Proposition 8 violates the Equal Protection Clause

[bri89]

Aside from the original post, which is logical and legalistic, how will marriage be defined in purely secular terms? Marriage can’t be defined in a secular legalistic framework. Disregard the church and you won’t get marriage, but rather, non-binding legally defined partnerships which anyone can freely enter into or exit out of. This is already happening. No compulsion, no til death do us part. It’s our responsibility to ask ourselves if this is good for our society.

 

[secular_freedom]

Aside from the original post, which is logical and legalistic, how will marriage be defined in purely secular terms? Marriage can’t be defined in a secular legalistic framework. Disregard the church and you won’t get marriage, but rather, non-binding legally defined partnerships which anyone can freely enter into or exit out of. This is already happening. No compulsion, no til death do us part. It’s our responsibility to ask ourselves if this is good for our society.

Why can’t marriage be defined in a secular legalistic framework? It already is - we call it civil marriage. Not all marriages take place in a church, or are performed with the authority of the church.

 

[bri89]

Why can’t marriage be defined in a secular legalistic framework? It already is - we call it civil marriage. Not all marriages take place in a church, or are performed with the authority of the church.

It bears the title of marriage, extracting much of its meaning and ceremony from religion, but secularism can’t inform us as as to what a marriage is. What is marriage?, secularism can only provide a neutral forum for various responses to that question.

 

[secular_freedom]

It bears the title of marriage, extracting much of its meaning and ceremony from religion, but secularism can’t inform us as as to what a marriage is. What is marriage?, seculariam can only provide a neutral forum for various responses to that question.

I just don’t see the problem with this.

 

[bri89]

I just don’t see the problem with this.

Can you define for me what a marriage is in secular terms, other than a legal partnership? and if that is what it is, then let’s call it that.

 

[secular_freedom]

Can you define for me what a marriage is in secular terms, other than a legal partnership? and if that is what it is, then let’s call it that.

There are many definitions of marriage, and there is no single universal definition that will encompass all unions that fall under that category. The only dispute here is in regards to civil or legal marriage, which is what the whole debate is about. If you don’t support same-sex marriage, then you need to deal with the argument I presented.

 

[secular_freedom]

For anyone joining the discussion, here is the argument in the opening post.

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.

 

[gardenswithkids]

This law passes the rational basis test since the government has a legitimate interest in preventing defectives and anti-incest laws have a rational tie to that interest. Preventing people of the same sex, however, is not rationally related to any legitimate government interest…

Since persons of the same sex cannot pro-create, do you think the law should allow homosexuals to enter incestuous unions?

…Ostensibly the partner who is married already has married their partner. .

Sometimes people leave their previous marriage partners for other sexual partners. I’m not saying that’s okay, I’m simply proving to you that our country’s marriage laws do not alway allow two heterosexuals who want to marry each other to get married.

…The only compelling legal case I’ve heard against polygamy is that the intricacies of keeping accurate records of spiderweb like marriages could be an undue burden on the states and–similarly–preventing polygamy is rationally related to this legitimate government interest. That said, I find this case rather weak and if the paperwork can be worked out there really isn’t any legitimate reason–assuming all parties in an existing marriage consent–that one person cannot be married to more that one person. There is substantial historical (as well as biblical) precedent for this traditional form of marriage.

And now we come to polygamy. Proposition eight not only places restrictions on homosexuals but it places restrictions on heterosexuals. Polygamists are typically hetero-sexuals.

Now you argue that the state should allow polygamy. That’s a different topic, but one that will likely be discussed in the future if prop eight doesn’t stand.

. An individual’s rights end where another’s begin and such a compulsion violates any number of rights the compelled yields.

Calling homosexual unions “marriage” infringes on the rights of others. Think of it as a Trademark law. Pepsi or generic colas cannot call themselves “Coke”. That particular brand of cola known as “Coke” has a trademark. The name applies to something specific The “trademark” for the word “marriage” is already taken. The word “marriage” applies specifically to the union between one man and one woman.

Society has a compelling interest for some words to have very specific meaning.

 

[bri89]

There are many definitions of marriage, and there is no single universal definition that will encompass all unions that fall under that category. The only dispute here is in regards to civil or legal marriage, which is what the whole debate is about. If you don’t support same-sex marriage, then you need to deal with the argument I presented.

