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The Prop 8 challenge after today's oral argument:

I'm out of the business of predicting with confidence what the California Supreme Court will do based on its oral arguments. So I'll predict without confidence that: (1) the court will hold that Proposition 8 was a valid amendment, but (2) will also hold that the 18,000 same-sex marriages entered between June and November continue to be recognized and valid in California.

It seemed to me that Chief Justice George and (especially) Justice Kennard, both in the 4-justice majority in last May's marriage decision, were quite skeptical of the argument that Prop 8 was a revision requiring prior legislative approval. Maybe they were being devil's advocates. But losing those two votes, if they've been lost, probably means losing on the challenge to Prop 8.

In principle, the justices' votes on whether there is a right to same-sex marriage and on whether a proposition repealing that right is an amendment, are independent questions. A judge could believe there's a fundamental right to same-sex marriage but that the state constitution liberally allows amendments by simple majority votes. On the other hand, a judge could believe there's no fundamental right to same-sex marriage, but think that once the right is recognized, the elimination of a fundamental right for a suspect class is such a monumental act, and is fraught with so many dangers if allowed to stand as a precedent, that it can be accomplished only by revision.

The main hope, such as it remains, for opponents of Prop 8 lies in the recognition of several justices today, including at least one who dissented from last May's decision (Corrigan), that Prop 8 is unprecedented and thus calls for a new articulation of what constitutes a revision. Dean Starr agreed the "precise issue has not been before this Court." As I wrote in response to one commenter yesterday:

I don't think the question is so much whether the precedents "support" the petitioners as it is whether the precedents even address a case like Prop 8. There's never been an amendment in California or elsewhere that (1) stripped a judicially declared "fundamental right" (a term of art that doesn't just mean things that are important to people) from (2) a judicially-protected suspect class (another term of art that doesn't just mean any political minority). There have been other anti-SSM amendments, of course, but never in the teeth of a judicial decision the other way on these points. . . .

It's not true that only quantitatively large changes have been held to be revisions, and the petitioners make no quantitative claim here. Qualitatively significant changes can be revisions, as well. . . .

The question next would be: have the past cases closed and finally defined the set of "qualitative" constitutional changes that should be routed through the more deliberative, laborious, and consensus-dependent revision process? If there's a case to be made that the set isn't closed, it's hard to imagine a stronger candidate than one in which a suspect class loses a fundamental right on the say-so of 52% of the population. . . .

If the California Supreme Court rules in favor of Prop 8, it seems to me it will need to do one of two things: (1) back off from one or more of its rationales from the marriage decision, or (2) candidly acknowledge that a bare majority of Californians can limit fundamental rights for anyone, including vulnerable minorities, under the state constitution. It's hard for me to see how either option would be attractive to the court.

One more brief note from today's argument. If it wasn't clear before today, it is now clear that Attorney General Jerry Brown's role in the case has not only been unhelpful to the petitioners, but has undermined it. His view is that Prop 8 is an amendment rather than a revision "under existing cases" but that Prop 8 is unconstitutional because it took away a right that is on an unspecified and growing list of "inalienable," natural rights that can never be taken away by any constitutional change process. Brown thus undermines the petitioners on their strongest argument (the constitutional-procedural one) and offers instead a much weaker one (a constitutional-substantive one). It was plain in oral argument that none of the justices were buying it, and that Brown's lawyer, given an impossible position to defend, could not defend it.

UPDATE: In response to some commenters' concerns about the usurpation of democracy and popular sovereignty if the court invalidates Prop 8, the question in the case is not whether the state constitution can be changed but how. The distinction between revision and amendment is not a judicial invention, but a matter of constitutional text. Unless an amendment is whatever the majority votes for, a position even the legal supporters of Prop 8 don't take, that textual distinction calls for a judgment about how to distinguish them.

Related Posts (on one page):

  1. The Prop 8 challenge after today's oral argument:
  2. Starr on California "amendments":
AngelSong20 (mail):
I thought it was quite interesting that several of the justices, especially Justice Chin, spent some time discussing the idea of doing away with civil marriage altogether. I don't recall seeing that proposal in any of the briefs...
3.5.2009 2:34pm
Happyshooter:
That is just bad lawyering at oral argument so long he was running with a liberal position with a biased panel of judges.

"Clearly, the penumbra of rights contained in the 1st, 2nd, 4th, 14th, and 27th amendments prevent the electors of this state from blocking gay weddings."

If worst comes to worst, start quoting quasi-history from greek and roman times proving gay was fine then and must be fine now.

You don't just bobble the ball up there, spin the subject.
3.5.2009 2:37pm
Tony Tutins (mail):

Brown thus undermines the petitioners on their strongest argument (the constitutional-procedural one) and offers instead a much weaker one (a constitutional-substantive one). It was plain in oral argument that none of the justices were buying it, and that Brown's lawyer, given an impossible position to defend, could not defend it.

This is unfair to Brown, I believe. The revision vs. amendment position is a long shot (because of lack of fundamental rights precedents) that Brown decided not to bet on. But, the Justices quizzed Brown's guy as if he was defending the amendment side. They ate up his time for the argument he was trying to make -- a bare majority cannot take away fundamental rights from a minority without a compelling state interest.
3.5.2009 2:39pm
EvilDave (mail):
I expect the Supreme Court will legislate in everyone's best interest.
How dare the people think they can change a law made by the Courts.
3.5.2009 2:45pm
Tony Tutins (mail):

How dare the people think they can change a law made by the Courts.

More nostalgia for the days when Chinese kids had to attend the colored school.
3.5.2009 2:48pm
Down from the Ivory Tower:
I found it preposterous when Kennard claimed that her concurrence in the marriage decision did not apply here. In the concurrence, she said if equal protection means anything at all, it means the majority cannot deprive fundamental rights from suspect classes. Yet today, she was belittling, even vicious, toward those advancing that exact argument.

I also found it especially insulting when she implied that the challenge to Prop. 8 was some sort of "willy nilly" overriding of the majority (aka mob) rule. I can't imagine she would have used such demeaning terms if this involved blacks, asians, or the disabled.

I think clearly she has flip-flopped, sold her principles down the river, because she does not want to lose her retention election in 2010. Thanks, Joyce. K thanx bye.
3.5.2009 2:53pm
A Berman (mail):

candidly acknowledge that a bare majority of Californians can limit fundamental rights for anyone, including vulnerable minorities, under the state constitution.


How is that different from a bare majority of judges declaring something to be a fundamental right?
3.5.2009 2:53pm
Crunchy Frog:
I don't see how your (2) could hold, given a plain reading of Prop 8 - it would seem to invalidate (or more precisely, refuse to recognize) a gay marriage performed anywhere - California, Massachusetts, Canada, etc., for the purposes of state law/benefits.

Nothing in Prop 8 forbids the CA state legislature, or the CA Supes for that matter, from treating those relationships as domestic partnerships - which the CA Supreme Court has already stated confers all of the same benefits, save portability (which doesn't exist anywhere, currently) to other state and the fed government, and feel-good symbolism.

I'd like to see a breakdown of the Magic 18,000 wrt (a) how many of them were already registered DPs, (b) how many were out-of-staters who went back to their non-GM, non-DP homes (who don't have any official recognition where they are regardless), and (c) everyone else.

In short, I really don't see how anyone is irreparably harmed by Prop 8 being upheld.
3.5.2009 2:54pm
Nessuno:

"How dare the people think they can change a law made by the Courts."

More nostalgia for the days when Chinese kids had to attend the colored school.



Huh? You just provided an example of the courts overturning the legislature, not the people overturning the courts.

If we are to take your implication seriously, Tony, then you are saying that there is no check or balance on the judiciary. No one--not the legislature nor the people--can overturn a constitutional ruling made by a supreme court.

That is a frightening prospect. It is akin to turning over the country to a (for now) benevolent dictatorship.
3.5.2009 2:55pm
Crunchy Frog:

More nostalgia for the days when Chinese kids had to attend the colored school.

More nostalgia for the days when Chinese kids were considered White for Affirmative Action purposes.

See, two can play that game.
3.5.2009 2:59pm
ShelbyC:

More nostalgia for the days when Chinese kids had to attend the colored school.



Go read some history buddy. The only reason we have any civil rights precedent is because the people went and corrected the court when it said blacks couldn't be citizens.
3.5.2009 3:00pm
jnet (mail):
I think the "what is a revision?" question is the key question, and I bet that it scares the justices. There are no precedents that push the decision one way or another. They will have to rely on more general legal principles and policies, and it takes a rather gifted jurist to make that kind of opinion succeed.
3.5.2009 3:02pm
Ice Cube:
Mr. Carpenter,

Could you evaluate the performances of the various advocates? Only knowing a little bit about the underlying substantive law, I thought the AG attorney was AWFUL! While what he was saying was a little out there, it did seem that Ken Starr was light years ahead of everyone else in terms of composure, demeanor, and command of his material. Just curious what you thought?

DC: Starr was his usual poised, articulate, intelligent self. He's a very accomplished appellate lawyer: making concessions where they don't matter, respectfully but firmly disgreeing, avoiding hyperbole, deft with hypotheticals. It's hard to imagine the legal supporters of Prop 8 could have found a better advocate. That said, I don't think he was pressed enough on the logical conclusion of his argument that almost anything a majority wants to do constitutionally is an amendment rather than a revision. It's easier to make an argument before a group predisposed to your view, so he had the easier job today.

On the other side, the performances were mixed. I thought Stewart was good but not quite as good as she was last year in the marriage oral argument. I think some of her claims were too aggressive in response to hypotheticals, but she's a terrific lawyer. Maroko was rougher but made points that went to the heart of the issue more crisply than the others. Minter made some nice points, but seemed less confident and more nervous than one would have liked. Krueger had an impossible argument to make, and didn't help it.

Critiquing appellate arguments after-the-fact is easy, though. Actually making them under that much pressure is really hard.
3.5.2009 3:03pm
cmr:
I also found it especially insulting when she implied that the challenge to Prop. 8 was some sort of "willy nilly" overriding of the majority (aka mob) rule. I can't imagine she would have used such demeaning terms if this involved blacks, asians, or the disabled.


It is kind of willy-nilly, though. All the votes hadn't even been counted for Prop 8 before they filed a petition against its validity, and let us not forget, they tried this same argument to keep it off the November ballot in the first place. I mean, though I disagree with same-sex marriage, I do respect people's ambition to enact it. But this is just throwing everything they got at the wall and seeing what sticks. It is starting to look more and more like the supporters of gay marriage are more than happy to tell the majority (the merely bare majority) to go to hell in order to enact their policy ideas.
3.5.2009 3:05pm
Real American (mail):
It is rightfully difficult to amend the constitution. There are several ways to do it, but one is by popular vote of the people. That usually costs millions of dollars and the proponents have to battle it out with opponents and convince the people of this state. It's no small task.

It is much cheaper and easier to just sue and ask the Court to do it for you. There is no democracy. However, that violates the peoples' sovereignty.

In this case, there never was a fundamental right for gay couples to marry until the Supreme Court decided to make out last May. That's clearly amending the Constitution, too. It was a horrible decision and the people of this state voted to overturn it. The sovereign people of California have spoken.

But hey, if people don't want it to be so easy to amend the state constitution, then by all means, try to change it. Of course, that would be a revision, and is a bit more difficult to do. But hey, there might be a lot of support for it. But, do it democratically, not by Judicial Fiat.
3.5.2009 3:05pm
sham-wow:
Just for fun, what of the argument that a gay person already has the same rights and restrictions as a straight person, insofar as a straight man can't marry another man, even if he wanted to (for whatever reason).

And last time I checked, a gay man has the right to marry a woman, just as any heterosexual man can. If he chooses not to, isn't that his business?

Ergo, aren't homo/hetero rights and restrictions already (technically) equal?

I know this gets into arguments of definitions of personhood, pursuit of happiness, etc., but isn't a hetero man as equally prohibited from marrying another man as a gay man?

So does a state of inequality exist if a straight man suffers the same burden as a gay man (i.e., unable to marry a member of the same sex)?
3.5.2009 3:11pm
zuch (mail) (www):
AngelSong20:
I thought it was quite interesting that several of the justices, especially Justice Chin, spent some time discussing the idea of doing away with civil marriage altogether. I don't recall seeing that proposal in any of the briefs...
As Douglas Kmiec and Shelly Ross Saxer suggest, and as I have been saying for a while, the court really should have no recourse given the conflicting requirements of equal protection (something not overturned by Prop. 8) and the plain language of Prop. 8 (if it is held to be a proper "amendment") but to rule that henceforth, no "marriages" may issue from the state in California, and a different term must obtain for all. Prop. 8 decrees that "only marriage between a man and a woman is valid or recognized in California" but that doesn't require that any such marriages be valid or recognised. If such discriminatory "marriages" are contrary to other provisions of the California constitution, they are illegal and must be struck down.

Cheers,
3.5.2009 3:12pm
zuch (mail) (www):
sham-wow:
Just for fun, what of the argument that a gay person already has the same rights and restrictions as a straight person, insofar as a straight man can't marry another man, even if he wanted to (for whatever reason).
Been there, done that. That was the argument of Virginia in the (aptly named) Loving case: Blacks could marry blacks and whites could marry whites; no one was prohibited marriage. What's more, the prohibitions of marrying someone of the opposite race applied equally to whites as to blacks and thus didn't discriminate. What result?

Cheers,
3.5.2009 3:18pm
Vanceone:
I'm just shaking my head. Thirty years ago, the idea that we'd be seriously discussing whether or not gay radical activists could be in a position to override the rest of the country would be laughable. It's like imagining NAMBLA writing our laws today.

But here we are, where a so called "powerless" class--militant gay activists--are on the brink of successfully telling the people that it doesn't matter anymore what they want: the gays are in charge!

Seriously, what happens if the gay rights people win this one? And then, angered because it is by now clear that the gay rights movement has no respect for anyone else's opinion and will stoop to just about anything, including blackmail, blacklisting, anthrax scares, etc to punish anyone who stand in their way--what happens if the next proposition 8 wins by a 75% majority?

Who wants to let a militant group like radical gay activists run the country, outside of San Francisco? These are people who target others for individual ruin; who care nothing about others. It will be really hard for gay rights people to rebut the charges they are out to destroy religions when, in fact, they were doing just that after the vote.

How can gay rights types argue with a straight face they are a powerless, suspect class? They are on the verge of throwing out millions of voters will and overturning an election. Seems to me it's the anti-SSM advocates who are the powerless, suspect class anymore.
3.5.2009 3:20pm
sham-wow:
zuch,

I considered the Loving comparison, but this assumes the courts see orientation and race as the same, which they don't (yet).

And whites and blacks still face equal restrictions on access to marriage (licensing, kissin' cousin restrictions, etc.)
3.5.2009 3:24pm
zuch (mail) (www):
Vanceone:
I'm just shaking my head. Thirty years ago, the idea that we'd be seriously discussing whether or not gay radical activists could be in a position to override the rest of the country would be laughable. It's like imagining NAMBLA writing our laws today.
Oh, indeed. Just like NAMBLA writing our laws today, yessirree. And 150 years ago, the idea that that we'd seriously be discussing freeing the slaves would have been quite laughable as well ... well, in certain parts of the country. My, how things have taken a down-hill slide.

Cheers,
3.5.2009 3:26pm
Tony Tutins (mail):

Huh? You just provided an example of the courts overturning the legislature, not the people overturning the courts.

If we are to take your implication seriously, Tony, then you are saying that there is no check or balance on the judiciary. No one--not the legislature nor the people--can overturn a constitutional ruling made by a supreme court.


Sure there is a check and balance on the California Supreme Court -- you can vote them out of office. They are also subject to recall.

CALIFORNIA CONSTITUTION
ARTICLE 6 JUDICIAL


SEC. 16. (a) Judges of the Supreme Court shall be elected at large and judges of courts of appeal shall be elected in their districts at general elections at the same time and places as the Governor. Their terms are 12 years beginning the Monday after January 1 following their election, except that a judge elected to an unexpired term serves the remainder of the term.


In Brown, the Court thwarted the will of the people, to provide justice to a minority. The chicken-or-egg question is not significant. Part of the judiciary's basic mission is to keep the majority from denying rights to a minority.
3.5.2009 3:27pm
zuch (mail) (www):
sham-wow:I considered the Loving comparison, but this assumes the courts see orientation and race as the same, which they don't (yet).Actually, the anti-gay marriage laws make no provision for the orientation of the parties. They prevent males, gay or straight, from marrying another man (and similarly for women). If you look to the text of the laws, they are gender-discriminatory.

Cheers,
3.5.2009 3:29pm
cmr:
The "powerless minority" thing was funny to me. Any group that can cause an international furor about a state ballot initiative, raise millions of dollars (more than their opponents), get almost every major media outlet on their cause, and -- when they lose -- arrange protests in every state in the country...can hardly be called bereaved.

The gay community loves to co-opt that slighted minority angle when they feel it will be most beneficial.
3.5.2009 3:29pm
senior status for you:

"a bare majority cannot take away fundamental rights from a minority without a compelling state interest."

"I found it preposterous when Kennard claimed that her concurrence in the marriage decision did not apply here. In the concurrence, she said if equal protection means anything at all, it means the majority cannot deprive fundamental rights from suspect classes...I think clearly she has flip-flopped, sold her principles down the river"

Both these statements betray a misunderstanding of what constitutionalism means. The majority cannot deprive constitutional fundamental rights from suspect classes by LEGISLATION. Since suspect class/equal protection/fundamental rights jurisprudence derives from the state constitution, an amendment to the state constitution cannot itself be subject to equal protection analysis and scrutiny.

It would be as fundamental a misunderstanding as saying that the 13th, 14th or 15th Amendments to the federal Constitution are "unconstitutional" because of the 3/5ths clause in Article I.

You and your ilk are confusing legislation (which can conflict with and is trumped by the constitution) with constitutional amendments (which ARE the constitution). There is nothing inconsistent about Kennard's position -- she clearly recognizes the difference between laws (whether state common law or legislation) subject to constitutional/equal protection scrutiny, and constitutional amendments that aren't susceptible to equal protection scrutiny.
3.5.2009 3:30pm
cmr:
Actually, the anti-gay marriage laws make no provision for the orientation of the parties. They prevent males, gay or straight, from marrying another man (and similarly for women). If you look to the text of the laws, they are gender-discriminatory.


I don't know if it's gender-discriminatory. More like gender-discretionary. Both genders are permitted and restricted in the same way.
3.5.2009 3:31pm
senior status for you:

"If you look to the text of the laws, they are gender-discriminatory."

And public restrooms are gender-discriminatory too. So?
3.5.2009 3:34pm
efs5r (mail):
sham-wow: The CA Supreme Court actually did decide that sexual orientation was a suspect clasification, just like race, back in May.

Further, a similar argument was put forward by Texas officials in the Lawrence case. They argued that Texas' anti-sodomy law did not discriminate against gays, because both gays and straights were prohibited from engaging in homosexual sodomy. We know how that turned out.
3.5.2009 3:38pm
Vanceone:
Senior Status for you: Ah, but see, that's wrong too! I'm sure there's a lot of men, at least, who would want to be in the women's restrooms. If it was the cheerleaders restroom--probably far more than that ten percent figure gays love to throw around.

Of course, any guy wanting to be in that cheerleaders restroom would be labeled a "pervert." But that's discriminatory and hurtful language designed to target and stigmatize people who were born to want to play with the cheerleaders in their changing facilities!

I demand a trillion dollars to study this, plus all laws that would force men to stay out of cheerleader restrooms to be struck down as discriminatory on the basis of they prevent me from doing something immoral that I like.

It's all oldfashioned, out of step morals anyway, right?
3.5.2009 3:41pm
Joseph Slater (mail):
So, for those of you arguing that it's preposterous for gays and lesbians to argue they are discriminated against because . . . um, they have some advocacy groups (albeit not enough to win the Prop 8 fight) and . . . um, can file a lawsuit . . . did racism go away after Brown v. Board of Ed. and/or after Title VII? Was it unfair for blacks, in, say, the mid-late 1960s, to claim they were a discriminated-against minority?

One could even add a difference: Brown and Title VII were big national victories, the equivalent of which gays and lesbians have not yet acheived.
3.5.2009 3:44pm
Dan Hamilton:
If the California Supreme Court rules that Prop 8 is unconstitutional, what are the people of California to do?

The CSC will have made itself into Judicial Tyrants. Accountable to noone. Completely above the People or anything else. What ever they say the constitution means however outlandish IS the true meaning of the constitution.

The CSC was slaped down by Prop 8. They either accept it or they don't.

If they don't what do the people do NEXT.

The Legistrature is out. The CSC is above the leg.
Admendments are out. the CSC just ignores any they don't like.

Vote the Judges out. Doesn't change a thing. They are still judicial Tyrants.

There is one way to make sure that the Judges will not do this again. But no the People of California are to soft to do that. You see the CSC Judges are an internal threat to the California Constitution.
3.5.2009 3:44pm
Bob Dylan:
Dale says:
"..it's hard to imagine a stronger candidate than one in which a suspect class loses a fundamental right on the say-so of 52% of the population. . . ."

