Prop. 8: Gay-marriage ban unconstitutional, court rules

[Befink]

All bigotry, whining, and fornication arguments aside, I have yet to see a good practical argument why two adults of the same gender who have strong romantic love for each other shouldn’t be allowed to marry. *In other words, what do you say to that loving gay “married” couple to convince them that they are better off ending that relationship and going to church? *Why should they have to end that relationship when I don’t have to with my wife?

Our church even recognizes that homosexuality is not a choice and therefore and gay person should not seek straight marriage because they are called to celibacy instead. *Our church also forbids all forms of hate, discrimination, bigotry including homophobia. *The only concern the church has is a religious one about the non-procreative nature of their relationship. *What they lack is a good reason why society should change its laws to agree with them.

What I see here is concern about some liberal agenda to tear down society which is not founded anywhere except in fear-based conservative outlets (how come the liberals haven’t shared this agenda with me?). *No wonder the courts are unconvinced, as are experts in the academic community, and an increasing number of voters.

Not that we need to change our teaching on this issue but it’s silly to fight this battle. *We should spend more time where we can win and have positive impact on society like immigration, death-penalty, reforming social benefits so the poor get the help they need without benefits being “hand-outs”, gun control, and abortion (strategy change is needed).

p.s. Cat, you express a valid concern about practices in the workplace. *One CAN be fired for discriminatory statements but that’s not typically the case. *The smart thing to do as always is to know your audience, especially if you’re on the opposite side of views in your workplace (the real problem is when people disagree with you). *In a way, that’s what we’re here for on CAF, so you have a healthy outlet to express your frustrations about this issue. *The other important thing to do is to always make sure you’re doing your best work. *In doing so, you are generally well liked, especially by those with the power over your employment. *Believe me, bosses are much quicker to fire people they already don’t like than those whom they do (which ironically is discrimination).

 

[Dawnia]

Actually–all people have legal recourse. They appeal to the judiciary. You may not like the fact that they did so, but they are definitely allowed to do so.

There were virtually no legal gymnastics in this decision. It was actually a great surprise that this decision was as narrow as it was. The decision was incredibly logical, coherent, and straight-forward.

What they did decide, is that the proponents of proposition 8 had virtually no credible evidence supporting their side–besides of course “i don’t like gay people, and i say they should not get married, that’s why”.

The simple fact that you disagree with their decision does not mean it was a “bad” decision.

The people do not get to decide on civil rights–the courts have long been the defender of suspect classes.

The courts are not and should not be the only remedy for them to fix legislative and judicial “mistakes”. A court should not be able to step in and say that the once the legislature or judiciary has acted (in this case giving the civil right of marriage to gays), they have no option to reverse the decision if they so choose.

Civil rights have always been up for a vote (although not necessarily a popular vote). See US amendments 1 - 10.

I rarely take issue with a court’s opinion, regardless if I like the outcome or not. I may not like a decision, but I can respect it, if it makes sense. Some points in this argument made logical sense, but in other parts there were legal gymnastics involved. They made quite a few assumptions that weren’t based on fact. Such as assuming that the only reason anyone voted for the law was because of animus. There is nothing to back up that opinion. Voters are not required to give a qualifying reason for their vote. Just because statements by the backers showed animus, it does not mean that anyone but them voted based on those reasons. A law should stand or fall on it’s merits, not on the assumed reason the law was put in place by the voters.

 

[Dawnia]

Seems like the reasoning would be similar. Seven year olds once had the right to marry, and then it was taken away by age of consent laws, and now they no longer have that right. So they have been denied a right which they once had. Age discrimination against the young. I’m sure that NAMBLA would like to run with that argument. Maybe it will get the chance in the near future.

It’s been awhile since I read “Alice in Wonderland” but this sounds similar to her experiences.

Hope there aren’t any NAMBLA people on here. I would hate to give them any ideas.

 

[Brendan]

Actually, they took the eminently reasonable route of appealing to the judiciary, claiming discrimination. They won the legal right to marry–and then it was stripped from them and only them. This is patently illegal and clearly shows animus.

Matt

Marriage, in civil law, is a civil contract.

Homosexuals have the same civil right to marry that everyone else has: The right to marry a sinlge, adult, unmarried, consenting, non consanguous, human person of the opposite sex.

There is no law anywhere in the US that will prevent two homosexuals from getting married under the same conditions as anyone else.

So no ‘right’ was stripped from homosexuals alone. Nothing illegal was done.

