California backs gay marriage ban

[isobel black]

"California's Supreme Court has upheld a ban on same-sex marriage - the latest twist in a long-running saga.

The judges rejected a challenge from gay-rights activists to overturn the result of a 2008 referendum which restricted marriage to heterosexuals.

Prior to the vote, same-sex marriages were legal for six months, during which 18,000 couples were married.

The judges said their ruling was not retroactive - meaning those couples will remain legally married.(...)"

source: http://news.bbc.co.uk/2/hi/americas/8068019.stm

[isobel black]

Wow, I really hadn't expected this.

While I personally couldn't care less about an archaic, hegemonic, heteronormative, misogynistic and not to mention terribly bourgeois institution like marriage, I definitely feel anyone who wants to get married should bloody well have the right to.

What's more, the way this all came to be is totally regressive and beyond ridiculous.

[Heretic]

Originally Posted by isobel black

Wow, I really hadn't expected this.

I did, but only because it was the logical conclusion to be reached based on the pertinent laws.

The California state constitution is written in a way that allows voter majority to create the kinds of idiosyncrasies that resulted in Proposition 8. The only thing a judge for their state court system can do is rule as to whether or not a law or statute adheres to the state constitution. Prop 8 was an amendment to California's state constitution, which means that the moment it went into effect, it became it's own exception to rules governing discrimination in that state.

Of course, the important words in that statement are in that state. The U.S. constitution includes a Bill of Rights, as well as several amendments that have upheld the full rights of citizenship and insured that they apply to everyone, no matter their circumstances. Discrimination against any one identifiable group made up of American citizens is unconstitutional on many, many levels.

Which brings us back to the California court ruling. An appeal to the U.S. Supreme Court will almost certainly result in Proposition 8 being struck down as unconstitutional (Federal law trumps state law). This means that we are looking at the end of this little trickle of state legislatures here and there legalizing gay marriage. By striking down Proposition 8, the Supreme Court will make gay marriage legal in EVERY state. The Social Conservatives and the Mormons in California who fought to get Proposition 8 passed will be remembered as the people who finally made legal acceptance of gay marriage across the U.S. possible.

And good luck trying to amend the U.S. constitution. We're not talking about a simply public majority vote here; amendments to the U.S. Constitution do not work the same way. Not only would it take a two-thirds majority vote in both houses of Congress t pull this off, it would have to be ratified by three-fourths of the states. Current polls only show a 50-50 split on this issue, not even close to what social conservatives would need to make their dogma the law of the land.

So relax. Let them enjoy today's little victory; it was only a skirmish. They're essentially cheering the lighting of a match that will last just long enough to allow them to see that their ship is sinking.


- Heretic

[Drake Dun]

What makes you think a federal court will strike it down?

[Joker_in_the_Pack]

Originally Posted by Drake Dun

What makes you think a federal court will strike it down?

Because you can only ignore logic for so long.

[Drake Dun]

I'm not aware of any really strong arguments that recognition of gay marriage is required by the federal Constitution. Equal protection is the only thing I can think of that seems on point, but that's kind of thin.

[viscus]

If it goes to federal court, then the opposite could also happen: Proposition 8 gets upheld, setting a precedent that would deal a serious blow to the gay rights movement. So it might be better if the fight stays in California.

That said, now that the California Supreme Court has upheld Proposition 8, the conservatives don't have an "activist judiciary" to rally against, and I'm hoping that another proposition to re-legalize gay marriage will pass next year.

But California really needs a constitutional overhaul, things are breaking at the seems right now. The ease with which voter initiatives can amend it is a real problem, as is this damned 2/3 legislative majority requirement for fiscal bills which keeps the state in a perpetual budget crisis.

[Heretic]

Originally Posted by Drake Dun

What makes you think a federal court will strike it down?

I believe the Federal Courts will strike down Proposition 8 because the United States has already set legal precedent for ruling against laws that place restrictions on marriage between two consenting adults.

The history of anti-miscegenation laws and how they were struck down by the U.S. Supreme Court is very instructive. Loving v. Virginia was a landmark civil rights case in which the United States Supreme Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional. In ruling against the state of Virginia, the Supreme Court stated in its majority opinion:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

The portion of the 14th. Amendment applicable to this case was the Due Process Clause, which states that:

"...the government must respect all of the legal rights that are owed to a person according to the law of the land. As developed through a large body of case law in the United States, this principle gives individuals a varying ability to enforce their rights against alleged violations by governments and their agents (that is, those acting on behalf of a state government)..."

