Proposition 8 violates the Equal Protection Clause

[Los_Angeles]

…

Getting back to your response, you appear to miss the point of my objection. Earlier you claimed that: partnerships that are fundamentally alien to procreation purpose should not be recognized as marriages. Well, if this is true, then *many *heterosexual partnerships should not be recognized as marriages (because they are fundamentally alien to procreation), yet you would allow those (heterosexual) partnerships to be recognized as marriages. This is simply contradictory.

…

->All homosexual marriages cannot reproduce. (without adoption or sperm donor)

->Some heterosexual marriages cannot reprodce. (without adoption or sperm donor)

----->Some heterosexual marriages **can **reproduce pre-marriage but
cannot reproduce post-marriage due to medical reasons.

----->Some heterosexual marriages **cannot **reproduce pre-marriage and
cannot reproduce post-marriage due to medical reasons.

---------->Some heterosexual marriages cannot reproduce pre-marriage
due to **unintentional **medical reasons (age, sterility)

---------->Some heterosexual marriages cannot reproduce pre-marriage
due to **inentional **medical reasons (hysterectomy, vasectomy)

So you can see that only a percentage of a percentage of the population of heterosexual couples cannot reproduce pre-marriage due to intentional medical reasons.

If an entire population were homosexual, it would be impossible to reproduce VS. if an entire poplulation were heterosexual it would be impossible for only a percentage of the population to reproduce.

1. If proposition 8 discriminates on the basis of sexual orientation, and the discrimination is unjustified, then it violates equal protection.
2. Proposition 8 discriminates on the basis of sexual orientation (by allowing heterosexuals, but not homosexuals, to marry their partners).
3. The discrimination is unjustified.
4. Therefore, proposition 8 violates equal protection.

Step 1 is false becuase Proposition 8 **does not **discriminate on the basis of sexual orientation (a homosexual person is free to marry a person of the opposite sex).

If anything I have said is against the Catholic Church, let it be anathema.

 

[ThomasToo]

Step 1 is false becuase Proposition 8 **does not **discriminate on the basis of sexual orientation (a homosexual person is free to marry a person of the opposite sex).

Would you agree then that anti-miscegenation laws did not discriminate on the basis of race since people were allowed to marry a person of their race (whether or not the person they loved was in that group is another question)?

 

[larkin31]

This is you: “Society has no interest in allowing same-sex couples to marry.”

Me: “Yes it does. These are some of the reasons why society DOES have an interest in allowing same-sex couples to marry: [reasons x, y, z]”

You: “Society has no interest in allowing same-sex couples to marry.”

He/she ignored my specific statements of contributions, too. He/she has ignored every specific we have offered and has merely repeated dogma-in-disguise.

But the fatal flaw in your argument is your assumption that society has to have some particular interest, apart from fairness, in same-sex marriages before they can be legally recognized.

Yes. As if “justice” or “equal treatment under the law” were not reason enough in this country.

 

[larkin31]

->All homosexual marriages cannot reproduce. (without adoption or sperm donor)

->Some heterosexual marriages cannot reprodce. (without adoption or sperm donor)

----->Some heterosexual marriages **can **reproduce pre-marriage but
cannot reproduce post-marriage due to medical reasons.

----->Some heterosexual marriages **cannot **reproduce pre-marriage and
cannot reproduce post-marriage due to medical reasons.

---------->Some heterosexual marriages cannot reproduce pre-marriage
due to **unintentional **medical reasons (age, sterility)

---------->Some heterosexual marriages cannot reproduce pre-marriage
due to **inentional **medical reasons (hysterectomy, vasectomy)

None of this matters in American law. This is Catholic dogma, but not legal precedent or foundation.

 

[secular_freedom]

->All homosexual marriages cannot reproduce. (without adoption or sperm donor)

->Some heterosexual marriages cannot reprodce. (without adoption or sperm donor)

----->Some heterosexual marriages **can **reproduce pre-marriage but
cannot reproduce post-marriage due to medical reasons.

----->Some heterosexual marriages **cannot **reproduce pre-marriage and
cannot reproduce post-marriage due to medical reasons.