 

[rlg94086]

All bigotry, whining, and fornication arguments aside, I have yet to see a good practical argument why two adults of the same gender who have strong romantic love for each other shouldn’t be allowed to marry. *In other words, what do you say to that loving gay “married” couple to convince them that they are better off ending that relationship and going to church? *Why should they have to end that relationship when I don’t have to with my wife?

Our church even recognizes that homosexuality is not a choice and therefore and gay person should not seek straight marriage because they are called to celibacy instead. *Our church also forbids all forms of hate, discrimination, bigotry including homophobia. *The only concern the church has is a religious one about the non-procreative nature of their relationship. *What they lack is a good reason why society should change its laws to agree with them.

Hi Befink,

Welcome to CAF, and I hope we will be welcoming you to the Church come Easter.

A couple of comments. You are looking for a compelling argument for denying a gay couple marriage, but you are looking for the wrong thing. Marriage is a sacrament, given to us by God, which consists of the union of a man and woman for unitive and procreative purposes. From a societal, non-religious standpoint, it has always been the union of a man and woman, primarily for procreation and inheritance laws. It is the core unit of society. Gay activists are the ones who need to make a compelling argument to change marriage to nothing more than the union of two (or more) adults who love each other.

The second comment is regarding Church teaching on discrimination. Keeping marriage traditional is not discriminatory. Again, when the very definition of marriage is the union of a man and woman, the only way it becomes discriminatory is if you bar certain men from marrying certain women (e.g. race). True love and compassion for people with same sex attraction does not involve celebrating their relationships or making those relationships equivalent to marriage.

 

[mattyc4]

Marriage, in civil law, is a civil contract.

Homosexuals have the same civil right to marry that everyone else has: The right to marry a sinlge, adult, unmarried, consenting, non consanguous, human person of the opposite sex.

There is no law anywhere in the US that will prevent two homosexuals from getting married under the same conditions as anyone else.

So no ‘right’ was stripped from homosexuals alone. Nothing illegal was done.

Completely incorrect. In California, committed gay men and women were allowed to marry their chosen partners. Proposition 8 took only the rights of gay men and women to marry their chosen adult loved one–it did not affect heterosexual marriage. Thus, their right to marry was stripped. This was illegal.

You may disagree with the morality of the decision, but the argument is completely legally valid–which is all that matters, in the US legal system.

Matt

 

[rlg94086]

Completely incorrect. In California, committed gay men and women were allowed to marry their chosen partners. Proposition 8 took only the rights of gay men and women to marry their chosen adult loved one–it did not affect heterosexual marriage. Thus, their right to marry was stripped. This was illegal.

You may disagree with the morality of the decision, but the argument is completely legally valid–which is all that matters, in the US legal system.

Matt

Proposition 8 is an amendment to their state Constitution. There was nothing “illegal” about it. California allows for propositions to amend their Constitution. The question is whether there is a protection for the “rights” of gay couples to “marry” under the US Constitution.

 

[mattyc4]

The courts are not and should not be the only remedy for them to fix legislative and judicial “mistakes”. A court should not be able to step in and say that the once the legislature or judiciary has acted (in this case giving the civil right of marriage to gays), they have no option to reverse the decision if they so choose.

Civil rights have always been up for a vote (although not necessarily a popular vote). See US amendments 1 - 10.

I rarely take issue with a court’s opinion, regardless if I like the outcome or not. I may not like a decision, but I can respect it, if it makes sense. Some points in this argument made logical sense, but in other parts there were legal gymnastics involved. They made quite a few assumptions that weren’t based on fact. Such as assuming that the only reason anyone voted for the law was because of animus. There is nothing to back up that opinion. Voters are not required to give a qualifying reason for their vote. Just because statements by the backers showed animus, it does not mean that anyone but them voted based on those reasons. A law should stand or fall on it’s merits, not on the assumed reason the law was put in place by the voters.

That last paragraph seems to be a fair point, but i will address that at the end of this post.

However, your first paragraph is troubling. That is the entire point of the judiciary! The judiciary is there to help enforce laws and strike down unjust laws. Majority opinion does not imply morality! I’m sorry to use the same canard, but look at the interracial marriage laws in the south prior to 1964. I can provide the text for them,if you would like. Many of these were voted on–to outlaw interracial marriage! Where would we be if the courts did not step in and stop that bigotry?

I do feel your last paragraph has a number of fair statement. However, the judges carefully deconstructed the arguments proponents proposed–I mentioned the four of them in a post earlier. The rationale behind this process was simple. If the proponents reasons for enacting this law were invalid or eminently unreasonable, the only reasonable explanation left is animus. THIS is the most reasonable part to disagree on–as the dissenting judge did. He concluded that the four reasons the proponents presented were mostly illogical, unreasonable, or not based in sound science–yet people could have legitimately believed in them–and thus, it was not ONLY animus that was the driving force behind prop 8. Hence, it was not illegal. I am not sure I explained that well, please let me know if that doesnt make sense.