I don't see why that would be such a strong candidate. Especially in light of the fact that it has only recently been declared a fundamental right by a vote of 4-3 among 7 judges. Quiet the contrary, perhaps there should be a new standard for what justices declare are newly found fundamental rights without the consent of he people, or maybe that set should be closed.
3.5.2009 3:45pm
Splunge:
I wonder to what extent there is the fear that if Prop 8 is overturned because it's a "revision," meaning it has to get the California Legislature's approval first, then the jobs of the Democrats in the Legislature are at serious risk in the next election.

I don't think the Democratic leadership in Sacramento is thrilled with the idea of Prop 8 as a campaign issue for their members. We need to get rid of this Democrat, no matter what he's done for the district, because he won't vote for Prop 8 Take 2. I think the Legislature is very happy to have punted to the judiciary and the initiative process, and would not like to have the hot potato back in its hands.

But, of course, this is all purely theoretical, because no California judge would let political factors (or even personal fear for his own job) interfere with his cool, dispassionate legal judgment.
3.5.2009 3:47pm
senior status for you:
The difference is that the Texas anti-sodomy law wasn't a constitutional amendment. If the several states had voted to amend (and repeal) the 14th Amendment, there would be no constitutional basis for striking down the law in Lawrence. Indeed, the reasoning in Lawrence -- due process analysis premised on the 14th Amendment, would have no constitutional purchase given the repeal of the 14th Amendment.

Prop. 8 ought not to be analogized to mere state legislation, but to a constitutional amendment -- such as a repeal of the 14th. The constitutional picture changes dramatically once you stop conflating the two.
3.5.2009 3:49pm
zuch (mail) (www):
cmr:
The "powerless minority" thing was funny to me. Any group that can cause an international furor about a state ballot initiative, raise millions of dollars (more than their opponents), get almost every major media outlet on their cause, and -- when they lose -- arrange protests in every state in the country...can hardly be called bereaved.
One could say perhaps the same about blacks in the South, couldn't one? They got funding, volunteers, protests (some even violent) and newspaper support (and from pretty powerful papers, too) from oversea... -- umm, "up North".

Cheers,
3.5.2009 3:51pm
zuch (mail) (www):
cmr:
I don't know if it's gender-discriminatory. More like gender-discretionary. Both genders are permitted and restricted in the same way.
What result in Loving?

Cheers,
3.5.2009 3:52pm
Tony Tutins (mail):

Since suspect class/equal protection/fundamental rights jurisprudence derives from the state constitution, an amendment to the state constitution cannot itself be subject to equal protection analysis and scrutiny.

The provisions of the constitution must still be consistent with each other. If 50%+1 of Californians voted for an amendment that stated "Marriage between Baptists will not be valid or recognized in California," would you still make the same argument?

Further, who would argue that Baptists' marriages would thus be automatically dissolved?
3.5.2009 3:53pm
Smallholder (mail) (www):
The year is 2050.

"Grandpa, what did you do during the gay civil rights movement?"

"The gay civil rights movement?"

"Yes - when America decided that all people deserved equal rights."

a) "I welcomed my gay brothers and sisters in equality."

b) "I claimed that they weren't discriminated against."

c) "I likened them to pedophiles like NAMBLA."

d) "I compared gay marriage to bestiality."

e) "I didn't want them to have equality because there was nothing in it for me."

f) "I argued for majority rule over court protection of constitutional rights. Then, when the majority went to the other side in 2012, I argued that the majority was wrong."

g) "I made slippery slope arguments against gay marriage - if the gays get married, then polygamy is next. And people will marry their sisters and cats. You know, just like giving suffrage to black people ended with goldfish in the voting booth."

What do you want to say to your grandchildren?
3.5.2009 3:54pm
Sk (mail):
"don't think the question is so much whether the precedents "support" the petitioners as it is whether the precedents even address a case like Prop 8. There's never been an amendment in California or elsewhere that (1) stripped a judicially declared "fundamental right" (a term of art that doesn't just mean things that are important to people) from (2) a judicially-protected suspect class"

You are really in bizarro world. You seem to be suggesting that a judicially-declared right, and a judicially-declared rule ('protected suspect class') are especially protected from amendment for some reason?

But that is in essence exactly what amendments DO. Legislatures write laws, judges ok or don't ok those laws based on the constitution, and constitutional amendments change the constitution itself in order to change the baseline upon which judges make their rulings. If they didn't do this-if they overruled legislative decisions, for instance-then there would be no institutional reason to have an amendment process: the legislative process already embodies that effect.

You seem to think constitutional amendments* are only valid if they agree with judicial decisions. You've got it exactly backwards. Judicial decisions are only valid if they agree with the constitution.

Sk

*I don't think you actually believe this. You simply make any argument available in the hopes that enough judges will buy it to get the result you, and they, want. This is just the latest pretend argument that you hope will stick. Maybe it will, given the judiciary we have today.
3.5.2009 3:56pm
senior status for you:
Tutins, yes, I would make the same argument. Changing the variable to "Baptists" doesn't change the analysis. If you think that emotive appeals to religion sways me, think again. I'm not religious. :)

That said, the restriction you propose wouldn't survive review in the federal courts.
3.5.2009 4:00pm
Tony Tutins (mail):

You seem to be suggesting that a judicially-declared right, and a judicially-declared rule ('protected suspect class') are especially protected from amendment for some reason?

The highest traditions of our country. The result of Supreme Court jurisprudence since, say, the Dred Scott decision*, has been the recognition of more rights for more people.

*Help me out here.
3.5.2009 4:03pm
senior status for you:
I would tell my grandchildren I did the same thing I did during the polygamous civil rights movement and the consensual-incest civil rights movement.
3.5.2009 4:04pm
Vanceone:
Smallholder: I'd say this to my grandkids in 2050:

Kids, I stood up for religious liberty and the standards of morality that a free country needs.

I'm proud of the fact that I didn't buckle under, and that we warned everyone that religious liberty was under assault. I'm proud that I stood for something, the right thing. And I'm sorry that you have to forced to have a gay sex experience to "give you a choice in your sexuality" at the tender age of 14.

I hope your grandmother managed to make it to a place where she won't be jailed for going to a church that preaches that God wants marriage to be between a man and a woman, and that family is important--not just the "who can I screw today" being preached by our gay betters.

Now, excuse me, my time on the phone is up--I have to get back to my breaking rocks in these chains because I stood up against the gay tyranny and am now in jail along with millions of others, to be "reeducated" and "taught compassion and tolerance."
3.5.2009 4:10pm
pluribus:
Splunge:

I don't think the Democratic leadership in Sacramento is thrilled with the idea of Prop 8 as a campaign issue for their members. We need to get rid of this Democrat, no matter what he's done for the district, because he won't vote for Prop 8 Take 2.

According to the San Francisco Chronicle, six of the seven justices of the California Supreme Court are Republicans. Why would these Republicans care anything about the political fate of Democratic legislators?

But, of course, this is all purely theoretical, because no California judge would let political factors (or even personal fear for his own job) interfere with his cool, dispassionate legal judgment.

What political factors would lead Republican Supreme Court justices to cater to the political interests of gays?
3.5.2009 4:20pm
zuch (mail) (www):
vanceone:
Smallholder: I'd say this to my grandkids in 2050:

Kids, I stood up for religious liberty and the standards of morality that a free country needs.
Compare and contrast:
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
And then:
I hope your grandmother managed to make it to a place where she won't be jailed for going to a church that preaches that God wants marriage to be between a man and a woman, and that family is important--not just the "who can I screw today" being preached by our gay betters.
What does gay marriage have to do with "who can I screw today"? And who's talking about jailing people for going to church? Can you please stick to the subject here and avoid faux "slippery slope" arguments?

Cheers,
3.5.2009 4:29pm
Nemo:
It seems to me that invalidating previously contracted marriages solely in the post-Prop 8 period is not, strictly speaking, a retroactive effect, since it only relates to the post-Prop 8 validity of those marriages (as opposed to rendering the marriages void ab initio). Marriage, after all, is not only the original act but the continuing legal relationship. Why is an interpretation of Prop 8 that prospectively ends previously valid same-sex marriage relationships (without removing either the original validity of the initial act or the validity of the matrimonial relationship during the pre-Prop 8 period) necessarily a retroactive interpretation?

Does anyone consider an ordinary divorce decree retroactive?
3.5.2009 4:35pm
Repeal 16-17 (mail):
Nemo, wouldn't applying Prop 8 to existing gay marriages be more akin to annulments than to divorces? If so, then that would be a retroactive application of Prop 8.
3.5.2009 4:40pm
sham-wow:
efs5r: "The CA Supreme Court actually did decide that sexual orientation was a suspect clasification, just like race, back in May."

Couldn't the good people of CA just overturn this with yet another amendment?
3.5.2009 4:40pm
Tony Tutins (mail):

Marriage, after all, is not only the original act but the continuing legal relationship.

Valid marriages are ended only by death or on the initiative of the married couple. Ken Starr raises the power of the State of California to that of the Divinity, because the 18,000 couples are not seeking to dissolve their marriages.

Starr is King Herod, depriving every gay couple of a family member.
3.5.2009 4:46pm
CheckEnclosed (mail):
Any thoughts on the point that one counsel for Petitioners conceded that an initiative to roll back Prop. 209 and allow the State to use racial preferences would be a revision -- and hence invalid?
3.5.2009 4:50pm
cd:
Could someone who knows California law explain how California standing law works and why the intervenors have standing to challenge the validity of the existing marriages? Thanks.
3.5.2009 4:58pm
zuch (mail) (www):
Nemo:
Why is an interpretation of Prop 8 that prospectively ends previously valid same-sex marriage relationships (without removing either the original validity of the initial act or the validity of the matrimonial relationship during the pre-Prop 8 period) necessarily a retroactive interpretation?
Do they all then have to go to divorce court to settle up their affairs?
Does anyone consider an ordinary divorce decree retroactive?
Anullment is (although granted that's [generally] a religious and not civil concept, and it was jerry-rigged together to avoid a ban on divorces while providing such to those in need who might otherwise flee the pews and the coffers). ;-)

Cheers,
3.5.2009 4:59pm
pluribus:
Nemo:

It seems to me that invalidating previously contracted marriages solely in the post-Prop 8 period is not, strictly speaking, a retroactive effect, since it only relates to the post-Prop 8 validity of those marriages (as opposed to rendering the marriages void ab initio).

If proposition 8 has any validity at all, it is as a constitutional amendment. An amendment, by definition, changes the constitution. So if propisition 8 is validiated, the constitution will be changed to invalidate what was valid before the proposition passed. Proposition 8 is not an appeal from the Supreme Court to a higher court, saying the Supreme Court got it wrong. It is a amendment saying what was valid before the proposition passed is now invalid. Same-sex marriages that were valid before the proposition passed before would be invalid thereafter, if the proposition is upheld.

Does anyone consider an ordinary divorce decree retroactive?

No, but a decree of annulment certainly is. It not only ends the marriage, it declares that it never existed ab initio. The effect of proposition 8 would be to annul the same-sex marriages contracted before that date.

A marriage is a contract. The same-sex marriages entered into before the passage of proposition 8 were authorized by California law, which proposition 8 now seeks to change. Article I, Section 10 of the United States Constitution provides:


No state shall . . . pass any . . . law impairing the obligation of contracts.
3.5.2009 5:11pm
pluribus:
zuch:

Anullment is . . . generally. . . a religious and not civil concept. . . .

Annulment is specifically authorized by California law. Family Code Sections et seq.
3.5.2009 5:15pm
NesterT (mail):
Hmmm. I thought we didn't like judicial tyranny on this blog. If the people aren't sovereign, what or who is?

Oh and stop trying to compare race with sexual preferences. It's insulting.
3.5.2009 5:17pm
torrentprime (mail):
vanceone believes the lies told by the pro-Prop 8 "we're not bigots, we zwear!" crowd: that if we didn't pass Prop 8, churches that refused to perform gay marriages would be closed, that pastors would be jailed, Christians will be sent to re-education camps, and so on. Gay marriage isn't about bigotry, it's about religious freedom. The state and Christianity are inextricably bound, you see.
(and for those who don't believe that those lies were used during the campaign, you weren't reading the blogs or listening to the sermons during the campaign. They were saying it, and it worked. Christians were fear-mongered into this as much as anything else)
3.5.2009 5:22pm
Joseph Slater (mail):
Oh and stop trying to compare race with sexual preferences. It's insulting.

No and no.
3.5.2009 5:22pm
Smallholder (mail) (www):
Vanceone:

Do you really think folks want to take away your right to go to church?

Do you really think gay marriage advocates want to force your future grandson to have sex at 14?

Why?

Has someone told you this?

When people like me say that we want gays to have the same inheritance and income tax rules as the rest of us, why do you think we are lying?

Do you really think that the millions of people supporting gay marriage want to create your imagined dystopia?

Why?
3.5.2009 5:25pm
pluribus:
NesterT:

Oh and stop trying to compare race with sexual preferences. It's insulting.

Claims of equal protection are made both on the basis of race and sexual orientation. People of differtent races are all human beings, as are people of different sexual orientations. Our laws provides that all human beings are entitled to equal protection of the law. If your argument is that people of different races are entitled to equal protection but people of different sexual orientations aren't, then you are, in effect, saying, that all people are equal, but some are more equal than others, and you are the one who is insulting.
3.5.2009 5:27pm
Guest14:
Kids, I stood up for religious liberty and the standards of morality that a free country needs.
That's wonderful. I'm glad we have so many people looking out for Zeus' (or whoever's) interests, even if it's at the expense of, oh, people who actually exist.

Playing make believe is fun, yes, but when you start hurting people, you need to stop.
3.5.2009 5:27pm
torrentprime (mail):
nesterT: It's not sexual preferences, it's an orientation, but I realize you use your term for political effect, trying to trick people into thinking it can be changed, so I understand why you cling to its use. At least you didn't say "behavior."
What about religion, then? Can we compare sexual orientation to faith? Surely you agree that humans can change religious behavior, yet faith and creed is protected, is it not?
3.5.2009 5:27pm
cmr:
One could say perhaps the same about blacks in the South, couldn't one? They got funding, volunteers, protests (some even violent) and newspaper support (and from pretty powerful papers, too) from oversea... -- umm, "up North".


I'd need some examples of all of those, because you are making blanketed claims.

At any rate, the point with "blacks" (which, btw, the knee-jerk reaction to invoke the civil rights movement is very stupid and very offensive, but I doubt you care about coming off as either, because you seem quite shameless) was that they were trying to overturn policies created by the state intentionally meant to subjugate them and keep alive one of the basic vestiges of slavery. And as a comparison, I'd say gays now have way more power than blacks ever did in the thick of the civil rights movement.

And to your other comment: anti-miscegenation law prohibited blacks from marrying other races; I don't know that they kept blacks, Asians, or Hispanics from marrying outside their race. And, most of them kept blacks, often times solely, from marrying whites, and vice versa. It wasn't the same as saying all men can marry a woman and all women can marry a man. And, here's the kicker, anti-miscegenation laws made it a criminal offense to offend that orthodoxy. That doesn't exist for modern-day same-sex couples.
3.5.2009 5:28pm
einhverfr (mail) (www):
Crunchy Frog:

I don't see how your (2) could hold, given a plain reading of Prop 8 - it would seem to invalidate (or more precisely, refuse to recognize) a gay marriage performed anywhere - California, Massachusetts, Canada, etc., for the purposes of state law/benefits.


Sure. However, it would seem even more suspect to me that an amendment to the state constitution could invalidate already recognized marriages in this way.

One option the court has is to say it is otherwise valid but an amendment cannot retroactively remove such benefits from a class of people so this part alone is stricken.
3.5.2009 5:43pm
zuch (mail) (www):
pluribus:[zuch]: A[nnul]ment is . . . generally. . . a religious and not civil concept. . . .

Annulment is specifically authorized by California law. Family Code Sections et seq.
Which is why I said "generally". It is much more common in religious venues (simply because it is the only option for some), and the circumstances for getting an annulment under state law are more restricted and less common (AFAIK, bigamy, fraud, etc.). The state really doesn't care much; there is not much real differentiation for most purposes between someone divorced or never married. Some churches think otherwise. ;-)

Cheers,
3.5.2009 5:50pm
geokstr:
I hate to bring up the ol' slippery slope argument here, because last time I did on a similar thread, I was told quite forcefully that it didn't hold any water in this case. There was no way that approval of a new definition of marriage could lead to things like more movements to widen the definition further to include polygamy, marriage to close relatives, or even paedaphilia.

Slippery slope arguments can usually be laughed off because there is no "suspect group" advocating for what's at the far end of the slope.

But not this time.

Islam is not only if favor of all the above forms of "marriage", but has begun practicing them in all of the countries where they have any presence at all, including the US. They have made great strides in having themselves declared a "suspect group" in all the dhimmi nations, "victims" simply because of their religion. Canada, the UK, as well as other European countries, have already admitted to having a problem with polygamy, with multiple wives drawing welfare benefits:
Canada
In 2005, it was estimated that 55% of all the Pakistani marriages in the UK were to first cousins:
BBC
And forced and arranged marriages to girls as young as nine years old are common in Muslim countries.

Muslims are gaining power in this country, making inroads in all areas of our society.

If precedent is set here in the US that the institution of marriage can be be redefined to include SSM, what will be the argument against those practices that are accepted and indeed approved of by the Koran, and what will be the response of the gay community to their case for their "inalienable" rights?

It will be most interesting to see what happens, since Muslims don't want to just discriminate against gays, they want to behead them, and are not shy about saying so.
3.5.2009 5:53pm
senior status for you:
Pluribus,

"A marriage is a contract. The same-sex marriages entered into before the passage of proposition 8 were authorized by California law, which proposition 8 now seeks to change. Article I, Section 10 of the United States Constitution provides: No state shall . . . pass any . . . law impairing the obligation of contracts."

That argument was rejected in Maynard v. Hill, 125 U.S. 190, 210 (1888) ("Assuming that the prohibition of the federal Constitution against the impairment of contracts by state legislation applies equally . . . to legislation by territorial legislatures, we are clear that marriage is not a contract within the meaning of the prohibition.").

Marriage is a legal institution that is "more than a contract" and not subject to the Contracts Clause. "It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts." Id. at 211 (quoting Adams v. Palmer, 51 Me. 481, 483).
3.5.2009 5:56pm
senior status for you:
Pluribus, again:

If your argument is that people of different races are entitled to equal protection but people of different sexual orientations aren't, then you are, in effect, saying, that all people are equal, but some are more equal than others, and you are the one who is insulting.

So the Supreme Court is being "insulting" when it deems racial classifications as deserving of greater scrutiny than sexual orientation? Race is a suspect class. Sexual orientation isn't. The analogy from race to sex doesn't fly. People who argue from Loving and race-based discrimination to a different context -- sex and sexual orientation -- are ignoring this very pertinent fact.
3.5.2009 6:01pm
ohwilleke:
I'll predict without confidence that: (1) the court will hold that Proposition 8 was a valid amendment, but (2) will also hold that the 18,000 same-sex marriages entered between June and November continue to be recognized and valid in California.


I tend to agree with both of these conclusions. The voters voted, so the state constitution is changed, unless it falls within an obscure loophole which seems unlikely for such a succinct proposition.

The second conclusion may even have a federal constitutional component under the contracts clause. Notably, Prop 8 didn't really clearly claim to have retroactive effect. The Proposition prohibited gay marriage, it didn't call for the retroactive reversal of the California Supreme Court's decision. Prop 8 did not provide that the marriages that took place from June-November 2008 were invalid from their inception because California's constitution at that time didn't really say what the California Supreme Court said it did.

As a result, do post-Prop 8 couples then have an equal protection claim under the 14th Amendment, which pre-empts Prop 8?

If so, basically, we are left with a 14th Amendment ratchet effect. The federal constitution wouldn't require any state that had never had gay marriage from enacting it (and DOMA weakens the full faith and credit argument). But, once a state had gay marriage, it would be a 14th Amendment violation to abolish it unless there were no gay married couples left in the state.

Yes, this is a bootstrap, but not all bootstraps are inappropriate.
3.5.2009 6:02pm
Joseph Slater (mail):
cmr writes: And as a comparison, I'd say gays now have way more power than blacks ever did in the thick of the civil rights movement.

Really? I noted above that by the mid-1960s, which was certainly "in the thick of the civil rights movement," blacks (and those supporting civil rights for blacks) had already won a major court case in Brown v. Board of Ed. AND had won the Civil Rights Act of 1964. Advocates of gay rights have not won that much. Oh, and I could have added the Loving case and, a bit earlier, desegregation of the armed forces.

Currently, advocates of gay rights won in Loving, meaning basically that their private, consensual sex acts couldn't be criminalized; they have marriage and civil union rights in a tiny minority of states; and while there are a number of state and local jurisdictions that have anti-discrimination laws that cover sexual orientation, many don't have any such law and there is no federal law. And DADT remains the law for the military, at least at the moment.

