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The right formerly known as the right to marry

is now "the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice)." Strauss v. Horton, p. 35.

One of the most striking things (rhetorically, at least) about today's Prop 8 decision is the extent to which the court labors to minimize its decision just a year ago in In Re Marriage Cases. Recall that in Marriage Cases the underlying issue was not really whether the state was obliged to provide gay couples specific rights "incident to marriage" (e.g., intestacy rules, adoptions, powers of attorney, hospital-visitation rights). With trivial exceptions, as the court recognized, California's domestic partnership law had already done that. Instead, the petitioners sued to have their relationships recognized as "marriages," title and all, on the theory that anything different would violate the right to marry and embody a suspect classification.

Back then, the state supreme court repeatedly referred to the right "to marry" and to "marriage" as the main issue in a case styled, after all, Marriage Cases. The court explicitly rejected the state's last line of defense — that while gay couples might be entitled to all of the "incidents" of marriage the state could leave the designation of "marriage" to opposite-sex couples. Back then, the court warned darkly that denying the title of "marriage" to gay families risked second-class citizenship, harm to children, and loss of dignity:

[T]he exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term "marriage" and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term "marriage" is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

Compare that to this passage in today's opinion:

Although the majority opinion in the Marriage Cases generally referred to this state constitutional right as the "constitutional right to marry," at the same time that opinion explained that this constitutional right is distinct from the right to have one's family relationship designated by the term "marriage." (Id. at pp. 812, 830-831.)Because in common speech the term "right to marry" is most often used and understood to refer to an individual's right to enter into the official relationship designated "marriage," and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as "the constitutional right to marry," hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases — namely, the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice).

So marriage wasn't really the main issue in Marriage Cases, it was convenient shorthand. Elsewhere, the Strauss court tells us that Prop 8 has only a "limited" effect, carves a "limited exception" to the right to marry, changes the content of a right in "one specific subject area," diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important.

It's also a puzzle why the court feels the need to characterize Prop 8 as limited, since there's really nothing in the opinion to prevent a majority from repealing the state's domestic partnership law by constitutional amendment. (The court expressly and oddly leaves this issue open, see p. 93.) How would a repeal fundamentally alter the character of state government in the way the court understands that concept?

There's plenty of ground to question the decision in Marriage Cases, and to support today's decision in Strauss as correct on the revision/amendment distinction. And I think the protections provided to gay families under the rubric of "civil unions" or California "domestic partnerships" are a huge advance that can't fairly be likened to a new form of segregation. But it seems to me that, given the rationale and rhetoric of the first decision, the court disingenuously minimized the deprivation in the second.

Andrew Hyman (mail) (www):
It would be nice if more people would recognize that this is a free speech issue. If the people of California want to call something a "marriage" and not call something else a "marriage" then I don't see any intrinsic problem with letting them use words as they please. Courts should not be in the business of telling us what words to use. If some court wants everyone to call women "men" or to call caucasians "black", people would think the court is nuts. And rightly so.

It's a no-brainer that the State of California should be able to stick with the usual definition of marriage if it wants. The substantive issue of how the state treats marriages versus civil unions is the only question that should ever have come before the court.
5.26.2009 9:45pm
Steve:
A free speech issue? This is not an issue of what private citizens choose to call a relationship, it's an issue of what the government calls it.
5.26.2009 10:11pm
Andrew Hyman (mail) (www):
Governments have some free speech rights too, don't they?
5.26.2009 10:21pm
smitty1e:
...with the person of one's choice...

Oh, when will be free of this fascist cardinality? And these species limitations!
Let love bloom in all directions, across time, space, genus, gender, existential condition!
Any bound on love is some twisted form of conservative hell!
5.26.2009 10:35pm
Thales (mail) (www):
"Governments have some free speech rights too, don't they?"

Yes, of course, but the mere label is not the issue implicated by Proposition 8, as marriage equality advocates and opponents alike have long known. Civil unions are simply not legally equal to marriage in every respect. At best, they get most of the way there, in a roundabout and complicated way.
5.26.2009 11:05pm
Andrew Hyman (mail) (www):
Thales, the court today said that Proposition 8:

"carves out a narrow and limited exception to the state constitutional rights, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."


This is all about freedom of speech, if you believe the California Supreme Court's opinion today.
5.26.2009 11:32pm
Steve:
So wait. A state government, as a unit, has a free speech right that cannot be constrained by... itself? Did I skip that day in Con Law?
5.27.2009 12:46am
Roger Schlafly (www):
I think that the court has given up trying to make legal sense. It is all just politics.
5.27.2009 3:59am
Karen (mail) (www):
Or... the court made both these decisions based on the California Constitution, which between then and now has been changed.