“A law should stand or fall on it’s merits, not on the assumed reason the law was put in place by the voters.”

I mostly agree. Except, if the only reason for passing the law was “moral disapproval” of a suspect class(which is illegal). I was surprised that this decision was so narrow–I thought they would decide on the merits of the 14th amendment mostly.

Best,

Matt

 

[mattyc4]

Proposition 8 is an amendment to their state Constitution. There was nothing “illegal” about it. California allows for propositions to amend their Constitution. The question is whether there is a protection for the “rights” of gay couples to “marry” under the US Constitution.

Sorry, but this is not the issue, as decided by the 9th circuit. The issue is whether you can strip a right from only one group of people. Your reasoning resembles the decision ruled by Judge Walker, not the 9th circuit.

Make sense?

Matt

 

[Geist]

As an outsider looking into America, I think the HHS Mandate proves what Obama thinks of the Conscience Clause, how long do you think it will be before the Administration in America openly goes after Catholics…

Obama is not the United States government. Wouldn’t pass the supreme court, which already defended religious groups tax exempt status in the 1970’s when an atheist tried to get it revoked, I cannot see it deciding against the conscience clauses.

 

[Geist]

Proposition 8 is an amendment to their state Constitution. There was nothing “illegal” about it. California allows for propositions to amend their Constitution. The question is whether there is a protection for the “rights” of gay couples to “marry” under the US Constitution.

Its going to come down to how the SCOTUS interprets the 14th amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. **No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. **

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

I strongly suspect the “right” to civil unions will be upheld, I don’t think “marriage” will appear in a ruling.

The real question is going to be, can states discriminate in issuing civil unions on the basis of sexual orientation? I think the answer will be “no” based on the text above.

 

[Brendan]

Completely incorrect. In California, committed gay men and women were allowed to marry their chosen partners. Proposition 8 took only the rights of gay men and women to marry their chosen adult loved one–it did not affect heterosexual marriage. Thus, their right to marry was stripped. This was illegal.

You may disagree with the morality of the decision, but the argument is completely legally valid–which is all that matters, in the US legal system.

Matt

Go back and read what I said. Note that they change in either direction did not even mention homosexuals.

It is a matter of civil contract law.

“Chosen Partner” does not even factor into the civil contract law on marriage. Someone can have a ‘chosen partner’ who is underage, or does not consent, or isn’t even human ( example, the woman in Seattle who ‘married’ a warehouse)

All civil law does is outlines the terms under which two parties may enter into a contract. But those terms applied equally to everyone.

When the law prohibited the entery into contract of two persons of the same sex, that applied equally. Prior to Prop 8, two heterosexual men could enter into a marriage contract. So the inital CA Supreme Court decision applied equally to all CA residents, hetero or homo.

After Prop 8, two homosexuals could still get married. A homosexual man could enter into contract with a lesbian female. So homosexuals were clearly not prohibited from entering into a contract under the exact same terms as everyone else.

 

[Mudgely]

cnn.com/2012/02/07/justice/california-proposition-8/index.html?hpt=hp_t2

San Francisco (CNN) – A three-judge panel with the 9th U.S. Circuit Court of Appeals is expected to rule Tuesday on whether California’s same-sex marriage ban violates the Constitution.

After a two-week trial in 2010, Federal District Court Judge Vaughn Walker – who has since retired – overturned the voter-approved measure known as Proposition 8, saying gay and lesbian couples were unfairly denied the right to marry.

Walker’s decision came into question because he was gay and in a long-term relationship. The court is being asked to invalidate the ruling.

District Court Judge James Ware has previously upheld the ruling.

“It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings,” Ware ruled in June.

Ware, based in San Francisco, backed the original ruling by Walker that the ban on same-sex marriage in the state was unconstitutional – a violation of equal protection.

The 9th Circuit, in a hearing just over a year ago, indicated it was inclined to toss out Prop 8.

The state’s high court had allowed same-sex marriages in California, but then Proposition 8 passed with 52% of the vote in 2008. Prior to Walker’s ruling, the California Supreme Court allowed that initiative to stand, saying it represented the will of the people.

Six states currently grant same-sex marriage licenses – New York, Massachusetts, Connecticut, Iowa, Vermont and New Hampshire. The District of Columbia also does.