---------->Some heterosexual marriages cannot reproduce pre-marriage
due to **unintentional **medical reasons (age, sterility)

---------->Some heterosexual marriages cannot reproduce pre-marriage
due to **inentional **medical reasons (hysterectomy, vasectomy)

So you can see that only a percentage of a percentage of the population of heterosexual couples cannot reproduce pre-marriage due to intentional medical reasons.

If an entire population were homosexual, it would be impossible to reproduce VS. if an entire poplulation were heterosexual it would be impossible for only a percentage of the population to reproduce.

This doesn’t resolve the contradiction I pointed out.

Step 1 is false becuase Proposition 8 **does not **discriminate on the basis of sexual orientation (a homosexual person is free to marry a person of the opposite sex).

If anything I have said is against the Catholic Church, let it be anathema.

What you’re objecting to is not premise 1, but premise 2. Premise (1) does not claim that prop 8 discriminates on the basis of sexual orientation – it only claims that if prop 8 discriminates on the basis of sexual orientation, etc, then the law violates equal protection.

As for your objection, the fact that homosexuals are free to marry a person of the opposite sex doesn’t change the fact that homosexuals, unlike heterosexuals, are not free to marry their partners. What makes prop 8 discriminatory on the basis of sexual orientation is the latter fact: unlike heterosexuals, homosexuals are not free to marry their partners.

 

[Los_Angeles]

This doesn’t resolve the contradiction I pointed out.

What you’re objecting to is not premise 1, but premise 2. Premise (1) does not claim that prop 8 discriminates on the basis of sexual orientation – it only claims that if prop 8 discriminates on the basis of sexual orientation, etc, then the law violates equal protection.

As for your objection, the fact that homosexuals are free to marry a person of the opposite sex doesn’t change the fact that homosexuals, unlike heterosexuals, are not free to marry their partners. What makes prop 8 discriminatory on the basis of sexual orientation is the latter fact: unlike heterosexuals, homosexuals are not free to marry their partners.

Okay whether or not you and I agree it is premise 1 or premise 2 that we are talking about, we can discuss my objection.

What homosexuals are claiming is that they are being discriminated against getting married as heterosexuals do. There is no such thing currently in the State of California as a homosexual “marriage”. The standard of marriage is a heterosexual marriage. That being said if homosexuals want a marriage, they can marry a person of the opposite sex. Hence there is no discrimination.

A “partner” in a herterosexual marriage is someone of the opposite sex. That they [homosexuals] are not free to marry somebody of the same sex would conflict with the heterosexual notion of a parter, create a completely new class of “marriage”, and is a completely different argument altogether.

If anything I have said is against the Catholic Church let it be anathema.

 

[secular_freedom]

That being said if homosexuals want a marriage, they can marry a person of the opposite sex. Hence there is no discrimination.

This doesn’t follow. Again, there is discrimination because homosexuals do not have the same freedom to marry as heterosexuals do. From the fact that homosexuals have the same freedom to marry a person of the opposite sex as heterosexuals do, it doesn’t follow that homosexuals have the *same freedom to marry *as heterosexuals do. Put another way, the fact that both homosexuals and heterosexuals have the same freedom to marry *in one respect *doesn’t mean they have the same freedom to marry in another respect. Please attend to this distinction.

Under prop 8, homosexuals are not free to marry their partners while heterosexuals are free to marry their partners. Hence prop 8 treats homosexuals differently than heterosexuals. Hence prop 8 discriminates against homosexuals.

A “partner” in a herterosexual marriage is someone of the opposite sex. That they [homosexuals] are not free to marry somebody of the same sex would conflict with the heterosexual notion of a parter, create a completely new class of “marriage”, and is a completely different argument altogether.

Your argument is confused. The fact that “partner” in a heterosexual marriage refers to a person of a different gender doesn’t mean that the word “partner” necessarily refers to “someone of a different gender.” “Partner” in the neutral sense simply refers to one’s “romantic partner.” Nothing you wrote calls into question the fact that under prop 8, heterosexuals are free to marry their partners while homosexuals are not.

 

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[Oresteian]

Okay whether or not you and I agree it is premise 1 or premise 2 that we are talking about, we can discuss my objection.

What homosexuals are claiming is that they are being discriminated against getting married as heterosexuals do. There is no such thing currently in the State of California as a homosexual “marriage”. The standard of marriage is a heterosexual marriage. That being said if homosexuals want a marriage, they can marry a person of the opposite sex. Hence there is no discrimination.