This isn't meant to start a "who is more oppressed" pissing match. Racism was a huge problem (and, IMHO, continues to be). But it is some evidence opposing the notion that gays have more power now to enact laws or get favorable court decisions than blacks did in the 1960s.
3.5.2009 6:06pm
David Schwartz (mail):
What are the odds that the Supreme Court will hold that it is an amendment, not a revision, but is nevertheless ultra vires as Christopher Krueger so eloquently argued? Anyone want to take my money on my bet that it won't?
3.5.2009 6:14pm
Stephen Clark (mail):
I'm a progressive Democrat, but I absolutely agree with Dale about Jerry Brown. His behavior with respect to the Prop. 8 challenge has been appalling. It has been one big self-serving insult to the intelligence of the gay community. His brief was exceedingly detrimental to the cause of overturning Prop. 8. Knowing that, yet still wanting to shake down gay voters for support for his upcoming gubernatorial campaign, Brown tacked on a preposterous additional argument for the sole purpose of giving himself a fig leaf. It was the bare pretext that he used to justify to calling a press conference at which he cynically, manipulatively, and loudly proclaimed his support for the challenge to Prop. 8.
3.5.2009 6:17pm
pluribus:
zuch:

The state really doesn't care much; there is not much real differentiation for most purposes between someone divorced or never married

Your use of the words "much" and "real" may be the equivalent of "generally" in your previous post. But in particular applications the difference between divorce and annulment are substantial. Example: the widow of a Social Security recipient may lose her first spouse's benefits if she remarries and then divorces the second spouse, but not if she gets an annulment of her marriage to the second spouse. She is then deemed not to have remarrked at all and is entitled to benefits from her first spouse.
3.5.2009 6:17pm
ohwilleke:
I'm not convinced that Maynard v. Hill (1888) remains good law. There were (or were in recent memory) places in the U.S. in 1888 where marriage could not be dissolved even by mutual agreement and could not be modified by contract. Now, every state permits dissolution of marriage by mutual agreement (although New York and a couple of others don't allow unilateral dissolution) and pre-nuptial agreements may vary the terms of a marriage contract individually.

Marriage as it existed in 1888 is not necessarily marriage as it exists now. Also, even if marriage is not a contract, that doesn't mean that marriages may be annulled by retroactive legislation simply because the lawmakers (in this case the people acting by citizen intiative) say so.

And, annullment does have relevance and different legal consequences from divorce, beyond religious consequences. The classic case is the movie star annullment after a Las Vegas wedding entered into as a joke while drunk. The difference is particularly stark in community property states where marriage creates a present property right in all after acquired property (other than certain donative acquisitions), rather than the inchoate interest in marital property created in separate property states.
3.5.2009 6:18pm
zuch (mail) (www):
cmr:
[Arne]: One could say perhaps the same about blacks in the South, couldn't one? They got funding, volunteers, protests (some even violent) and newspaper support (and from pretty powerful papers, too) from oversea... -- umm, "up North".

I'd need some examples of all of those, because you are making blanketed claims.
Well, there is one famous case, N.Y. Times v. Sullivan. And there's Schwerner, Cheney, and Goodman. Etc. Do you really think that there was no Northern support for civil rights in the South?
At any rate, the point with "blacks" (which, btw, the knee-jerk reaction to invoke the civil rights movement is very stupid and very offensive, but I doubt you care about coming off as either, because you seem quite shameless) was that they were trying to overturn policies created by the state intentionally meant to subjugate them and keep alive one of the basic vestiges of slavery....
Slavery had been over for nigh a hundred years. They were trying to end discrimination and second-class citizenship. As for your accusations of shamelessness, that's inaccurate. I reserve my shame for that which merits it.
... And as a comparison, I'd say gays now have way more power than blacks ever did in the thick of the civil rights movement.
Did you have a point?
And to your other comment: anti-miscegenation law prohibited blacks from marrying other races; I don't know that they kept blacks, Asians, or Hispanics from marrying outside their race....
My statement was simplified (but pretty much gets to the meat of the matter). Yes, whites were prohibited from marrying any other race, and other races were prohibited from marrying whites. But that was hardly dispositive. To try and differentiate it on that basis would be to miss the whole point.
... And, most of them kept blacks, often times solely, from marrying whites, and vice versa. It wasn't the same as saying all men can marry a woman and all women can marry a man....
How so (assuming your mischaracterisation of anti-SSM laws was unintentional).
... And, here's the kicker, anti-miscegenation laws made it a criminal offense to offend that orthodoxy. That doesn't exist for modern-day same-sex couples.
The criminal prohibitions on gay sex only recently fell. And the Virginia miscegenation laws also voided any such interracial marriages as well as providing the criminal penalties. Did the civil voiding portions stand after Loving?

Cheers,
3.5.2009 6:22pm
zuch (mail) (www):
cmr:
[Arne]: One could say perhaps the same about blacks in the South, couldn't one? They got funding, volunteers, protests (some even violent) and newspaper support (and from pretty powerful papers, too) from oversea... -- umm, "up North".

I'd need some examples of all of those, because you are making blanketed claims.
Well, there is one famous case, N.Y. Times v. Sullivan. And there's Schwerner, Cheney, and Goodman. Etc. Do you really think that there was no Northern support for civil rights in the South?
At any rate, the point with "blacks" (which, btw, the knee-jerk reaction to invoke the civil rights movement is very stupid and very offensive, but I doubt you care about coming off as either, because you seem quite shameless) was that they were trying to overturn policies created by the state intentionally meant to subjugate them and keep alive one of the basic vestiges of slavery....
Slavery had been over for nigh a hundred years. They were trying to end discrimination and second-class citizenship. As for your accusations of shamelessness, that's inaccurate. I reserve my shame for that which merits it.
... And as a comparison, I'd say gays now have way more power than blacks ever did in the thick of the civil rights movement.
Did you have a point?
And to your other comment: anti-miscegenation law prohibited blacks from marrying other races; I don't know that they kept blacks, Asians, or Hispanics from marrying outside their race....
My statement was simplified (but pretty much gets to the meat of the matter). Yes, whites were prohibited from marrying any other race, and other races were prohibited from marrying whites. But that was hardly dispositive. To try and differentiate it on that basis would be to miss the whole point.
... And, most of them kept blacks, often times solely, from marrying whites, and vice versa. It wasn't the same as saying all men can marry a woman and all women can marry a man....
How so (assuming your mischaracterisation of anti-SSM laws was unintentional).
... And, here's the kicker, anti-miscegenation laws made it a criminal offense to offend that orthodoxy. That doesn't exist for modern-day same-sex couples.
The criminal prohibitions on gay sex only recently fell. And the Virginia miscegenation laws also voided any such interracial marriages as well as providing the criminal penalties. Did the civil voiding portions stand after Loving?

Cheers,
3.5.2009 6:22pm
ohwilleke:
It is also worth noting that while opposition to Prop 8 is broad among those who favor gay rights, that Loving was a quite controversial case at the time, even within the civil rights movement. MLK, Jr. and the NAACP avoided the "social issue" focusing instead on economic rights.
3.5.2009 6:23pm
Nemo:
Repeal 16-17:

Nemo, wouldn't applying Prop 8 to existing gay marriages be more akin to annulments than to divorces? If so, then that would be a retroactive application of Prop 8.

It seems to me that divorces apply to existing marriages in a prospective way, whereas annulments apply to them in a retroactive way. A retroactive application of Prop 8 would be to declare previously contracted same-sex marriages void ab initio. That's not what Starr was arguing for, was it? He was not arguing that Prop 8 caused those marriages never to have been valid, just that it terminated the validity of the earlier marriages henceforward.

Zuch:

Do they all then have to go to divorce court to settle up their affairs?



Good question. They might have to go to family court, if it has jurisdiction (not pursuant to the divorce statute, I would expect). I haven't considered that, but while it's possibly important as a practical and policy matter (and presumably something for the legislature to consider), it doesn't seem strictly relevant to the determination of whether, as a legal matter, those marriages continue to have validity in the post-Prop 8 period.

Pluribus:

If proposition 8 has any validity at all, it is as a constitutional amendment. An amendment, by definition, changes the constitution. So if propisition 8 is validiated, the constitution will be changed to invalidate what was valid before the proposition passed. Proposition 8 is not an appeal from the Supreme Court to a higher court, saying the Supreme Court got it wrong. It is a amendment saying what was valid before the proposition passed is now invalid. Same-sex marriages that were valid before the proposition passed before would be invalid thereafter, if the proposition is upheld.

Yes, but only, as you put it, "thereafter". The legal effects of the marriage would not disappear as they relate to the pre-Prop 8 period. So Starr's argument really seems to be for a prospective application - just not in the way most people seem to be thinking.


No, but a decree of annulment certainly is. It not only ends the marriage, it declares that it never existed ab initio. The effect of proposition 8 would be to annul the same-sex marriages contracted before that date.

Who is arguing that the effect of Prop 8 would annul those marriages (i.e., make them void ab initio)? Not Kenneth Starr, as far as I'm aware. Annulments really are retroactive, I agree with you - but that's not at issue here, since those 18,000 same-sex marriages are not in an any danger of being annulled, just terminated.


A marriage is a contract. The same-sex marriages entered into before the passage of proposition 8 were authorized by California law, which proposition 8 now seeks to change. Article I, Section 10 of the United States Constitution provides:


While marriage is often likened to a kind of contract, and contractual terminology is often used to describe aspects of marriage, I believe that most if not all courts to consider the subject have reached the view that marriage is not a contract within the specific meaning of the federal constitutional provision to which you're referring. However, that's technically a separate question from the one I was raising.
3.5.2009 6:30pm
pluribus:
senior status for you:

So the Supreme Court is being "insulting" when it deems racial classifications as deserving of greater scrutiny than sexual orientation? Race is a suspect class. Sexual orientation isn't.

You are no doubt aware that the California Supreme Court based its decision on the California Constitution. In its decision, the California court held that sexual orientation is a protected class like race and gender and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution. In In re Marriage Cases (2008) 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384. I do not find this insulting, nor do I find the United States Supreme Court decision in Lawrence insulting when it decided that the Texas sodomy statute was unconstitutional for irrationality. Lawrence does not preclude the application of strict scrutiny in future cases. You are no doubt aware that the statutes in both Lawrence and Romer were struck down, not sustained, because they violated the U.S. Constitution.
3.5.2009 6:36pm
Xenocles:
It seems to me that all prohibitive laws are discriminatory in some way.

Prostitution is prohibited in most jurisdictions. This law does not affect me, since I have no desire for the services of a prostitute. Only those who want to pay for or receive payment for sex are affected, but the prohibition applies equally to all three groups.

It is illegal for me to purchase and use heroin, but again I have no desire to do so. Yet we do not say the law is inappropriately discriminatory because a junkie's wishes are being thwarted. The restriction applies to me as much as him.

Someone once said that equality means that both rich and poor are equally prohibited from sleeping under bridges. That only a subset of the population is inclined to do the prohibited act is not relevant.

The separate but equal argument doesn't wash, either. Down that road lies mandatory coed locker rooms and bathrooms.

For what it's worth, I'm a supporter of complete a complete divorce between marriage and the civil authority. (I think the civil institution should be restructured into contracts between any number and configuration of consenting adults and they can find a church if they can or want to.) I just don't think there's a legal avenue for SSM in CA anymore.
3.5.2009 6:51pm
zuch (mail) (www):
Nemo:
[Zuch]: Do they all then have to go to divorce court to settle up their affairs?

Good question. They might have to go to family court, if it has jurisdiction (not pursuant to the divorce statute, I would expect).
Seeing as Prop. 8 said that "only marriages" should be recognised, why shouldn't same-sex divorces proceed apace? Why deny any more rights than strictly necessary ... or does Prop. 8 have greater reach than its proponents said? ... maybe even umbras and penumbras of denial of rights that spread across the legal landscape and make the proposition more sweeping than advertised? But then there's the question of whether such divorces are mandatory. If they aren't, what is the status of any marital arrangements (beneficiaries, etc.). Are such terminated as well? Does this require a court appearance to adjudicate any questions or formalize any arrangements? Anonanon.....

Cheers,
3.5.2009 6:55pm
sonicfrog (mail) (www):
If the court rules that Prop 8 stands, yet also rules that it is not retroactive and the marriages stand, wouldn't that open the door for a lawsuit to strike down Prop 8 by a gay couple who wants to get married, on the basis of unequal treatment under the law (some gays married, some not, denied by state). I know that the court is touching on part of this issue today, but it seems that the lawsuit I have in mind couldn't go forward until the legality of the current marriages can be decided. Maybe this is why Brown was so weak today - he sees the opening after today's hearing has been decided.
3.5.2009 6:58pm
whit:
i've always had a problem with retroactive laws. (fwiw, i support gay marriage, but not necessarily overturning prop 8, since i don't know california law)...

regardless of whether 8 is valid ONCE enacted, i have a serious problem with the retroactive aspect .

similarly, i had a serious problem with people who had been convicted of domestic violence offenses BEFORE laws were passed making it unlawful to possess a firearm if convicted of a dv offense, RETROACTIVELY stripped of their firearms rights.

many law enfocement officers who had pled guilty to minor DV's (and kept their jobs) were forced to resign after laws made it RETROACTIVE that people convicted of similar laws lose the right to carry.

iirc, the court ruled that retroactivity was groovy as long as it applied to civil/administrative stuff and not criminal penalty.

i don't see how being deprived of a fundamental right (2nd amendment) is merely civil/administrative.

iow, whatever one thinks of Prop 8, i can't see how it's kosher (legally or otherwise) to invalidate contracts (marriages) that WERE valid prior to prop 8.
3.5.2009 6:59pm
Gloria Rasputin:
I'm serving notice on behalf of all gay people that, no matter whether the Republicans on this court stick with us against the likes of Ken Starr and the Mormons, we are going to get the last laugh. In the end, whether near or far, this is going to be settled by the U.S. Supreme Court, probably after several appointments by a liberal president confirmed by a heavily Democratic senate. Then, any gay kid growing up in even the ugliest corners of Utah or Alabama can know there is a life for him, and any cowards on this California court who lack the nerve to strike down Prop. 8 can reflect on history's inevitable judgment of them.
3.5.2009 7:06pm
FredGarvin (mail):
You are no doubt aware that the California Supreme Court based its decision on the California Constitution. In its decision, the California court held that sexual orientation is a protected class like race and gender and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution.


I don't don't the reason's for the Cali Court to rule as it did, but...

I'd like to know exactly how sexual orientation is "like" race if:

1. Race cannot be changed
2. Sexual preference can, has, and DOES change
3.5.2009 7:22pm
senior status for you:
Pluribus,

"In In re Marriage Cases"

I wasn't talking about state law, I was talking about the equal protection argument from Loving under federal law -- in response to your claim that different levels of protection for different categories (such as race and sexual orientation) is "insulting." Since it is an elementary fact of federal equal protection doctrine that some groups are more stringently protected than others, your claim that "some are more equal than others . . . is insulting" is just markedly silly. Suspect classes (like race) are more stringently protected than non-suspect classes (like sexual orientation) under federal law. You ought to find that "insulting," and yet you demur on the logic of your earlier statements when this is pointed out to you. I'll take this demurral as an admission that your earlier statements were overbroad and silly.
3.5.2009 7:25pm
senior status for you:

"I'm not convinced that Maynard v. Hill (1888) remains good law."

I am. I doubt you have a cite to the contrary. The Contracts Clause argument remains dead in the water.
3.5.2009 7:27pm
Down from the Ivory Tower:
From today's oral argument, it seems the court is going to uphold Prop. 8 but declare the existing marriages valid. First thing we need to do then is file an equal protection claim in federal court based on the state's discrimination between pre- and post-Prop. 8 gay couples. Some people can get married but others can't because they fell in love too late? That's a joke that wouldn't pass rational basis review under the 14th Amendment. Then get Jerry Brown to decline an appeal and case closed.
3.5.2009 7:32pm
Nemo:
Zuch:

Seeing as Prop. 8 said that "only marriages" should be recognised, why shouldn't same-sex divorces proceed apace? Why deny any more rights than strictly necessary ... or does Prop. 8 have greater reach than its proponents said? ... maybe even umbras and penumbras of denial of rights that spread across the legal landscape and make the proposition more sweeping than advertised? But then there's the question of whether such divorces are mandatory. If they aren't, what is the status of any marital arrangements (beneficiaries, etc.). Are such terminated as well? Does this require a court appearance to adjudicate any questions or formalize any arrangements? Anonanon.....


Zuch, I'm not sure I understand what you're getting at. If all same-sex marriage relationships cease to be valid from Prop 8 onward (which, again, I am arguing is not technically retroactive even if applied to existing same-sex marriages), then what exactly does it mean for same-sex divorces to proceed? I do understand and agree that further legislative and judicial involvement might be required to settle issues of property, etc., and it's worthwhile to consider exactly what form and substance such involvement ought to take - but these things do not seem to be relevant to the limited questions the California Supreme Court has been asked to answer here.
3.5.2009 7:38pm
whit:

Some people can get married but others can't because they fell in love too late?


right. just like some people can get mortgages at 4.8% and others can't because they applied too late.

similarly, some people could legally have sex with 14 yr olds in hawaii at one point, until the law changed to raise the age of consent, etc.

similarly, some people can bang a 15 yr old because they live in one state, but a resident of another state, can't.

etc. etc. etc.

why do i reference these sex acts? because sex is also highly protected but it doesn't mean the law can't change.

Note: i support gay marriage.
3.5.2009 7:42pm
zuch (mail) (www):
Fred Garvin:
I don't don't the reason's for the Cali Court to rule as it did, but...

I'd like to know exactly how sexual orientation is "like" race if:

1. Race cannot be changed
2. Sexual preference can, has, and DOES change
When was the last time you changed? Oh ... right ... you don't want to change. Ummmm..... Well, maybe we want to you. Get hopping.

Cheers,
3.5.2009 7:47pm
David Schwartz (mail):
I'd like to know exactly how sexual orientation is "like" race if:

1. Race cannot be changed
2. Sexual preference can, has, and DOES change
Perhaps religion would be a better analogy for you then. In any event, it doesn't matter, because whether it changes, is chosen once irrevocably, is genetically determined, is a curable disease, or whatever has no bearing whatsoever.

Discrimination on the part of the government is equally bad whatever irrelevant criterion is used.
3.5.2009 7:52pm
FredGarvin (mail):
When was the last time you changed? Oh ... right ... you don't want to change. Ummmm..... Well, maybe we want to you. Get hopping.

Maybe I'm just not reading between the lines here, zuch... but is that an answer to my question?

FYI, even though I am happily married (hetero relationship), I am fully accepting of the fact that I MIGHT change at some point in the future. But I would never take that choice around with me, using it in a comparison to what black Americans have endured.
3.5.2009 7:53pm
zuch (mail) (www):
Nemo:Zuch, I'm not sure I understand what you're getting at. [...] I do understand and agree that further legislative and judicial involvement might be required to settle issues of property, etc., and it's worthwhile to consider exactly what form and substance such involvement ought to take - but these things do not seem to be relevant to the limited questions the California Supreme Court has been asked to answer here.I'm merely pointing out that the extent and the sweep of the revisions necessary due to this "simple" amendment (such as: is the legislature now required to pass laws to determine the proper disposition of assets, do divorce laws need to be amended to take into account the nature of the transitory "marriages", can pension benefits be annulled by companies, etc.) might argue for its being considered a fundamental revision of many parts of California law, and as such not a valid amendment. The very fact that they're arguing as to retroactivity is a strong indicator that it is not a simple amendment (or a well-drafted one; but that's true of many initiatives, which is part of the problem).

Cheers,
3.5.2009 7:55pm
Mike S.:
One must distinguish between good moral or political arguments and good legal arguments.

The business about retracting a "fundamental right" is a case in point. Politically, it might work, But according to the CSC, the right comes from the CA Constitution; thus, amending the Constitution can change the right. Likewise the "50%+1 shouldn't be able to do this." As a political argument, that the provision for amendment to the CA Const. sets too low a bar, OK. So change it. But to make a legal argument you would have to demonstrate a procedural defect in the passage of Prop 8; you can't argue that the amendment procedure in the constitution is unconstitutional.

Likewise, Loving, makes a decent political argument but no legal one. In Loving the court ruled that a state law ran afoul of the US Constitution; here the CA S.C. is being asked to rule that an amendment to the CA constitution violates the CA constitution. Absent a procedural defect (hence the appeal of the "revision" argument) you can't do that.

Rights in a constitutional democracy must flow from the constitution. Since the CA constitution seems to have been amended to specifically exclude a right to SSM, the only effective legal arguments would be either a procedural defect in Prop 8 or a claim that it violates the federal constitution. I don't see either of those.
3.5.2009 7:59pm
pluribus:
ohwilleke:

"I'm not convinced that Maynard v. Hill (1888) remains good law."

senior status for you:

I am. I doubt you have a cite to the contrary. The Contracts Clause argument remains dead in the water.