Take a closer look at the whole gay marriage issue. Those who oppose it are simply recycling the same tired arguments used in the past by racists to oppose marriage between people of European decent and African Americans. "It's unnatural"; "it goes against God's law"; "it will destroy the fabric of our society". Do any of those sound familiar?

Their arguments did not work then, and there's nothing new under the sun. They have an extremely small probability of victory at the Supreme Court level.


- Heretic



ps

My apologies to those who are offended by the use of Wikipedia for reference and examples. I do this simply out of convenience. If you feel that the information is suspect, simply review the reference notes at the bottom of the entry pages. This will provide you with the citations you need to judge the veracity of the information for yourself, independent of the entry author's prejudices or bias.

[Beneath the Shadows]

I've heard it all before voting day. There's not really much more than can be said on the issue.

[Tam Li Hua]

I thought it had already been made official, so I'm not really all that surprised.

I'm just glad the folks who -did- get married will be able to keep their licenses.

[Drake Dun]

I'll do some digging via FindLaw if I get the time, but working just from Wikipedia, it looks like Baker v. Nelson 409 U.S. 810 (1972) is controlling on this question. So the Supreme Court has already decided not to uphold a constitutional challenge where gay marriage is concerned.

[HumanePain]

Originally Posted by Heretic

Which brings us back to the California court ruling. An appeal to the U.S. Supreme Court will almost certainly result in Proposition 8 being struck down as unconstitutional (Federal law trumps state law). This means that we are looking at the end of this little trickle of state legislatures here and there legalizing gay marriage. By striking down Proposition 8, the Supreme Court will make gay marriage legal in EVERY state. The Social Conservatives and the Mormons in California who fought to get Proposition 8 passed will be remembered as the people who finally made legal acceptance of gay marriage across the U.S. possible.

So relax. Let them enjoy today's little victory; it was only a skirmish. They're essentially cheering the lighting of a match that will last just long enough to allow them to see that their ship is sinking.


- Heretic

Irony is a cruel bitch.


My respect for you has skyrocketed Heretic.

[Anima_Severem]

I honestly don't see why we're getting the government involved in the first place. It's people like this who make me ashamed to be slightly conservative.

[viscus]

What do you mean by "getting the government involved in the first place?" The government has always been involved in marriage. It issues marriage certificates and levies tax based in part on marital status.

[Beneath the Shadows]

The government shouldn't have anything to do with marriage, period.

[Heretic]

Originally Posted by Anima_Severem

I honestly don't see why we're getting the government involved in the first place.

A Supreme court justice named Louis Brandeis, writing about how the court should view legislation created by the states, once cautioned:

"[But] in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold."

Essentially, he was arguing for the triumph of reason over personal bias. He did this knowing full well that what we are seeing now with the gay marriage issue was an aspect of human nature that would rear its ugly head time and again. While this example related to how he felt the courts should view such legislation, I think it sheds some light on why the issue of how marriage should be viewed is playing out within our political system.

By erecting prejudice and bias into a legal principle, the champions of the narrow Christian view of marriage can force that vision on everyone, in every state. Rather that trying to serve as an example to others who might be receptive to their message, they are attempting to create what amounts to nothing short of a theocracy by imposing their religious views on the citizens of an entire country, Taliban-style. They have enlisted the aid of like-minded individuals and institutions within and connected to our government simply because they lack faith in the values they profess to believe in.

It's people like this who make me ashamed to be slightly conservative.

It's people like this who really disappoint me. I believe that legitimate opposition to any prevailing philosophy can only make our leadership more effective in addressing the issue we all face. To see the time and energy of Conservative-minded people wasted like this really bothers me. It makes me wonder if they will be paying any attention at all if and when our current leadership starts down a path that does our country more harm than good. Gay marriage never struck me as critical to our national security or economic growth.


- Heretic

[Pineapple_Juice]

Heretic officially owns this thread.

[Drake Dun]

Originally Posted by Heretic

By erecting prejudice and bias into a legal principle, the champions of the narrow Christian view of marriage can force that vision on everyone, in every state. Rather that trying to serve as an example to others who might be receptive to their message, they are attempting to create what amounts to nothing short of a theocracy by imposing their religious views on the citizens of an entire country, Taliban-style.

Thank you, yes. Political arguments should be dismissed out of hand if they rely upon beliefs which are not part of our shared experience. I.e., if you can't demonstrate its truth, feel free to go believe it on your own time, but it better not be informing your political decision making. Otherwise you're just forcing beliefs that you happen to have chosen down the throats of others who reasonably dissent from them.