Were it not for Prop 8, the CA Constitution's reservations for equal rights would indeed still include the right to marriage. Prop 8 specifically eliminated that right for same-sex couples, so now the scope of equal protection only includes rights related to marriage (among many other things).

Regardless of whether or not you bought the existence of the right to marriage in the first place, is that seriously that hard to understand?
5.27.2009 8:33am
Burt Likko (mail) (www):
Steve, governmental units have power to engage in speech. Their rights to do so are non-existent; rather, it is simply a necessity that the government speak in order to fulfill its function. Rosenberger v. University of Virginia (1995) 515 U.S. 819. There are limits to how far government speech may go, but they are not well-defined. Check out Rust v. Sullivan (1991) 500 U.S. 173 to see just how far this can go. We know that one of those limits is set by the Establishment Clause, but even that is somewhat squishy in that the government can pick and choose between different religiously-themed monuments that it can erect on public property; ultimately, the check on government power is that the government is subject to democratic controls. City of Pleasant Grove v. Summum (2009) (February 25, 2009) __ U.S. __ (Docket No. 07-665). So it's not so much a free speech right as the government's power to engage in speech at all, which is inherently a part of governing.
5.27.2009 9:06am
Hoosier:
I'm out of the loop: Has Obama said anything about the case?
5.27.2009 9:20am
Stephen Clark (mail):
I don't see any free speech issue here. Andrew Hyman's original, off-topic post was little more than another pathetic attempt to cast antigay bigots as somehow being victimized by the legal authorization of same-sex marriage.
5.27.2009 9:50am
Losantiville:
the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples

How could it be other since SSM was invented in the 1980's and OSM is a just a bit older. "instituted of God in the time of man's innocency..."

Give it a few millenia at least. "instituted of Andrew in the time of man's sinfulness..." just doesn't cut it.
5.27.2009 10:05am
Andrew Hyman (mail) (www):
Stephen Clark, those are not what I would call cogent legal arguments. Please excuse me for not referring to you as "your highness" but I prefer to speak as I please. You have no clue whether I am an "antigay bigot" so I suggest you keep your slanders to yourself.
5.27.2009 10:52am
Stephen Clark (mail):
Dale says,


It's also a puzzle why the court feels the need to characterize Prop 8 as limited, since there's really nothing in the opinion to prevent a majority from repealing the state's domestic partnership law by constitutional amendment.


I think there are two explanations.

First, the argument that Prop. 8 was retroactive and thus voided the 18,000 marriages was a non-starter. It would have been shockingly inconsistent with established rules to hold the measure to be retroactive. But if Prop. 8 did more than simply rule out the use of the word "marriage" and actually had some substantive bite, the continued existence of those 18,000 marriages would be even more problematic than it is. But if Prop. 8 had no effect on In re Marriage Cases other than ruling out the word marriage, the pre-existing marriages can continue to provide rights, benefits, and obligations without having to figure, for each right, benefit, or obligation, whether it vested before or after the date of last November's election.

Second, the majority knew it was abandoning some of its amendment/revision precedents and was, in other words, bending over backwards to characterize Prop. 8 as an amendment so as to uphold it. Fairly applied, the amendment/revision precedents and the constitutional distinction itself might well lead to the invalidity of Prop. 8. The majority was politically unwilling to have the court invalidate Prop. 8. In other words, the court blinked. Knowing that it was caving in to political pressure in abandoning a fair reading of its amendment/revision precedents, the majority compensated for that failing by at least giving gays and lesbians the narrowest possible interpretation of Prop. 8. Upholding was less controversial than invalidating, but giving Prop. 8 an exceedingly narrow interpretation could fly below the radar and minimize the impact of Prop. 8.

In short, the majority opinion makes more sense as a political response than as a legal analysis. Whether it was a wise, statesman-like response or a self-interested failing is, I suppose, debatable.
5.27.2009 10:52am
Stephen Clark (mail):
Mr. Hyman, I never said you were an antigay bigot. I said your free speech argument fit within the emerging pattern of attempts to cast opponents of same-sex marriage--most of whom simply are antigay bigots--as victims of some kind of civil liberties violation because other people contract same-sex marriages.