There is still no secular definition. My first post didn’t address your argument but the consequences of our society doing away with our long held Christian conception of what a marriage is. Take France for instance, the marriage rate is low and more common are “pacts”. These are self-admittedly not marriages but pacts. Why do they call them that instead of marriages? Because France is thoroughly secular and consequently appeals to law and state to define their relationships rather than religion. You probably think that’s good, I don’t.

 

[secular_freedom]

There is still no secular definition. My first post didn’t address your argument but the consequences of our society doing away with our long held Christian conception of what a marriage is. Take France for instance, the marriage rate is low and more common are “pacts”. These are self-admittedly not marriages but pacts. Why do they call them that instead of marriages? Because France is thoroughly secular and consequently appeals to law and state to define their relationships rather than religion. You probably think that’s good, I don’t.

The “Christian conception” of marriage is not the legal, secular conception of marriage. The debate surrounding prop 8 isn’t about upholding the Christian conception, but about whether the secular conception (civil marriage) should be extended to same-sex couples. My only focus here is on the latter issue.

 

[Betterave]

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])

Thomas is right when he notes the following:

“Here, sadly, I must somewhat agree with the hoi polloi on the forum at least to a degree. The common, accepted legal definition of the word ‘marriage’ when Loving was decided was unquestioningly a union between one man and one woman though many states added the caveat ‘of the same race.’”

We should add that Loving implicitly supplies the justification for the accepted definition: “Marriage is … fundamental to our very existence and survival.” The take-away point, then, is that marriage is legally sanctioned because of its role in our very existence and survival and it follows that a partnership that is not so implicated in our very existence and survival cannot be a marriage. Therefore premise 2 is false. It seems that Prop 8 discriminates on the basis of the fundamental purpose of marriage, i.e., on the basis of a fact, and not on the basis of simply choosing to allow or disallow particular individuals to do what they wish.

 

[secular_freedom]

Calling homosexual unions “marriage” infringes on the rights of others. Think of it as a Trademark law. Pepsi or generic colas cannot call themselves “Coke”. That particular brand of cola known as “Coke” has a trademark. The name applies to something specific The “trademark” for the word “marriage” is already taken.

You still haven’t responded to my previous post where I dismantled your “refutation.” Here, your analogy is way off: the term “marriage,” unlike the term "Pepsi’, isn’t owned by any person or company. No one owns the “rights” to the word “marriage,” such that if “marriage” came to include same-sex couples, people could be sued for using the term.

The word “marriage” applies specifically to the union between one man and one woman.

But how do you deal with my argument that prop 8 violates Equal Protection? Which premise do you challenge and why?

Society has a compelling interest for some words to have very specific meaning.

This sounds like a challenge to premise (3). What’s your argument?

 

[larkin31]

The “Christian conception” of marriage is not the legal, secular conception of marriage. The debate surrounding prop 8 isn’t about upholding the Christian conception, but about whether the secular conception (civil marriage) should be extended to same-sex couples. My only focus here is on the latter issue.

And, moreover, it is the only concern of the court.

 

[larkin31]

There is still no secular definition. My first post didn’t address your argument but the consequences of our society doing away with our long held Christian conception of what a marriage is. Take France for instance, the marriage rate is low and more common are “pacts”. These are self-admittedly not marriages but pacts. Why do they call them that instead of marriages? Because France is thoroughly secular and consequently appeals to law and state to define their relationships rather than religion. You probably think that’s good, I don’t.

“PACTS” in France are for civil unions, primarily gay, and are not “more common” than marriages. PACTS also have a smaller set of civil rights and privileges than marriages do.

 

[secular_freedom]

Thomas is right when he notes the following:

“Here, sadly, I must somewhat agree with the hoi polloi on the forum at least to a degree. The common, accepted legal definition of the word ‘marriage’ when Loving was decided was unquestioningly a union between one man and one woman though many states added the caveat ‘of the same race.’”

We should add that Loving implicitly supplies the justification for the accepted definition: “Marriage is … fundamental to our very existence and survival.” The take-away point, then, is that marriage is legally sanctioned because of its role in our very existence and survival and it follows that a partnership that is not so implicated in our very existence and survival cannot be a marriage.

This does not follow. Assuming that marriage is “fundamental to our very existence and survival,” it does not follow that all unions which do not play a role in our existence and survival (i.e. procreation) cannot be marriages – in fact, they can be. Two people can get married even if they can’t/won’t procreate, so it’s false to say that such partnerships cannot be marriage.

