USA Today - California's Prop. 8 ban on same-sex marriage ruled unconstitutional

[Larry]

Madison , Care to expound on how this situation is fundamentally different than Loving?...or is that inconvenient?

:secret:Uh, he's not the one claiming that they're different. You are.

(And as near as I can tell, you haven't even attempted to support it.)

[Larry]

My whole argument is that prop 8 is not unconstitutional, as it is not a matter of equality.

Actually that's not your whole argument. You keep claiming that "the judge created a law". And he didn't. But let's skip that.

Your argument that "a law which is specifically designed to deny equality to a disliked minority isn't an unequal law" was unanimously ruled to be untrue, decades ago.

[Larry]

You expecting those exact words?

Does freedom to marry work better for you?

oops?

The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.

added

http://joshblackman.com/blog/?p=4961

Walker also rejects the notion that the plaintiffs are seeking a “new right.”

To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

This argument only works because Walker broadly defines marriage without reference to gender:

sorry, I'm lazy and a bit lit.

Just pointing out:

Are you seriously attempting to claim that this Judge created a right to marry, by quoting two paragraphs in which he specifically says otherwise?

[twa]

:secret:Uh, he's not the one claiming that they're different. You are.

(And as near as I can tell, you haven't even attempted to support it.)

In post 330 he uses Loving to illustrate how the Equal Protection Clause was applicable.(which it certainly was)

Just trying to give him the opportunity to expound on how the situations differ from this instance.(and they certainly differ)

I might learn something,as might others

added

He made a excellent point back on post 284 that I accepted yrs ago,one that allows me to support comprise(despite my belief there is no compelling need,and my religious bias), however it should be done thru the legislature....not by a judge overreaching,as I feel Walker is.

[twa]

Just pointing out:

Are you seriously attempting to claim that this Judge created a right to marry, by quoting two paragraphs in which he specifically says otherwise?

Blindly accepting his methodology there are we?

By changing the definition and excusing that change by the evolution of marriage I suppose he is not creating it,but instead discovering it

A legal right to SSM came from where?

Walker believes and states it has always existed....Who knew?...certainly not the courts here.

[Larry]

Blindly accepting his methodology there are we?

By changing the definition and excusing that change by the evolution of marriage I suppose he is not creating it,but instead discovering it

A legal right to SSM came from where?

Walker believes and states it has always existed....Who knew?...certainly not the courts here.

Nope. Trying to rephrase what he said, again.

What he said was that there has been a historical right to marry. And he is correct. And the courts have agreed.

The judge specifically states that he is not creating a right to same-sex marriage. (You quoted him saying so.)

[The Evil Genius]

By striking down Prop 8 - the judge didn't create a right to SSM's.

That right already existed. The state, however, had denied it illegally (per the ruling).

As an aside - I do find it amusing that people are up in arms about the California judge being gay. Would a hetero judge have had to excuse himself too? I mean, wouldn't he be potentially biased also? Or is it only gay judges that are biased about marriage rights?

So who does that leave? Robot judges?

[twa]

If that right already existed at the federal level kindly show me evidence.

I fully agree it was granted by that state at one time.

Or are ya'll claiming his ruling only effects Cali?

added

I could care less about Walker's sexuality, his justification on his ruling is another matter.

[The Evil Genius]

Or are ya'll claiming his ruling only effects Cali?

Yes. That was my understanding. It only effects California and the legality of Prop 8 (which is a California specific prop).

Now, if other courts want to hear legality of other state laws regarding ssm - then I guess you can claim that this ruling could impact them. But this case was specific to Prop 8 and whether the State of Ca. has the right to prohibit ssm.

[Larry]

If that right already existed at the federal level kindly show me evidence.

Marriage is one of the "basic civil rights of man," . . .

Loving v. Virginia, final paragraph.

I've pointed it out to you, probably half a dozen times. You keep trying to pretend that it doesn't exist.

[twa]

Yes. That was my understanding. It only effects California and the legality of Prop 8 (which is a California specific prop).

The supreme court of Cali is the word on Cali law UNLESS it is trumped by federal law.

Someone please correct me if I am wrong:evilg:, but a finding as Walker made makes it applicable across all states....it being the right to SSM(or UNDENIABLY qualified for marriage period if you want to play Walkers game )

He did not issue a narrow ruling simply invalidating prop 8

[Larry]

The supreme court of Cali is the word on Cali law UNLESS it is trumped by federal law.