Five additional states recognize civil unions, providing state-level spousal rights to same-sex couples. They are Hawaii, Delaware, New Jersey, Illinois and Rhode Island.

Both sides of the dispute acknowledge the issue of same sex-marriage is likely headed to the U.S. Supreme Court, perhaps within the coming year.

The wording of this article was somewhat deceptive, to the degree that it states that the CA Supreme Court let the ruling stand as representing the will of the people. The CA Supreme Court only addressed the constitutional issue of marriages which had already been performed, which the Court ruled would be unconstitutional to overturn, even though the framers of Prop 8 were hoping that it would be interpreted retroactively. So, the CA Court overturned the intent of Prop 8 on US Constitutionality grounds, to the extent that it ruled on those grounds.

The matter before the California court was whether Prop 8 was an amendment to the California Constitution or not. The thrust of the argument was related to whether the proposition materially changed the intent of the State Constitution. They were primarily mute on the Federal issues, other than expressing the clear opinion that it would obviously violate the US Constitution to let the legally performed marriages be overturned by Prop 8.

It was left to the Federal Court to rule on the other US constitutional issues, which is what we are observing now. Of the attorneys I know, the good ones think that Walker’s decision was a solid piece of jurisprudence.

 

[Langdell]

Completely incorrect. In California, committed gay men and women were allowed to marry their chosen partners. Proposition 8 took only the rights of gay men and women to marry their chosen adult loved one–it did not affect heterosexual marriage. Thus, their right to marry was stripped. This was illegal.

You may disagree with the morality of the decision, but the argument is completely legally valid–which is all that matters, in the US legal system.

Matt

I think the bolded part is not quite correct. California permitted gay men and women to enter into civil unions, not to marry. The court found no difference (or an insufficient difference) between civil unions and marriage. (Full disclosure: I haven’t read the opinion yet. I hope to do so tonight.)

 

[Mudgely]

I see a lot of confusion in these posts about what the court has said. Judge Walker very carefully traces the history of marriage, and how marriage has in fact changed, until today, where there is no legal distinction between genders in marriage.

First he points out the obvious, that marriage is a civil right. The abolition of slavery granted former slaves the right to marriage, and this was recognized at the time as the right of free men and women, but not of slaves, who were unable to enter contracts.

Then he traces the evolution of women’s rights, including property rights, and duties of marriage. There were at one time legally accepted specific duties in marriage based on gender. For example, a husband could at one time sue his wife for divorce on the grounds that she was unwilling to relocate wherever he wanted to live. It was considered his right in the marriage, as his duty was to be the breadwinner. Today, there are no specific legal distinctions in marriage based on gender. Therefore, the argument goes, that gender is no longer a valid consideration to meet the legal obligations in a contract of marriage.

Legally, sexual acts between consenting adults has been the rule of law in most states. The most recent state sodomy laws overturned that I am aware of were the Texas law, which was overturned by the current US Supreme Court, based on rights to privacy.

So LEGALLY, there are two changes in our society and marriage. (1) Non-procreative sex is not illegal between consenting adults. (2) Legal duties based on gender in marriage no longer exist.

The legal argument is that since there is no longer any legal prohibition, or requirement, then gender distinction is a violation of equal protection under the US Constitution.

I just thought I would clear that up.

 

[rlg94086]

Its going to come down to how the SCOTUS interprets the 14th amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. **No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. **

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

I strongly suspect the “right” to civil unions will be upheld, I don’t think “marriage” will appear in a ruling.

The real question is going to be, can states discriminate in issuing civil unions on the basis of sexual orientation? I think the answer will be “no” based on the text above.

The way the justices should rule is that it is up to the states to define “marriage” and/or civil unions. No homosexuals are denied the “right” to marry: they just can’t marry someone of the same sex in most states. That’s due to the definition of what a marriage is.

The way the will rule is unknown. They found a “right” to kill one’s own unborn child in the Constitution, so I would imagine they could also find/create a nonexistent “right” for people of the same sex to have their disordered relationship blessed by the secular government.

 

[Befink]

Hi Rig,

Thanks for your warm welcome!

It seems that this goes back to the old debate about civil unions vs. marriages. *Unfortunately, the term “marriage” considered by the courts yesterday wasn’t the historical religious definition but more to do with civil unions which has become the mainstream definition. *As part of that mainstream definition, marriage is about the couple and not the potential for procreation. *Obviously gay couples aren’t fighting for rights to use a religious term. *They have the need to be recognized with the same legal rights as married straight couples. *With the secular definition of marriage now in place it is up to the churches to convince secular society that gays should not be getting married. (or else come up with a new word for that sacrament).

