As expected (at least by me), US District Court Judge Vaughn Walker threw out Proposition 8, the latest voter initiative to keep marriage in California between a man and a woman. Thus, for the second time in recent years, California voters have passed such a resolution at the ballot box to maintain a status quo that has existed for some 5,000 years only to be thwarted by a judge in San Francisco.
For the record, I voted for Proposition 8, which in the eyes of some, makes me a hateful, homophobic bigot.
Who me? Personally, I don't give a whit if consenting adults want to sleep with each other, live with each other or love each other. I recognize that a certain per cent of humankind is homosexual. I don't believe these people should be harassed or forced to suffer humiliation or discrimination. I just don't think that we have to turn an institution that has existed for thousands of years all over the world on its head.
But so it is here in California. It's not going to affect the rest of my life, so why lose sleep over it? Yet, what really bothers me is that twice now, voter initiatives designed to preserve the status quo have been thrown out by a judge or judges. In addition, it is entirely relevant to point out that Judge Walker is himself a gay. So why bother having voter initiatives? Now I understand the argument about the tyranny of the majority-an argument that has validity. It would not be right for a majority to vote to take voting rights away from African-Americans, to name one example. I don't see the gay marriage issue as being related. If same sex couples have a constitutional right to marry under the 14th Amendment, then tell me why polygamists can be denied the same rights under the Constitution.
Of course, this will go to an appeal. Let me make a prediction. Just like the Arizona illegal alien law, this will wind up in the tender laps of the 9th Circuit Court of Appeals in San Francisco, the most liberal and most overturned federal court in the land. They will uphold Judge Walker's decision just as they will uphold Judge Bolton's decision in Arizona. Then both cases will proceed to the Supreme Court. How will they rule? That, of course, depends on who is sitting on the court when it makes the final decision. If President Obama gets to name his 5th liberal to the court to replace one of the conservatives or Anthony Kennedy, then both decisions will stand as they are. As the court currently stands, there are 4 solid conservatives, 4 solid liberals and Anthony Kennedy, who is Robert Mitchum one day and Robert Redford the next. That means that the final outcome of both issues will hinge on how Mr Kennedy feels when he rolls out of bed on those fateful days.
And that, ladies and gentlemen is how our legal system is working these days.
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29 comments:
California voters have passed such a resolution at the ballot box to maintain a status quo that has existed for some 5,000 years
Gary, do you REALLY think that marriage today is the same as it was 5000 years ago? Do we still have polygamy and dowries? Is a woman still considered her father's property until he "gives her away" at the wedding? Seriously, get some historical perspective here.
Even if it was, you're operating on the "argument from tradition" fallacy. "That's the way we always did it" doesn't justify anything, or else we'd still have slavery.
Then tell me why polygamists can be denied the same rights under the Constitution.
Marriage is granted to couples. Polygamists are not couples. It's kind of simple math, really. This is an illogical argument.
The bottom line is this: Can you explain how it's constitutional to deny one group of people the same right as others? (And don't use the polygamy thing - I already debunked that. It's about couples.) The prop-8 side had their chance to defend the measure's Constitutionality, and they failed - miserably. A friend of mine attended every day of the trial, and she reported on what went on. The pro-8 side did a spectacularly miserable job of making their case. Their one "expert" even wound up making a better case for the anti-8 side!
Unless you can explain how it doesn't violate one group's right to equal protection, your argument doesn't have a leg to stand on.
Lance,
I forgot to add a line to you to not start another never-ending debate which we have been there and done that.
As to polygamists, you have not debunked anything. To say that marriage applies only to couples is the same as saying that marriage applies only to a man and a woman-under the constitution.
So what constitutional aspect do you use to deny marriage to polygamists? Where in the Constitution does it say polygamists cannot be married?
I don't think this will go to the Supreme Court. The SC will leave this for states to decide. As for California, gay marriage will become legal beacuse some judge will say it's legal. End of debate. Never mind the millions of people who voted for Prop 8; this issue will be decided by a judge, and probably by a gay judge.
I recently re-read Friedrich's "Before the Deluge: A Portrait of Berlin in the 1920s," and one can't help but see the parallels to the present day. Traditions and beliefs are in a rapid state of decay. It's going to be hard to adapt to an "anything goes" society, especially for who see themselves as conservative.
Darnit...didn't realize (for the millionth time) that my wife was signed in.
Okay, one more time. Marriage is a right given to couples. Polygamists are not couples. Gay people don't want plural marriages. They want marriage.
Look, at best all your argument is doing is arguing for polygamy. It STILL doesn't explain how prop 8 doesn't violate the 14th amendment. Do you believe in the Constitution or don't you?
And same goes for Anonymous. It's not legal because some judge said so. The judge's job was to determine if the ban was Constitutional or not. What kind of argument did the pro-8 side put up to prove that it was? Not a very good one, from what I read.