I also found it telling that you failed to consider the possibility that, if we're going to force some speech theory onto this dispute, it might not necessarily benefit only opponents of same-sex but might equally apply to the same-sex couples' use of the word to describe their own relationships.

In any event, the speech theory was off-topic, given Dale's narrow focus on the court's recharacterization of the right to marry.
5.27.2009 11:03am
John Chalmers (mail):
If marriage is a "right" and not a privilege, what is to prevent marriage to juveniles, close relatives (sibs, parents, offspring, half-sibs, aunts, uncles, nieces, nephews, etc.), active carriers of STDs, and mentally deficient or incompetent individuals? What about polygynous, polyandrous or group marriages? All of these have been forbidden by Western societies in the past. It seems to me that by arguing that marriage is a right, we're on the famous "slippery slope."
5.27.2009 11:05am
Yankev (mail):

another pathetic attempt to cast antigay bigots as somehow being victimized by the legal authorization of same-sex marriage.
Because of course anyone who thinks there are significant differences between male/female marriage and same sex unions is ipso facto a bigot.

As is anyone who thinks that social institutions should not lightly be tampered with, or that same sex unions may have unintended and consequences for society.

And certainly anyone who thinks that there are any moral aspects to same sex sex.
5.27.2009 11:18am
Yankev (mail):

I think that the court has given up trying to make legal sense. It is all just politics
Roger,I have not read the whole opinion and do not plan do, but from what was quoted here, I have to agree. Anyone recognize the following?


Now, it is clear that the decline of a language must ultimately have political and economic causes: it is not due simply to the bad influence of this or that individual writer. But an effect can become a cause, reinforcing the original cause and producing the same effect in an intensified form, and so on indefinitely. A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks. It is rather the same thing that is happening to the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.


The writer either has a meaning and cannot express it, or he inadvertently says something else, or he is almost indifferent as to whether his words mean anything or not. This mixture of vagueness and sheer incompetence is the most marked characteristic of modern English prose, and especially of any kind of political writing. As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse.


Operators or verbal false limbs. These save the trouble of picking out appropriate verbs and nouns, and at the same time pad each sentence with extra syllables which give it an appearance of symmetry. Characteristic phrases are render inoperative, militate against, make contact with, be subjected to, give rise to, give grounds for, have the effect of, play a leading part (role) in, make itself felt, take effect, exhibit a tendency to, serve the purpose of, etc., etc. The keynote is the elimination of simple verbs. Instead of being a single word, such as break, stop, spoil, mend, kill, a verb becomes a phrase, made up of a noun or adjective tacked on to some general-purpose verb such as prove, serve, form, play, render. In addition, the passive voice is wherever possible used in preference to the active, and noun constructions are used instead of gerunds (by examination of instead of by examining). The range of verbs is further cut down by means of the -ize and de- formations, and the banal statements are given an appearance of profundity by means of the not un- formation. Simple conjunctions and prepositions are replaced by such phrases as with respect to, having regard to, the fact that, by dint of, in view of, in the interests of, on the hypothesis that; and the ends of sentences are saved by anticlimax by such resounding commonplaces as greatly to be desired, cannot be left out of account, a development to be expected in the near future, deserving of serious consideration, brought to a satisfactory conclusion, and so on and so forth.

Words like phenomenon, element, individual (as noun), objective, categorical, effective, virtual, basic, primary, promote, constitute, exhibit, exploit, utilize, eliminate, liquidate, are used to dress up a simple statement and give an air of scientific impartiality to biased judgements.

In our time, political speech and writing are largely the defense of the indefensible. Things like the * * * the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism., question-begging and sheer cloudy vagueness.
If you simplify your English, you are freed from the worst follies of orthodoxy. You cannot speak any of the necessary dialects, and when you make a stupid remark its stupidity will be obvious, even to yourself. Political language -- and with variations this is true of all political parties, from Conservatives to Anarchists -- is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind. One cannot change this all in a moment, but one can at least change one's own habits, * * *
5.27.2009 11:39am
one of many:
My guess would be a very old George Orwell with some missing bots. Some Orwell type turns of phrase but not the same structure as Orwell used.
5.27.2009 11:58am
Stephen Clark (mail):
Yankev:


Because of course anyone who thinks there are significant differences between male/female marriage and same sex unions is ipso facto a bigot.

And certainly anyone who thinks that there are any moral aspects to same sex sex.


Yes, that's about right. When walking down the sidewalk next to my partner on Sunday, I was verbally assaulted as a "f*cking f*aggot" for about two blocks by a complete stranger. The fact that other people have the sophistication to wrap their venom in less crude language and hide behind pretextual justifications doesn't make them any less bigoted.