This seems really, really obvious to me, but for some reason it isn't in our culture. Although Obama said something *close* in that speech on religion he gave.

It makes me wonder if they will be paying any attention at all if and when our current leadership starts down a path that does our country more harm than good.

Like launching an idiotic foreign war on false pretexts.

[viscus]

Hold on a second, guys. If were going to have an institution of marriage at all, don't we need an authority to confer legitimacy on that institution? Ergo, the government?

It would seem to me that calls to "keep the government out of marriage" are DOA.

[Heretic]

Originally Posted by Drake Dun

This seems really, really obvious to me, but for some reason it isn't in our culture.

Of course it is. The idea of individual freedoms and inalienable rights was a pillar within the founding principles of our form of government.

However, mankind has yet to devise a set of principles stronger than the raw emotion of fear. No, the opponents of gay marriage are not afraid a pack of gay people is going to carry them or their children off; they are simply afraid that their view of the world isn't the prevailing one, that the ideals and principles they were raised to believe in are somehow wrong. Personally, to paraphrase Morpheus from The Matrix Reloaded, the belief I have of my own faith does not require that others share that belief. Unfortunately, for many people, their faith requires constant reinforcement. Fighting to suppress dissenting views is simply one more way to insure that kind of reinforcement and stave off the fear that can come when a person faces a worldview that differs from the one they have come to believe in.

Originally Posted by viscus

Hold on a second, guys. If were going to have an institution of marriage at all, don't we need an authority to confer legitimacy on that institution? Ergo, the government?

It would seem to me that calls to "keep the government out of marriage" are DOA.

The call for keeping government out of marriage, and having the government serve as the agent of legitimacy for the institution of marriage, are not mutually exclusive. I feel the very fact that marriage is an institution within our society requires government recognition of it in some form.

However, establishing uniform rules for how such an institution works within a society is quite different from arbitrarily discriminating against specific groups or individuals based on unconstitutional biases. Essentially, while we need government to lend legitimacy to this institution, the government should not be in the business of dictating the specifics of that institution.

Of course, this opens up larger issues relating to where we as a society can draw the line. For example, requiring that the decision to marry be made by consenting adults qualifies as being in the public interest and therefore under the authority of the government. Those willing to engage in any variety of objectionable behavior, marrying children for example, should not be able to claim protection for their views under the umbrella of personal freedom.

Then there is the question of those consenting adults. What if more than two people want to enter into a marriage? Is there a constitutional reason to ban marriage that involves, say, a woman and several men? Should it be against the law for a man to have multiple wives, as is the case in many other cultures?

The primary issue here is the idea of having a separation of church and state. Morality is necessary in order to secure a just and equitable legal structure. however, once the government moves away from protecting the agreed-upon moral code of a society and into championing a specific moral code that everyone must abide by, I feel that it has overstepped its authority.


- Heretic

[Drake Dun]

Hold on a second, guys. If were going to have an institution of marriage at all, don't we need an authority to confer legitimacy on that institution? Ergo, the government?

It would seem to me that calls to "keep the government out of marriage" are DOA.

I guess there's some wiggle room with the term "institution" here, but leaving that aside - do you need the government to officially recognize your friendships for those friendships to be meaningful to you? Then why do you need the government to recognize your love for your love to be meaningful to you? And beyond that, why would you need an institution?

This entire controversy is an excellent case in point on the fact that humanity has still never properly confronted its past and formally divorced itself from the authoritarian, violence-centric paradigm that our history has saddled us with. If the authorities (i.e. the persons positioned to force the issue by club or gun) don't recognize it, then it doesn't count. You can see the attitude on both sides. The obvious solution, as so often, is excluded from the outset.

IMO the most forward looking stance has already been articulated by two or three different people above. Get the government out of the marriage business entirely. That way the peevish religious types can go on pretending that their squeamish feelings about homosexuality are a moral failure on the part of others, and homosexual couples can cheerfully ignore them.

The solution isn't for the government to tell us that homosexual relationships are just as sacred as heterosexual ones. It's for the government to stop the pretense that it has any business ever telling us what is sacred and what isn't.

[Drake Dun]

Originally Posted by Heretic

Of course it is. The idea of individual freedoms and inalienable rights was a pillar within the founding principles of our form of government.

Granted, but I think the dudes who chose those principles were ahead of the curve in their own time. In fact I'm sorry to say it, but on several issues they'd be ahead of the curve even now. The fact is that you don't have to go outside the mainstream to hear stuff that would make the founding fathers spin in their graves. How about this?:

"I believe it's a lot easier to change the Constitution than it would be to change the word of the living god. And that's what we need to do -- to amend the Constitution so it's in God's standards rather than try to change God's standards so it lines up with some contemporary view."