A “partner” in a herterosexual marriage is someone of the opposite sex. That they [homosexuals] are not free to marry somebody of the same sex would conflict with the heterosexual notion of a parter, create a completely new class of “marriage”, and is a completely different argument altogether.

If anything I have said is against the Catholic Church let it be anathema.

But isn’t that the entire problem? the reason why there IS no same sex marriage is BECAUSE of Prop 8. What we are trying to resolve is why this law is allowed to stand as there is no rational basis to prevent such marriages from existing. So far all the answers provided by supporters of Prop 8 are quite lacking.

Now I will go back to MY question that no one on this thread has answered yet:

Why should ANYONE accept the “traditional” definition of marriage as the only legitimate marriage that SHOULD be allowed when the premises supporting this are pragmatically and historically false?

There are other problems but I would like to at least see an attempt to answer just this one.

 

[Los_Angeles]

This doesn’t follow. Again, there is discrimination because homosexuals do not have the same freedom to marry as heterosexuals do. From the fact that homosexuals have the same freedom to marry a person of the opposite sex as heterosexuals do, it doesn’t follow that homosexuals have the *same freedom to marry *as heterosexuals do. Put another way, the fact that both homosexuals and heterosexuals have the same freedom to marry *in one respect *doesn’t mean they have the same freedom to marry in another respect. Please attend to this distinction.

It is precisely becuase of this distinction, “in one respect” vs. “in another respect” that you should see that confilict that is being made. There in currently no such thing as a homosexual “marriage”. That is after all, what you are fighting for.

Marriage under Prop 8 is defined as between one man and one woman. It is blind to sexual orientation.

Your argument is confused. The fact that “partner” in a heterosexual marriage refers to a person of a different gender doesn’t mean that the word “partner” necessarily refers to “someone of a different gender.” “Partner” in the neutral sense simply refers to one’s “romantic partner.” Nothing you wrote calls into question the fact that under prop 8, heterosexuals are free to marry their partners while homosexuals are not.

Sorry, but the argument is not confused.

On the contrary, I am confused by your concept of a neutral sense of partner (which does not exist) using the equal usage of the term “partner” without respect to the marriage (homo or hetero) we are talking about. I am making the important distinction that the term that you are using “partner” means one thing in a heterosexual marriage, and another thing in a homosexual “marriage”.

If anything I have said is against the Catholic Church, let it be anathema.

 

[Los_Angeles]

But isn’t that the entire problem? the reason why there IS no same sex marriage is BECAUSE of Prop 8. What we are trying to resolve is why this law is allowed to stand as there is no rational basis to prevent such marriages from existing. So far all the answers provided by supporters of Prop 8 are quite lacking.

Now I will go back to MY question that no one on this thread has answered yet:

Why should ANYONE accept the “traditional” definition of marriage as the only legitimate marriage that SHOULD be allowed when the premises supporting this are pragmatically and historically false?

There are other problems but I would like to at least see an attempt to answer just this one.

I will attempt to answer you.

Your first paragraph is refuted becuase all homosexual marriages produce 0 offspring (without adpoption or sperm donor). American society, the State of California values offspring becuase that is how we continue life, living, and survival (survival of the fittest if you are an evolutionist). Even, homosexuals need heterosexuals becuase without children there could could be no such thing as a homosexual. There could be no Judge Vaughn Walker.

On your second paragraph, can you please demonstrate how allowing only heterosexual or tradtional marriage is pragmatically and historically false?

If anything I have said is against the Catholic Church, let it be anathema.

 

[secular_freedom]

It is precisely becuase of this distinction, “in one respect” vs. “in another respect” that you should see that confilict that is being made. There in currently no such thing as a homosexual “marriage”. That is after all, what you are fighting for.

Of course there is no same-sex marriage in California. But what does this fact have to do with prop 8 not being discriminatory? It is precisely because prop 8 prevents gay couples, but not heterosexual couples, from marrying that makes it discriminatory against homosexuals. Prop 8 treats people who wish to marry their partners differently, by allowing one group of people (heterosexuals) the freedom to marry their partners but not another group (homosexuals), which is the very meaning of discrimination (treating groups differently). Now, whether the discrimination is justified is a separate issue, but the fact of discrimination is rationally undeniable.

