Proposition 8 violates the Equal Protection Clause

[secular_freedom]

LOL! Have you watched the WNBA and the NBA? It is just obvious!

Yep, I have, and it’s not obvious. It’s not obvious that no woman basketball player can play on par with NBA players, or that the best woman basketball player in the world can’t play on par with the worst NBA player. What’s obvious is that your claim is obviously false.

Sorry if you have trouble seeing the obvious,

But I don’t. It’s obvious that your claim is obviously false, ridiculous and idiotic. Sorry if you have trouble seeing the obvious.

In any case, even if it were a hasty generalization, this would obviously be irrelevant to the conceptual point being made, so your comments here are not just ill-informed but irrelevant.

It’s not irrelevant at all. You’re the one who pushed the analogy, and if your analogy is flawed (as it obviously is), then you have not successfully advanced whatever “conceptual” point you were trying to make.

You appear to be asserting a false dichotomy here: It is foreseen and intended, or incidental, but not both. The correct usage of the world “intend” is controversial, but I intended it in the weak sense in which anything we foresee and assent to is intended.

It’s not a false dichotomy. If I intend to exclude skunks from my house,then the exclusion of such creatures isn’t “incidental,” but intentional. If I “incidentally” crash my friend’s computer, I do so not because I “intended” to crash his computer, but because it was an accident. Sorry, but this distinction is just obvious.

With the clarification given above you should be able to see that that’s an obvious non-sequitur.

With the above explanation above, you should be able to see that it’s obviously not a non-sequitur.

No, that’s not true as I’ve clearly explained. For your Mexican example, suppose the store owner has a daughter who she cares for while she minds the store and her daughter has psychotic episodes whenever she hears Spanish or a Spanish accent. In this case the store owner would ‘discriminate against’ Mexicans, without discriminating against them on the basis of their being Mexican.

Yes, he would be. The fact that he has a reason to discriminate against Mexicans doesn’t mean he isn’t discriminating against Mexicans on the basis of their being Mexican.

I have already clearly explained what I mean by ‘trivial’ and ‘merely statistical.’ Hopefully you get it now.

But you clearly haven’t clearly explained what you mean by “trivial” and “merely statistically.”

As for your citing a statistic in order to call into question the possibility that something could be ‘merely statistical’… very strange, very illogical.

Not very strange at all, or illogical.

 

[Oresteian]

men are allowed to marry those of the opposite sex.

so are women.

no difference.

and with that you just missed the entire point. You cannot allow a man to do something and not allow a woman to do the same exact thing, and vice versa. Everyone has to be able to do it.

If you do not have equal opportunity to marry either sex then there is discrimination based on sex.

If you are not allowed to marry your romantic partner because they are of the same sex then that is also discrimination.

These violate EPC and DPC.

The point is to determine the basis for such discrimination, not that it occurs.

 

[captainmike]

and with that you just missed the entire point. You cannot allow a man to do something and not allow a woman to do the same exact thing, and vice versa. Everyone has to be able to do it.

If you do not have equal opportunity to marry either sex then there is discrimination based on sex.

If you are not allowed to marry your romantic partner because they are of the same sex then that is also discrimination.

These violate EPC and DPC.

The point is to determine the basis for such discrimination, not that it occurs.

so, is it a violation of the EPC to require everyone to accurately state their gender when applying for a driver’s license? after all, we are requiring women to state that they are women–they are not allowed to state that they are men.

 

[captainmike]

Yep, I have, and it’s not obvious. It’s not obvious that no woman basketball player can play on par with NBA players, or that the best woman basketball player in the world can’t play on par with the worst NBA player.

you just lost what little credibility you had.

 

[secular_freedom]

Your claim: “I was clearly indicating that for many marriages, the fundamental purpose is not procreation. Thus the fact remains that not all marriages have the fundamental purpose of procreation.”

It does not follow from the fact that -]not all eating is for sustenance/-] not all marriages are for procreation that -]sustenance is not the only fundamental purpose of eating/-] procreation is not the only fundamental purpose of marriage. You repeatedly commit this non sequitur in your claims.

The above argument I made is valid.

1). For many marriages, the fundamental purpose in those marriages is not procreation.
2). Hence, for many marriages, the fundamental purposes in those marriages is something other than procreation.
3) Hence, some marriages have a fundamental purpose other than procreation.
4) Hence, not all marriages have the fundamental purpose of procreation.