"Okay, one more time. Marriage is a right given to couples."
According to who? Where in the Constitution does it say that?
Anonymous,
Before the Deluge- I happen to have it on my bookshelf. (448 pages including the indexing.)
Okay, now you're just being obtuse on purpose. If the citizens voted to make it illegal for all left-handed people to have ice cream, would that or would that not be a violation of the Constitution? I mean, the Constitution doesn't guarantee the right to eat ice cream, does it?
You're dodging the issue. How can you reconcile Prop 8 with the 14th Amendment? The Constitutionality of Prop 8 was on trial here, and unless you can make a case for it being Constitutional, then you have no argument.
I am not being obtuse. Explain to me how restricting marriage to couples is "constitutional" while restricting it to a man and a woman is not.
Never mind. You're determined to not get it. And still, at best, all you're doing is arguing for polygamy. (You know, "traditional" marriage.) You have done nothing to get to the real point - explaining how prop 8 doesn't violate the 14th Amendment.
Lance,
It's you who don't get it. I am not for polygamy, but I can make the same constitutional arguments for polygamy that you make for gay marriage. I also predict that will be the next challenge to come down the pike. And you know what? They will probably win based on the precedence of legalized gay marriage.
I missed the part where you explained how prop 8 doesn't violate the 14th Amendment.
To me it doesn't violate the 14th amendment. To me, to say it does is... what is the expression...making it out of whole cloth.
Has it really taken the US 300 years to decide that a ban on same sex marriage is unconstitutional?
Or are we just conforming the constitution to reflect modern attitudes?
Now I would like you to explain to me why polygamists don't have the same argument that gays have. We have a law that bans bigamy or polygamy. If I wanted to argue that such law is unconstituional based on the gay precedent, how would you refute it?
I have deleted the last comment from a certain anonymous or Nolan or whatever he calls himself since he produced yet another snide diatribe. Take a hint and find another blog more suited to your.....temperment.
To me it doesn't violate the 14th amendment.
To you? What kind of subjective reality is that? How about addressing the law itself and what the Constitution says? Are you saying that equal protection shouldn't apply to gay people?
Has it really taken the US 300 years to decide that a ban on same sex marriage is unconstitutional?
It took thousands to decide that slavery was wrong. What's your point?
Now I would like you to explain to me why polygamists don't have the same argument that gays have. We have a law that bans bigamy or polygamy. If I wanted to argue that such law is unconstituional based on the gay precedent, how would you refute it?
I've already explained it to you, but you just don't want to acknowledge the obvious. A marriage is between two people. Polygamy is more than one. Gay people are saying that they want the equivalent of what straight people have. Polygamy is not an equivalent, as by its very definition it involves more people.
With a gay marriage, all the rights that come with marriage will be exactly the same. With plural marriage, you have to figure out a whole new system of laws and procedures. How will assets be divided amongst three as opposed to two? (Do the 2nd, 3rd, 4th, wives have fewer rights than the 1st?) What rights do the non-biological parents have? It brings up so many new problems and issues. It's kind of obvious how it's different.
You know, I got to talk to a lesbian couple who managed to get married during that brief window when it was legal. Just like me, they're expecting a son. I'd like to see you stand there and tell them to their faces that their son isn't due the same rights that one of legally married parents is. You admitted that gay people getting married won't hurt you, but you'd be willing to hurt this kid to satisfy your adherence to tradition.
To me it doesn't violate the 14th amendment.
To you? What kind of subjective reality is that? How about addressing the law itself and what the Constitution says? Are you saying that equal protection shouldn't apply to gay people?
Has it really taken the US 300 years to decide that a ban on same sex marriage is unconstitutional?
It took thousands to decide that slavery was wrong. What's your point?
Now I would like you to explain to me why polygamists don't have the same argument that gays have.
I've already explained it to you, but you just don't want to acknowledge the obvious. Gays want the equivalent of what straight people have - a legally recognized union for two people.
With a gay marriage, all the rights that come with marriage will be exactly the same. With plural marriage, you have to figure out a whole new system of laws and procedures. How will assets be divided amongst three as opposed to two? (Do the 2nd, 3rd, 4th, wives have fewer rights than the 1st?) What rights do the non-biological parents have? It brings up so many new problems and issues. It's kind of obvious how it's different.
You know, I got to talk to a lesbian couple who managed to get married during that brief window when it was legal. Just like me, they're expecting a son. I'd like to see you stand there and tell them to their faces that their son isn't due the same rights that one of legally married parents is. You admitted that gay people getting married won't hurt you, but you'd be willing to hurt this kid to satisfy your adherence to tradition.
Lance,
You know a lot of African-Americans resent being used as an argument for gay marriage. It is and never will be the equivalent of slavery.