Therefore premise 2 is false. It seems that Prop 8 discriminates on the basis of the fundamental purpose of marriage, i.e., on the basis of a fact, and not on the basis of simply choosing to allow or disallow particular individuals to do what they wish.

This also doesn’t follow, and is false. Prop 8 does not prohibit opposite-sex couples from marrying if they can’t/won’t procreate. If your premise were true that prop 8 discriminates on the basis of procreation, then opposite-sex couples who can’t/won’t procreate would not be allowed to marry. But such couples are allowed to marry. Hence your premise is false.

Moreover, your argument fails to refute my claim that prop 8 discriminates on the basis of sexual orientation. I believe your confusion stems from the mistaken belief that if prop 8 discriminates on one basis, then it can’t discriminate on another. Prop 8 discriminates on the basis of sexual orientation because it restricts the freedom of homosexuals, but not heterosexuals, to marry their partners. Nothing you wrote disputes this fact.

 

[PaulinVA]

This does not follow. Assuming that marriage is “fundamental to our very existence and survival,” it does not follow that all unions which do not play a role in our existence and survival (i.e. procreation) cannot be marriages – in fact, they can be. Two people can get married even if they can’t/won’t procreate, so it’s false to say that such partnerships cannot be marriage.

Heterosexual marriages are ordered toward procreation. If everything works, a baby can be created. It is assumed that everything works, therefore society considers heterosexual marriage essential to it’s survival.

A homosexual marriage* can never* be ordered toward procreation. They are in no way essential to the survival of the anything.

Moreover, your argument fails to refute my claim that prop 8 discriminates on the basis of sexual orientation. I believe your confusion stems from the mistaken belief that if prop 8 discriminates on one basis, then it can’t discriminate on another. Prop 8 discriminates on the basis of sexual orientation because it restricts the freedom of homosexuals, but not heterosexuals, to marry their partners. Nothing you wrote disputes this fact.

Proposition 8 rightly denies the name and benefits of marriage to a group that will not benefit society if they are given such. Marriage is for society, not the individuals who are married. It provides a stable platform for the raising of the next generation. Since gay marriage produces absolutely zero babies, there is no need for society to sanction it.

 

[Betterave]

I will echo PaulinVA to some extent here:

This does not follow. Assuming that marriage is “fundamental to our very existence and survival,” it does not follow that all unions which do not play a role in our existence and survival (i.e. procreation) cannot be marriages – in fact, they can be. Two people can get married even if they can’t/won’t procreate, so it’s false to say that such partnerships cannot be marriage.

But it is also false to say that the state has any interest in promoting partnerships as ‘marriage’ which by their very nature are not oriented towards the fundamental purpose of marriage.

This also doesn’t follow, and is false. Prop 8 does not prohibit opposite-sex couples from marrying if they can’t/won’t procreate. If your premise were true that prop 8 discriminates on the basis of procreation, then opposite-sex couples who can’t/won’t procreate would not be allowed to marry. But such couples are allowed to marry. Hence your premise is false.

The state has reasonable grounds for not enquiring too closely into the details of particular cases and where there is no obvious intrinsic impediment to marriage serving its natural purpose the state has good reason not to intervene so as to regulate questions that regard the concrete difficulties/issues of particular individuals’ situations.

Moreover, your argument fails to refute my claim that prop 8 discriminates on the basis of sexual orientation. I believe your confusion stems from the mistaken belief that if prop 8 discriminates on one basis, then it can’t discriminate on another. Prop 8 discriminates on the basis of sexual orientation because it restricts the freedom of homosexuals, but not heterosexuals, to marry their partners. Nothing you wrote disputes this fact.

No. If prop 8 properly discriminates on one basis, while also purely incidentally discriminating on some other basis, then prop 8 does not meet the necessary condition for its being formally considered as a relevant form of discrimination on that other basis. If you don’t understand this point I can give you an analogy. Is that necessary?

 

[Oresteian]

Firstly, I would like to say hello to all the posters here. This will be my first post here.

Now onto business…

I am baffled to near tears at all of the presuppositions and hidden premises that the opponents to same sex marriage have. For the time being I will throw a few things out and have you guys smoke this over:

1. Almost all the arguments against same-sex marriage seem to have as an underlying principle some religious worldview. I understand and appreciate that a person’s religion informs their moral and social opinions, but it has NO place in secular government policy. There is reason why the non-christian or the nonreligious should accept any arguments which relies upon any religious metaphysic.
2. The argument is advanced that same-sex couples should not have the right to marry because they cannot do the same things that heterosexual couples can do i.e. have children. Many straight people cannot have children for a variety of reasons, so should they be banned from marrying as well?