After Prop. 8, I will no longer coddle bigots. If you want to obsess over whether it is immoral for you to have gay sex, go right ahead. I couldn't care less what you waste your time on. But if you want to use the power of the state to force your prejudices down everyone else's throat and deny them the equal freedom to make their own ethical decisions about their own lives, then you are nothing but a common, intolerant bigot.
5.27.2009 12:19pm
Yankev (mail):

When walking down the sidewalk next to my partner on Sunday, I was verbally assaulted as a "f*cking f*aggot" for about two blocks by a complete stranger. The fact that other people have the sophistication to wrap their venom in less crude language and hide behind pretextual justifications doesn't make them any less bigoted.
The guy who verbally assualted you is a jerk at best and I am glad it did not get physical. If he had raised a hand to you I would be the first to say lock the jerk up. We both know that plenty of gay people have been assaulted physically, and not just verbally. Lock up the assailants, and there are laws against that for good reason.

Beyond that, your anecdote is just that, and proves nothing.

Miss California was verbally assaulted in far harsher terms than you were, over a longer period and by more people. Mormons and fundamentalist Christians have been verablly and physically assaulted since Prop 8 as well. The mere presence of jerks on one side of an issue does not prove that the other side is right. Even less so when there are jerks on both sides.

If you don't call me an anti-gay bigot, I won't call you a faggot. And even if you do call me an anti-gay bigot, I won't call you a faggot. I won't even call you an anti-religious bigot. Just spare me the moral superiority and the presumption that there is no legitimate disagreement.
5.27.2009 12:57pm
Stephen Clark (mail):
Well, Yankev, go ahead and call me a faggot; I am one. And when you defend Prop. 8, I'll call you a bigot because you are one.

But while you're busy demanding that the state force everyone to live according to your own religious obsessions, spare me the hypocritical accusation of moral superiority. Your glass house is shattering around you.
5.27.2009 1:47pm
bb (mail):
It is a matter of time before Prop 8 is made to go away.

It is perfectly legal for two people to be engaged in a same-sex relationship, without interference from the state. Why then should they be prohibited from entering into the same social and legal contract, marriage, that opposite sex couples enjoy? If it is not for you, don't do it.

I have seen no evidence that, in environments relatively free of bigotry, such relationships are any better or worse in quality or community contribution in comparison to any other. Responsible devoted people have responsible devoted relationships, regardless of orientation. Not that there is a quality test for marriage, but slippery slope arguments are just fearmongering. There is no need for it.

Marriage is a social and legal contract, and to deny same sex couples from entering into that contract on the basis of some people's religious beliefs would be the same as denying mixed race marriages for the same reason. This was certainly the status quo in this country not all that long ago.

This is a civil liberties issue, regardless of what your or my own personal choices or moral system may be.
5.27.2009 1:53pm
KWC (mail):
Dale:

I agree with you. I also can't help but wonder where same-sex couples are supposed to get this "constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage."

No mechanism currently exists to get it. Apart from "marriage," all there are are "domestic partnerships," which don't pass muster under that standard. So now what?

Werdegar tries to address this in her puzzling concurrence, but it's still not clear.

Honestly, though, I think the SCOC was trying to give same-sex couples the best they thought they could by construing Prop 8 as narrowly as possible. I'm not sure anyone is really catching or focusing on this nuance.
5.27.2009 2:01pm
geokstr (mail):

John Chalmers:
If marriage is a "right" and not a privilege, what is to prevent marriage to juveniles, close relatives (sibs, parents, offspring, half-sibs, aunts, uncles, nieces, nephews, etc.), active carriers of STDs, and mentally deficient or incompetent individuals? What about polygynous, polyandrous or group marriages? All of these have been forbidden by Western societies in the past. It seems to me that by arguing that marriage is a right, we're on the famous "slippery slope."

A point I have been bringing up in posts on this subject for a long time, and of course pooh-poohed by proponents of the redefinition of "marriage". For now they are explicit allies, but the left and Muslims will be heading towards a precipice on the issue of the definition of marriage in the next generation at most as they gain power in the Western (civilized) world.

I've read most of the comments on all these threads on SSM for months and if, in the comments by proponents of SSM, you replace gay/homosexual with Muslim, and SSM with poygyny/child marriage/first cousin marriage, the arguments are logically nearly identical. Plus Muslims would be able to pile on the 1st Amendment protections about freedom of religion as well. They both even get to tar their opponents with being afflicted with a "phobia".