Marriage under Prop 8 is defined as between one man and one woman. It is blind to sexual orientation.

It is not blind to sexual orientation for precisely the reason I stated: prop 8 prevents–and was intended to prevent–homosexuals, but not heterosexuals, from being able to marry their partners. Hence prop 8 denies homosexuals the freedom to marry their romantic partners while preserving that freedom for heterosexuals.

Sorry, but the argument is not confused.

On the contrary, I am confused by your concept of a neutral sense of partner (which does not exist) using the equal usage of the term “partner” without respect to the marriage (homo or hetero) we are talking about. I am making the important distinction that the term that you are using “partner” means one thing in a heterosexual marriage, and another thing in a homosexual “marriage”.

I am confused by your confusion. What point are you trying to make here? When I claim that heterosexuals are free to marry their partners, I of course mean that heterosexuals are free to marry their “romantic partners.” Homosexuals, however, are NOT free to marry their “romantic partners.” So there is discrimination. (Btw, I didn’t think I really needed to spell out that “partner” means “romantic partner.” This just obvious).

 

[Oresteian]

I will attempt to answer you.

Your first paragraph is refuted becuase all homosexual marriages produce 0 offspring (without adpoption or sperm donor). American society, the State of California values offspring becuase that is how we continue life, living, and survival (survival of the fittest if you are an evolutionist). Even, homosexuals need heterosexuals becuase without children there could could be no such thing as a homosexual. There could be no Judge Vaughn Walker.

On your second paragraph, can you please demonstrate how allowing only heterosexual or tradtional marriage is pragmatically and historically false?

If anything I have said is against the Catholic Church, let it be anathema.

UM try again. This is nothing but question begging. WHY should we use this as the basis to prevent consenting adults from marrying?

There are plenty of heterosexual people who get married and will have no part in child rearing various reasons, and people have been reproducing before there was such a thing as marriage, given these facts, I think it is clear that marriage serves some other purpose that does not necessarily include children.

As far as my second point, marriage historically has been less about rearing children and more to deal with property rights. People used to get married so land and other types of property can be preserved or to end or prevent tribal conflict. The so-called “traditional” standard of marriage is a recent innovation.

For these reasons, I think to use child rearing as the basis for marriage is unsound.

For the fourth time I will restate and rephrase my question as it has not been answered satisfactorily:

Why should ANYONE accept the “traditional” standard of marriage the basis of which does not lie in pragmatic and historical fact?

 

[secular_freedom]

I will attempt to answer you.

Your first paragraph is refuted becuase all homosexual marriages produce 0 offspring (without adpoption or sperm donor). American society, the State of California values offspring becuase that is how we continue life, living, and survival (survival of the fittest if you are an evolutionist). Even, homosexuals need heterosexuals becuase without children there could could be no such thing as a homosexual. There could be no Judge Vaughn Walker.

The following appears to be your argument.

1. Only partnerships which can produce children can be legally recognized as marriages.
2. Homosexual partnerships can never produce children.
3. Therefore, homosexual partnerships can’t be legally recognized as marriages.

As been pointed out to you, premise 1) is false: there is no legal requirement that before a partnership can be recognized as marriage, it must be able to produce children. Let me say that again: there is no a legal requirement that a partnership must be able to produce children before it can be recognized as marriage.

Go back to the drawing board and build your argument on a different premise.

 

[Los_Angeles]

Of course there is no same-sex marriage in California. But what does this fact have to do with prop 8 not being discriminatory? It is precisely because prop 8 prevents gay couples, but not heterosexual couples, from marrying that makes it discriminatory against homosexuals. Prop 8 treats people who wish to marry their partners differently, by allowing one group of people (heterosexuals) the freedom to marry their partners but not another group (homosexuals), which is the very meaning of discrimination (treating groups differently). Now, whether the discrimination is justified is a separate issue, but the fact of discrimination is rationally undeniable.

Again, sorry but there is no discrimination under Prop 8.

There has to be the distinction of homsexual from homosexual couple. Homosexual is one person’s sexual orientation. Prop 8 allows a homosexual to have a marriage just like a heterosexual. Simply marry somone of the opposite sex.