Someone please correct me if I am wrong:evilg:, but a finding as Walker made makes it applicable across all states....it being the right to SSM(or UNDENIABLY qualified for marriage period if you want to play Walkers game )

He did not issue a narrow ruling simply invalidating prop 8

Yes, he did.

That's the only thing he can do, is declare Prop 8 unconstitutional.

(Among other things, because that's all the plaintiffs are allowed to ask him to do.)

(Just like Loving only overturned the racial purity laws of Virginia.)

Now, if his reason for declaring Prop 8 Unconstitutional is "Because the 14th Amendment prohibits a state from forbidding minority groups from marrying", (and if that part of his ruling survives appeals), then his ruling may well have the effect of overturning other laws, as well.

[DjTj]

The supreme court of Cali is the word on Cali law UNLESS it is trumped by federal law.

Someone please correct me if I am wrong:evilg:, but a finding as Walker made makes it applicable across all states....it being the right to SSM(or UNDENIABLY qualified for marriage period if you want to play Walkers game )

He did not issue a narrow ruling simply invalidating prop 8

You are incorrect. Walker is a Federal District Judge, and his his ruling is only binding on Prop 8. His opinion is persuasive authority in other federal courts, but it is not binding on anyone other than the parties to the case.

If his ruling is affirmed by the Ninth Circuit, the Ninth Circuit opinion will become binding authority in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. If it is affirmed by the Supreme Court, only then does it apply to all of the states.

[twa]

You are incorrect.

Knew I could count on you:ols:....yes it is contingent upon it not being overturned

You really think it will stall at the Ninth unless drastically rewritten?

However IF not overturned :evilg:

Larry does loving entitle SS couples to marriage?...1=1 =2 if Walker is correct

we seem to be talking past each other there.

[TheGreatBuzz]

Would you accept a solution in which:

1) the government has no hand in the definition (other than providing the tax benefits to both groups),

2) churches and other religious institutions are free to deny religious marriage to homosexuals and,

3) secular institutions are free to legally "bond" homosexuals and call it marriage.

I certainly don't think churches should be forced to support gay marriage. This seems like a reasonable compromise.

I've said in the past that I agree this except for the tax breaks....I see no reason for them.

Since my post about this is now several pages back, I'll ask again - in what ridiculous scenario should a tax break be the difference between a couple getting married vs. not getting married? Saying that we should "encourage" marriage with a discount from the government only makes sense if it is in fact that very discount that causes two people to get married when they otherwise wouldn't have done so. And if that's the reason they tied the knot, then the whole thing seems like a Very Bad Idea. Divorce is already at 50%. We probably shouldn't be pushing it higher.

Or better yet, look at the military. They gave me an extra $300 a month for getting married. Is that right? (I don't think so but it isn't going to keep me from taking it.)

[Larry]

Larry does loving entitle SS couples to marriage?...1=1 =2 if Walker is correct

we seem to be talking past each other there.

Loving says that the ability to marry the person of your choice is a fundamental right. One which the 14th Amendment says cannot be capriciously denied.

It also says other things, like saying that Virginia's argument that since whenever a colored person marries a white person, the law punishes both of them, therefore the law doesn't violate the equal protection clause, was completely untrue.

It also says that Virginia's claim that society has a valid interest in preserving the sanctity of the races, and that God intended the races to be separate, were also invalid.

(Have you read it? It's only about two pages long. I think I've posted two links to it.)

[twa]

Loving says that the ability to marry the person of your choice is a fundamental right. One which the 14th Amendment says cannot be capriciously denied.

(Have you read it? It's only about two pages long. I think I've posted two links to it.)

Yes I have read it as well as the rulings it is based on.

So do same sex couples have that right or no?

[Larry]

So do same sex couples have that right or no?

My opinion? Absolutely.

Now, I don't think that the Civil War congress who passed the 14th really intended to mandate gay marriage. I think that they intended to ban racial discrimination.

But that isn't what they wrote. What they wrote was "All persons" and "all citizens".

Just like I doubt that they intended to mandate the legality of interracial marriages, either. Or to prohibit segregated schools.

Just like I doubt that it ever occurred to the Framers that there was something wrong with women not being allowed to vote.

There are lots of things which we now regard as wrong, but which, back when things were written, those things were "just the way things are". I would bet that a lot of the framers, when they wrote the Constitution, didn't even think of gays at all.

But even if I assume that "they didn't intend this" is a valid argument, (and I'll admit that I freely consider intent to be really important in some cases, and completely irrelevant in others), I have to say:

If the legal decision comes down to a contest between:

The words "All persons" and "all citizens" in the Constitution. And existing court rulings, such as those which ruled the invalidity of arguments such as "separate but equal", and "marriage isn't a right".

(Rulings which, I'll point out, are now so universally recognized as Right and Moral that even the people who opposed them, at the time, would not dare to publicly oppose them, now.)

vs.

The stated intent of the authors, and the arguments I've seen presented in Tailgate.

(And the inherent assumption everybody seems to be making that Constitutional Rights must always be interpreted in the most narrow manner possible, despite the fact that the Constitution specifically says otherwise.)

Then it's no contest. In fact, the contest is so lopsided that I have no trouble concluding that anybody who rules otherwise, did so for motives of either Party Politics or personal bigotry.

[twa]

That was a very nicely done post Larry.:applause:

Imo this will hinge on how the justices define both marriage and the reasons for it. I doubt Walker's reasoning stands up intact,but then it does not have to.

Should be interesting.

What are the limits?...or are there any other than age?

http://reason.com/archives/2010/08/09/overreaching-on-gay-marriage

Most people and judges agree that the Constitution doesn't allow the government to outlaw interracial marriage. Most would also say the Constitution does allow the government to outlaw polygamous marriage. Those who applaud this ruling should ask themselves: Would they feel the same way if the court had ruled in favor of polygamy?

The same arguments, after all, apply in both realms. The judge said authorizing same-sex marriage would further social goals like fostering stable relationships, protecting children, and allowing adults to follow their natural sexual desires. Ditto for permitting polygamy.

The ban prevents the polygamous from marrying their chosen partners just as the prohibition of same-sex marriage deprives gays of that freedom. Josh can't marry Zack; Michael can't marry Katie and Nicole. If the right to marry encompasses the former, why not the latter?

[Larry]

Most people and judges agree that the Constitution doesn't allow the government to outlaw interracial marriage. Most would also say the Constitution does allow the government to outlaw polygamous marriage. Those who applaud this ruling should ask themselves: Would they feel the same way if the court had ruled in favor of polygamy?

The same arguments, after all, apply in both realms. The judge said authorizing same-sex marriage would further social goals like fostering stable relationships, protecting children, and allowing adults to follow their natural sexual desires. Ditto for permitting polygamy.

The ban prevents the polygamous from marrying their chosen partners just as the prohibition of same-sex marriage deprives gays of that freedom. Josh can't marry Zack; Michael can't marry Katie and Nicole. If the right to marry encompasses the former, why not the latter?

I do agree that there are some parallels between gay marriage and polygamy. They're both consensual acts between adults.

And I'll admit that I'm uncomfortable with mandating that polygamy be legalized. I can see logical justifications for it, but I don't like it.

(I also think there's some major irony in the fact that the Proposition that we're discussing was the creation of a church which is probably most famous for their support of polygamy. )

I could at least see some justification for an argument that one of the fundamental things which defines marriage is it's promise of exclusivity. That whole "forsaking all others" thing. That if a guy is sleeping with two women (and the women are married to him), then he's cheating on both of them. (And, if they all three consent, then he isn't married to any of them.)

I have been known, when this subject comes up, to use the expression that "When four guys want to marry six women, they aren't proposing marriage, they're forming a corporation."

(Curiously, no one has ever complimented me for the logic or witticism of my phrase.)

I could also argue that if we think divorce, child custody battles, alimony, and property division are tough now, just wait till we have a "marriage" with 5 adults and 7 children in it, and one of the adults decides to leave. (But I also think that "it would make things complicated" isn't a good enough reason for denying people their rights.)

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On the other hand, I also have to agree that polygamy harms no one, and therefore society really doesn't have a valid reason for prohibiting it. (In fact, I could see an argument that a family with more than two adults in it might be better for a child.)

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In short, I think that there's valid arguments why polygamy should be legal.

I'm not out there marching in polygamist rights parades, because I also don't see any long-standing pattern of widespread societal discrimination against polygamists, either. I think that the people who don't want it legalized might have a basis for their position other than simple, blind, reflexive, prejudice.

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If it came up for a vote, I'd vote to legalize it. If somebody goes to court to try to obtain it, I'll cheer for him. But not much. And I won't think it's a tragedy if he loses.

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(I also recall, in another thread, somebody (Bang?) making the argument that maybe our opinion of polygamy would be different if the only time we heard about it wasn't some 50 year old nutjob in Texas who founded his own religion, declared himself God, built a compound, shacked up with 12 women, had 22 kids via those women, killed or ran off all of the male children, and is now having sex with 5 of his own daughters, three of whom are pregnamt.)

[The Evil Genius]

In a non-polygamous marriage, each person is considered to be married to the other person. The rights and property are transferred between the two people.

In a polygamous marriage, who is married to who? As in, what rights belong to the other people in the marriage? Are they shared equally? When one dies, does the material possessions belong to the two or more people equally?

I don't think we have that structure setup to decide that, yet. Thus, I can see how the polygamous marriage can and will be continue to be prohibited.

[twa]

I don't see polygamy as much more complicated than it is now with many couples having been married before,kids with other spouses and of course kids out of wedlock.

SS benefits ect might be interesting

Should we make all laws and regs gender neutral?

[Larry]

Should we make all laws and regs gender neutral?

If the GOP hadn't successfully prevented the passage of an Amendment who's sole statement was that the government cannot discriminate based on gender, they already would be.

[/cheap political shot]

[twa]

:pfft: on that note

http://pajamasmedia.com/blog/a-fine-argument-for-gay-marriage-but-a-flawed-legal-opinion/

Instead of relying on the plain meaning of the Constitution, he dismisses what, for as long as we have recorded evidence of marriage, has been a defining aspect of the institution — sexual difference:

"The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry....Walker"

Yes, but throughout that evolution, marriage has indeed remained a gendered institution. While legislatures gradually removed statutes which privileged one sex over another, they, on the whole, failed to remove the stipulation that partners be of different sexes.

In making his equal protection argument, Judge Walker is equally dismissive of sexual difference:

"The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender....Walker"

Antiquated and discredited notions of gender?

...

Instead of notions of difference between the sexes being antiquated or discredited, they have in fact been confirmed by science.

On this point though, the science notwithstanding, Judge Walker might have a case had enough states ratified the Equal Rights Amendment to include it in the Constitution. He bases casual dismissal of the sexual difference issue neither in the actual language of the Constitution nor in the latest findings of science.

In sum, while Judge Walker makes some fine arguments for gay marriage in his decision, his constitutional scholarship is mighty sloppy. Because the judge dismisses “the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review,” Carpenter believes “he invites a higher court to undermine it.”

I agree. Gay activists may be giddy today, but they may be headed for future disappointment as they were when the California Supreme Court mandated that the state recognize same-sex marriages, only to find that decision overturned by Proposition 8. One judge may have overturned that popular provision today, but other judges will review his findings and will surely adopt a standard of review more closely rooted in the actual text and original meaning of the federal Constitution than in long-since discredited notions about the social construction of sexual difference.

added

something worth reading if you are interested, no quote since I already went novel length

On appreciating sex difference in the gay marriage debate

http://www.gaypatriot.net/2010/08/09/on-appreciating-sexual-difference-in-the-gay-marriage-debate/

[Larry]

So your legal argument is "Since the ERA didn't pass, therefore all gender-based laws are Constitutional"?

1) Actually, I'd argue that since the 14th was passed, the ERA was superfluous.

2) And, unfortunately, Prop 8 doesn't discriminate against gender, either. Men can get married. Women can get married.

The law's stated purpose was to discriminate against gays. And I don't think "gay" is a gender. (Although I could see arguments for claiming that it is, too.)

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Actually, on a more serious note: I could see the argument that the fact that the ERA didn't pass actually might be a valid point for the court to consider.

Although I admit to having a problem with the court basing it's decision on things that aren't in the Constitution, and never were. And I certainly don't think that "something that isn't in the Constitution" trumps "something that is".