3.The definition that marriage is between one man and one woman is…a relatively recent innovation at best from Christianity. Worldwide, marriage has come in sundry combinations of polygyny and polyandry. An example of this is Islam where a man is allowed to have 4 wives provided he has the means to maintain such a household. How many of you would not consider those marriages valid and on what rational grounds?

Historically, marriages tended not to be about love and more about preserving wealth, securing peace treaties and preventing wars between tribes, and so forth. Even in the Bible the biblical patriarchs had anywhere from no spouses in the case of Jesus all the way up to the extraordinary case of Solomon who had 700 wives and 300 concubines. Were his marriages invalid? Why?

As an aside, do any of you think it is impossible for one person to love more than one person enough to want to marry all of the objects of his/her affection? I would point to something like the polyamorous society of the Denobulians from Star Trek: Enterprise as an example par excellence.

4.I hardly believe that anyone can prove that homosexuals are more promiscuous than heterosexuals. Even if that were true, that would actually be an argument FOR same sex marriage, as two people of the same sex have decided that this single person is the one for him/her. The would like legal protections that marriage grants in case their partners are hospitalized, incapacitated, or dies just like heterosexual couples do. In regards to diseases being spread from this promiscuity, there are plenty of heterosexuals with STD’s that they got from sleeping around with people without protection, or their partner who they thought was faithfully passed it on to them, etc.

1. Incest is a complicated issue, so all I will say for now is that it is unclear how same-sex marriages being legal will lead to incestuous marriages being legal.

Given all of the points I listed above, on what rational basis should ANYONE accept the so-called “traditional” definition of marriage when the information supporting this definition is…problematic?

Lastly,setting aside the “traditional definition” for a moment, I would like to ask for the scientific arguments against same-sex marriage? If there are none, what is the basis of this discrimination if not religious or personal aversion?

 

[gardenswithkids]

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.

1. 
   I challenge point number 1 that is discriminates on the basis of sexual orientation. It doesn’t. Marriage laws don’t ask about sexual orientation. People don’t even have to be sexually attracted to their marriage partners in order to marry. Prop 8 applies to everyone in California.
   
   I challenge point number 2 because as I already pointed out, the current laws do not allow heterosexuals to marry their sexual partners in every circumstance. Heterosexuals also cannot marry a person of the same sex, nor can they marry more than one person. Quite honestly, I can imaging two close heterosexual friends or family members of the same sex wanting to take advantage of the legal benefits of marriage.
   
   Something else to consider on point number 2:
   Might not an unmarried single daughter who cares for her aging mother want to the legal advantages of “same sex marriage” to her mother? Certainly they love each other. But that loving relationship between mother and daughter isn’t “marriage”–it’s something else. Likewise, the relationship between two homosexuals is not marriage. If homosexual relationships gain legal recognition to use the term “marriage” based on their homosexual attraction, then heterosexuals (under the equal protection laws) gain the right to “marry” someone of the same sex too. But heterosexuals don’t have that right. None of us have that right. Prop 8 does not treat homosexuals different than heterosexual.
   
   Re point 3: it is not discrimintation solely against homosexuals. It discriminates against anyone who would use the legal term “marriage” to refer to something other than the relationship between one man and one woman. And yes, if that is discrimination, then such discrimination is justified. A large number of Americans are currently involved in such “legal partnerships” known as marriage. We have a vested interest that the term “marriage” not be used to refer to any two (or three, or more) people who have affectionate feelings for each other.
   
   People are not entitled under equal protection laws to change the basic meaning of words. Society has an interest in keeping a specific meaning to certain words. The words “marriage” “spouse” “husband” “wife” “mother” “father” and other words relating to marriage and family, are used in our laws. If we change this law, it will have a ripple effect on a multitude of other laws.
   
   Re point 4: No, it doesn’t violate equal protection. It protects marriage equally from those who would make the word marriage mean everything, and ultimately make that word mean nothing.

 

[larkin31]

Heterosexual marriages are ordered toward procreation.

This is Catholic dogma, not legal reasoning. This is no different from stating, “Most marriages result in children.” Yep, most do. But this is irrelevant in law in determining who is eligible to be married. Especially not in determining what class or group of individuals may marry.