Homosexual couple is two people wanting to create a new class of marriage that does not exist yet.

It is not blind to sexual orientation for precisely the reason I stated: prop 8 prevents–and was intended to prevent–homosexuals, but not heterosexuals, from being able to marry their partners. Hence prop 8 denies homosexuals the freedom to marry their romantic partners while preserving that freedom for heterosexuals.

Please see above.

I am confused by your confusion. What point are you trying to make here? When I claim that heterosexuals are free to marry their partners, I of course mean that heterosexuals are free to marry their “romantic partners.” Homosexuals, however, are NOT free to marry their “romantic partners.” So there is discrimination. (Btw, I didn’t think I really needed to spell out that “partner” means “romantic partner.” This just obvious).

The point that I am trying to make simply this: when someone uses the word “partner” in heterosexual context they are talking about someone of the opposite sex. When someone uses the word “partner” in a homosexual context they are talking about someone of the same sex.

If no distinction were made, there would be in effect a contradiction.

This may seem trivial to some, however it is important distinction becuase some are proposing creating a homosexual “marriage” which needs a distinction to be made so we do not confuse it with the gender of a partner in a heterosexual marriage.

If anything I have said is against the Catholic Church, let it be anathema.

 

[Los_Angeles]

UM try again. This is nothing but question begging. WHY should we use this as the basis to prevent consenting adults from marrying?

There are plenty of heterosexual people who get married and will have no part in child rearing various reasons, and people have been reproducing before there was such a thing as marriage, given these facts, I think it is clear that marriage serves some other purpose that does not necessarily include children.

As far as my second point, marriage historically has been less about rearing children and more to deal with property rights. People used to get married so land and other types of property can be preserved or to end or prevent tribal conflict. The so-called “traditional” standard of marriage is a recent innovation.

For these reasons, I think to use child rearing as the basis for marriage is unsound.

For the fourth time I will restate and rephrase my question as it has not been answered satisfactorily:

Why should ANYONE accept the “traditional” standard of marriage the basis of which does not lie in pragmatic and historical fact?

Sorry for you thinking that this is the fouth time you have responded to me, as I have only responded to you once as far as I am aware.

Some heterosexual marriages play no part in child rearing but we allow their marriages for the sake of the vast majority of heterosexual marriages that do play a part in child rearing.

It is in society’s interest to promote heterosexual marriages. They produce offspring which is valuable to society.

What is in the interest of society in part of the legal decisions being made by the courts.

As for your second point, you acknowledge there is at least some element of child rearing that is included in marriage. Whether or not this is more imporatant than property rights is a subjective argument, but you are acknowledging at the very minimum, that there is some interest in child rearing.

If anything I have said is against the Catholic Church, let it be anathema.

 

[secular_freedom]

Again, sorry but there is no discrimination under Prop 8.

There has to be the distinction of homsexual from homosexual couple. Homosexual is one person’s sexual orientation. Prop 8 allows a homosexual to have a marriage just like a heterosexual. Simply marry somone of the opposite sex.

Homosexual couple is two people wanting to create a new class of marriage that does not exist yet.

Ignoring my responses won’t make them disappear. Again, it is precisely because prop 8 prevents gay couples, but not heterosexual couples, from marrying that makes it discriminatory against homosexuals. The fact that homosexuals are permitted to marry under prop 8 doesn’t mean they are permitted the same freedom to marry under prop 8 as heterosexuals: ***unlike ***heterosexuals, homosexuals do not have the freedom to marry their partners. Hence it follows that prop 8 treats homosexuals differently (because heterosexuals are permitted certain freedoms denied to homosexuals) Please explain how this difference in treatment does not amount to discrimination.

Please see above.

All you’re doing is ignoring my responses.

This is you: “Prop 8 is not discriminatory on the basis of sexual orientation because it allows both homosexuals and heterosexuals the freedom to marry persons of the opposite-sex.”

Me: “The fact that both homosexuals and heterosexuals have the freedom to marry persons of the opposite sex doesn’t mean they both have the same freedom to marry. Heterosexuals are permitted the freedom to marry their partners while homosexuals are denied that freedom. It is this fact that makes prop 8 discriminatory on the basis of sexual orientation.”