Miscenanation laws were a clear violation of equal rights based on race.
My 300 years point was to ask why the issue never came up as a const argument in 300 years.
Your arguments about all the headaches and problems that will come up in polygamy make sense-but they are not legal points to argue against something. When local judges mandated school bussing, they didn't care about the logistical problems either. So you still need to give me a legal and constitutional argument against polygamy if you accept gay marriage as a right.
As far as treating children of gay couples equally, of course they should be treated equally. They are human beings.
My 300 years point was to ask why the issue never came up as a const argument in 300 years.
And my point is that's irrelevant. Sometimes it takes us a long time to figure out what's right and what's wrong. Do I see this as bad as slavery? No. But clearly that was wrong, and it took a long time for humanity to realize it.
Your arguments about all the headaches and problems that will come up in polygamy make sense-but they are not legal points to argue against something.
I'm not a legal expert, so you're asking the wrong person. Still, I think that on its surface, one can plainly see that polygamy isn't an equivalent to something the way that gay marriage is an equivalent to traditional marriage.
But still, you haven't exactly provided anything that addresses the legal points at stake here. You just said, "To me, it doesn't violate the 14th Amendment." I'd like to see an attorney argue that way in a court of law. "Your honor, to me, this is..."
As far as treating children of gay couples equally, of course they should be treated equally. They are human beings.
But they're not being treated equally when their parents are not afforded the same rights as legally married parents are. You can't have it both ways.
Lance,
So I can't legally make a case as to why the 14th amendment should not apply to same sex marriages and you can't explain why polygamy is different.
So I can't legally make a case as to why the 14th amendment should not apply to same sex marriages and you can't explain why polygamy is different.
Well, I think that I came closer than you did, but that's beside the point.
It all boils down to what this case was about. It was about whether prop 8 was Constitutional or not. I still haven't heard an explanation, either legalistic or not, that explains how it is.
I mean, can you at least agree to the following:
1. The trial was about whether prop 8 was constitutional or not.
2. There is a possibility that the attorney who argued in favor of prop 8 didn't make a very compelling case.
3. There is a possibility that the judge ruled based on what the Constitution says and not necessarily to further some personal agenda.
Can you at least concede to that much? Did you even read about the trial when it was going on? A lot of the anti-8 people weren't feeling so confident at the start. The judge really grilled both sides pretty severely. The anti-8 side simply made a better show of it. As I mentioned, the pro-8 side had one "expert" witness, who wound up being a better witness for the anti-8 side.
I tell you what. If you can concede to my three points, I'll concede to the following:
1. There is a possibility that prop-8 does not violate the 14th Amendment.
2. Perhaps a different legal team could have made a better defense of it than what we had at this trial.
I don't see any reason to believe either of those two things, but I'm always willing to admit that I could be wrong. How about you?
Well, that's what you get when Republican presidents appoint these activist pro-business anti-labor conservative judges, and then they just go and trample on the laws and the constitution to advance their agenda.
I'm pretty close to Gary on this one. I don't care if a state legislature votes to license same-sex couples as married. I voted against my state's "Defense of Marriage" amendment. I might have voted for Prop 8, purely because the state supreme court had overstepped its proper boundaries, and there is no other mechanism to set them straight. If I had drafted Prop 8, it would have been narrowly drawn, leaving open that yes, the legislature may pass such a measure if the people desire it, but no, it is not a matter of "equal protection of the laws."
Equal protection is not about whether couples, or demographic groups, are equal. It is about whether individual PERSONS are deprived of equal protection of the laws. Every person reference in that constitution, except for the abomination of corporate personhood created by another activist judge, is either a man or a woman.
There is no objective standard to identify which of those men and women "are gay," for the purpose of discriminating against them, if that were even desired. Marriage laws were not, originally, written for the purpose of excluding some demographic called "gay." Nobody even contemplated that two men would want to get married when the law was written, even men who were attracted to each other.
Every man, and every woman, has an equal right to enter into marriage, or a gay union, or an unlicensed heterosexual union, and its all equal.
If anything is unequal, it is that gay men can't have a lesbian relationship, like any woman, gay or straight, can have if she wants to. That's unfair, but there is nothing the courts can do about it.
This should have been left to the states, but now it won't. At the time Lawrence v. Texas was decided, at least seven Supreme Court justices were on record that "equal protection of the laws" is not a basis to adjudicate "equal rights" for heterosexuals and homosexuals. It is unclear how it will go now, but I anticipate Walker's decision will be overturned. That will create a tangled mess for all concerned. Too bad it ever went to the courts.
Lance,
Judge Vaughn Walker-one man- has decided that Prop 8 was unconstitutional reversing the vote of millions of Californians. Just because Walker says so doesn';t mean I have to agree with him.