The relevant question is not whether you are convinced but whether the Supreme Court is convinced, isn't it? Citing an 1888 case on the contracts clause may be more persuasive than citing an 1896 case on the equal protection clause (Plessy) or a 1905 case on the due oprocess clause (Lochner). Then again, it may not. Both of those cases, and many hundreds of others, have been overruled, or distinguished, or disapproved. I am impressed by your conviction that an 1888 law is unquestionably controlling in 2009, but not persuaded by it. I might be more persuaded if you would offer an analysis of marriage as a contract under modern California law and why a state law wiping out a whole class of legally recognized contracts is not unconstitutional.
3.5.2009 8:00pm
John Howard (eggandsperm.org) (mail) (www):
Marriages can be legally annulled, the state can take new information that they didn't consider when granting the marriage and then decide that they shouldn't have granted the marriage. For example, when the couple turns out to have been siblings, they annul the marriage. When it was entered into under false pretenses they annul the wedding. Or, if they decide that same-sex couples shouldn't be allowed to marry or be married. That means if they relocate to California, a person can get out of a Massachusetts same-sex marriage without a divorce. This is why we need uniform CU laws in all fifty states, because a same-sex marriage in one or two states isn't really a marriage and doesn't give any security.
3.5.2009 8:02pm
zuch (mail) (www):
Fred Garvin:FYI, even though I am happily married (hetero relationship), I am fully accepting of the fact that I MIGHT change at some point in the future. But I would never take that choice around with me, using it in a comparison to what black Americans have endured.Even if it were possible for someone to change their race (see, e.g., Michael Jackson), why should we demand that of someone? Isn't the problem here inherent in us that think they're better off white, than in them? I'd say we ought to work on fixing what's broken, not in bending other things so we're all twisted alike.

Cheers,
3.5.2009 8:05pm
Frater Plotter:
I'd like to know exactly how sexual orientation is "like" race if:

1. Race cannot be changed
2. Sexual preference can, has, and DOES change
First off, (2) is not in evidence, and is widely regarded as false.

However, even if (2) is stipulated, this would only make sexual orientation closely analogous to another protected class: religion. Religious beliefs and affiliations can and do change; however, this does not justify withdrawal of equality under the law on the basis of religion.
3.5.2009 8:06pm
FredGarvin (mail):
Even if it were possible for someone to change their race (see, e.g., Michael Jackson), why should we demand that of someone? Isn't the problem here inherent in us that think they're better off white, than in them? I'd say we ought to work on fixing what's broken, not in bending other things so we're all twisted alike.

Uh, no matter how much Michael Jackson bleaches his skin, it does not change his race. And I am not demanding that of him, nor is that what I have promoted here, quite the opposite. My point is, race cannot be changed --- sexual preference can, has and DOES change.

With that said, how can anyone make comparisons between the civil rights struggles of black Americans to the current arguments put forward by the gay advocates who do compare their "struggle" to that of black Americans?

The Cali court upheld that sexual orientation is a protected class "like" race. I am asking, how the heck so? There simply is no comparison.
3.5.2009 8:11pm
Nemo:
Zuch:

I'm merely pointing out that the extent and the sweep of the revisions necessary due to this "simple" amendment (such as: is the legislature now required to pass laws to determine the proper disposition of assets, do divorce laws need to be amended to take into account the nature of the transitory "marriages", can pension benefits be annulled by companies, etc.) might argue for its being considered a fundamental revision of many parts of California law, and as such not a valid amendment.

I have to disagree here. It don't think it matters how many parts of the California statutes it would become prudent to revise following Prop 8 (and I think it's unlikely that any of them would be considered a fundamental revision of the state code, anyway). It matters whether the state constitution itself was fundamentally revised by Prop 8. The first is not really evidence of the second.


The very fact that they're arguing as to retroactivity is a strong indicator that it is not a simple amendment (or a well-drafted one; but that's true of many initiatives, which is part of the problem).

I think the both the amendment and the constitutional issues are relatively simple; the legislative and policy issues are not. I am surprised that they're arguing over retroactivity - or rather, I'm surprised that they're characterizing as retroactivity the dissolution (rather than the annulment) of those 18,000 marriages. I do think that the plain language of the amendment dictates that it has basically the effect Kenneth Starr says it does; that simply seems to me to be technically a prospective rather than a retroactive effect.
3.5.2009 8:16pm
FredGarvin (mail):
First off, (2) is not in evidence, and is widely regarded as false.

However, even if (2) is stipulated, this would only make sexual orientation closely analogous to another protected class: religion. Religious beliefs and affiliations can and do change; however, this does not justify withdrawal of equality under the law on the basis of religion.


Are you suggesting that there is not one single case where a heterosexual person got divorced from his/her marriage, then entered into a homosexual relationship? Or where a homosexual person changed their preference, then entered into a heterosexual relationship or marriage?

(I know of one case personally)

Why the jump to religion? The California court upheld that sexual orientation is a protected class LIKE race. I am specifically asking, how so? There is no comparison when you consider that race is immutable characteristic... Sexual preference isn't.
3.5.2009 8:16pm
nutbump (mail):
Been there, done that. That was the argument of Virginia in the (aptly named) Loving case: Blacks could marry blacks and whites could marry whites; no one was prohibited marriage. What's more, the prohibitions of marrying someone of the opposite race applied equally to whites as to blacks and thus didn't discriminate. What result?

Cheers,


Sorry but it is nonsense. Mixed raced couples absolutely identical with same race couples with regard to marriage, that is why antimiscegenation law was unconstitutional.
Gay couples are fundamentally different from heterosexual couples. Gay couples can't procreate and provide optimal environment for rearing children.
3.5.2009 8:18pm
John Howard (eggandsperm.org) (mail) (www):
Just because some state or country granted a marriage to a man and his daughter doesn't mean any other state has to honor that contract and continue to allow them to have possibly conceive children together if they come to that state, even if the other state believes that it was perfectly OK to let them marry and knew full well they were father and daughter.

On the other hand, states generally do respect that marriages that have been consummated are too late to unconsummate and don't arrest a visiting Saudi man who comes to this country with his three wives, nor do they arrest a couple that was able to marry at a younger age than they would allow in their own state. Once it's done, they generally accept that it has taken place and no man can tear it apart, as they say.

But that's their prerogative to decide to let a marriage stand, they can annul any marriage if they decide they should not be allowing that couple to conceive children together anymore.
3.5.2009 8:32pm
LN (mail):

Uh, no matter how much Michael Jackson bleaches his skin, it does not change his race. And I am not demanding that of him, nor is that what I have promoted here, quite the opposite. My point is, race cannot be changed --- sexual preference can, has and DOES change.

With that said, how can anyone make comparisons between the civil rights struggles of black Americans to the current arguments put forward by the gay advocates who do compare their "struggle" to that of black Americans?

The Cali court upheld that sexual orientation is a protected class "like" race. I am asking, how the heck so? There simply is no comparison.


Is religion a protected class "like" race? Have people ever changed religions?
3.5.2009 8:42pm
LN (mail):
If people *could* change their race from black to white by taking a pill, would the arguments against racial discrimination suddenly lose all force?
3.5.2009 8:43pm
John Howard (eggandsperm.org) (mail) (www):
Hi Nutbump. Don't you mean to say that same-sex couples can't ethically procreate?" Because as we all know, a same-sex couple could attempt the same procedure that produced Kaguya the mouse, but we shouldn't allow them to, just like we shouldn't allow siblings to possibly conceive children together because it would be unethical (not just for reasons of risk to the child, as adopted siblings are also prohibited, but because of how it would affect everyone if it were allowed).

Regarding Loving, the court said race is an unsupportable basis on which to prohibit people from conceiving together, because it was just designed to maintain a system of racial segregation and supremacy. And it was certainly conceiving together that they were being denied, the word "miscegenate" means "mix genes together", and they cited Skinner to find the "basic civil right" that was being denied by withholding marriage.
3.5.2009 8:46pm
subseeker:
Fred Garvin: Let me caution you. You cannot win. Zuch and his compadres are absolutely insulated against reason. They start making silly comparisons to religion when you ask them to explain what homosexual choices have to do with civil rights. Then they'll start citing scientific studies. Try this for science. Where is the gay gene? You have the truth. The truth is people have changed their preference. It is easy to do with effort. This is a choice, make no mistake about it (and a rather vile, base,foul, depraved choice if you ask me). It is a choice that changes it's practitioners into the ranting,raving, uncontrolled pathetic excuses for reasonable, logical humans we witness on this site.
3.5.2009 8:55pm
senior status for you:
pluribus,

"The relevant question is not whether you are convinced but whether the Supreme Court is convinced, isn't it? Citing an 1888 case on the contracts clause may be more persuasive than citing an 1896 case on the equal protection clause (Plessy) or a 1905 case on the due oprocess clause (Lochner). Then again, it may not. Both of those cases, and many hundreds of others, have been overruled, or distinguished, or disapproved."

Precisely my point. You can be "unpersuaded" all you like, it doesn't change the fact that Maynard hasn't been overruled, and remains controlling precedent on whether marriages are properly "contracts" under the meaning of the Contracts Clause (they aren't). You have no cite to the contrary. End of story.
3.5.2009 9:04pm
PC:
senior status for you: And public restrooms are gender-discriminatory too. So?

CA should pass an amendment that public restrooms can only be occupied by one man and one woman.

Smallholder: What do you want to say to your grandchildren?

Get of my lawn!
3.5.2009 9:20pm
David Schwartz (mail):
Why the jump to religion? The California court upheld that sexual orientation is a protected class LIKE race. I am specifically asking, how so? There is no comparison when you consider that race is immutable characteristic... Sexual preference isn't.
And there's more characters in "sexual preference" than in "race" too. Whenever you say something is "like" something else, there will be at least one way the first thing is not like the second thing. To demonstrate that an analogy is invalid, you have to show that the differences are relevant to the point the analogy is trying to show.

The proof that this difference is not relevant is that it's at least as easy to change religion as it is to change sexual orientation. Religion is just as much protected. So how easy or hard something is to change can't be a relevant difference that breaks the analogy. (Unless you can show why this meta-analogy is incorrect.)
3.5.2009 9:35pm
cognitis:
What does proposition 8 have to do with Chinese and Affirmative action?
3.5.2009 9:45pm
FredGarvin (mail):
Whenever you say something is "like" something else, there will be at least one way the first thing is not like the second thing. To demonstrate that an analogy is invalid, you have to show that the differences are relevant to the point the analogy is trying to show.


Did the court uphold that sexual preference is "like" religous choice?
3.5.2009 9:47pm
cognitis:
"Sexual orientation" differs totally from race. Clearly throughout history rulers have defined "race" or "tribe" or "blood" differently depending on mutating political interests and conditions. Clearest example would be Rome: Caesar observed the Celts and Germans to have fairer skin and hair, and no Athenian or Roman ever used the term "white race", yet both Athenians and in particular Romans considered Celts and Germans to be subhuman. Another example from American colonies would be Scots-Irish and Irish-Catholics: the Norman English transported both, like African slaves, in chains in ships' holds; both were sold at auction as slaves alongside African slaves; clearly "race", "white skin", and status really were very much confused at a colonial slave auction. Race, then, clearly is not only not a fact but isn't even clearly defined less immutable.
3.5.2009 10:01pm
EvilDave (mail):

If people *could* change their race from black to white by taking a pill, would the arguments against racial discrimination suddenly lose all force?

No, white people would still be bad.
3.5.2009 10:33pm
David Schwartz (mail):
Sorry but it is nonsense. Mixed raced couples absolutely identical with same race couples with regard to marriage, that is why antimiscegenation law was unconstitutional.
So how is a homosexual couple different from a sterile man who marries a fertile woman? If the state only extended marriage privileges to couples who intended to bear children and were capable of doing so, this argument would have force.

Gay couples are fundamentally different from heterosexual couples. Gay couples can't procreate and provide optimal environment for rearing children.
In fact, they can procreate. A gay woman, for example, can still be impregnated. A gay man can still donate sperm. Even if we assume it's true that a heterosexual couple provided a poor environment for rearing children, the government does not restrict marriage rights on the basis of the quality of environment provided for rearing children.

All of your arguments would have some force if the government applied them to heterosexuals and homosexuals equally. Where they are applied discriminatorially, there is no such force.

Is this a valid argument: A law prohibiting black people from holding public office is legitimate because black people disproportionately commit crimes. Criminals make worse public office holders than non-criminals.

And the reasons why it's not okay are dead on. Even if black people are far more likely to commit crimes than whites, that still doesn't remove from the government its obligation to treat people as individuals, not as members of a class. If the government is really concerned about this, it should prohibit those who have committed crimes from holding public office. And give each person, white or black, the chance to demonstrate their own trustworthiness or non-trustworthiness.
3.5.2009 10:42pm
Nemo:
David Schwartz:

So how is a homosexual couple different from a sterile man who marries a fertile woman?

It occurs to me that couples falling into the second category have at least a theoretical chance of having offspring together. The sterile man could have been misdiagnosed, or he could nevertheless become fertile later. Is that a difference?


In fact, they [gay couples] can procreate. A gay woman, for example, can still be impregnated. A gay man can still donate sperm.

Strictly speaking, those aren't examples of gay couples procreating. They're instances of gay individuals procreating as part of a biologically heterosexual union.
3.5.2009 11:04pm
Some Dude:

On the other hand, a judge could believe there's no fundamental right to same-sex marriage, but think that once the right is recognized, the elimination of a fundamental right for a suspect class is such a monumental act, and is fraught with so many dangers if allowed to stand as a precedent, that it can be accomplished only by revision.


Now, since the court has "recognized" the right to SSM in response to the first ballot initiative, the amendment amounts to repealing a right, but if the amendment came before the court recognized the right, there would be no cause to overturn it.

That makes zero sense. How can an amendment represent repealing a right in one instance but not another by mere time displacement, when we are dealing with the same constitution?
3.5.2009 11:08pm
Some Dude:

The distinction between revision and amendment is not a judicial invention, but a matter of constitutional text.


Why wasn't this done before the vote? The position got on the ballot and the voters voted on an amendment.
3.5.2009 11:10pm
Some Dude:

Smallholder (mail) (www):
The year is 2050.

What do you want to say to your grandchildren?



b) "I claimed pointed out that they weren't discriminated against."
3.5.2009 11:17pm
Chad (mail) (www):
Gloria

If the Republicans on the court stick it to you and you take it to the Supreme Court it seems to me you may have to wait quite a while for that liberal majority you are looking for.

From what I see the Justices most likely to step down are all on the liberal side of the bench right now so unless Obama can pull off a court packing scheme like FDR threatened the best you get is a status quo.
3.5.2009 11:17pm
Elais:
Nemo,


It occurs to me that couples falling into the second category have at least a theoretical chance of having offspring together. The sterile man could have been misdiagnosed, or he could nevertheless become fertile later. Is that a difference?


So a sterile couple would still be allowed to marry because there is a 'theoretical' change they may be fertile?

Since when was the right to marry based on 'theoretical' fertility?
3.5.2009 11:24pm
John Howard (eggandsperm.org) (mail) (www):
It occurs to me that couples falling into the second category have at least a theoretical chance of having offspring together. The sterile man could have been misdiagnosed, or he could nevertheless become fertile later. Is that a difference?

That is true, it can't be known in advance that a man and a woman won't conceive children if they have sex. Especially from a public point of view that doesn't intrude into anyone's private medical file. But also, the couples we let marry we approve of procreating together. We never prohibit them from procreating together. If we prohibit a couple from procreating together, like siblings, we never let them marry, because marriage is always the official right to perhaps procreate together, whether the couple wants to or intends to or not. And now same-sex couples can more than just theoretically procreate too, as the fatherless two-mommed mouse Kaguya proved in 2004. Society must decide if same-sex couples should be treated like siblings or like a man and a woman. I say treat them like siblings and don't let them do anything that might result in conceiving a child together from their genes, because the benefits of stopping the Brave New World are so profound and the costs so crushing.
3.5.2009 11:42pm
Nemo:
Elais,


So a sterile couple would still be allowed to marry because there is a 'theoretical' change they may be fertile?

Since when was the right to marry based on 'theoretical' fertility?



Perhaps the right to marry hasn't as such, if one is thinking about restrictions on marriage (such as anti-miscegenation laws). But it seems as though there's a strong argument that the institution of marriage itself (that is, the thing - or definition of the thing - to which the rights and restrictions have been applied) does historically have some relation to theoretical fertility.

I suggest this because marriage has in most times and in most places referred to the union of a man and a woman (or at least to combinations of men and women in various ways), and perhaps the most salient general characteristic of male-female unions (as distinguished from combinations) is - you guessed it - theoretical fertility. I am not opining on the merits of this as a social policy, just trying to account for it.
3.5.2009 11:47pm
John Howard (eggandsperm.org) (mail) (www):
Religion is just as much protected.

OK, but it doesn't protect a religion's or religious person's right to do something illegal. If a religion said it was OK to have sex with multitple young teenage girls, they'd find the FBI at their compound taking them to jail. Likewise, if a religion like Clonaid said it was OK to start cloning people - oh wait, cloning isn't illegal in this country yet. But it should be, and there can't be a religious exemption allowing it, or a sexual orientation exemption allowing it.
3.5.2009 11:49pm
Nemo:
In my previous post, I inadvertently omitted the word "other" from the intended phrase "as distinguished from other combinations". Sorry for any confusion.
3.5.2009 11:49pm
whit:

So how is a homosexual couple different from a sterile man who marries a fertile woman?


look, i am FOR gay marriage, but i find this question asinine, and arguments that equate arguments against interracial marriage and same sex marriage also as asinine.

here's why

what's different?

a man and a woman are fundamentally different. biologically. note that the difference between the races is mutable (people of different races can procreate with each other, and the offspring can etc. and there are all sorts of mixed race people walking around such that you really can't pinpoint a specific race anyway), between the sexes - it isn't (unless you go through tons of surgery AND hormone replacements which STILL does not MAKE you into the other sex, just an approximation).

a sterile man and a fertile woman are still a marriage of two very different forms of the human species. a man and a woman.

marriage has been defined this way - as a union (even in the case of polygamy) where these two very different creatures create a special relationship.

the idea that there is even such a concept as a same sex marriage is only possible if one COMPLETELY redefines marriage to include... wait for it... same sex marriages.

this is completely different from interracial marriages, because the racial differences (as mentioned) are entirely less, not fundamentall different biologically.

women and men have sets of entirely different organs, a different hormonal milieu, etc.

period.

laws against interracial marriages REMOVED a conventional and historical form of marriage. interracial marriages did NOT redefine marriage. sae sex marriage did and does.

i am FOR same sex marriage. i am FOR changing the definition of marriage to include same sex couples, but it is exactly that - a redefinition.

because all political rhetoric aside, no amount of talk will change the fact that a coupling of the two biologically distinct types of humans (men and women) is not at all the same thing as a coupling of two of the same type.

biology is not a political concept. it's a reality.
3.5.2009 11:58pm
Ricardo (mail):
Try this for science. Where is the gay gene? You have the truth. The truth is people have changed their preference.

Where is the gene that determines your fingerprints? Our study of human genetics is still in its infancy and we have a rather long way to go for any conclusive evidence on this to come in. Still, the idea that anything not in ones genes can be changed is an obvious non sequitur.
3.6.2009 12:03am
Nemo:

[Ricardo:] Where is the gene that determines your fingerprints? Our study of human genetics is still in its infancy and we have a rather long way to go for any conclusive evidence on this to come in.

Just for the sake of accuracy, the individual details of your fingerprints are not determined by genes.
3.6.2009 12:17am
PubliusFL:
Elais: Since when was the right to marry based on 'theoretical' fertility?

Probably for at least as long as the "fertile octogenarian" rule has been around. That's pretty long!
3.6.2009 12:17am
cmr:
So how is a homosexual couple different from a sterile man who marries a fertile woman? If the state only extended marriage privileges to couples who intended to bear children and were capable of doing so, this argument would have force.


I'm curious: is there a such thing as "couples' rights"? Like, a couple is just an abstract pairing. Does the law pertaining to marriage take into account the notion that couples' have rights, or does it just treat married individuals differently from unmarried individuals.
3.6.2009 12:18am
Ricardo (mail):
Just for the sake of accuracy, the individual details of your fingerprints are not determined by genes.

That should be clarity rather than accuracy. What I intended by my remark is the individual details of fingerprints are not determined by genes. Whether homosexuality is genetic or not is still an open question. And the answer doesn't tell us whether homosexuality can be changed or not.
3.6.2009 12:25am
Nemo:

[cmr:] I'm curious: is there a such thing as "couples' rights"? Like, a couple is just an abstract pairing. Does the law pertaining to marriage take into account the notion that couples' have rights, or does it just treat married individuals differently from unmarried individuals.