The responses to this have been uniformly to ignore it, use ad homs, or deny any slippery slope exists. There has even been some tacit acceptance expressed of those alternate forms of marriage favored by Islam.

Why in this universe the left would prefer to side with Muslims, who openly express their intent to eliminate homosexuals by killing them, while viciously attacking Catholics and even Jews, is unreal, but the subject for a different post, and one that rarely gets touched here.
5.27.2009 2:06pm
SeaDrive:

If marriage is a "right" and not a privilege, what is to prevent marriage to juveniles, close relatives (sibs, parents, offspring, half-sibs, aunts, uncles, nieces, nephews, etc.), active carriers of STDs, and mentally deficient or incompetent individuals?


Rights are subject to restriction. Check your local gun laws.
5.27.2009 2:19pm
Stephen Clark (mail):
KWC:


Honestly, though, I think the SCOC was trying to give same-sex couples the best they thought they could by construing Prop 8 as narrowly as possible. I'm not sure anyone is really catching or focusing on this nuance.


I think that's right. But it's kind of like an abusive parent buying you a toy after beating you, isn't it? If one thinks, as I do, that the majority manipulated its amendment/revision precedents in order to avoid invalidating Prop. 8, then the narrow construction of Prop. 8 is like a consolation prize. It's like being sent home from a game show with a tub of Turtle Wax.
5.27.2009 2:34pm
Hoosier:
Stephen

Your tormentor was obviously a complete git. I wonder if he berates the handicapped for showing themselves in public. (Please don't take offense at the simile, which is meant only as a reference to common vulnerabilities.)

Awful behavior. But reassuring: More evidence of the crass idiocy of the truly anti-gay.

So . . . should I start bashing big 'mos on the streets here. You know, just to reassure them?

Just let me know.
5.27.2009 3:01pm
Hoosier:
Wait a minute. I am "the handicapped."

So if you did take offense at the simile, then you are a complete git too.

I suspect that we all have some gititude in the depths of our souls. Except me.
5.27.2009 3:03pm
Smokey Behr:
Has anyone here really read the entire decision?

Here's my "IANAL" take on the whole thing: The word "marriage" is now used only to describe the legal/spiritual partnership between a man and a woman. The "rights" of SS partners to enter into the same contract has not been changed. SS partners can still enter into "Domestic Partnerships", which carry all the same rights, privileges and responsibilities as a "marriage", but they can't call it "marriage". It's a matter of pure semantics. Nothing has changed for either side, except for the change in verbiage.

I will now wait for all the anti-straight bigots to hurl their epithets such as "breeder" at me. Feel free to do so, since to me, it's like water off a duck's back.
5.27.2009 4:47pm
Yankev (mail):

Well, Yankev, go ahead and call me a faggot; I am one. And when you defend Prop. 8, I'll call you a bigot because you are one.
Thank you, Stephen. And such is the tolerance, civility and mutual respect demanded by those who demand that we redefine marriage to suit their appetites and dispositions.

Your choice to refer to yourself by that term does not license me to do so anymore than some rap musician's choice to call himself by the N word licenses me to call him that, nor my occassional satiric self reference as a christ killer licences you to call me one. That's called self-restraint.

Smokey -- yes, it is purely semantics, except for one thing. The activists, for all of their rhetoric and all of their accusations, are trying to control how the rest of us think. Hence California's replacing husband and wife in marriage documents with Party A and Party B. ("The party of the first part under this contract shall be known as the party of the first part.") Newspeak is upon us, and man + man = woman + woamn = man + woman = 2+2 =5. And if you say anything to the contrary, the Ministry of Love will come after you for thought crime, which is ++ ungood.
5.27.2009 5:39pm
Yankev (mail):

My guess would be a very old George Orwell with some missing bots. Some Orwell type turns of phrase but not the same structure as Orwell used.
And the prize goes to One of Many. If the structure looks different, it's because I left out quite a bit of his essay on Politics and the English Language.
5.27.2009 5:41pm
Stephen Clark (mail):
When Yankev belittles my sexual orientation and my fifteen-year relationship as a mere "appetite"--whatever the hell that is supposed to mean--he simply shows his true colors. At base, he is nothing but a simple bigot, proving, once again, that if you just scratch the surface of most Prop. 8 supporters, the stench of bigotry comes out.
5.27.2009 6:21pm
yankev (mail):

When Yankev belittles my sexual orientation and my fifteen-year relationship
I am sure you feel deeply for your partner of 15 years.


as a mere "appetite"--whatever the hell that is supposed to mean

An appetite is a physical desire or attraction. You can look it up.



