" afforded the institution of marriage is at the "core" of the marriage right.

If Proposition is 3 is correct, however, than giving homosexual unions a name traditionally afforded less "dignity and respect" could conceivably advance an interest in advocating procreative unions. In fact, the state could argue, IMO, that it is the most narrowly tailored means of doing so (as the distinction doesn't even touch any substantive legal rights) and should thus survive even intermediate scrutiny. So the opinion strikes me as logically inconsistent.

Yeah, seems pretty specious reasoning to me. Also, Im in favor of even broader discretion under rational relationship review when its a referrendum and not the legislature. The entire Romer line seems to indicate the reverse should happen and I find that highly bothersome parentalism.

Plus, the sequencing basically is allowing the judiciary to bootstrap its own rulings. No one in CA believed Prop 8 was necessary because of a previous ballot measure. Sure, it was reactionary, but the people had thought they'd already sufficiently spoken on this matter.

 

[dparker713]

Here's the opinion. I haven't read it yet.

The dissent is fairly well reasoned, though I don't think Romer is sufficiently distinguished considering how much the majority relies on it.

 

[scoobygang]

Here's the opinion. I haven't read it yet.

I'm not a big fan of Reinhardt's reasoning.He states that:

1) Proposition 8's only effect was to strip the designation (the name) marriage from homosexual relationships.

2) Hence, Prop 8 cannot possibly have been intended to advance state interests in advancing procreative relationships or strengthening families; but

3) The "equal dignity and respect" afforded the institution of marriage is at the "core" of the marriage right.

If Proposition is 3 is correct, however, than giving homosexual unions a name traditionally afforded less "dignity and respect" could conceivably advance an interest in advocating procreative unions. In fact, the state could argue, IMO, that it is the most narrowly tailored means of doing so (as the distinction doesn't even touch any substantive legal rights) and should thus survive even intermediate scrutiny. So the opinion strikes me as logically inconsistent.

Yeah, seems pretty specious reasoning to me. Also, Im in favor of even broader discretion under rational relationship review when its a referrendum and not the legislature. The entire Romer line seems to indicate the reverse should happen and I find that highly bothersome parentalism.

Plus, the sequencing basically is allowing the judiciary to bootstrap its own rulings. No one in CA believed Prop 8 was necessary because of a previous ballot measure. Sure, it was reactionary, but the people had thought they'd already sufficiently spoken on this matter.

The response to the "one way ratchet" argument (which is what I think you're getting at in your bootstrapping comment) isn't very convincing. The court declined to find that the original California Supreme Court ruling was required by the 14th Amendment. But it finds that a amendment essentially overturning that ruling is suspect under Romer, even if the ruling is arguably not co-terminous with the 14th Amendment. Imagine, for example, that the California legislature had legalized gay marriage. And that after the elections, they had then repealed that law . Reinhardt suggests that the repeal of the law would be suspect under Romer even if the 14th Amendment did not require gay marriages to be treated identically to straight marriage under the 14th Amendment in the first place. That's just too clever by half. I have to admit, I think the dissent has the better of the argument, even though I support the result.

 

[scoobygang]

Here's the opinion. I haven't read it yet.

The dissent is fairly well reasoned, though I don't think Romer is sufficiently distinguished considering how much the majority relies on it.

I thought it did enough. Distinguishing Romer is easy. Romer had a gigantic impact on gay citizens of Colorado's substantive legal rights. Prop 8 doesn't.

 

[Chaka]

I will never understand why some people actually care who marries who.

 

[jon_mx]

I will never understand why some people actually care who marries who.

And I will never understand why anyone gives a crap if the government gives them a certificate. Both of the extreme reactions are stupid. HTH.

 

[Bottomfeeder Sports]

I will never understand why some people actually care who marries who.

And I will never understand why anyone gives a crap if the government gives them a certificate. Both of the extreme reactions are stupid. HTH.

I care less about what individuals do than what the government does to individuals. And even if I didn't give a crap if the government does not give them a certificate, I'm still troubled that the government prevents the individuals from entering into an equivalent contractual relationship.

 

[Maurile Tremblay]

I will never understand why some people actually care who marries who.

And I will never understand why anyone gives a crap if the government gives them a certificate. Both of the extreme reactions are stupid. HTH.

In California, that's true. But in states without domestic partnerships or civil unions, it's not just about a certificate. It's about issues related to adoption, child custody, property division, spousal support, hospital visitation, prosecuting wrongful death actions, intestate succession, etc.

 

[Lutherman2112]

You must feel Prop 8 is not the establishment of a religious doctrine?

What other reason exists?

I think Christo posted a line of reasoning earlier in this thread, or possibly another, that went something like

There's your first problem.

 

[Chaka]

I will never understand why some people actually care who marries who.

And I will never understand why anyone gives a crap if the government gives them a certificate. Both of the extreme reactions are stupid. HTH.

So long as everyone gets certificates or no one gets certificates I completely agree with you.