I support the right of churches to chose for themselves whom they will marry in religious ceremonies, even if those typically double as a civil union. *What I don’t understand is why churches are fighting the rights of homosexuals in secular society to engage in civil unions (now called “marriages”). *There are significant adverse consequences when same sex couples don’t have the same rights as married couples and no good reason not to grant them those rights. *Furthermore, I can’t understand for the life of me why the church is so against gay couples adopting children but will support adoption by straight couples or single parents regardless of how sinful they are. *The foster system needs them to adopt, especially when we are also fighting to end abortion.

Also, why do we as a Catholic community effectively push gays away from our churches (then are surprised when they lash out at us)? *Why is that the one sin we treat as so appalling that we can’t give them a peaceful place to worship God? *Meanwhile straight Catholics find peace even if they are far from perfect. *I know a few gay former Catholics who didn’t chose to be gay and know they can’t chose to come back to Catholicism. *This isn’t how the universal church should act.

Thanks

 

[Publisher]

Those attorneys of whom I am acquainted, members of the Society of Friend and United Church of Christ, HOPE this issue will eventually go before the SCOTUS…however they are doubtful that the SCOTUS will hear the case…if it is heard and ruled upon, the conservative judges WILL not be able to use their religious biases to determine law…what will be determined is do gay men and lesbian women have their civil rights curbed due to their sexuality.

Every attorney I have spoken with in Meeting or at the local UCC get together…it is a Constitutional arguement that will allow same sex marriage…those of us who support our gay and lesbian brothers and sisters in this struggle for equality WANT VERY MUCH for this issue to go before the SCOTUS…for a ruling OR have them decline to hear the case.

Bring it on!!!:

 

[Mudgely]

The way the justices should rule is that it is up to the states to define “marriage” and/or civil unions. No homosexuals are denied the “right” to marry: they just can’t marry someone of the same sex in most states. That’s due to the definition of what a marriage is.

The way the will rule is unknown. They found a “right” to kill one’s own unborn child in the Constitution, so I would imagine they could also find/create a nonexistent “right” for people of the same sex to have their disordered relationship blessed by the secular government.

Legally, marriage is a contract. Each party has obligations, and derives benefits. The women’s rights movement was predicted at the time to open the door to things like same gender marriage, and unisex public restrooms. I went to the restroom at a very fancy restaurant recently, and it was indeed one facility for both genders to use simultaneously. Gender roles in marriage no longer exist legally.

It’s really a legal argument, based on precedent. There is nothing radical going on here. It seems incongruous to the Church because it has not kept up with the changes in society. So something which is really just a logical progression in the law, appears to be something radical, and by definition out of sorts.

You also see this in age based studies. The majority of young adults are in favor of non discrimination in marriage based on gender. The percentages decline in intervals with each decade, until you get into the retired age groups where 80% favor discrimination based on gender.

So when you speak of the definition of marriage, you are probably referring to a religious definition, and not a legal one. The Church opposes non-procreative sexual activity, even to go so far as to label masturbation as a grave sin. Therefore, it is logical that it would view the definition of marriage only comprise sex which is procreative in nature. However, legally, non-procreative sex is not illegal. So, such a “definition” does not apply. At least, this is what the courts are saying.

The reason that DADT and DOMA have been struck down on US Constitutional grounds, is that you cannot have unequal protection between classes of people who have legally entered the same contract. So, in states where there is no longer discrimination based on gender in the contract of marriage, then you can’t have the Federal Government telling military personnel that their spouses are not eligible for benefits, and so on…

 

[Publisher]

Legally, marriage is a contract. Each party has obligations, and derives benefits. The women’s rights movement was predicted at the time to open the door to things like same gender marriage, and unisex public restrooms. I went to the restroom at a very fancy restaurant recently, and it was indeed one facility for both genders to use simultaneously. Gender roles in marriage no longer exist legally.

So when you speak of the definition of marriage, you are probably referring to a religious definition, and not a legal one. The Church opposes non-procreative sexual activity, even to go so far as to label masturbation as a grave sin. Therefore, it is logical that it would view the definition of marriage only comprise sex which is procreative in nature. However, legally, non-procreative sex is not illegal. So, such a “definition” does not apply. At least, this is what the courts are saying.

The reason that DADT and DOMA have been struck down on US Constitutional grounds, is that you cannot have unequal protection between classes of people who have legally entered the same contract. So, in states where there is no longer discrimination based on gender in the contract of marriage, then you can’t have the Federal Government telling military personnel that their spouses are not eligible for benefits, and so on…

:clapping::clapping::clapping: