Proposition 8 violates the Equal Protection Clause

[secular_freedom]

The argument for this is fairly straightforward, and I am interested to see how proponents of prop 8 would challenge the crucial steps (if they can).

1. 
   *] If proposition 8 discriminates on the basis of sexual orientation, and the discrimination is unjustified, then it violates equal protection.
   *] Proposition 8 discriminates on the basis of sexual orientation (by allowing heterosexuals, but not homosexuals, to marry their partners).
   *]The discrimination is unjustified.
   *]Therefore, proposition 8 violates equal protection.
   
   The only real dispute here is (3), but so far, I have not seen any convincing argument to justify the discrimination against homosexuals who wish to marry their partners. The form of the justification must specify some purported harm that same-sex marriage would cause to society. In other words, allowing same-sex marriage would cause “x, y, and z,” where “x, y, and z” are bad for society, and therefore the discrimination is justified. However, the trick is for prop 8 proponents to spell out what the “x, y,and z” consequences are and provide the evidence for them. Can anyone actually do this?

 

[Alexander_Smith]

There would be no issue if it was just a union that allowed the same rights and benefits as marriage. The issue, is that marriage is not a right, and what marriage is, cannot be arbitrarily decided. Marriage is the union of a man and a woman. A sacred union, no less. Gay marriages destroy this by destroying the very foundation of marriage. The government can’t rewrite the rules of something it did not create.

It’s just the same as people turning Christmas into a purely secular holiday, and then getting angry at people who try to keep religion in it. It was a religious feast first, just as Easter is.

Anyway, there is no discrimination in Prop 8. If gay people want to get married, that’s fine, as long as it’s a gay man and a gay woman. How about we allow women to be best men at weddings, and allow men to be bridesmaids?

 

[secular_freedom]

There would be no issue if it was just a union that allowed the same rights and benefits as marriage. The issue, is that marriage is not a right, and what marriage is, cannot be arbitrarily decided. Marriage is the union of a man and a woman. A sacred union, no less. Gay marriages destroy this by destroying the very foundation of marriage.

I take it, then, that you are challenging premise 3 of my argument. You are asserting that prop 8 justifiably discriminates against homosexuals because allowing same-sex marriages would “destroy” the marriage union between one man and one woman.

However, the problem with your objection is that it is patently false: same-sex marriages would in no way prevent opposite-sex couples from getting married, nor would it “destroy” the marriages that already exist between opposite-sex couples. To claim otherwise is simply not to live in reality.

 

[Alexander_Smith]

I take it, then, that you are challenging premise 3 of my argument. You are asserting that prop 8 justifiably discriminates against homosexuals because allowing same-sex marriages would “destroy” the marriage union between one man and one woman.

However, the problem with your objection is that it is patently false: same-sex marriages would in no way prevent opposite-sex couples from getting married, nor would it “destroy” the marriages that already exist between opposite-sex couples. To claim otherwise is simply not to live in reality.

No I’m saying Prop 8 doesn’t discriminate, because same-sex “marriages” wouldn’t really BE marriages. The government can’t rewrite what marriage is by allowing same-sex couples to partake in it. If they want their own false version of marriage, they can call it something else, but marriage is not for them, anymore than I can marry my goat.

 

[secular_freedom]

Anyway, there is no discrimination in Prop 8. If gay people want to get married, that’s fine, as long as it’s a gay man and a gay woman. How about we allow women to be best men at weddings, and allow men to be bridesmaids?

I didn’t catch this argument before. When you claim there is “no discrimination in Prop 8,” you are challenging premise 2 of the argument. But the discrimination against homosexuals is easily shown.

Under prop 8, heterosexuals are free to marry other heterosexuals who are their partners, but homosexuals are *not free *to marry other homosexuals who are their partners. Or: under prop 8, heterosexuals are free to marry those they wish to marry, but homosexuals are not so free. It follows from this that prop 8 is discriminatory against homosexuals (now: whether or not the discrimination is justified is a separate issue).

 

[Alexander_Smith]

I didn’t catch this argument before. When you claim there is “no discrimination in Prop 8,” you are challenging premise 2 of the argument. But the discrimination against homosexuals is easily shown.

Under prop 8, heterosexuals are free to marry other heterosexuals who are their partners, but homosexuals are *not free *to marry other homosexuals who are their partners. Or: under prop 8, heterosexuals are free to marry those they wish to marry, but homosexuals are not so free. It follows from this that prop 8 is discriminatory against homosexuals (now: whether or not the discrimination is justified is a separate issue).

Nope that’s not true. Homosexuals can marry whoever they wish of the opposite sex. It does not discriminate against them, but against their wrongful wish to have their false marriages recognized as true ones.

If a man wants to be a bridesmaid, would it be discrimination to not allow him that wish? No, because it would contrary to the meaning of “bridesmaid.”

Call it discrimination if you wish, but it only means something if the discriminated group has reasonable desires. There is no right to marriage, and same-sex couples can’t rewrite what marriage is to fit their own twisted desires. Besides, it cheapens actual fights against real discrimination as in the case of black Americans who just wanted to be able to have the rights and privileges given to white people. Their cause was just, and there was no reason to deny them these rights. However, in the case of same-sex couples, their desire is disordered, and they want something they have no right too. Chalk it up to the desire to make the mental illness of SSA normal.

 

[secular_freedom]

No I’m saying Prop 8 doesn’t discriminate, because same-sex “marriages” wouldn’t really BE marriages. The government can’t rewrite what marriage is by allowing same-sex couples to partake in it. If they want their own false version of marriage, they can call it something else, but marriage is not for them, anymore than I can marry my goat.

First, I think it’s important to recognize that it is possible for same-sex marriages to be legally valid marriages under a particular state (it this weren’t possible, then prop 8 proponents could simply win by doing nothing at all, and there would have been no need to propose proposition 8 in the first place). Given this possibility, it is not enough to say that prop 8 doesn’t discriminate because same-sex marriages wouldn’t really be marriages – in fact, they *could *be, whether you want them to exist or not.

What makes prop 8 discriminatory is that it prevents one group of people from doing something that another group of people are free to do (definition of discrimination). Look at the language of prop 8: “Only marriage between a man and a woman is valid or recognized in California.”

Thus under prop 8, only heterosexuals are free to marry their partners, while homosexuals are not so free. Hence under any understanding of the term “discrimination,” prop 8 discriminates against homosexuals because it prevents homosexuals, but not heterosexuals, from being able to enter into a legally valid marriage union with their partners.

 

[secular_freedom]

Nope that’s not true. Homosexuals can marry whoever they wish of the opposite sex. It does not discriminate against them, but against their wrongful wish to have their false marriages recognized as true ones.

What’s not true? As I pointed out, under prop 8, heterosexuals are free to marry other heterosexuals who are their partners, but homosexuals are not free to marry other homosexuals who are their partners. Or: under prop 8, heterosexuals are free to marry those they wish to marry, but homosexuals are not so free. Thus, what prop 8 does is prohibit one group of people from doing certain things that another group is free to do: i.e. marry their partners – this is simply the meaning of “discrimination.”

Now, the fact that homosexuals are free to “marry whoever they wish of the opposite sex” in no one undermines the point that homosexuals, unlike heterosexuals, are not free to marry their partners. So your above claim fails to show that prop 8 isn’t discriminatory.

If a man wants to be a bridesmaid, would it be discrimination to not allow him that wish? No, because it would contrary to the meaning of “bridesmaid.”

Yes, it would be discrimination. Now, whether the discrimination is justified or makes sense is a completely separate issue.

Call it discrimination if you wish, but it only means something if the discriminated group has reasonable desires.

Wrong. Discrimination can be good or bad, reasonable or unreasonable, justified or unjustified. If a law prevents convicted sex offenders from living 10 blocks away from any school, the law discriminates against convicted sex offenders. But this is a separate issue from whether the discrimination is justified.

There is no right to marriage, and same-sex couples can’t rewrite what marriage is to fit their own twisted desires.

When you say there is “no right to marriage,” you are simply begging the question here. If my argument is sound, then there IS a right to marriage because prop 8 violates the Equal Protection Clause.

Besides, it cheapens actual fights against real discrimination as in the case of black Americans who just wanted to be able to have the rights and privileges given to white people. Their cause was just, and there was no reason to deny them these rights. However, in the case of same-sex couples, their desire is disordered, and they want something they have no right too. Chalk it up to the desire to make the mental illness of SSA normal.

So again, your only dispute with my argument is premise (3), not premise (2). You believe that the cause here is “unjust,” because allowing same-sex marriage would lead to certain bad consequences. But what are those consequences? And can you provide any evidence for them?

 

[Corki]

The argument for this is fairly straightforward, and I am interested to see how proponents of prop 8 would challenge the crucial steps (if they can).

1. 
   *] If proposition 8 discriminates on the basis of sexual orientation, and the discrimination is unjustified, then it violates equal protection.
   *] Proposition 8 discriminates on the basis of sexual orientation (by allowing heterosexuals, but not homosexuals, to marry their partners).
   *]The discrimination is unjustified.
   *]Therefore, proposition 8 violates equal protection.
   
   The only real dispute here is (3), but so far, I have not seen any convincing argument to justify the discrimination against homosexuals who wish to marry their partners. The form of the justification must specify some purported harm that same-sex marriage would cause to society. In other words, allowing same-sex marriage would cause “x, y, and z,” where “x, y, and z” are bad for society, and therefore the discrimination is justified. However, the trick is for prop 8 proponents to spell out what the “x, y,and z” consequences are and provide the evidence for them. Can anyone actually do this?

1. 
   #1 fails on the basis of current law. Equal protection is not absolute and the justification of the discrimination is not what triggers equal protection. Take for example, employment law and age discrimination. A 20 year old may be unjustly discriminated against in an employment decision. There is no law that protects the 20 year old. If, however, a 45 year old is unjustly discriminated against in an employment decision, there is a law that protects him/her.
   
   #2 fails on the basis that any man has the same opportunity as any other man to marry a woman who meets certain legal tests (not already married, over the age of consent and not too closely related by blood). Likewise, any woman has the same opportunity as any other woman to marry a man who meets certain legal tests (not already married, over the age of consent and not too closely related by blood). A homosexual man can marry a homosexual woman as easilly as a heterosexual man can marry a heterosexual woman or even a homosexual woman for that matter. The characteristics of the persons involved determines discrimination, not the motivation.
   
   #3 fails on the basis that discrimination on the basis of some personal characteristic may be unjust but still be legal AND that discrimination in the specific case of same-sex marriage does not discriminate on the basis of any characteristic of the individuals but only against their intention. Intentions are not civil rights.
   
   #4 therefore Prop 8 is not a violation of the Equal Protection clause

 

[Barbkw]

Disordered sexuality and gender confusion should not be viewed as normal within society.

Normalizing the sexual acts of non-celibate same sex attracted people perpetuates the disorder and the personal confusion.

Normalizing homosexual acts will additionally increase the numbers of children who will be indoctrinated (by public schools and society) to believe that homosexual and bisexual acts are within the “normal” range of human sexuality.

 

[secular_freedom]

#1 fails on the basis of current law. Equal protection is not absolute and the justification of the discrimination is not what triggers equal protection. Take for example, employment law and age discrimination. A 20 year old may be unjustly discriminated against in an employment decision. There is no law that protects the 20 year old. If, however, a 45 year old is unjustly discriminated against in an employment decision, there is a law that protects him/her.

What constitutes “unjust” discrimination, for purposes of Equal Protection, depends on the level of scrutiny involved. In your example, I suspect that the court did not find an Equal Protection violation because the discrimination, while unjust in many ways, passes “rational scrutiny,” which is the weakest level of scrutiny. “Unjustified discrimination” in premise (1) should be read to mean discrimination that doesn’t pass the appropriate standard of review.

#2 fails on the basis that any man has the same opportunity as any other man to marry a woman who meets certain legal tests (not already married, over the age of consent and not too closely related by blood). Likewise, any woman has the same opportunity as any other woman to marry a man who meets certain legal tests (not already married, over the age of consent and not too closely related by blood). A homosexual man can marry a homosexual woman as easilly as a heterosexual man can marry a heterosexual woman or even a homosexual woman for that matter. The characteristics of the persons involved determines discrimination, not the motivation.

These facts do not show that prop8 isn’t discriminatory on the basis of sexual orientation. The fact that “any man has the same opportunity as any other man to marry a woman who meets certain legal tests” doesn’t change the fact that, under prop 8, homosexual men, unlike heterosexual men, do not have the same opportunity to marry their partners. Likewise, the fact that “any woman has the same opportunity as any other woman to marry a man who meets certain legal tests” doesn’t change the fact that, under prop 8, homosexual women, unlike heterosexual women, do not have the same opportunity to marry their partners.

In short, prop 8 discriminates against homosexuals because it denies homosexuals, but not heterosexuals, the freedom to marry their partners.

#3 fails on the basis that discrimination on the basis of some personal characteristic may be unjust but still be legal AND that discrimination in the specific case of same-sex marriage does not discriminate on the basis of any characteristic of the individuals but only against their intention. Intentions are not civil rights.

Again, “unjust discrimination” should be read to mean “discrimination that does not pass the appropriate standard of review.” Here, the discrimination against homosexuals was found to fail even "rational scrutiny, " much less “strict scrutiny.”

 

[secular_freedom]

Disordered sexuality and gender confusion should not be viewed as normal within society.