 

[OC Zed]

This makes me nervous.

I have no idea if this law is unconstitutional or not. But if it's upheld by the SC, that will be a major victory for those who oppose gay marriage.

I wouldn't worry too much about it. Unless they make a procedural ruling like Scooby outlines, they Court can only decide if the legislation has a legitimate purpose, not a just or right one. And "legitimate" legislation can be easily repealed. You'd have to be living under a rock not to see that gay marriage will be acknowledged everywhere within twenty years. That's the way public opinion is clearly trending, and when a trend largely reflects the opinions of the young vs. the opinions of the old, it's probably not gonna reverse itself. This decision is about when, not if.

If you or other supporters of gay marriage feel that way, then the best way to advance the issue is by continuing to promote it via a democratic or legislative process. Trying to ram social policy through the courts has never been a good way to cement social change in this country. Rather, it just hardens opposition to the party on the losing end of the court's verdict. Abortion is a great example of this and I'd also argue a number of decisions involving race going back to the Jim Crow laws (I know that's an entirely separate bees nest that I'd rather not hijack this thread over).Personally, I don't care very much about this issue (if anything, I'm sympathetic to gay marriage arguments), but I'm greatly concerned about the process its supporters have pursued in many states.

 

[Bottomfeeder Sports]

If you or other supporters of gay marriage feel that way, then the best way to advance the issue is by continuing to promote it via a democratic or legislative process. Trying to ram social policy through the courts has never been a good way to cement social change in this country. Rather, it just hardens opposition to the party on the losing end of the court's verdict. Abortion is a great example of this and I'd also argue a number of decisions involving race going back to the Jim Crow laws (I know that's an entirely separate bees nest that I'd rather not hijack this thread over).

Personally, I don't care very much about this issue (if anything, I'm sympathetic to gay marriage arguments), but I'm greatly concerned about the process its supporters have pursued in many states.

They have meticulously traveled the same path of every successful civil rights movement. They have carefully controlled which cases would go to courts to minimize the possible set backs. Making sure that only one technical question at a time is decided. All of which has served to educate the greater masses and has shifted over half of the indifferent to the pro gay marriage side. The 30% that are losing this, that that never really had a chance are going to harden their opposition and push back no matter how they lose. Sure the gay movement stole the playbook from other movements, but they have executed it perfectly.The "they did this wrong" argument and "will pay the consequences" is just flat out wrong. Oh and I'm no longer as passionate about this issue either...

Because it is over! Set backs here and there will not stop what is right from happening.

 

[Sand]

I will never understand why some people actually care who marries who.

And I will never understand why anyone gives a crap if the government gives them a certificate. Both of the extreme reactions are stupid. HTH.

In California, that's true. But in states without domestic partnerships or civil unions, it's not just about a certificate. It's about issues related to adoption, child custody, property division, spousal support, hospital visitation, prosecuting wrongful death actions, intestate succession, etc.

Which is why we have the 50 states. The founders intended for each state to be its own entity, competing against the others under our federal umbrella. Don't like the taxation or marriage policies of one state? Move to another. That is the way our system was setup to work.

 

[TobiasFunke]

This makes me nervous.

I have no idea if this law is unconstitutional or not. But if it's upheld by the SC, that will be a major victory for those who oppose gay marriage.

I wouldn't worry too much about it. Unless they make a procedural ruling like Scooby outlines, they Court can only decide if the legislation has a legitimate purpose, not a just or right one. And "legitimate" legislation can be easily repealed. You'd have to be living under a rock not to see that gay marriage will be acknowledged everywhere within twenty years. That's the way public opinion is clearly trending, and when a trend largely reflects the opinions of the young vs. the opinions of the old, it's probably not gonna reverse itself. This decision is about when, not if.

If you or other supporters of gay marriage feel that way, then the best way to advance the issue is by continuing to promote it via a democratic or legislative process. Trying to ram social policy through the courts has never been a good way to cement social change in this country. Rather, it just hardens opposition to the party on the losing end of the court's verdict. Abortion is a great example of this and I'd also argue a number of decisions involving race going back to the Jim Crow laws (I know that's an entirely separate bees nest that I'd rather not hijack this thread over).Personally, I don't care very much about this issue (if anything, I'm sympathetic to gay marriage arguments), but I'm greatly concerned about the process its supporters have pursued in many states.

What about Brown v. Board of Education?Also, although I feel that judicial decisions against gay marriage simply delays its inevitable widespread recognition/acceptance, there's still people being harmed by the fact that they are not able to marry right now. Who am I to tell them to just "sit tight" for a decade or so? If you are aggrieved by a law that violates the equal protection clause, you should challenge it, regardless of the politics.

 

[CletiusMaximus]

Prop 8 is going to Washington

 

[Wrighteous Ray]

Prop 8 is going to Washington

Maybe.

 

[jdoggydogg]

Prop 8 is going to Washington

It's about time.

 

[beavers]

Wow, so much has changed in 5 years.

 

[Bottomfeeder Sports]

Wow, so much has changed in 5 years.

So time for the backlash - 55-40

The "they did this wrong" argument and "will pay the consequences" is just flat out wrong. Oh and I'm no longer as passionate about this issue either...Because it is over! Set backs here and there will not stop what is right from happening.

While there is still more to do, is there still any doubt?

Austin R. Nimocks

 

[Bottomfeeder Sports]

Not sure which thread to tack this into. But several things popped up while browsing news.google.com today-

1) Freedom to Marry gave The Atlantic an advanced script to a press conference (today I think) of its strategy and goals for the next few years

[SIZE=10.5pt]Goals [/SIZE]

• [SIZE=10.5pt]60 percent national support, (the issue generally polls between 50 and 58 percent)[/SIZE]
• [SIZE=10.5pt]a majority of Americans in states with gay marriage (Currently about 30%)[/SIZE]
• [SIZE=10.5pt]a national law to overturn DOMA, [/SIZE]
• [SIZE=10.5pt]Provide a receptive society for the Supreme Court to make the sweeping change of finding all bans on same sex marriage unconstitutional[/SIZE]
• [SIZE=10.5pt]Put Freedom to Marry out of business[/SIZE]

[SIZE=10.5pt]Strategy [/SIZE]

• [SIZE=10.5pt](2013-2014) state legislation or ballot initiative:[/SIZE][SIZE=10.5pt]Illinois,[/SIZE]
• [SIZE=10.5pt]New Jersey,[/SIZE]
• [SIZE=10.5pt]Hawaii, [/SIZE]
• [SIZE=10.5pt]Oregon[/SIZE]

[*][SIZE=10.5pt]2015-16[/SIZE]

• [SIZE=10.5pt]Colorado,[/SIZE]
• [SIZE=10.5pt]Nevada[/SIZE]
• [SIZE=10.5pt]New Mexico[/SIZE]
• [SIZE=10.5pt]Ohio[/SIZE]

[*][SIZE=10.5pt]Possibly:[/SIZE]

• [SIZE=10.5pt]Arizona [/SIZE]
• [SIZE=10.5pt]Michigan[/SIZE]

[*][SIZE=10.5pt]Push to pass the Respect for Marriage Act, which would undo DOMA and other federal marriage restrictions,[/SIZE]
[SIZE=10.5pt]Supported by just 18 senators and 108 representatives when it was introduced in 2011, the bill now has 42 senators and 161 representatives publicly backing it[/SIZE]

"the successes to date have depended on a deliberate, strategic approach, and it will be important to proceed in the same careful manner"

2) A.C.L.U.

• Sues Pennsylvania Over Ban on Gay Marriage

In the lawsuit, the ACLU said banning gay marriage satisfies no legitimate government or child welfare concerns of the state-

The law passed in 1996 with overwhelming majorities in the state Legislature. During debate, the lawmaker who wrote the amendment, Republican House Rep. Allan Egolf, said: "This amendment does not take anything away from anyone that they now have. It is simply an expression of Pennsylvania's traditional and longstanding policy of moral opposition to same-sex marriages."

• Moves to challenge NC gay marriage ban

The American Civil Liberties Union announced today that it wants to challenge North Carolina’s ban on same-sex marriages by asking the state Attorney General to allow the group to amend an existing case on second-parent adoptions.

3) And then there is Indiana keeping Jesus in tears.

 

[beavers]

LDS will back gay marriage.

http://fox13now.com/2015/01/27/lds-church-to-address-religious-freedom-and-nondiscrimination-at-news-conference/

 

[Joe Summer]

LDS will back gay marriage.

http://fox13now.com/2015/01/27/lds-church-to-address-religious-freedom-and-nondiscrimination-at-news-conference/

I'm guessing you didn't read the article in the link.

The LDS Church insisted that it has not changed its doctrine, which opposes same-sex marriage

They're not backing gay marriage. They're pledging to back non-discrimination laws in exchange for protesters (and the government) leaving them alone.

 

[General Malaise]

LDS will back gay marriage.

http://fox13now.com/2015/01/27/lds-church-to-address-religious-freedom-and-nondiscrimination-at-news-conference/

Thought this was about LSD Acid backing gay marriage and got excited.

 

[beavers]

LDS will back gay marriage.

http://fox13now.com/2015/01/27/lds-church-to-address-religious-freedom-and-nondiscrimination-at-news-conference/

I'm guessing you didn't read the article in the link.

The LDS Church insisted that it has not changed its doctrine, which opposes same-sex marriage

They're not backing gay marriage. They're pledging to back non-discrimination laws in exchange for protesters (and the government) leaving them alone.

They oppose gay marriage, but not the discriminatory right for gays to marry?

 

[CBusAlex]

They oppose gay marriage, but not the discriminatory right for gays to marry?

Are you expecting logical consistency from these people?