That's an interesting and subtle question. If we think of a "couple's right" as a legal right that can only be exercised jointly by both spouses, then I'd say there are at least some of those. For example, the right to file a joint tax return. (That's not part of the marriage law as such, of course.) Perhaps matrimonial property rights could also be described as "couple's rights", even though I think they also have an individual aspect.
3.6.2009 12:41am
John Howard (eggandsperm.org) (mail) (www):
Reproduction rights should be couple's rights. No individual human has ever reproduced, only couples have reproduced. And not all couples have reproductive rights, some are ineligible to marry. And it is only after marrying that the official right to reproduce is given to the couple. And then, the couple is considered one legal person traditionally, called coverture, which is why the fifth amendment protection against self-incrimination applies to spouses and property doesn't change hands when one spouse dies.
3.6.2009 12:55am
Jim Carlile (mail):
"...or (2) candidly acknowledge that a bare majority of Californians can limit fundamental rights for anyone, including vulnerable minorities, under the state constitution. It's hard for me to see how either option would be attractive to the court."

In regards to (2) though, how could this happen in reality, being that federal law and the Constitution already protects these other rights, which cannot be waived merely by a majority vote of California voters?

I think this anti-Prop 8 argument, that, "if they can take away gay marriage, they can ban religion," just doesn't wash, because sexual preference is not federally protected. But everything else is.

It's an unreal argument-- sophistry, really-- and I'm actually an anti-8 person myself ! I think the state court realizes this too-- as does Starr-- and they are going to ride on this impossibility in order to justify upholding Prop. 8.
3.6.2009 1:01am
cmr:
Why do people keep saying a "bare majority" like this is the first time this issue has come up. Prop 22 passed by 61%, almost ten points higher than Prop 8. A lot of people voted no on 8 not because they believe in gay marriage, per se, but for matters of process: they figured that since the courts had enacted it, it was the unofficial point of no return; they disagreed with marriage being defined in the Constitution; they figured their vote didn't, in a way, matter because the issue would end up in court again. I've seen people admit to all three.

I'm just still waiting on the consensus from the electorate that this is actually a fundamental right to begin with. A lot of people are basing their disapproval of Prop 8 on the self-evident assertion that it is, and I'm like, isn't that question up in the air just like whether or not gay marriage should be legal?
3.6.2009 1:15am
Matt J. (mail):

Why do people keep saying a "bare majority" like this is the first time this issue has come up. Prop 22 passed by 61%, almost ten points higher than Prop 8.


CMR, you almost answered your own question. Sure, Prop 22 pased by 61%, but Prop 8 passed by less: I forget if it was 52% or 54%. So yes, that is a small majority.

Unfortunately, this decline from 61% to 52% encourages the pro SSM crowd to believe that the next time they put this on the ballot, they will win.
3.6.2009 2:08am
Matt J. (mail):

If the California Supreme Court rules in favor of Prop 8, it seems to me it will need to do one of two things: (1) back off from one or more of its rationales from the marriage decision, or (2) candidly acknowledge that a bare majority of Californians can limit fundamental rights for anyone, including vulnerable minorities, under the state constitution. It's hard for me to see how either option would be attractive to the court.


Well, yes. The Court has got itself into quite a pickle. But they have only themselves to blame for this. What were they thinking when they decided to create this "fundamental right" out of the whole cloth, and that when Prop 8 was already gathering signatures? Did they really think they could pre-empt the Amendment process so crudely?

If the Court wanted to avoid today's pickle, they should have avoided last year's unwelcome judicial activism. But now they have to eat crow.

Why such crow is the best medicine for their own self-inflicted injury!
3.6.2009 2:11am
Splunge:
I'm a little mystified by the argument by analogy to miscegenation. If this argument is persuasive, then what business does the state have refusing its sanction (the title of "married") to a man and his adult daughter? I mean, if they have the horn for each other, and there's nothing they can consciously do about their attraction, isn't it just like forbidding a black man to marry a white woman?

If the argument goes ah! but that risks damage, e.g. birth defects from inbreeding, in the offspring, and the State has an interest in ensuring the welfare of children, then what if he agrees to a vasectomy first? Or she to a hysterectomy (to make sterility foolproof permanent)? Would that make it OK?

I would have thought that antimiscegenation laws were invalidated less because the right of people to marry whomever they damn well please is paramount, but because the only reasonable interest the state has in marriage -- the welfare of any children within it -- doesn't seem to depend on the fact that the parents are of mixed race. If nothing else, the fact that there were already millions of mulatto children who seemed OK (indeed were widely considered better off than children of two black parents), and there were entire nations (Brazil) where mixed race families were common, would be persuasive. So there was nothing to trump the rights of the adults involved to do what they want.

But we keep the laws against polygamy, adult incest, cousin marriage, because these things do influence the welfare of the children. Look at the Texas polygamist case, where lawyers from the state argued strenuously the mere fact of living in a polygamous family was a serious conceivable threat to the welfare of the children. To be sure, the Texas Supreme Court doesn't seem to have been impressed by that, and asked for specific evidence of harm. But that's Texas. I can readily believe a California Family Court might easily find that the mere fact of a polygamous marriage constituted a threat to the welfare of the children.

If you want to make the argument that gay marriage is just like black-white marriage, but not at all like polygamy, or adult incestuous marriage, then it seems to me you need to make the case that there can be no conceivable interest of children at risk.

One way to do that would be to forbid gay couples from having children, either au natural or by adoption. But I doubt the gay community would agree to that trade. It seems to me at least the lesbians would find that utterly outrageous, since they can have children without any legal process (adoption) at all.

But then what? You can't argue airily that children raised by two men, or two women, are just obviously at no greater risk than children raised by a father and mother. That's reckless. You can't point to millions of quite normal people who spent their childhood in single-sex married households, at least until (say) the Netherlands experiment runs for half a century or so.

But how are you going to establish to everyone's satisfaction that there is no serious risk? How would polygamous Mormon sects go about doing it? I can't imagine an ethical experiment, or sufficiently clever study, that would convince anyone in either direction who wasn't already convinced.

You could make an analogy to no-fault divorce, that we gave individuals the right to raise their children in single-parent households, without worry about the effect on those children. But that wouldn't necessarily be a good way to go. My impression of the social science research is that it unambigously demonstrates that divorce does have unanticiapted, long-term destructive effects on children, which if known at the time might well have put the brakes on no-fault, but which has limited influence now because the horse has left the barn. Oh well. But the existence of one questionable social experiment is no argument for another.

I'm not saying I believe one way or the other about the effect on children. But it seems the biological differences in mothers and fathers (which justify the 90% mother custody rates post-divorce, right?) render the easy analogy to black-white marriage void. It's hard to point to any obvious difference between having a black father and a white father, in addition to your white mother. But it's easy to point to substantial differences in having two fathers, or two mothers, instead of one of each.

Are those differences consequential? We don't know, and anyone who says differently is, I think, in the grips of ideology and not to be trusted. Perhaps we should know, before we undertake the experiment. Or perhaps the right of gay people to be happy trumps the rights of their children to be happy. (That's not a frivolous statement: we allow parents to be poor starving artists or peripatetic performers, despite the obvious bad effects of avoidable poverty and rootlessness to children.)

In any event, I think any argument for SSM based solely on the analogy to black-white marriage suffers the glaring defect of the obvious differences between fathers and mothers. Such an analogy should not be persuasive to anyone but adult narcissists who don't give damn about children anyway.
3.6.2009 3:23am
pluribus:
senior status for you:

You can be "unpersuaded" all you like, it doesn't change the fact that Maynard hasn't been overruled, and remains controlling precedent on whether marriages are properly "contracts" under the meaning of the Contracts Clause (they aren't). You have no cite to the contrary. End of story.

You're right, I have no cite to the contrary. A law professor who has studied the issue professes to be "astonished" that U.S. Supreme Court jurisprudence seems to offer no protection against retroactive state abrogation of marriages under these circumstances. I am too, so I must concede your point, though I note that the cases on marriages were all old cases, that they upheld the right of states to enact divorce legislation in the 19th century (which is not the situation regarding proposition 8), and that Justice Story in an early pronouncement expressed the thought that complete abrogation of the rights in a marriage, without any fault on the part of either party, would run afoul of the contracts clause. Other arguments have been made against retroactive application of proposition 8, even an argument from the text of the proposition itself. And of course equal protection arguments loom large in the whole SSM argument. It is too early to declare this the end of the story. There is going to be a lot of litigation on this subject, and it will be years before we really reach the end of the story.
3.6.2009 7:23am
billyG (mail):
IMO they key case here is the 1978 CSC ruling that upheld the popular initiative that overturned the CSC's 1972 ruling that outlawed capital punishment as cruel and unusual.

There can be no doubt that, substantively at least, that initiative (a) overturned a fundamental personal right (to be free of cruel/unusual punishment) and did so (b) only for a vulnerable minority (people convicted of a capital crime).

Yesterday, when this precedent came up in the oral argument, the lawyer for the anti-8 side lamely tried to dismiss it by arguing that the capital punishment initiative didn't alter a "fundamental personal right", even though the CSC, in its 1972 ruling striking down capital punishment, referred to freedom from "cruel and unusual punishment" as a .. fundamental individual right.

Given that precedent, overturning prop 8 would seem to be unjustified.
3.6.2009 8:28am
nutbump (mail):

In any event, I think any argument for SSM based solely on the analogy to black-white marriage suffers the glaring defect of the obvious differences between fathers and mothers. Such an analogy should not be persuasive to anyone but adult narcissists who don't give damn about children anyway.

Gay supremacists does not care about anything but gay sex and ability to impose their will on general population. They want State equalize marriage with homosexual relationship which lead to unlinking marriage with procreation and rearing children in optimal environment.
3.6.2009 8:54am
pluribus:
billyG

Given that precedent, overturning prop 8 would seem to be unjustified.

In the case of capital punishment, the people affected by the proposition were only those convicted of capital crimes, and only if they were convicted after (not before) the passage of the proposition. The proposition did not apply retroactively. What crimes do gays stand convicted of? And what basis is there to apply it to marriages entered into before the passage of the proposition? Even if it is valid prospectively, can proposition 8 be applied retroactively?
3.6.2009 9:01am
cmr:
CMR, you almost answered your own question. Sure, Prop 22 pased by 61%, but Prop 8 passed by less: I forget if it was 52% or 54%. So yes, that is a small majority.


My point is, obviously the percentage of the vote didn't matter when it was much higher than it was for Prop 8 and the courts overturned Prop 22 anyway. It's not like gay marriage supporters had a ton of respect when the vote was more like 60-40 and not 52-48. And I think all the money and support Prop 8 opponents had, got them about five more percent than they would've had. I wouldn't be surprised if the percentages are closer to what they were initially in 2000, because a lot of people, I'm sure, feel disrespected by Prop 8 opponents taking this issue back to court in the first place, and all the other stuff gay marriage supporters have done in the name of tolerance. They said about 8% of voters have changed their minds with Prop 8. I wonder what percentage originally voted no on 8.

Well, yes. The Court has got itself into quite a pickle. But they have only themselves to blame for this. What were they thinking when they decided to create this "fundamental right" out of the whole cloth, and that when Prop 8 was already gathering signatures? Did they really think they could pre-empt the Amendment process so crudely?


Agreed. People wonder about the gall of the voters who put Prop 8 into the Constitution. The only people they should be mad at are the CSC and Jerry Brown.
3.6.2009 9:07am
billyG (mail):
Pluribus wrote:

"In the case of capital punishment, the people affected by the proposition were only those convicted of capital crimes, and only if they were convicted after (not before) the passage of the proposition. The proposition did not apply retroactively. What crimes do gays stand convicted of?"

Pluribus, concerning the retroactivity aspect, i haven't commented on that because I think good arguments can be made on either side and i haven't figured out which, IMO, is correct.

As to the point about the cap-punishment initiative only applying to people convicted of capital crimes while gays are not convicts, i'm not sure why that matters. The fact that the 1970s initiative only applied to people convicted of capital crimes means that such people are a minority, as gays are a minority. And to my knowledge, no one has ever argued that one's "cruel and unusual" rights are forfeited when one is convicted of a crime. If anything, since convicts are the ones who are subject to stae punishment, it would seem that this right would be more salient to them than to anyone else.
3.6.2009 10:00am
Smallholder (mail) (www):
Nutbump wrote:


Gay supremacists does not care about anything but gay sex and ability to impose their will on general population. They want State equalize marriage with homosexual relationship which lead to unlinking marriage with procreation and rearing children in optimal environment.



Really?

Do you really believe this?

That gay people are pushing marriage so they can harm children?

Why?

Is is possible that they are tired of paying $5,000/year more in taxes than heterosexual couples? Did you read the complaint in Gil v. OPM - their objections are all based on real harm.

But you believe that the gays don't actually care about the monetary and legal disadvantages and their true motivation is to destroy heterosexual marriage and prevent the rearing of children in an optimal environment?

Really?

P.S. - "Nutbump" is a rather odd internet handle for someone who is apocalyptically opposed to gays.

Just sayin'.
3.6.2009 10:24am
zuch (mail) (www):
Please ignore John Howard. Thanks in advance.

Cheers,
3.6.2009 10:34am
pluribus:
billyG:

As to the point about the cap-punishment initiative only applying to people convicted of capital crimes while gays are not convicts, i'm not sure why that matters.

You make a valid point, billyG. I think that the right of the people to amend the constitution through proposition 8 very likely will be upheld. It is in itself a very valuable right. But substantial questions arise as to what effect the amendment will have after it is upheld. The wording is pretty general:

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

Apparently even the defenders of the proposition concede that California's statutory system of domestic partnerships will not be invalidated, as the wording of the proposition doesn't apply to domestic partnerships. Perhaps the only effect will be to strip the word "marriage" from the rights given to same-sex couples. But will this be done retroactively, or just prospectively?
3.6.2009 11:17am
zuch (mail) (www):
subseeker:
Fred Garvin: Let me caution you. You cannot win. Zuch and his compadres are absolutely insulated against reason. They start making silly comparisons to religion when you ask them to explain what homosexual choices have to do with civil rights.
I have mentioned religion exactly zero times. Learn to read.
Then they'll start citing scientific studies.
Horrors! Citing scientific studies!! Alors!!! But FWIW, it was Clayton Cramer (who opposes SSM) that was trotting out the "scientific studies". I consider the heritability to be irrelevant (for the same reason I'd think it absurd to tell blacks that it is their duty to eliminate discrimination against them by becoming white, if such were possible.)
Try this for science. Where is the gay gene?
No one has ever claimed that homosexual orientation was due to simple Mendelian inheritance. That's a "straw man". Not to mention irrelevant. See above.
You have the truth. The truth is people have changed their preference.
Yes. Like Ted Haggard. Many times. Many times indeed. But in the end, consensus is emerging that such change is unusual, difficult and not all that successful. But once again irrelevant.
It is easy to do with effort.
So how many times have you you done it, subseeker?
This is a choice, make no mistake about it (and a rather vile, base,foul, depraved choice if you ask me).
We didn't ask you.
It is a choice that changes it's practitioners into the ranting,raving, uncontrolled pathetic excuses for reasonable, logical humans we witness on this site.
Oh, really? You're not very perceptive. I happen to be happily married to a woman. What turned you into "a ranting, raving, uncontrolled pathetic excuses for [a] reasonable, logical human[]"?

Cheers,
3.6.2009 11:40am
zuch (mail) (www):
whit:
a sterile man and a fertile woman are still a marriage of two very different forms of the human species. a man and a woman.
Care to name even a single gene that a woman has that a man doesn't have? I'd note that nature, in its mysterious ways, provides for fish that change gender with time (or as needed); wrasses will change from female to male over time, or hey have one male that, when it dies, the largest female becomes the next male. Clams (Crepidula fornicata, IIRC) agglomerate in large assemblies (of "fornicating" individuals) with the lowest the most female, and the uppermost and youngest the most male. And even in humans, there's a range of sexuality, with intergendered individuals, pseudo and true hermaphrodites, etc.. Are they just out of luck? Can they marry either a male or female, or are they to be denied any marriage? Why bother with your illusory "distinction"?

Cheers,
3.6.2009 11:56am
zuch (mail) (www):
Jim Carlile:
I think this anti-Prop 8 argument, that, "if they can take away gay marriage, they can ban religion," just doesn't wash, because sexual preference is not federally protected.
Really? Then how do you explain Romer v. Evans and Lawrence v. Texas? It may be that California can repeal all equal rights protections in its constitution (including those on religion or even race) -- and in fact, this is pretty much what Starr argued -- but that doesn't mean that federal protections are lost. It may well be that the next step for the anti-Prop. 8 plaintiffs is federal court, under a Romer challenge.

Cheers,
3.6.2009 12:03pm
whit:

But we keep the laws against polygamy, adult incest, cousin marriage, because these things do influence the welfare of the children.


i would say "not really".

we have laws against, for example, incest, because we think its immoral.

those who claim we can't legislate morality, otoh, don't want to admit it. certainly same sex incest has no child defect issue, for example.

i am FOR gay marriage, but many who are for gay marriage make the false argument that if two people love each other, then that's ipso facto "ok".

except it's not. see: incest.
3.6.2009 12:10pm
zuch (mail) (www):
billyG:
IMO they key case here is the 1978 CSC ruling that upheld the popular initiative that overturned the CSC's 1972 ruling that outlawed capital punishment as cruel and unusual.

There can be no doubt that, substantively at least, that initiative (a) overturned a fundamental personal right (to be free of cruel/unusual punishment) and did so (b) only for a vulnerable minority (people convicted of a capital crime).
Not exactly true. The prohibition on execution would have held for all people, not just those convicted of a capital crime. Needless to say, those convicted of a capital crime (or those considering whether to commit a capital crime) might have the most interest in the outcome, just as those that actually want to get married to a SSP might have the most interest in Prop. 8, while all people are equally prohibited from such by Prop. 8.

But why you think that "people convicted of a capital crime" are a "vulnerable minority" in the legal sense escapes me.

Cheers,
3.6.2009 12:16pm
zuch (mail) (www):
billyG:
Yesterday, when this precedent came up in the oral argument, the lawyer for the anti-8 side lamely tried to dismiss it by arguing that the capital punishment initiative didn't alter a "fundamental personal right", even though the CSC, in its 1972 ruling striking down capital punishment, referred to freedom from "cruel and unusual punishment" as a .. fundamental individual right.
Freedom from capital punishment was not deemed a "fundamental personal right" ... that is to say, not "creul and unusual punishment'. That was why the case came out that way.

Cheers,
3.6.2009 12:19pm
LN (mail):

those who claim we can't legislate morality, otoh, don't want to admit it. certainly same sex incest has no child defect issue, for example.


I agree with this. We legislate morality all the time, and in fact legalizing and recognizing gay marriage is a perfect example. SSM defenders are often lazy about acknowledging that they have a "moral view."
3.6.2009 12:43pm
David Schwartz (mail):
Whit: So if black people were very biologically different from white people, but still equal in intelligence, would slavery have been okay?
3.6.2009 1:02pm
John Howard (eggandsperm.org) (mail) (www):
Care to name even a single gene that a woman has that a man doesn't have?

Well, of course there's the Y that a man has that a woman doesn't have. That is considered by some to be needed in attempting to make female sperm, though other doctors seem to think they can get around that. The differences between an egg and a sperm are not just in the outer cell, even more important are the differences in the epigenetic imprinting that happens during meiosis. When a person's body makes their haploid gamete cells, the chromosomes go through an imprinting process that turns some genes on and other genes off. They all get imprinted as that person's sex, whether they originally came from that person's mother or father, so that they can join up with the chromosomes in the opposite sex gamete and form a diploid cell that is usually pretty identical in both sexes, everyone getting a male and a female imprinted chromosome in each of their 23 pairs.

Trying to create "female sperm" for a woman or "male eggs" for men means trying to intervene in the meiosis imprinting process somehow, perhaps by putting someone's embryonic stem cells in to a monkey's gonads or something like that, and then testing the germ cells that are created by making embryos and letting them grow for a while before breaking them apart and testing them.

There is no good reason to attempt to do this, same-sex couples do not really need the ability to conceive children together when there are so many kids who need homes anyhow. It certainly shouldn't be the most important right for people to demand in 2009, when only one same-sex conceived mouse has survived to adulthood so far. It should be traded for federal protection of state CU's that are defined as marriage minus conception rights.

And even in humans, there's a range of sexuality, with intergendered individuals, pseudo and true hermaphrodites, etc.. Are they just out of luck? Can they marry either a male or female, or are they to be denied any marriage? Why bother with your illusory "distinction"?

There aren't any people who could be both a mother and a father, and people should only be allowed to conceive as the sex they are most likely to be successful conceiving as. There might be some people for whom that's a hard question, but it still needs to be answered one way or the other.
3.6.2009 1:03pm
TruePath (mail) (www):
Look, for the purposes of this case it's already settled that denying gays the right to marry is a violation of a fundamental right based on membership in a suspect class. All this crap rearguing whether gays have the right to marry or not is irrelevant.

However, we all agree that discrimination based on race is a bad thing so let's ask the following legal question (no moral comparison). (Imagine that at some point in the future we go to war with China)

Could 52% of the people of California revoke, by means of adopting an amendment, the guarantee provided by the Californian constitution to be free of arbitrary detention just for individuals of Chinese descent?


Whether or not this would have any effect given current federal law is irrelevant. The point is that if you accept prop 8 is merely an amendment then the california constitution has no power to stop a bare majority from stripping anyone of any fundamental right. If the revocation of fundamental rights from suspect classes doesn't qualify as a revision than no mere revocation of an individual right will, only structural changes to the nature of California government.

I agree there is a reasonable argument that the court erred in their prior deciscion on gay marriage but now that it's done they only have three choices.

1) The court can set the president that the California constitution protects no individual rights from revocation by bare majorities.

2) The court can invalidate prop 8 as a revision.

3) The court can adopt the solution zuch mentioned and direct the state of California to change the name of straight marriages to domestic partnerships as well (along the way likely robbing them of all sorts of federal benefits).

That's it. The court backed themselves into a corner and now they have to bite one of these three bullets if they want to be consistent.
3.6.2009 1:27pm
TruePath (mail) (www):
John Howard:

Why exactly do we need to answer what sex someone is most likely to be successful conceiving as?

Seems pretty irrelevant to me.

Also what conception rights. Last time I checked no one arrests you for getting pregnant outside of marriage. Or do you mean the automatic custody rights? Why change that? If lesbians want to get married and then get pregnant why require them to sign more forms to share custody?
3.6.2009 1:32pm
John Howard (eggandsperm.org) (mail) (www):
To stop people from attempting genetic engineering and same-sex conception. That means limiting people to conceiving as the sex they are most likely able to do it as without modifying their genes.
3.6.2009 1:36pm
zuch (mail) (www):
Please. Ignore John Howard. Believe me, he's not worth the time it takes even to read his screeds. Not to mention his ignorance of basic biology as evidenced above; outside of that, he's a real OCD about things that only he can see. Ignore him. Thanks again.

Cheers,
3.6.2009 1:50pm
John Howard (eggandsperm.org) (mail) (www):
Or, please visit www.eggandsperm.org to read about how to achieve equal uniform protections in all 50 states and full federal recognition for same-sex couples immediately, merely by prohibiting conception with modified gametes and same-sex conception and affirming the right of all marriages to procreate with their own genes.

Dale, Eugene, Andy, why are you choosing equal conception rights in 2009 when they are still so unsafe and unnecessary, when my proposal would bring equal protections to couples instead. Do you not understand? Please ask.
3.6.2009 2:03pm
whit:

Whit: So if black people were very biologically different from white people, but still equal in intelligence, would slavery have been okay?


no, but you miss the point

the issue isn't "are laws against SSM not ok?"

i am FOR SSM, so imo they are not ok.

heck, even if we found a group of people that had much lower intelligence (vs your example), slavery would still not be ok.

slavery is wrong, as a matter of MORALITY.

this is the same reason we criminalize incest. we think it is morally wrong.

this is the same reason we criminalize fellating a dog. it certainly does not harm the dog. we think it si morally wrong.

my point is that SSM is not merely just letting homosexuals have the same marriage rights as heteros. it is that it also fundamentally changes the definition of marriage

i am FOR making that change.

i am against pretending that it is not a radical redefinition of marriage. it most definitely is.
3.6.2009 3:35pm
John Howard (eggandsperm.org) (mail) (www):
Whit, SSM wouldn't change the fundamental definition of marriage because same-sex couples are currently allowed to conceive together. It would only change the fundamental definition of marriage if we then considered the issue of same-sex conception separately. Can you imaging if Virginia or the Supreme Court had considered the Loving's conception rights separately from their marriage rights? If they had said "Virginia must let them marry, but may still prohibit them from conceiving children together and creating 'mixed-race' children", then that would have certainly changed marriage, right? It wouldn't be marriage at all, let alone an "equal marriage". It wasn't considered, because everyone understood the question of allowing or prohibiting inter-racial marriage to be the same question as allowing or prohibiting inter-racial conception.

Are you FOR making that change to marriage, or do you think it should still continue to protect the couple's right to conceive children together? And shouldn't we be more concerned with how to get equal protections to committed same-sex couples in all 50 states than trying to change marriage so that we can prohibit married couples from procreating together, and/or insisting on a right to same-sex conception?
3.6.2009 3:58pm
John Howard (eggandsperm.org) (mail) (www):
Also, the CA Court was right and echoing the Zablocki decision that if a couple is allowed to conceive together, then they should be allowed to marry. It fundamentally changes marriage to deny same-sex marriage as long as same-sex couples are allowed to conceive together.
3.6.2009 4:56pm
TruePath (mail) (www):
whit:

What exactly is the problem with felating a dog. I mean I have no interest in doing so but if someone enjoys it and the dog doesn't mind what's the problem.

After all that's what freedom is all about!
3.6.2009 6:41pm
John Howard (eggandsperm.org) (mail) (www):
It should be a crime just say something like that.
3.6.2009 6:49pm
billyG (mail):
Zuch:

"Freedom from capital punishment was not deemed a "fundamental personal right" ... that is to say, not "creul and unusual punishment'. That was why the case came out that way."


Zuch, in the 1972 decision striking down CP, the court did specifically say that death was cruel/unusual punishment and that freedom from CP was a fundamental personal right.

Nevertheless, in 1978 the court allowed that fundamental personal right to be abolished via the amendment process.

As to your other objection, concerning my claim that capital crime convicts are a vulnerable minority: I admit to not knowing the 'legal definition', but IMO they would seem to fit all the classical requirements:

1) they are a minority
2) they are vulnerable, in the sense that they are subject to the exercise of power by a majority that despises them.

If anything, they are the MOST vulnerable of all minorities, since whereas someone subject to unequal treatment by california law because of their race or religion or gender could relieve themselves by leaving the state, these convicts are locked up in cages and have no power to leave the jurisdiction of their oppressors.

And it goes without saying that few, if any, groups in society are held in lower regard or are more despised, then people convicted of capital crimes.

So whatever the legal semantics, these folks would seem to fit the substantive bill, and would demand the highest level of judicial protection.

And yet, nevertheless ...
3.6.2009 7:00pm
whit:

What exactly is the problem with felating a dog. I mean I have no interest in doing so but if someone enjoys it and the dog doesn't mind what's the problem.

After all that's what freedom is all about


the problem is it is illegal.

*i* didn't say there is anything wrong with it, i said society finds it immoral, and thus criminalizes it.

which proves my point, that contrary to the claim that we don't legislate morality, or that as long as an act doesn't hurt anybody, it's ok, legislators and the law says otherwise.
3.6.2009 7:47pm
whit:

Whit, SSM wouldn't change the fundamental definition of marriage because same-sex couples are currently allowed to conceive together


false. when marriage has been defined throughout history as a union between biologically differentiated humans (men and women), and it is changed to now mean it also includes a union of two of the same kind, that is a fundamental change.

i;m for it. i am against the argument that the analogy is like interracial marriage.

there have been interracial marriages throughout history.


Are you FOR making that change to marriage, or do you think it should still continue to protect the couple's right to conceive children together? And shouldn't we be more concerned with how to get equal protections to committed same-sex couples in all 50 states than trying to change marriage so that we can prohibit married couples from procreating together, and/or insisting on a right to same-sex conception?



i don't know how to make this more clear. i am FOR SSM.

i am against many of the arguments used to "justify" it which claim it is merely about extending marriage rights to homosexual couples.

it is about changing the very definition of marriage to include same sex couples, which is a radical change.

study biology. boys and girls are DIFFERENT.

a coupling of boy/girl is fundamentally different than a coupling of boy/boy or girl/girl.
3.6.2009 7:52pm
Owen Hutchins (mail):
You know what? I don't care about the "history" of marriage. The past gets a vote, not a veto.

The argument about children falls flat too. Guess what? A lot of same-sex couples are already raising children. Preventing their adult caregivers (I'm assuming you'll object to the word "parents") from marrying only harms those children.
3.6.2009 8:02pm
zuch (mail) (www):
billyG:
Zuch, in the 1972 decision striking down CP, the court did specifically say that death was cruel/unusual punishment and that freedom from CP was a fundamental personal right.

Nevertheless, in 1978 the court allowed that fundamental personal right to be abolished via the amendment process.
This can't be true. If it was "cruel and unusual punishment", such is prohibited under the 8th Amendment of the U.S. Constitution. No California amendment can void or supplant the U.S. Constitution. I think you misstate the opinions. Try again, and cite the language that you think supports your assertion this time.

Your meanderings on what constitutes a "vulnerable minority" are unpersuasive. To say that persons convicted of capital crimes are not popular is unsurprising. That hardly makes them a "vulnerable minority" in the Carolene footnote sense, or in any way recognised by law.

And you ignore my point that capital punishment, if it's prohibited, is prohibited for all (just as is SSM).

Cheers,
3.6.2009 8:04pm
John Howard (eggandsperm.org) (mail) (www):
whit, marriage has not always been defined as a union between men and women, there have been lots of unions between a man and a woman that were not marriages, such as incestuous siblings, fathers and daughters, and during the Jim Crow era, inter-racial couples that weren't allowed to marry. Unions between a man and a woman all, but none of them were legal marriages. If all it took to be a marriage was to be a man and a woman, then why weren't those couples considered married, or eligible for marriage? Clearly something is lacking in your definition of marriage. What marriage HAS always been defined as is right of the couple to conceive children together, there has never been a marriage that was prohibited from having children together.

So if we allow same-sex couples to conceive together, which we do, it would not change marriage to let them to marry. It would change marriage more to forbid them from marrying, which was SCOTUS's point in Zablocki: If you are going to allow a couple to have children, you have to let them marry.

And you avoided my point about what if we had tried to consider the Loving's conception rights separately from their marriage rights. It would have been ridiculous, right? It would have been a huge change to marriage to consider their conception rights separately. And it could have been done, Virginia could have demanded they submit to sterilization and adopt or use a black man's sperm or a white surrogate mother to have children. But no one suggested that both because it was obvious that marraige meant conception rights, and because the court had already ruled on mandatory sterilization in Skinner, which they cited in Loving: procreation is a basic civil right.

The question I asked you was, are you FOR changing marriage so that it no longer protects a couple's conception rights?
3.6.2009 8:24pm
David Schwartz (mail):
And you ignore my point that capital punishment, if it's prohibited, is prohibited for all (just as is SSM).
Is it really constructive to repeat an argument that's already been decimated without even mentioning the argument that decimated it?
3.6.2009 8:41pm
Michael Ejercito (mail) (www):



I think clearly she has flip-flopped, sold her principles down the river, because she does not want to lose her retention election in 2010. Thanks, Joyce. K thanx bye.

Maybe she would be more sympathetic to the revision argument if the petitioners put forth court cases supporting their position.
3.6.2009 9:11pm
Michael Ejercito (mail) (www):

Part of the judiciary's basic mission is to keep the majority from denying rights to a minority.

It is not part of the judiciary's basic mission.

This mission is derived from constitutions which provide for legal protections
3.6.2009 9:14pm
Nemo:

[John Howard:] whit, marriage has not always been defined as a union between men and women, there have been lots of unions between a man and a woman that were not marriages, such as incestuous siblings, fathers and daughters, and during the Jim Crow era, inter-racial couples that weren't allowed to marry. Unions between a man and a woman all, but none of them were legal marriages.

John, I think he was suggesting that the union of a man and a woman was a necessary element of the definition, i.e. all marriages have involved such unions, but not all such unions have constituted marriages.

I'm not sure that interracial marriages are a very good example of your point, however. Generally speaking, even racist anti-miscegenation statutes accepted that interracial marriages were, on a basic definitional level, marriages nonetheless - albeit ones punishable by law. The two Virgina statutes under which the Lovings (from the famous Supreme Court case) were convicted imposed punishments for actually having intermarried. The difference between an external restriction placed on X (on one hand) and the meaning of "X" (on the other) is one of a number of reasons why I think Loving v. Virginia hasn't lent more traction to pro-same-sex marriage arguments.
3.6.2009 9:50pm
ChrisTS (mail):
Lucky Anatole France. At least he isn't here to read this stuff.
3.6.2009 10:21pm
Working for the Man (mail):
The analogy to interracial marriage just doesnt fit. The difference between a black man, and a white man is superficial, that we know. The difference between a man and a woman is HUGE.

The difference between a "man-man" and "man-woman" relationship is not superficial. Regardless of where you stand religiously it just doesnt fit. Those who agree with evolution can only logically conclude that a "man-man" life partnership is a genetic dead end.
3.6.2009 10:57pm
billyG (mail):
Zuch:

"This can't be true. If it was "cruel and unusual punishment", such is prohibited under the 8th Amendment of the U.S. Constitution. No California amendment can void or supplant the U.S. Constitution. I think you misstate the opinions. Try again, and cite the language that you think supports your assertion this time."

My assertion is correct, because i never said that the CSC invoked the 8th amendement of the US Constitution. The CSC ruled that the death penalty violated the *California* constitution's ban on cruel/unusual punishment. Quoting from the 1972 ruling:

"We have concluded that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state."

Furthermore, the 1972 ruling makes it clear that a fundamental, personal right is at issue. Again quoting from the ruling:

"The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority."

Note that this belies what Justice Moreno said the other day. When AG Kennard mentioned the DP case from the 1970s, Moreno objected, saying the DP case "didn't deal with the elimination of constitutional personal rights".

The 1972 court surely did think that it involved just such a right.

Zuch again:

"Your meanderings on what constitutes a "vulnerable minority" are unpersuasive. To say that persons convicted of capital crimes are not popular is unsurprising. That hardly makes them a "vulnerable minority" in the Carolene footnote sense, or in any way recognised by law."

As i said, i don't know the legal definition of a 'vulnerable minority'. If the definition from the Carolene footnote excludes them, then IMO that definition is pinched, cramped, unreasonable. If my argument is unpersuasive to you, then so be it. I'm not sure what else i can say.

Zuch again:

"And you ignore my point that capital punishment, if it's prohibited, is prohibited for all (just as is SSM)."

.. Because i'm not sure what there is to discuss about it. As you noted, the SSM ban prevents anyone from marrying someone of the same sex, though in practice that really means the small minority of people who are 'gay' and therefore want to. Likewise, for the 6 years that it stood, the 1972 ruling banned the DP for anyone, though in practice that meant for the small minority of people who could be subject to it, people convicted of "capital" crimes.
3.6.2009 11:12pm
John D (mail):
Working for the man:
The difference between a man and a woman is HUGE.

The difference between a "man-man" and "man-woman" relationship is not superficial. Regardless of where you stand religiously it just doesnt fit.

I suspect a Turing test where people were allowed to be evasive ("are you male?" "what do you think?") but not lie would show that there wasn't that much difference between men and women.

Unless you're talking about secondary sexual characteristics, but even there not every man is Long Dong Johnson and not every woman is Chesty Morgan (who had implants anyway).

The differences, as many gender equality suits have pointed out, aren't that big.

But "regardless of where you stand religiously"? My religious group feels that it is imperative that gay and straight people be treated exactly the same. I belong to one of the religious groups that favor same-sex marriage.

In our opinion, it does fit.
3.6.2009 11:57pm
Eric E:
John D is on the right track, I think.

Whether or not it is a winning argument, Jerry Brown's attorney made the best argument.

I also belong to a religious group that supports [a growing list of] civil rights *as a matter of religious belief and practice*.

Prop 8 violates the establishment clause. It may not be possible for the state to make that argument, but it would seem that Prop. 8 opponents should find a couple of appropriate religion to make the challenge.

No?
3.7.2009 12:47am
Tony Tutins (mail):
There are philosophical issues that could be discussed about the nature of a single-sex marriage: all yin without yang (or vice versa) it would be guaranteed to be different from standard, traditional marriage. Personally I think even calling this flavor of legally recognized pair bonding cannot take it out of the separate-but-equal range. (Men and women are equal but not identical. My mother's personality was very different from my father's.) But however fun it may be to bandy them about, I don't see how these issues implicate either policy or the law.
3.7.2009 1:17am
Nemo:

[John D:] I suspect a Turing test where people were allowed to be evasive ("are you male?" "what do you think?") but not lie would show that there wasn't that much difference between men and women.

I'm inclined to think that could at most potentially demonstrate that an individual engaged in dialogue with an unseen, unheard stranger couldn't reliably tell whether he or she is talking to a him or a her. But surely that would not establish that there isn't "that much difference between men and women" - any more than a successful "classic" Turing test would demonstrate that there "wasn't that much difference" between the computer that passed the test and a human being.

At any rate, you responded to a somewhat different proposition than what Working for the Man wrote, which was that "the difference between a 'man-man' and 'man-woman' relationship is not superficial." Now, reasonable people may disagree over the relevance and significance of the difference to the marriage rights debate. However, it doesn't seem likely to do anyone any good simply to overlook, ignore or downplay it. After all, as the Supreme Court once suggested, on that difference depends our existence and survival.
3.7.2009 1:22am
Nemo:

[Eric E]: Prop 8 violates the establishment clause. It may not be possible for the state to make that argument, ...

What is the argument?
3.7.2009 1:25am
Zoe E Brain (mail) (www):
There's an awful lot of nonsense being promulgated here.

Take Shannon Minter, one of the lawyers in the anti-8 team. In California, he's male, and with prop 8, would only be allowed to marry a woman, on "moral grounds".

And in Ohio, he's female, and would only be allowed to marry another man, on "moral grounds".

Can't you see how mind-bogglingly silly this is?

Some more issues:
Minter:
when marriage has been defined throughout history as a union between biologically differentiated humans (men and women)
Except in, say, Ancient Rome. And in Medieval Europe, where (celibate) same-sex marriages occurred. They still do under the Eastern Rite of the Catholic Church. The concept of "marriage" has changed meanings from allowing polygamous unions to only allowing monogamous ones. It has also changed from allowing non-celibate, and later celibate, same-sex unions to only non-celibate mixed-sex ones, with celibacy a cause for anullment. In some places, not others.

splunge:
You can't argue airily that children raised by two men, or two women, are just obviously at no greater risk than children raised by a father and mother. That's reckless.
The same could be said, and was said, about mixed-race marriages. Fortunately, we have evidence now, from unmarried same-sex couples who have been raising children for decades. Study: Same-Sex Parents Raise Well-Adjusted Kids
Researchers looked at information gleaned from 15 studies on more than 500 children, evaluating possible stigma, teasing and social isolation, adjustment and self-esteem, opposite gender role models, sexual orientation, and strengths.
The only difference, just over the threshold of statistical significance, indicated that children with lesbian parents did marginally better than those of other groups, mixed-sex or same-sex, and all children with two parents did better than children with only one.

subseeker:
Then they'll start citing scientific studies. Try this for science. Where is the gay gene? You have the truth. The truth is people have changed their preference. It is easy to do with effort.
Well, since you don't believe in that science stuff, prove it. Change your sexual orientation. Make yourself attracted to the same sex. I don't mean behaviour, I mean attraction. After all, it's easy, right? You can always change back. You don't have to act on it, just change your feelings. Oh, and remember to make sure you're not attracted to the opposite sex at the same time, because all you'd be doing then is revealing that you're a closeted bisexual in denial, as pretty much everyone who thinks it's a choice is.

As for the "gay gene".. where's the gene for race? We've identified the gene for red hair, and blue eyes, the latter a mutation that's only been around 10,000 years or so, but little else.

I'm Intersexed. My UK birth certificate still says "male" because it's a historical document that only reflects apparent sex at birth. My UK passport on the other hand says "F" because that reflects biological reality. In 1985 the diagnosis was "mildly intersexed male", in 2005 "severely intersexed female". They had better tests then.

Things aren't that clear-cut. I have 46xy chromosomes, but so do a lot of women, some of whom have become pregnant. Then there's those with 47xxy chromosomes, or mosaics of 46xx/46xy (or 45x/46xy, 45x/46xx, 45x/46xy/47xxy etc).

People with 5ARD or 17BHDD are born looking female, but masculinise later, and some can become fathers.

This is exactly as obscenely irrational as the laws on miscegenation, where someone could be of one race in one state, another in another, depending on the exact ancestry - 1/64, 1/128, 3/256 etc.
3.7.2009 4:41am
trad and anon (mail):
They want State equalize marriage with homosexual relationship which lead to unlinking marriage with procreation and rearing children in optimal environment.
The optimal environment would be for the parents to be independently wealthy people who can afford all sorts of expensive private schools and private tutors and live in a very safe area. And stay home with the kid, or work jobs with short hours so they can spend lots of time with the kid.

Fortunately, we don't require all married couples to be like this. They can even be in prison! It's hard to imagine a worse environment for raising children than that.
3.7.2009 10:22am
billyG (mail):
TruePath wrote:

"The court can set the president that the California constitution protects no individual rights from revocation by bare majorities."

That precedent has already been set, in 1978 when the CSC upheld the amendment that re-instated the death penalty, overriding a 1972 CSC decision that had defined freedom from the DP as a fundamental individual right.
3.7.2009 12:53pm
John Howard (eggandsperm.org) (mail) (www):
John, I think [whit] was suggesting that the union of a man and a woman was a necessary element of the definition, i.e. all marriages have involved such unions, but not all such unions have constituted marriages.