Normalizing the sexual acts of non-celibate same sex attracted people perpetuates the disorder and the personal confusion.

Normalizing homosexual acts will additionally increase the numbers of children who will be indoctrinated (by public schools and society) to believe that homosexual and bisexual acts are within the “normal” range of human sexuality.

I take it you’re challenging premise (3) of my argument. Please be more specific in your challenge.

 

[Barbkw]

To speak only of the sexual act itself;

The sexual acts of a man and a woman, produce an egg and sperm and then an embryo which becomes a child.

The sexual acts of two same sex attracted men produce sperm, fecal matter and HIV / AIDS.

The normalization of homosexual acts perpetuate a defect into society.

 

[secular_freedom]

To speak only of the sexual act itself;

The sexual acts of a man and a woman, produce an egg and sperm and then an embryo which becomes a child.

The sexual acts of two same sex attracted men produce sperm, fecal matter and HIV / AIDS.

The normalization of homosexual acts perpetuate a defect into society.

Without anything more substantive, I don’t feel the need to respond further.

 

[Elizabeth502]

The whole “discrimination” concept is in this case an erroneous concept. Discrimination from a legal constitutional point of view pertains to rights that categorically all human beings should have, and are implied by the constitution. Marriage does not fall under such a “universal” category: it is an institution that society defines and describes, has a right to define and describe because that institution serves specific purposes which go beyond mere free association (which is a universal right).

Because a particular group decides to define something as a “right” or a “civil right” does not automatically make it a right.

Gays are not being denied “rights.” They are being denied the unilateral power to define an established institution on their own terms, and to include themselves in that institution by mere arbitrary proclamation.

 

[Barbkw]

Promiscuous homosexual acts, are “substantive” producers of HIV / AIDS.

It’s well known that male homosexuals are extremely promiscuous and that they have “open” relationships with multiple partners.

Which, attests to their sexual addiction and their disorder.

With antiviral therapy costing at least $15,000 a year to treat HIV, homosexuals should have stopped the practice of promiscuous and dangerous trists with unknown men in public parks and bathrooms.

They have not.

 

[secular_freedom]

The whole “discrimination” concept is in this case an erroneous concept. Discrimination from a legal constitutional point of view pertains to rights that categorically all human beings should have, and are implied by the constitution. Marriage does not fall under such a “universal” category: it is an institution that society defines and describes, has a right to define and describe because that institution serves specific purposes which go beyond mere free association (which is a universal right).

This is just not true. Unjustified discrimination from a legal constitutional perspective is the unequal treatment of similarly situated individuals that is without rational basis (or depending on the level of scrutiny, without compelling justification). The whole idea of the Equal Protection Clause is that similarly situated individuals must be treated similarly. In this case, homosexuals are being treated differently from heterosexuals: unlike heterosexuals, homosexuals are not free to marry their partners. Because this denial of freedom is unjustified, proposition 8 therefore violates equal protection.

Because a particular group decides to define something as a “right” or a “civil right” does not automatically make it a right.

No one is arguing this.

Gays are not being denied “rights.” They are being denied the unilateral power to define an established institution on their own terms, and to include themselves in that institution by mere arbitrary proclamation.

I’ll put my question to you this way: which premise in my argument do you challenge? If you cannot challenge the argument, then you cannot challenge the conclusion.

 

[Barbkw]

Let’s see if I have this correct.

Non celibate same sex attracted and bisexual men advance the spread of HIV / AIDs into families and into society and now society is to reward them with the “right” to marry their same sex partner who - studies show - they won’t remain faithful to.

 

[Elizabeth502]

It’s well known that male homosexuals are extremely promiscuous and that they have “open” relationships with multiple partners.

Indeed. And lest the straight world be deceived by false claims of the “stability” of gay couples and how those couples supposedly need and deserve the title of “marriage” to indicate such (mythical) stability, I offer you a very recent article, in that most liberal of rags (with very sincere apologies about the photo):

articles.sfgate.com/2010-07-16/entertainment/21985570_1_hiv-prevention-gay-couples-gay-men

From the article:

Three out of 4 people described non-monogamy as a positive thing, and said it gave them a sexual outlet without having to lie.

My gosh. How much sex does a person need? You’re having sex with “your partner,” but that’s not enough? You need more “outlets”?

Sick.

 

[ThomasToo]

Because a particular group decides to define something as a “right” or a “civil right” does not automatically make it a right.

How about when that group is the Supreme Court? There is no question that the right to marry is constitutionally protected.

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.

Loving v. Virginia (388 U.S. 1 [1967])