Jerry Falwell, right? Fred Phelps? No... Mike Huckabee, a forerunner for the Republican nomination for President of the United States. A quote like that should occasion a nationwide groan of disgust, but the fact is that in a very large chunk of the population, it garners enthusiastic cheers.

[Joker_in_the_Pack]

Marriage is nothing more than a business contract that handles your affairs when you kick the bucket.

[Heretic]

Originally Posted by Drake Dun

I guess there's some wiggle room with the term "institution" here, but leaving that aside - do you need the government to officially recognize your friendships for those friendships to be meaningful to you? Then why do you need the government to recognize your love for your love to be meaningful to you?

There are certain rights under the law granted by the institution of marriage, rights that predate our form of government. The best examples relate to rights and property.

The government has no need to recognize friendships because your friends have no legal rights directly related to you unless you specifically designate certain rights to them. They do not have power of attorney, which would give them control over your medical decisions in the event you were unable to make those decisions for yourself; they have no legal claim over your property when you die. Their relationship to you is seen by law to be more distant that the marriage relationship, one marked by a ceremony or demonstration of life-long commitment.

Our system of government does not recognize "love"; it only recognizes those rights one individual bestows upon another through socially-accepted commitment, whether that takes the form of a civil or religious ceremony, or simply long-term co-habitation and demonstrated commitment (common law marriage).

And beyond that, why would you need an institution?

The simple answer is order. The institution of marriage simplifies social views of a particular kind of relationship, allowing for certain aspects of it to be quantified. Things like property or estate law are a mess even without something like marriage to help bring some order to its place within the structure of our laws.

It is helpful to look at marriage in the proper context: it is just another thread in the fabric that constitutes our society, rather than any sort of special institution. Yes, it has religious overtones to many, but this kind of commitment predates organized religion. It was a part of the many social agreements that created human society long before anyone ever got around to declaring it the will of any one deity.

This entire controversy is an excellent case in point on the fact that humanity has still never properly confronted its past and formally divorced itself from the authoritarian, violence-centric paradigm that our history has saddled us with. If the authorities (i.e. the persons positioned to force the issue by club or gun) don't recognize it, then it doesn't count. You can see the attitude on both sides. The obvious solution, as so often, is excluded from the outset.

I disagree. I believe that this controversy illustrates just the opposite. Events like this are simply the slow, painful steps out of the history that informs our current society and into a future in which superstition and fear do not control intellect and reason. I'm not as concerned with the place we're in now as I am with the direction we are going. Looking back over the past several hundred years, society may have stumbled more than a few times, but overall our history still demonstrates some progress.

IMO the most forward looking stance has already been articulated by two or three different people above. Get the government out of the marriage business entirely. That way the peevish religious types can go on pretending that their squeamish feelings about homosexuality are a moral failure on the part of others, and homosexual couples can cheerfully ignore them.

I would prefer that the government no longer ceded the definition of marriage to any one religion. The commitment we now call marriage is not restricted to any one religion, just as our government is (theoretically) free of those same restrictions. I see no reason why people should continue to behave (and pass laws) as though religion and marriage are the same thing, or that one created the other.

{QUOTE]The solution isn't for the government to tell us that homosexual relationships are just as sacred as heterosexual ones. It's for the government to stop the pretense that it has any business ever telling us what is sacred and what isn't.[/quote]
Agreed. Just as I don't want politics in my religion, I don't want religion in my politics. If a person does not want the government telling them how and where to practice their faith, they should not attempt to suppress the beliefs of others and to presume to tell the government how to govern.

- Heretic

[Drake Dun]

The rights are definitely a factor in the picture, but they're not the only factor and they're a factor which could be easily isolated. If you talk to a lot of the opponents of gay marriage, they'll tell you point blank that they would cheerfully extend all the same rights that married couples get to gay couples in civil unions, just so long as the state doesn't consider it a marriage. In fact, that's the state of things in New Hampshire. Clearly the terminology difference is considered important, and it's not hard to guess why - people want their own particular opinions about human relationships to carry the imprimatur of power.

Having some mechanism for bundling rights is fine, but the institution of marriage is tangled up with too many other issues religious, personal, etc. What I suggest is civil unions for couples of all kinds, and that "marriage" be left to people to define for themselves.

I agree with what you said about progress, actually, and I don't think it's incompatible with what I said. I just focused on the negative side of the coin because I was in a mood.