But it was not a necessary element of the definition, most laws are like in Massachusetts that only prohibited men from marrying certain female relatives and women from marrying certain male relatives (and those aren't the same in Massachusetts, btw, it's fun to try to figure out what the difference is between 207.1 and 207.2. There simply weren't any people asking for same-sex marriages, nor any thought that two people of the same sex could procreate together and require the approve first.

I'm not sure that interracial marriages are a very good example of your point, however. Generally speaking, even racist anti-miscegenation statutes accepted that interracial marriages were, on a basic definitional level, marriages nonetheless - albeit ones punishable by law.

That's true, but what is at issue here and back then are whether the state allows certain marriages or not. A same-sex couple could illegally conceive together and maybe we'd consider them to have married, but that doesn't mean we have to consider them legally married still.
3.7.2009 12:58pm
Tony Tutins (mail):

That precedent has already been set, in 1978 when the CSC upheld the amendment that re-instated the death penalty, overriding a 1972 CSC decision that had defined freedom from the DP as a fundamental individual right.

But fundamental individual rights can be infringed if there is a compelling state interest. Removing murderers permanently from society may well be more compelling than preventing two guys from marrying.
3.7.2009 1:07pm
Nemo:

[Zoe E Brain:] Except in, say, Ancient Rome. And in Medieval Europe, where (celibate) same-sex marriages occurred.

Pace John Boswell, most authorities seem to think there really isn't evidence that they did. Not that we are ultimately beholden to precedent, of course.


[Zoe E Brain:] They still do under the Eastern Rite of the Catholic Church.

I'm curious how you came to think this. I'm no expert, but Canon 776 of the Code of Canons of the Oriental Churches (that's the one governing Eastern Rite churches) describes marriage as the "the matrimonial covenant ... by which a man and a woman by an irrevocable personal consent establish between themselves a partnership of the whole of life, [which] is by its nature ordered toward the good of the spouses and the generation and education of the offspring." Which is the canon(s) dealing with same-sex marriages?
3.7.2009 1:08pm
ChrisTS (mail):
Smallholder:
P.S. - "Nutbump" is a rather odd internet handle for someone who is apocalyptically opposed to gays.


Nutbump, indeed. It's a pretty weird handle for anybody who wants to self-present as ... not a nutbump.

TruePath
What exactly is the problem with felating a dog. I mean I have no interest in doing so but if someone enjoys it and the dog doesn't mind what's the problem.


As my students always say, 'ok, but we need to be sure the dog likes it, too.'

John Howard: It should be a crime just say something like that.

QED

I don't know how many of you - Tony, D. Schwartz, et alia - can stand to keep this up, but I admire you. The fact is there is no reason to deny marital rights to same sex couples other than someone's moral judgment combined with the desire to impose that judgment on others.

And Whit (I think?) it is not at all clear that pure legal moralism is the only basis for laws against incest. There is evidence that such relationships typically begin in abuse.

On the other hand, even if we do have many laws based only on legal moralism, why should we continue to have them? At the very least, the moral claim to equality ought to trump the moral hypersensitivities of those who simply want to know that no one is doing anything of which they disapprove.
3.7.2009 1:55pm
Nemo:

[John Howard:] But it was not a necessary element of the definition, most laws are like in Massachusetts that only prohibited men from marrying certain female relatives and women from marrying certain male relatives (and those aren't the same in Massachusetts, btw, it's fun to try to figure out what the difference is between 207.1 and 207.2. There simply weren't any people asking for same-sex marriages, nor any thought that two people of the same sex could procreate together and require the approve first.

Well, I'm inclined to say that Whit has the stronger position on that specific point, historically speaking anyhow. The word may not have been defined in a particular marriage statute (which probably didn't define such words as "shall" or "granddaughter" or many others besides), but that doesn't mean that it doesn't have a customary legal definition. If one looks up such terms as "marriage", "marry", "husband", "wife", "spouse" and so forth, whether in legal lexica or in caselaw historically, it becomes clearer that heterogeneity of the spouse's sex is intrinsic to the meaning (at least until very recently in a few outlying jurisdictions). Whit was basically right about that. The underlying reason that, for example, anti-incest statutes do not state that a man may not marry his father or her brother is not that no one considered the issue before. It's that it would have been legally nonsensical to make such a statement.

Note the terminology in which even the Massachusetts incest statutes are couched. They are prohibitions on an act that the law recognizes is theoretically possible. They state that a person "shall not" marry certain other persons, and they provide a punishment if the rule is not observed. They are conceptually similar to the anti-miscegenation statutes in this way. Practically every historical restriction on heterosexual marriage that I can think of is like this, and that strongly suggests to me that they have more in common with each other than any of them do with the historical inability of a person to marry someone of the same sex.

It's the difference between "You may not/must not do X" and "You can not possibly do X." In the first case, X is merely illicit; in the second, it is simply nonsensical from a legal perspective. Generally speaking, lawmakers haven't historically gotten involved in drafting prohibitions about the second category of things (or needed to).

By the way, I'm still not certain what you mean by emphasizing that there wasn't "any thought that two people of the same sex could procreate together". Isn't that still a basic fact of life?

Finally, I see that 207.1 and 207.2 prohibit a marriage between a man and his mother-in-law, while a woman and her father-in law may marry. Is that what you were getting at there?
3.7.2009 2:35pm
John Howard (eggandsperm.org) (mail) (www):
Right. A man can marry his son's wife but not his father's wife, while a woman can marry her husband's father but not her daughter's husband.

And no, it is no longer a fact of life that two people of the same sex cannot procreate. In 2004 a mouse named Kaguya was created from two moms, and researchers have already made egg and sperm cells from stem cells and think that they could be ready to attempt same-sex conception in humans in just one or two years. The only thing is, it wouldn't be ethical and shouldn't be allowed.

Now back to Whit's claim. He's saying that allowing two men to marry would be a change to marriage, and I am saying that it wouldn't be if those men are allowed to conceive together, which they are. It is a greater change to marriage to deny a couple that is allowed to conceive together to marry, which was the ruling in Zablocki in '78, who was a guy being prohibited from marrying but was nevertheless not punished or stopped from conceiving with his girlfriend ("And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.")

Since there have been tons of male-female couples that have been denied marriage, saying that being male-female is definition of marriage is obviously false. The definition of marriage has always been allowing a couple to conceive children together, and it still would be if we allow same-sex couples to marry, unless we also prohibit same-sex conception, which we certainly should. And if we do that, then we can't have same-sex marriage without changing the definition of marriage so that it no longer protects the couple's right to conceive together. Does whit want to make that change to marriage? Or does he want to allow same-sex conception? It's one or the other, and I'm finding it's usually both.
3.7.2009 3:29pm
John Howard (eggandsperm.org) (mail) (www):
Hang on, I got that wrong: it's A man can marry his son's wife but not his wife's mother, while a woman can marry her husband's father but not her daughter's husband. You had it right, I think, as a "wife's mother" is also a "mother in law".
3.7.2009 3:39pm
billyG (mail):
Tony Tutins wrote:

"But fundamental individual rights can be infringed if there is a compelling state interest. Removing murderers permanently from society may well be more compelling than preventing two guys from marrying."

In general the point about "compelling state interests" is a good one, but usually that happens because a right clashes with something of import, e.g., the state can abridge my "free speech" right to publish something, if that something happens to be a legitimate military secret or somesuch.

But "compelling" means that the state has no choice, that there is no reasonably practical way to accomplish the legit state purpose other than to abridge the right.

I'm not sure the freedom from "cruel and unusual" punishment has that quality. It just doesn't seem to clash with any legit state interests. E.g., in this case, there are ALWAYS punishments that aren't cruel/unusual that can serve the same state purpose of permanently separating a murderer from society (e.g., solitary confinement in jail, etc.).

So I don't see it ...
3.7.2009 4:00pm
Michael Ejercito (mail) (www):

But fundamental individual rights can be infringed if there is a compelling state interest.

Has there been any case law that the right to be free from cruel and unusual punishment may be infringed?
3.7.2009 4:21pm
Soronel Haetir (mail):

Has there been any case law that the right to be free from cruel and unusual punishment may be infringed?



I believe the point of bringing up that topic was to point out that a majority in CA was able to define cruel and unusual punishment as that term is understood under the CA constitution to not include execution. Even though just a few years prior the CSC had determined that freedom from cruel and unusual punishment is a fundamental right and that execution violated that right.
3.7.2009 6:05pm
Nemo:

[John Howard:] And no, it is no longer a fact of life that two people of the same sex cannot procreate. In 2004 a mouse named Kaguya was created from two moms, and researchers have already made egg and sperm cells from stem cells and think that they could be ready to attempt same-sex conception in humans in just one or two years. The only thing is, it wouldn't be ethical and shouldn't be allowed.

Well, I tend to agree about the ethical problems there. But I think that while Kaguya raises some problematic issues in bioethics, she doesn't seriously undermine the argument here. The evolution of the laws and institution of marriage are driven by what naturally tends to happen with couples (based on the inherent procreative capacity of male-female unions as a general category), so the theoretical possibility that, in the future, as a result of extraordinary outside intervention, somebody could wind up being created (chiefly by a third party, it would seem) from the genetic material of two moms does not unduly upset the analysis. Also, the state interests in marriage have as much or more to do with the possibility of unplanned children than planned children (as the former pose greater risks to the child and the union alike), and it's safe to say that Kayuga-style babies will never fall into the former category.


[John Howard:] Now back to Whit's claim. He's saying that allowing two men to marry would be a change to marriage, and I am saying that it wouldn't be if those men are allowed to conceive together, which they are.

Wait a minute. You just said that same-sex conception is not quite a practical possibility yet for human beings, and you pointed out that in any event it would be unethical to allow it. So why are you now saying that it is allowed? If you're thinking that it must be allowed under Zablocki, I disagree with your reading there.


[John Howard:] Since there have been tons of male-female couples that have been denied marriage, saying that being male-female is definition of marriage is obviously false.

That's a bit of a strawman, though, isn't it? Did anyone say it was the whole of the definition of marriage? Some male-female couples being denied marriage is perfectly consistent with male-female coupling being an intrinsic part of the definition of marriage.


[John Howard:] The definition of marriage has always been allowing a couple to conceive children together, and it still would be if we allow same-sex couples to marry, unless we also prohibit same-sex conception, which we certainly should. And if we do that, then we can't have same-sex marriage without changing the definition of marriage so that it no longer protects the couple's right to conceive together. Does whit want to make that change to marriage? Or does he want to allow same-sex conception? It's one or the other, and I'm finding it's usually both.

I'm not really following you here. When you say "it's one or the other", what are you saying is the mutually exclusive alternative to allowing same-sex conception?
3.8.2009 12:11am
John Howard (eggandsperm.org) (mail) (www):
What I find is that people want to nebulously claim perhaps maybe one maybe the other and that means: Both. Both is what the eugenicists want to happen, they want to deny that marriages have a right to procreate with their own genes, AND they want to allow labs to create genetically modified humans. But they don't want to admit either. But at the same time, they are pretty open on their Transhumanist websites that their goals are to take control over human creation and stop it from being done by lowly breeders who pass on their pathetic genes randomly in a "genetic lottery" that they think is unfair and should be replaced with their expert education and "liberal eugenics" that will rid the world of disease and obesity that they blame for their miserable nerdy troubles with girls. Their children won't have those problems, they'll be genetically engineered to be on of the cool kids with no health problems. Check out these Transhumanists who hang out at Independent Gay Forum and pretend to be concerned about gay people's rights, but reveal that their real priorities are genetic engineering and that gay people are merely the pawns in their game. They might indeed be gay, but their real fight is for Transhumanism and they aren't concerned with older gay couples that really need protections.
3.8.2009 3:18am
John Howard (eggandsperm.org) (mail) (www):
The first part of my comment got cut, this was supposed to be the first half of the above:

If you agree about the ethical issues, then surely you agree that it shouldn't be allowed right now, and same-sex couples should not currently have the right to try it. I think same-sex couples shouldn't be allowed, by any method, to conceive together, because it would be unethical and open the door to genetic engineering. It would totally upsset the analysis if same-sex couples suddenly did not have the most essential right of marriage that every marriage has always had. It would create a difference in rights for same-sex couples from hetero couples. How can you say it wouldn't upset the analysis?

Yes, it is currently allowed. No, Zablocki didn't say that same-sex conception must be allowed, Zablocki says that same-sex marriage must be allowed if we are allowing same-sex couples to conceive together, which we currently are, even though it is currently not feasible.

That's a bit of a strawman, though, isn't it? Did anyone say it was the whole of the definition of marriage?

Well, when expressing a definition, the idea is to express the whole of the definition. Otherwise, why not say that marriage is "a man", since it always does seem to involve a man? The whole of the definition of marriage is "conception rights", and depending on the culture, the things that come with being granted conception rights.

The "one or the other" with same-sex marriage is (one) it would either allow same-sex couples to conceive together using their own genes, or (the other) it would say that marriage doesn't protect the couple's right to procreate together using their own genes. Do you see how at least one of those outcomes is logically required? It would be impossible to both prohibit same-sex conception, allow same-sex marriage, and preserve marriage's right to conceive together. It would be impossible to preserve marriage conception rights, allow same-sex marriage, and prohibit same-sex couples from conceiving together. The only way to preserve marriage's conception rights and prohibit same-sex conception is to prohibit same-sex marriage.

What I find is ... (continues above)
3.8.2009 3:22am
Zoe E Brain (mail) (www):
Please define "man" and "woman" in a way that makes biological sense, with no exceptions, and with no-one neither and no-one both.

It's not possible.

By all means make laws for a majority, but also allow exceptions to be made to cope with reality, or you'll get absurdities.

Remember, in the UK, I can only marry a woman because same-sex marriage is banned, and in Australia I can only marry a man because same-sex marriage is banned.

Under those circumstances, it's difficult for me to see what is so compelling about the reason for banning same-sex marriage.
3.8.2009 11:02am
John Howard (eggandsperm.org) (mail) (www):
Zoe, someone who has a higher chance of successfully conceiving using unmodified genes with women is a man, and vice versa. Now, a person's private sex may be different from their public sex, but in those cases, they would only be privately prohibited from attempting to conceive if the conception would amount to same-sex conception (after we pass an egg and sperm law, that is). Publicly they'd continue to have the right to conceive because publicly people would think they were a man and a woman.
3.8.2009 1:29pm
Kendall:
Splunge -

I would have thought that antimiscegenation laws were invalidated less because the right of people to marry whomever they damn well please is paramount, but because the only reasonable interest the state has in marriage -- the welfare of any children within it -- doesn't seem to depend on the fact that the parents are of mixed race. If nothing else, the fact that there were already millions of mulatto children who seemed OK (indeed were widely considered better off than children of two black parents), and there were entire nations (Brazil) where mixed race families were common, would be persuasive. So there was nothing to trump the rights of the adults involved to do what they want.

But we keep the laws against polygamy, adult incest, cousin marriage, because these things do influence the welfare of the children.


There's a difference between polygamy, adult incest, cousin marriage, and gay relationships though, especially with regards to children. Gay couples in general are allowed to adopt children, I've never heard of a father and a daughter being jointly listed as parents (except in cases of incest of course). Same is true really for polygamous families, polygamy is illegal in the US, it would seem a wiser course of action for them would be to FIRST argue for the legitimacy of polygamy and THEN to argue for the right to adopt children, no?

In terms of gay couples, there is precious little research showing any detrimental effects on children raised by gay couples, and over 1 million children (as of 2000) were being raised by those couples. I fail to see how you can state with a straight face that they're being placed in these harmful situations and THEREFORE shouldn't be given the protection of allowing their parents to marry. If the state feels a couple is capable of adopting and raising a children together how is it rational for the state to simultaneously "protect" the children by denying their parents the right to marry?
3.8.2009 7:51pm
John Howard (eggandsperm.org) (mail) (www):
Kendall, that's what CU's would do, they'd have all the protections for a family raising children. The only thing a CU shouldn't do is give them the right to conceive more children together, from their own genes. That's the way CU's would be defined in my Compromise proposal.
3.8.2009 7:59pm
Kendall:
John Howard - With respect, no, there is no clear rational basis for creating a new and previously unknown legal status for a relationship, we have marriage, and we should use it. The only purpose of a civil union is to express moral disapproval of gay couples by denying them equality.
3.8.2009 8:08pm
John Howard (eggandsperm.org) (mail) (www):
The rational basis is to give all the other rights and protections of marriage to couples but not give them the right to procreate together. Society doesn't have to approve or same-sex couples attempting to conceive children together.

They're on the table for federal recognition, and they have been happily received and used by thousands of same-sex couples that need the protections for their families. The only thing is, if they give "all the rights of marriage", then indeed the only purpose of them could be animus and irrational hurtful discrimination. But these CU's would have a rational understandable difference that shouldn't offend any same-sex couples - they know they cannot combine their genes to have children already, and accept that it needs to be regulated and proven safe before it should be allowed.
3.8.2009 8:26pm
Kendall:
Do you ever get tired of trying to promote a completely false scenario John? it's possible at some point someone will try to clone someone, in fact it's probable it's already been attempted somewhere in the world. It's even possible eventually that the technology will be reliable enough, cheap enough, and practical enough that anybody that wants to will be able to take advantage of it.

Similarly it's possible that at some point a "test tube" human baby can be formed with DNA from both parents who happen to be of the same sex. Sure you've mentioned Kaguya, as others have said it's troubling stuff. But again, just as heterosexual married couples don't have an assumed right to manipulate their DNA a gay couple cannot be assumed to have that right either. Stop looking for a solution to a problem that doesn't exist.
3.8.2009 8:46pm
Nemo:

[Kendall:] John Howard - With respect, no, there is no clear rational basis for creating a new and previously unknown legal status for a relationship, we have marriage, and we should use it.

Actually, Kendall, there is probably more of a rational basis for creating a new and previously unknown status for same-sex couples if it is substantively differentfrom heterosexual marriage (or at least is allowed to evolve along different lines from marriage) than there is for creating a separate status that is similar or identical to heterosexual marriage. Check out economist Douglas Allen's article in the Harvard Journal of Law &Public Policy, where he applies a law-and-economics analysis to heterosexual, gay and lesbian unions and concludes that:


[M]arriage is an economically efficient institution, designed and evolved to regulate incentive problems that arise between a man and a woman over the life cycle of procreation. As such, its social and legal characteristics will provide a poor match for the incentive problems that arise in the two distinctly different relationships of gay and lesbian couples. Forcing all three relationships to be covered by the same law will lead to a sub-optimal law for all three types of marriage.

Thus, from a rational perspective, two or even three (straight, gay and lesbian) "marriage" regimes might be better than one-size-fits all.
3.8.2009 9:25pm
Kendall:
Nemo - I'm familiar with that article, and I reject the basic premise. Where he starts to go off track is the creation of a false dichotomy, that marriage is either about pro-creation or about "love." this is a false dichotomy for many reasons, first, there are many other possible explanations for marriage, economic convenience, political alliance, tax purposes, loneliness, intense sexual attraction, security for children from a pre-existing marriage. and second, that the reason of pro-creation is an entirely heterosexual goal, that gay parents don't want children and if they DO want children that those children shouldn't have the right to have their parents married.

I believe that the basic function of marriage is to provide an environment with the most possible protections in the raising and care of children. I do not believe in our society which with the exception of Florida recognizes the right of gays to adopt we should prevent gay couples from marrying.
3.8.2009 9:44pm
Nemo:

[John Howard:] If you agree about the ethical issues, then surely you agree that it shouldn't be allowed right now, and same-sex couples should not currently have the right to try it. I think same-sex couples shouldn't be allowed, by any method, to conceive together, because it would be unethical and open the door to genetic engineering. It would totally upsset the analysis if same-sex couples suddenly did not have the most essential right of marriage that every marriage has always had. It would create a difference in rights for same-sex couples from hetero couples. How can you say it wouldn't upset the analysis?


I think you're overreading Zablocki, or whatever your source is for the notion that marriage confers on the couple (or either individual in it) the right to procreate by any possible means. In my view, when the Zablocki court talked about procreation, it was not alluding to anything more far-reaching than the old-fashioned kind. In fact, it's pretty clear to me from the opinion that the Court was talking about "sexual relations" of the sort (namely, male-female intercourse) that ordinarily have procreative potential, plus their aftermath.
3.8.2009 9:54pm
trad and anon (mail):
Nemo - I'm familiar with that article, and I reject the basic premise. Where he starts to go off track is the creation of a false dichotomy, that marriage is either about pro-creation or about "love." this is a false dichotomy for many reasons, first, there are many other possible explanations for marriage, economic convenience, political alliance, tax purposes, loneliness, intense sexual attraction, security for children from a pre-existing marriage. and second, that the reason of pro-creation is an entirely heterosexual goal, that gay parents don't want children and if they DO want children that those children shouldn't have the right to have their parents married.
Marriage, like most social institutions, serves many purposes, not just one.