At base, he is nothing but a simple bigot,
How dare you call me a simple bigot. I take great offense at your calling me simple.

proving, once again, that if you just scratch the surface of most Prop. 8 supporters, the stench of bigotry comes out.
Most? Then already you have retreated from your earlier position that every Prop 8 proponent is ipso facto a bigot.

Stephen, if all you can do is name calling, I'm not interested. I could make just as sweeping a statement about Prop 8 opponents, and it would be just as silly.

The pros and cons of forcing people to call same sex relationships "marriage" has been debated at length at VC on numerous threads, as has the wisdom of encouraging or discouraging such relationships. Arguments Apparently you have immediately discounted any and all bases for opposing ssm. While I have not found any of the pro-ssm arguments persuasive, I have at least found some that I can respectfully disagree with. Other arguments have not earned my intellectual respect, including the analogy to interracial marriage or the inherent suspicion of laws founded on morality inspired by religion, and the repeated question begging that anyone who opposes ssm is a bigot because only a bigot would oppose ssm. This last argument is sometimes bolstered by offering proof that bigots exist. To use a technical term, Duh!

If you think that name calling will gain support for ssm, then by all means have at it. This is still a free country (unless of course one chooses not to be the wedding photographer at a lesbian commitment ceremony, or one wants to worship at a church that ssm activists disapprove of.)

Why did I take offense at your calling me simple but not at calling me a bigot? That part is simple. The term bigot loses all meaning when you employ it as you do.

I hereby cede the field to you; you have nothing more to say that I care to respond to. Boogedy boogedy, bigotty, bigotty.
5.27.2009 6:53pm
celticdragon1 (mail):
I would rather that both Stephen and Yankev knock it off with the personal attacks. It isn't getting us anywhere.


Stephen...believe me, I understand. I am a transgendered woman still married to my wife. She has been harassed by a Baptist Minister in the Walgreens where she works. We have been stalked. We had to change where my son went to school after an overtly bigoted African American teacher found out about us and tried to make trouble for him. I have been twice been threatened with physical violence or even death...and I am getting a CCW for the state where I live.

Your backstory matters, but it does not work as a cudgel. Use it to inform and persuade. Trying to assume a mantle of victimhood while attacking another diminishes you and whatever point you may have had. I have given into that temptation also, because the anger is very, very real. It still doesn't work. FWIW, I am sorry that you and your partner were bothered, and I'm glad nothing worse happened.


Best wishes,

Annemarie
5.27.2009 7:56pm
Stephen Clark (mail):
Oh, no, celticdragon1, I'm too intrigued by the prospect of Yankev offering us his big non-sectarian, non-bigoted justification for using the power of the state to force everyone to live according to his personal moral code, while hypocritcally attacking everyone else for moral superiority. It really ought to be good.

How about this one, Yankev? All gay people are intellectual children incapable of engaging in moral reasoning themselves and this need you and the state to make decisions for them. Is that your view? Oh, I know. Marriage exists solely for procreation, except that the marriages of infertile couples are somehow real marriages too. Is that it? How about good ole' natural law: Because I'm a faggot who does not inherently feel the immorality of homosexuality, I'm not allowed to have an opinion on the subject. Is that your view? Let's try another one: The state has created marriage in order to quickly induce fucking heterosexuals into stable relationships before they accidentally procreate. The New York high court used that absurd one. Or maybe Yankev prefers the New York Court of Appeals' other rationale: That gay people are bad parents, notwithstanding empirical evidence to the contrary and notwithstanding heterosexual non-parents freedom to marry. Is that it Yankev? How about homosexuality is a "death-style" that should be "discouraged" by piling legal disabilities on gay people? Is that your supposedly non-sectarian, non-bigoted view? Or maybe Yankev blames gay couples for the high divorce rate among heterosexual couples. Or maybe Yankev avoids offering any rationale and just proclaims that the discriminatory definition is a matter of tradition and therefore (non sequitur) can't change. Or is the non-sectarian, non-bigoted justification that some deity ordained marriage as a sacred man-woman arrangement?

Or is it simply that gay men make Yankev insecure in his delicate masculinity so that he have to attack belittle relationships as "appetites" in order to make himself feel like a "real" man?