You: “Prop 8 is not discriminatory on the basis of sexual orientation because it allows both homosexuals and heterosexuals the freedom to marry persons of the opposite-sex.”

As you can see, you’re not interacting with my rebuttals but simply repeating your original talking points as if they haven’t been addressed.

The point that I am trying to make simply this: when someone uses the word “partner” in heterosexual context they are talking about someone of the opposite sex. When someone uses the word “partner” in a homosexual context they are talking about someone of the same sex.

Okay.

If no distinction were made, there would be in effect a contradiction.

This may seem trivial to some, however it is important distinction becuase some are proposing creating a homosexual “marriage” which needs a distinction to be made so we do not confuse it with the gender of a partner in a heterosexual marriage.

None of this actually addresses the issue: prop 8 discriminates against homosexuals because it denies them, but not heterosexuals, the freedom to marry their partners. Please explain how this difference in treatment does not amount to discrimination.

 

[Los_Angeles]

The following appears to be your argument.

1. Only partnerships which can produce children can be legally recognized as marriages.
2. Homosexual partnerships can never produce children.
3. Therefore, homosexual partnerships can’t be legally recognized as marriages.

As been pointed out to you, premise 1) is false: there is no legal requirement that before a partnership can be recognized as marriage, it must be able to produce children. Let me say that again: there is no a legal requirement that a partnership must be able to produce children before it can be recognized as marriage.

Go back to the drawing board and build your argument on a different premise.

What you wrote is not what is on my drawring board.

What is on my drawing board is closer to this:

The United States of America, Californa, and society in general value its continued survival through future generations of people.

Heterosexual Marriage is an instituion which promotes offspring, child rearing, ect.,

Some heterosexuals marriages do not/cannot produce offspring, child rearing, ect.,

We should not stop all heterosexual marriages becuase some do not/cannot produce offspring.

If anything I have said is against the Catholic Church, let it be anathema.

 

[secular_freedom]

What you wrote is not what is on my drawring board.

What is on my drawing board is closer to this:

The United States of America, Californa, and society in general value its continued survival through future generations of people.

Heterosexual Marriage is an instituion which promotes offspring, child rearing, ect.,

Some heterosexuals marriages do not/cannot produce offspring, child rearing, ect.,

We should not stop all heterosexual marriages becuase some do not/cannot produce offspring.

If anything I have said is against the Catholic Church, let it be anathema.

From the fact that homosexuals cannot produce children, you want to build an argument to the conclusion that homosexuals should not be able to marry their partners. What is the argument? Can you spell it out in detail with numbered premises so we can examine the logical relation between the premises and conclusion? Can you do this? You appear to want to argue:

1. Homosexual couples cannot produce children.
2. Therefore, homosexual couples should not be able to get married.

But in its current form, the argument is a blatant non-sequitur. Please fill in the gaps.

 

[Elizabeth502]

Some heterosexual marriages play no part in child rearing but we allow their marriages for the sake of the vast majority of heterosexual marriages that do play a part in child rearing.

It is in society’s interest to promote heterosexual marriages. They produce offspring which is valuable to society.

What is in the interest of society in/ [is ] part of the legal decisions being made by the courts.

Exactly. Laws are constructed, and case law is most often decided, on the basis of norms: ‘customary and usual practice’ is a phrase oft-repeated in legal decisions. What some people here do not understand is that very often when a case is brought to a higher court, the court is hearing a case in which a previously established right had been reversed or denied by an entity or institution which could and should have granted it. Such was the case, for example, in Loving, which Professor Robert George correctly points out. The decision did not expand a right or redefine a right at all; rather, it upheld a previously formally recognized right by which heterosexual couples were free to formalize their relationships in marriage, regardless of racial differences. This was a reinstatement, not an expansion or a new context for the term “marriage.”

…Just a digression, but I post to restate that the purpose of the courts is to interpret correctly, not to create new law or invent terminology for the reordering of society. That’s what legislatures are for (state and national): to create law. It is not up to Judge Walker or The 9th, or even the SC, to invent a new category of ‘marriage’ – even if the idea were so popular that a majority of Americans wanted that (and they don’t). That is an abuse of the legal system for political purposes.