I caught a 5 second clip of the hearing in which a sound bite showed the pro-prop 8 lawyer saying that "something was on the internet" and the judge mocking him. What am I supposed to deduce from that.
As to your three points, sure anything's possible. At this point I don't care if some guy wants to marry Shamu the Whale.
I caught a 5 second clip of the hearing in which a sound bite showed the pro-prop 8 lawyer saying that "something was on the internet" and the judge mocking him. What am I supposed to deduce from that.
That you shouldn't draw conclusions from just a five second clip? From all I know, maybe what he said was worth mocking.
As for Siarlys:
Every man, and every woman, has an equal right to enter into marriage, or a gay union, or an unlicensed heterosexual union, and its all equal.
This is not true. People in gay unions might have more rights than they used to, but they don't have the same rights as a lawfully wedded couple.
I think that they should do away with marriage and divorce altogether. There shouldn't be any special tax laws for married people, special rights for children born in or out of marriage etc.. Everyone should be allowed to marry who or as many as they wish, each partner is responsible for his own insurance, for the children resulting from that union both have to be equally responsible and there should be no custody fights, people can draw up some agreement in case of visitng rights and inheritance, get blessing from their church or not, just treat everybody equal and have the government and lawyers stay out of it. They are in the end the ones who make money on marriage or divorce.
Every federal question, almost, starts with one federal district judge making a ruling. Without a federal district court ruling, there is nothing for a Court of Appeals to review. Its not particularly authoritative outside the one individual justice's jurisdiction until it is ruled on AT LEAST by a court of appeals. Then, and only then, does the Supreme Court got a crack at defining for all the courts what the law really means.
Lance, I missed how badly you missed my point. "People in gay unions" have no rights at all. Neither do "people in marriages." People have rights, including the right to enter into a gay union, the right to enter into an unmarried heterosexual union, and the right to enter into marriage. I have all of those rights. There is only one I really desire to exercise. You have all those rights. We are equal in all having equal access to any of those choices. The plaintiffs in the case against Proposition 8 have all of those rights. They apparently have only chosen to exercise one of them.
No offense, Siarlys, but I think that you're engaging in a bit of obfuscation here. The fact is that a gay union does not have the same legal standing that a straight union has. As the judge ruled, that's clearly sending the message that one type of union is morally superior to another.
If we want to play word games, then I can say that a gay person doesn't have the right to marry somebody that he or she is attracted to like I do. I mean, are you really trying to use the "They have the right to marry somebody of the opposite sex, so it's equal!" argument? That's like saying that you have the freedom to be any religion you want, but you'll only be allowed to build a house of worship if you choose to be Greek Orthodox.
Siarlys, I'm with Lance. I can't figure out what you mean. There is a legally-defined term known as "marriage" in this country. It comes with rights, privileges, and social standing. It is recognized by the state. It is NOT an option open to gays.
This is a fairly basic point. Are you being intentionally obtuse?
There are no constitutional rights "for gays" or "for straights" or "for whites" or "for blacks" or "for Protestants" or "for Catholics" or "for Muslims." There are countries where the legal and cultural tradition is to provide specific rights for people based on classification into one or more of such categories - and anyone who is "none of the above" is out of luck. In the USA, constitutional rights adhere to "persons," not to "couples" or to "relationships."
It is a very recent phenomenon in human history to recognize certain people AS "homosexuals," i.e., that this is central to their definition of self, rather than being a proclivity some people have.
There is a legally defined institution called "marriage" in this country. It is open to ANY man or woman who seeks, desires and chooses to enter into it. Necessarily, this requires a willing partner, since neither sex is subject to being married against their individual will, and single marriage is an oxymoron.
The fact that some men, and some women, don't want to enter into this specific legally defined relationship does not mean they have been deprived of equal protection of the laws.
The fact that some men and some women, who enter into same-sex couples, would like this distinct and different relationship to ALSO be recognized by law, even perhaps CALLED a "marriage" is a matter that we the people and our elected representatives can certainly consider. If such a law is adopted, then equal protection of the laws mandates that ANY man or woman be able to enter into a "gay marriage," but of course men and women who are heterosexual will most likely not exercise that option.
Marriage is a fundamental right. Changing the definition of marriage to include something else that some people desire more than what marriage is currently defined to be is no constitutional right at all.
You are reducing constitutional right to "I want this, why can't I have it?"
We're going in circles here. The only reason why marriage is defined that way is due to a historic misunderstanding and demonization of homosexuality. If people understood things better and were more tolerant hundreds of years ago, then this wouldn't even be a question.
You're right, it will require a (slight) redefinition of marriage. However, it's redefining it into what it always should have been. The current definition is a byproduct of bigotry.
Your entire argument rests on the "argument from tradition" fallacy.
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