In between his alternating condescension and lashing out, did I miss the part where Yankev explained what his view was and why it wasn't bigoted? Did I miss the part where he explained why he has any moral right to come into my life and dictate my marital choices? What other personal aspects of my life does he view me as incompetent to control? Hey, Yankev, how about going through my kitchen and dictating which foods I'm allowed to eat? Would that get you off too? Maybe you don't like my clothing choices either. Do you want to come to the mall and order me to buy certain clothes to please you and your god? Hey, I know, maybe you can critique the brand of toilet paper I use. Does the moral code that you want the state to shove down my throat authorize Charmin?

What is that moral code and what is its basis anyhow? If you want to use the power of the state to force it down everyone's throats, then you've opened the door for a thoroughgoing, top-to-bottom, no-holds-barred critique of your moral code by everyone you'd force to abide by it. You surely don't expect to use the law to shove it down everyone's throats and then deny that anyone gets to examine and critique it, right? Oh, wait, of course you do; you're a bigot.
5.27.2009 9:05pm
Hoosier:
I would rather that both Stephen and Yankev knock it off with the personal attacks.

Especially Stephen, who keeps calling himself a "faggot." Geez, Stephen! You seem like a good guy. So just lay off slagging Stephen down.
5.27.2009 10:20pm
nicestrategy (mail):
I have a question.

What is meant by "an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage?"

Does this ruling in Strauss open up grounds for challenging the domestic partnership law as insufficient protection of all the "constitutionally based incidents of marriage" to which same sex couples are entitled to? Does this suggest equality under the law is required in each and every respect besides the name "marriage?"

As chickenshit as Strauss was, if you are going to get a politically tainted decision you might as well get one that lays out a political and legal path forward.

??
5.28.2009 1:31am
Randy R. (mail):
Uh, Yankev? There is no moral issue surround homosexuality. There simply isn't. You may have a religious objection to it, but you don't have a right to impose your religious beliefs upon anyone else.

Now, if you can actually articulate any sort of morality surrounding homosexuality, let's have it. But two men loving each other, and in a committed relitionship, is a moral good, not a moral bad. Anyone who argues otherwise simply doesn't understand what sexual orientation is.
5.28.2009 2:23am
Lymis (mail):
"Does this suggest equality under the law is required in each and every respect besides the name "marriage?"

It appears not to suggest it, but to require it. The Marriage Cases ruling said that complete equality is required, and that the state did not make a case that excluding same-sex couples met the State's interest in providing marriage rights to opposite sex couples.

In these rulings, they stated that all of those requirements are still there, and that the only effect of Prop 8 was to carve out a narrow exception that the word "marriage" only applies to straight couples - the requirement for equality still stands.

For those who see this as purely political, I won't try to argue; that's not going to achieve anything. But consider this:

A. The existing provisions of the California Constitution require that the state treat all citizens equally, and were interpreted to mean that includes all the state-provided benefits and obligations associated with marriage. Prop 8 did not change that.

B. Prop 8 added language specifically limiting the definition of marriage to legal relationships between a man and a woman.

If the word "marriage" and the benefits are inextricably linked, there is an untenable tension between the requirement for equality and the clear requirement of inequality.

The possible consequences?

C(1): Define Prop 8 to mean only the word marriage, leaving marriage essentially untouched for straight couples, leaving straight marriages intact, and separating the word from the state-provided benefits and obligations, or

C(2): Define Prop 8 as denying the benefits and obligations of marriage to a group of citizens, and therefore strip the word marriage of ALL state-provided benefits and obligations and convert all marriages for all citizens to Domestic Partnerships (or do so going forward).

Sure, their ruling is politically more nuanced, but they could hardly have declared that the people of California clearly intended to end marriage as previously understood in the state.
5.28.2009 7:21am
Lymis (mail):
Dale,

I suppose you could say that the Court stated that this "diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important."

I didn't get that. What they almost but not quite said wasn't that the word "marriage" was unimportant, but that the current California Constitution does in fact, in this particular area, establish gay people as second-class citizens.

Stating that the new language diminishes only one aspect of marriage rights for same-sex couples doesn't automatically mean that aspect is unimportant. It can also mean that the Court is recognizing that the new language does in fact strip something important from a specific class of people.

Consider convicted murderers. Stating that their incarceration limits their freedom of association but does not limit their freedom of speech (or, ironically i this conversation, their right to marry) doesn't imply that their freedom of association is unimportant or that other rulings upholding it are somehow suspect or watered-down. It is simply a statement of fact, and a reminder that restriction of one aspect doesn't allow abridging someone's rights in another area.

I didn't see them backing down on how important the word "marriage" is - just recognizing that the voters of California clearly chose to keep it from same-sex couples. And regardless of what else they may have intended to do, I think we can agree that at a bare minimum, that was certainly (part of) the intent of Prop 8.
5.28.2009 7:32am
Lymis (mail):
Dale,

I suppose you could say that the Court stated that this "diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important."

I didn't get that. What they almost but not quite said wasn't that the word "marriage" was unimportant, but that the current California Constitution does in fact, in this particular area, establish gay people as second-class citizens.

Stating that the new language diminishes only one aspect of marriage rights for same-sex couples doesn't automatically mean that aspect is unimportant. It can also mean that the Court is recognizing that the new language does in fact strip something important from a specific class of people.

Consider convicted murderers. Stating that their incarceration limits their freedom of association but does not limit their freedom of speech (or, ironically i this conversation, their right to marry) doesn't imply that their freedom of association is unimportant or that other rulings upholding it are somehow suspect or watered-down. It is simply a statement of fact, and a reminder that restriction of one aspect doesn't allow abridging someone's rights in another area.

I didn't see them backing down on how important the word "marriage" is - just recognizing that the voters of California clearly chose to keep it from same-sex couples. And regardless of what else they may have intended to do, I think we can agree that at a bare minimum, that was certainly (part of) the intent of Prop 8.
5.28.2009 7:32am
yankev (mail):

I would rather that both Stephen and Yankev knock it off with the personal attacks.
I quite agree. See my post at 5.27.2009 6:53pm
Although pointing out that Stephen has confined himself to name calling and anger is not my idea of personal attack. Stephen's 5.27.2009 9:05pm is a perfect example.

Numerous past threads at VC have discussed the substantive reasons that many oppose redefining marriage -- a social institution that since before recorded history has been between men and women. Repeating them here will not change anyone's mind; anyone who is determined to dismiss them out of hand, distort them or discount them as rationales for simple bigotry will continue to do so, even if they are stated more eloquently than I and at greater length than I have time to do. Those who want to attribute evil motive to my declining to do so will attribute that motive whether I I repeat those arguments here or not. I recognize the good faith among many who support redefining marriage. It is too bad that some ssm advocates can see no reason for disagreeing with them other than bigotry or ill will.
5.28.2009 9:09am
RK Wright:
Losantiville:
How could it be other since SSM was invented in the 1980's and OSM is a just a bit older. "instituted of God in the time of man's innocency..."


I really wish you and others would get the facts straight on this issue. Same Sex marriage cases started being filed in the US in May of 1970. Baker V. Nelson is the first case and was decided in 1971. Jones V. Hallahan was in 1973 and then there was Singer V. Hara in 1974. All of these cases were post Stonewall, and far earlier than you and others infer. You seem to think the cases only came up in the 80's.

Gays and Lesbians have been publicly fighting for their rights in America since the early 50's and some small instances prior to that.

Please, if you want to discuss the case and make claims, please get the FACTS right. You are entitled to your opinion, but you are not entitled to your own set of facts (especially when they are wrong and case law proves it).
5.28.2009 11:21am
Hoosier:
Randy R.!!!!

I was worried that something was wrong. (Really.)

Good to hear from you.
5.28.2009 11:31am
cmr:
Exactly, Yankev. That's why it's funny when people say they haven't heard any reasons against re-defining marriage. They don't care, they dismiss them off-hand, or they outright ignore them. Since the middle of last year when I joined this site, I've seen numerous articulate, eloquent reasons opposing SSM. I've seen numerous links that have explained arguments against it. And I've seen many of the same "faces" I see here either ignore them or reject them (most of the time on arguments that basically reduce to, "well, these are our rights, GIVE THEM TO US NOW!"). At a certain point, you get tired of trying to make the point...because you realize people know it and don't care. Thus the conjecture.

It's funny because Randy R. in particular has been told two dozen times if he's been told once why people oppose SSM, and he's been told it's not solely because of animus and bigotry and that's been proven to him. Does he listen? No. He gives whatever silly argument he can give just so he can justify being obnoxious and dismissive to anything that doesn't promote his POV. So when someone makes a radical argument that may or may not be serious, he jumps on that and says, "see! This is how they really feel." He can hear twenty lucid arguments and forget them in five minutes. One radical argument and he remembers it forever.
5.29.2009 9:54pm

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