Of course, I've long been distressed by the disdain for adoptive children by and their parents shown by the people who claim that procreation is the one and only purpose of marriage. And for the actual work of parenting: does marriage really do nothing for the family or society once the kid pops out?
3.8.2009 10:05pm
John Howard (eggandsperm.org) (mail) (www):
just as heterosexual married couples don't have an assumed right to manipulate their DNA a gay couple cannot be assumed to have that right either.

Well, exactly! But that's the point I'm making when I say gay couples shouldn't be opposed to a ban on someone attempting same-sex conception, because that would require manipulating their DNA and therefore mean that manipulating DNA was a right of heterosexual people and lab scientists working for single parents or their own glory to manipulate DNA however they want, too. The very claim of equal rights to a man and a woman by a same-sex couple is a claim of rights to manipulate their DNA however they want. You should read this thread to see what "Bobby" has said to me, like:

You are a homophobe, John Howard. If heterosexuals are allowed to reproduce, we must also be allowed to reproduce. If heterosexuals are allowed to use in-vitro fertilization, we must have the same rights as they. And if someday artificial wombs save women from putting up with 9 months of pregnancy, then we must also have access to that technology.
He says he's a conservative libertarian and he's demanding the right to have unregulated access to genetic engineering for his children (I'm not sure he's gay, I think he's a transhumanist using gay marriage for his own interests)
3.8.2009 10:36pm
Kendall:
John Howard - I'm not obligated to respond for "Bobby"'s discussion, but I think it's disingenuous to call for a ban of something that is already not legal. The problem isn't even same sex conception, the problem would be a third party manipulation of DNA to either transfer DNA from a sperm into an unfertilized "blank" egg or to do a similar procedure on a "blank" sperm. The procedure itself already can't be done for either gay or straight couples, but even if it could why are you focusing on banning it for gay couples? I DO agree with "Bobby"'s premise that your motive seems suspect though.

If your intentions were truly pure you would've moved onto a different hobbyhorse by now, you've been beating the same straw man to death for far too long.
3.8.2009 10:41pm
John Howard (eggandsperm.org) (mail) (www):
the notion that marriage confers on the couple (or either individual in it) the right to procreate by any possible means.

Well, what methods are not allowed? It's a hard enough arguing that things could be banned, like if we decide IVF or some form of conception is unhealthy to the baby or even unhealthy to society, things could be banned that would effectively thwart a married couple from reproducing, that if they weren't banned might produce a child that they probably won't have otherwise. But do you see all the differences between their situation and a same-sex couple being publicly prohibited from any and all forms of even attempting to have children together? That's a stark difference that prohibiting genetic engineering results in. The married couple prevented from using a particular method of conception retains the right to use some other method, or magic or prayer or anything not illegal to produce a child that is from their own genes, and if they do it has been approved and welcomed by society and no laws were broken (unless they actually did use that banned practice of course, but wouldn't be the obvious public fact). After the egg and sperm law, a same-sex couple would be publicly prohibited absolutely (or at least until they aren't), but the hetero couple not prohibited at all.
3.8.2009 11:06pm
John Howard (eggandsperm.org) (mail) (www):
Why is everyone else focused on it being allowed for gay couples? It forces us to allow it for everyone, or to accept that people only have conception rights with someone of the other sex, because if you've got conception rights with someone, then you can't be prohibited. And I'm not sure what you're talking about that is currently illegal, can you find a law that would prohibit Bobby from doing whatever he and his doctor want to do to try to create a baby from he and his same-sex partner?
3.8.2009 11:15pm
Kendall:
John Howard - Very few people believe that "conception" is a right per se, it's more a biological result of heterosexual sex. Courts have clearly defined reproductive rights in terms of contraception and sexual intimacy, but I know of no court that has currently upheld a "conception right" based on things outside of sexual relations. Conception is a result of other defined rights, not necessarily a legal protection in it's own right.
3.8.2009 11:26pm
Zoe E Brain (mail) (www):
Zoe, someone who has a higher chance of successfully conceiving using unmodified genes with women is a man, and vice versa.
Given the fact that most Intersexed people are sterile, your definition is irrelevant.
Or are you saying that (as in my case), whether the ovarian tissue is removed first, or the testicular tissue, determines sex? What happens (also as in my case) where both are removed when they become dysfunctional?

What about Swyer syndrome women, who can bear children, but only using donated eggs?

Getting back on-topic, those who claim that the state has a definite, compelling interest in preventing same-sex marriages had better get their act together when it comes to defining what is "same-sex". Because different jurisdictions who claim that compelling interest disagree on the definitions. That undermines their whole case.

Some jurisdictions claim that should I marry a man, the sky would fall due to it being a same-sex marriage, I should only be allowed to marry a woman, and that would be fine and dandy. Others claim that should I marry a women, the sky would fall as it's a same sex marriage, and I should only be allowed to marry a man, and *that* would be fine and dandy.

This is absurd.
3.8.2009 11:48pm
David Schwartz (mail):
Zoe E Brain: I agree with you, but your argument is simply wrong. For example, suppose States argue that they have a compelling interest in ensuring that those with a history of committing major frauds don't acquire positions of financial responsibility within the State.

Would you say, "I've been convicted once of petit theft and charged with grand theft, but not convicted. Massachusetts would allow me to hold a trusted position, but Maine would not. Therefore this whole argument that there's a compelling interest in keeping convicts out of positions of trust is nonsense."

It is never valid to argue that because people can't agree on the borderline cases, they must be being arbitrary about the obvious cases.
3.9.2009 1:21am
John Howard (eggandsperm.org) (mail) (www):
Kendall, it's a practical, immediate question: should we allow someone (a lab, a couple, an individual) to attempt to conceive a baby by combining the genes of two people of the same sex or not? You can answer separately for both "right now" and "in the future" if you want. But be sure to answer at least for "right now", because "right now" is the focus of my compromise that would give federal recognition to same-sex couples right now in exchange for not claiming the right to attempt it right now.
3.9.2009 1:58am
John Howard (eggandsperm.org) (mail) (www):
Zoe, I think doctors should make their best guess about what sex a person has the best chance at conceiving as and assign that legal sex to them. I don't think they should go by cosmetic decisions, but by reproductive potential, but I leave that to them to decide. I don't think the sex assigned in childhood has to remain anyone's legal sex forever, and I recognize that often the doctors were wrong or the person just wants to be the other sex. That's OK, but I don't think it should give a right to do genetic engineering, or what is essentially same-sex conception. But when a person changes their public sex to their less-likely-to-conceive-as sex, or was assigned their less-likely-to-conceive-as sex at birth and has lived their whole life as their less-likely-to-conceive-as, that just means they will be privately infertile, just like other infertile people are. It won't mean that labs have an opportunity to do genetic engineering to allow that person to have children, when they would be better able to have children without having to use genetic engineering as the other sex.
3.9.2009 2:06am
Nemo:

[Kendall:] Nemo - I'm familiar with that article, and I reject the basic premise. Where he starts to go off track is the creation of a false dichotomy, that marriage is either about pro-creation or about "love." this is a false dichotomy for many reasons, first, there are many other possible explanations for marriage, economic convenience, political alliance, tax purposes, loneliness, intense sexual attraction, security for children from a pre-existing marriage.

I don't think Allen was really offering the dichotomy you've characterized as false. There's an inartfully punctuated phrase where he says "The alternative, that marriage is based fundamentally on love, seems more reasonable." Thanks to the commas, it sounds as though he's saying that's the only alternative. I think he meant to say that that particular alternative sounds more reasonable, not that it was the only alternative. This interpretation would be consistent with what he says earlier when he talks about how many economists have concluded that "marriage is primarily (but not exclusively) designed to regulate procreative behavior", etc. That, in fact, is the real premise of the article. So no false dichotomy, and even if there were, you haven't offered any basis for rejecting the actual premise (which doesn't depend on the dichotomy to which you're referring).

Further, what you give as possible explanations for marriage reads more like a list of explanations for what motivates individuals to participate in the established marriage scheme. Obviously these things have an influence on behavior and when economists talk about incentives, the pursuit of individual objectives and so forth, they are referring to these things among others. Nothing you've said is actually inconsistent with Allen's thesis.


[Kendall:] and second, that the reason of pro-creation is an entirely heterosexual goal, that gay parents don't want children and if they DO want children that those children shouldn't have the right to have their parents married

More strawmen. Allen doesn't say that procreation is an entirely heterosexual goal or that gay parents don't want children. However, he notes that (1) heterosexuals, gays and lesbian relationships tend to exhibit different behavioral and other characteristics, (2) these differences, for better or worse, produce different sets of incentive problems, and (3) the institution of marriage, including marriage law, has evolved over time largely to address the incentive problems of heterosexual couples to which he refers in the article. Thus, he concludes, a one-size-fits-all marriage regime would not be efficient, etc.

Is he right about this? It doesn't matter for the statement of yours I was rebutting by mentioning Allen, in fact. You denied that there was a rational basis for creating a different legal regime (different than for heterosexual unions, that is) for same-sex unions. Even if Allen's thesis (among others) were wrong, it is obviously not irrational. As long as only a rational basis standard of scrutiny is being applied, I daresay that disparate treatment of heterosexual and homosexual unions will always pass muster.
3.9.2009 2:07am
David Schwartz (mail):
More strawmen. Allen doesn't say that procreation is an entirely heterosexual goal or that gay parents don't want children. However, he notes that (1) heterosexuals, gays and lesbian relationships tend to exhibit different behavioral and other characteristics, (2) these differences, for better or worse, produce different sets of incentive problems, and (3) the institution of marriage, including marriage law, has evolved over time largely to address the incentive problems of heterosexual couples to which he refers in the article. Thus, he concludes, a one-size-fits-all marriage regime would not be efficient, etc.
It simply doesn't matter. We prohibit government discrimination even where it's efficient.

Maybe women generally have different goals when they seek employment with the State. Maybe women are often willing to work for less money because they're not primary bread winners. Maybe black people are statistically less likely to be good representatives of the people.

Maybe it makes good police sense to pull over every black person in a wealthy neighborhood.

It doesn't matter. We demand a discrimination-free government. Period.

We reject even efficient discrimination on the part of our government.

If men want different things from a relationship with a man than a woman does, then they should be free to seek those differences. But the government should not treat the relationships differently, except perhaps if requested to do so by those in the relationship.
3.9.2009 2:49am
Zoe E Brain (mail) (www):
David Schwartz
It is never valid to argue that because people can't agree on the borderline cases, they must be being arbitrary about the obvious cases.

I partly agree with your thesis as a general rule, but consider your analogy flawed. Make it
It is not always valid to argue that because people can't agree on the borderline cases, they must be being arbitrary about the obvious cases.

Had your analogy been that in one state, the person would have been prevented from taking up the post, and in the other, compelled to take up the post, both decisions based on the same grounds, then the analogy would be apt.

I have to marry a woman (if I marry at all) in one jurisdiction, and have to marry a man (if I marry at all) in another, and all because same-sex marriages are so very contrary to public policy. Neither would give me a choice, yet the alternatives are exact opposites, justified on the same grounds. Is this not the very definition of arbitrary?

It is because the law claims universality, with no exceptions, that it is a Moral Issue that cases such as mine completely undermine the credibility of that argument.

I might also add that this has very real implications for me. Would my existing marriage be valid or not should I move to California? And what about the legal status of my son?

What about the existing marriages in California involving one transsexual person? When contracted, the act of marriage was between a man and a woman. Now the state of marriage is between a man and a man, or a woman and a woman. There are two different concepts, the contract of a marriage, and the state of being married.

In Australia, where I live, the act of contracting a same-sex marriage is illegal. But marriages that become same-sex after being so contracted are still valid, and one partner's change of sex is not grounds for annulment or divorce.

What about those people with 5ARD or 17BHDD. At age 16, they are likely to be classed as women, and at age 26, due to natural biological changes, likely to be classed as men. What happens to mixed-sex marriages contracted at age 16 (with parental consent), which become same-sex marriages later? For that matter, as a hypothetical, what happens to a same-sex marriage contracted before Prop 8 passed, which becomes a mixed-sex marriage later? All due to natural changes, without human intervention?

Biology, Reality, just doesn't fit with such legislation. And when the legislation is supposedly based on biology, grounded on "natural law", then it rests on thin air rather than fact.

Lest you think that such exceptional cases are too rare to worry about, consider this: 1 person in 60 is Intersexed, usually to a mild degree. Their sex could be challenged in a court of law by pedants. 1 person in 1000, and that means what, over 30,000 people in California, are so Intersexed that their sex is questionable by a "reasonable person".

And the reason such cases have not come to the courts attention before is because of the "slop" in the definition of marriage. Now it's been tightened up, there's no slack in the system any more for dealing with such cases. humanely.
3.9.2009 4:20am
David Schwartz (mail):
I have to marry a woman (if I marry at all) in one jurisdiction, and have to marry a man (if I marry at all) in another, and all because same-sex marriages are so very contrary to public policy. Neither would give me a choice, yet the alternatives are exact opposites, justified on the same grounds. Is this not the very definition of arbitrary?
Yes, that's the very definition of arbitrary. But perfectly reasonable distinctions will be arbitrary at the edges.

Some things are red. Some things are orange. Some things may be considered red by one person and orange by another. For those things, it is arbitrary whether you consider them red or orange.

However, if you show that a particular distinction is arbitrary on the edge cases, it does not show that the distinction is arbitrary in the main.

Lest you think that such exceptional cases are too rare to worry about, consider this: 1 person in 60 is Intersexed, usually to a mild degree. Their sex could be challenged in a court of law by pedants. 1 person in 1000, and that means what, over 30,000 people in California, are so Intersexed that their sex is questionable by a "reasonable person".
It doesn't matter, the argument *form* is invalid. It has nothing to do with the numbers. 1 in 2 people could be intersexed, and it would not follow that the distinction is arbitrary for those who are not at all intersexed.
3.9.2009 7:44am
John Howard (eggandsperm.org) (mail) (www):
It doesn't matter. We demand a discrimination-free government.

But then why do we make doctors have a different sort of certification from air traffic controllers? And after their certification, they wind up having different jobs with different pay and responsibilities, too. Air traffic controllers, without the doctor qualifications, are probably not even allowed to perform surgery, and surgeons are probably not allowed to control air traffic. Or maybe a better example would have been motorcycle and drivers licenses, which you have to take different tests to qualify for.

Just like anyone can choose between becoming an air traffic controller or a doctor, or getting a motorcycle or river's license, anyone could choose to marry someone they are allowed to procreate with, or choose to enter a civil union with someone they are not allowed to procreate with. No one is barred from either thing, but they have to qualify for each thing in a different way. It would be stupid and useless to make air traffic controllers qualify for their jobs by the same qualifications as doctors, or put motorcycle and car drivers through the same tests and give them the same license, when they could be separated out and given different licenses. That's because they're different things.

Likewise, CU's and marriage have to be different things, with different rights. They could be as different as we want them to be, as long as they are both available to everyone, which they are. But I think they should be the minimum difference that is possible, so that all laws that apply to marriage will apply to civil unions with no need for any confusion. The only difference should be that a marriage license gives a couple the right to conceive children together, and a CU doesn't. No one should be given a license to procreate with someone of the same sex.
3.9.2009 11:30am
John Howard (eggandsperm.org) (mail) (www):
Good points David. Intersexed people do not mean everyone is intersexed or that anyone should be allowed to attempt to conceive as either sex. No matter how intersexed someone is, there is one sex which they are more likely able to procreate as, and labs should only be allowed to help them procreate as that sex. It needn't be their legal or public sex or their lived as sex, and it's not threatening marriage's conception rights for a legally heterosexual but privately same-sex couple to marry, because the lab would let them in the door and offer to help them conceive, but then tell them that nothing legal can help them procreate together because it would require changing one of their genes just like a same-sex couple. Embarrassing, perhaps, but private and it wouldn't affect their marriage. But a legally same-sex couple would be turned away at the door of the clinic, because publicly they wouldn't have the right to procreate, even if in private they are hetero and could procreate without genetic engineering.
3.9.2009 11:49am
gbingham202 (mail):
senior status:


Since suspect class/equal protection/fundamental rights jurisprudence derives from the state constitution, an amendment to the state constitution cannot itself be subject to equal protection analysis and scrutiny.


You make an excellent argument. However, I think your observation overlooks the revision/amendment distinction which currently affronts the California court. There is no dispute as to whether the people of California can, by some method, alter their constitution to discriminate against a minority group (religion, race, homosexuals). Because of California's revision/amendment distinction, however, the relevant question is how Californians have to go about instituting such a change.

As you know, the California court does not paint upon a blank canvas. They have declared homosexuals to be a suspect class with a fundamental right to marry in California. These terms are not taken lightly in constitutional law, and describe a highly protected class. In the case of California, it is simply too terse of an analysis to say that Proposition 8 must be upheld because a constitution may contradict itself. Before this argument rings true, the court must decide if the people of California should have "revised" their constitution via their state legislature in the first place.
3.9.2009 7:51pm
David Schwartz (mail):
Fundamental to a Constitutional Republic is that the Constitution exists to ensure that a bare majority cannot take away fundamental rights from a suspect minority. If there's any way to reasonably interpret the Constitution so that it doesn't negate the entire point of having a Constitution in the first place, it should be interpreted that way.
3.9.2009 9:58pm
Nemo:

[David Schwartz:] It simply doesn't matter. We prohibit government discrimination even where it's efficient.

John Howard was right. We do not prohibit all instances or kinds of government discrimination. For example, under the federal Constitution, we allow even discrimination on the basis of "suspect classifications" such as race (as opposed to, say, sexual orientation), provided that the law is the least restrictive means of achieving a compelling government interest, etc.


[David Schwartz:] Fundamental to a Constitutional Republic is that the Constitution exists to ensure that a bare majority cannot take away fundamental rights from a suspect minority. If there's any way to reasonably interpret the Constitution so that it doesn't negate the entire point of having a Constitution in the first place, it should be interpreted that way.

I would say, rather, that fundamental to a constitutional republic is whatever is in its current constitution. Courts can't trump that by invoking some supra-constitutional authority, or appealing to some perceived abstract categorical characteristic of constitutional republics. The best evidence of what a particular constitution (state or national) is intended to do - its "point", as it were - is what is written in it.

If a constitution allows a bare majority to take away fundamental rights from a suspect minority (or reclassify a fundamental right as non-fundamental, or a suspect classification as non-suspect, or whatever the case might be), then perhaps it's flawed. However, courts have no power to fix that and no business attempting to do so. Your argument above makes for better legislative policy than it does judicial policy.
3.10.2009 12:49am
David Schwartz (mail):
John Howard was right. We do not prohibit all instances or kinds of government discrimination. For example, under the federal Constitution, we allow even discrimination on the basis of "suspect classifications" such as race (as opposed to, say, sexual orientation), provided that the law is the least restrictive means of achieving a compelling government interest, etc.
Sure, but that's an exception that nobody has even argued applies in this case (at least, not in accord with this particular legal challenge.)

If a constitution allows a bare majority to take away fundamental rights from a suspect minority (or reclassify a fundamental right as non-fundamental, or a suspect classification as non-suspect, or whatever the case might be), then perhaps it's flawed. However, courts have no power to fix that and no business attempting to do so. Your argument above makes for better legislative policy than it does judicial policy.
The point is, the Constitution is vague about exactly what an amendment can do and what requires invoking the revision process. One interpretation defeats the entire purpose of having a Constitution at all, so it's pretty unlikely that's the one intended.

And, in any event, I disagree that one should not invoke a supra-constitutional authority. In fact, this is what's done fairly frequently. For example, if someone developed a slam-dunk perfect argument that the income tax was actually unconstitutional, no court in the world would ever say "Oh well. Bye bye income tax".
3.10.2009 1:31am
John Howard (eggandsperm.org) (mail) (www):
I didn't read "Allen"'s essay myself, but I think what he was arguing was that setting up two different things would be beneficial to suit the needs differently. As long as they have different needs and rights, why make both types of relationships be governed by the same laws? And since people are equally free to enter either kind of relationship, one kind where procreation is approved and protected as a right, versus one where procreation is prohibited and not claimed as a right. There is no end of differences that states could decide to make between marriages and CU's but I propose that congress use the lure of federal recognition to get states to adopt CU's that are defined as "marriage minus conception rights" so that no state would be fiddling and diddling around for years with half messages.
3.10.2009 3:35pm
David Schwartz (mail):
As long as they have different needs and rights, why make both types of relationships be governed by the same laws?
The point is that the arguments that they have different needs and rights are largely bogus. Similar arguments could be made about black people and white people. Black people need protection from historic discrimination, black people want equality, and so on. So why should black people and white people be governed by the same laws?

And since people are equally free to enter either kind of relationship, one kind where procreation is approved and protected as a right, versus one where procreation is prohibited and not claimed as a right.
People are equally free to worship either Jesus or Jehovah, so why not give different rights to the two groups? Why not give the right of conception only to those who do not pray to Jesus? People who want to conceive can simply choose to pray to Jesus.

None of your arguments are capable of sustaining the conclusions you draw from them.
3.10.2009 4:27pm

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