No, I’ve corrected you on this already, please stop making the same mistake. We are interpreting and critiquing the status of the law here, not appealing to its authority.

Please stop making the mistake of thinking you’ve corrected me. Again, it is your contention that under “current law,” it is a *legal requirement *that partnerships must not be fundamentally alien to procreation before they can be recognized as marriages. Hence, in order to show that this is a requirement under “current law,” you need to have some understanding as to what the “current law” is. Hence, you need to cite relevant legal authority (e.g. statute, precedent) for your proposition – otherwise, your claim that “this is a requirement under current law” is NOTHING more than a baseless, unsupported and unfounded assertion. Sorry, hate to break out the “obvious” to you, but you saying “x is a requirement under current” law doesn’t make it so.

I’ve done this already.

But you haven’t (obviously). Claiming something is “self-evident” is not the same thing as giving an “explanation.” If you have, then you should have no problem quoting what you’ve previously written that addresses my question: “Please explain how a heterosexual partnership involving two 90-year old individuals, where one had a complete hysterectomy and the other is sterile, is not as fundamentally alien to procreation as a homosexual partnership.”

Some additional considerations: The male-female couple may already have procreated in a similar male-female coupling. The same-sex couple most certainly have not and never will, unless it was in a prior and different kind of coupling which fit the fundamental procreative model (namely, male-female couple). Therefore, etc.

These “additional considerations” don’t address my example. In my example, let’s suppose the 90-year old couple had never procreated before. In fact, let’s suppose that the 90-year old couple had a life-long moral objection against procreation. Is there partnership still not as fundamentally alien to procreation has homosexual partnerships?

But I have explained to you what is meant by “fundamentally alien” so your (2) is just begging the question again.

But you haven’t, so it isn’t begging the question at all.

YES - in the relevant sense of “fundamentally alien,” of course.

Explain the relevant sense of “fundamentally alien.”

Since the most reasonable construal of the purpose of the secular institution of marriage in our society is that it is fundamentally about honoring the value of procreation, marriages must minimally respect that value by including both a male and a female partner.

“Most reasonable” according to whom? When will you support your claim with something more than “it’s self-evident, it’s obvious?” Moreover, your conclusion is a non-sequitur. Why does it follow that if the “most reasonable construal of the purpose of the secular institution of marriage” is procreation, then it is therefore a legal requirement that marriages must include both a male and a female partner? This doesn’t follow at all.

Partnerships that do not include a male and a female partner are inherently non-procreative and therefore should not be called marriages because they do not reflect that affirmation of the value of procreative pairings which is the raison d’etre of the secular institution of marriage.

You still haven’t cited any relevant legal authority for the proposition that partnerships must not be fundamentally alien to procreation before they can be marriages. You are still asserting (without argument) that marriage is fundamentally about procreation. You are still confusing (yep again) procreation with child-rearing.

 

[secular_freedom]

haven’t read the studies and don’t have the time or inclination to do so.

So in other words, you aren’t entitled to draw the conclusions you want to draw.

i believe that, at a minimum, they would show that boys raised without fathers don’t do as well, in lots of different ways.

You “believe?” You “believe” even though you haven’t “read the studies and don’t have the time or inclination to do so?” Thanks for admitting (AGAIN) that evidence isn’t important to you.

would the studies differentiate between boys raised by single moms and boys raised by two lesbians? don’t know.

Great. If you “don’t know,” then don’t pretend to know what the studies will “undoubtedly show.”

 

[JackQ]

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. 
   This issue has three levels: the religious, the constitutional, and the mixed religious and constitutional.
   
   Regarding the first, it is clear that the Catholic Church cannot sanction gay marriage. But, of course, that was not what Proposition 8, or the previous California Supreme Court ruling mandating the allowance of gay marriages, was about. Even if it is ultimately decided that there is a federal constitutional right to marry a person of one’s own gender, the First Amendment will prohibit an American government to require the Church to participate. If the Church ever confronts a government that requires same, then that government will have to be disobeyed, and the resulting governmental sanctions accepted.
   
   But it is obvious that the Church cannot, and should not, impose its religion by the use of governmental force. Not only would that violate the First Amendment (which, of course, applies only in the United States), but history has shown that the Church always shoots itself in the foot when it tries to do that (not to mention the suffering inflicted by such actions). That should not have been surprising, since such activity is in direct opposition to the teachings of Jesus, but those who engaged in it were more likely motivated by the maintenance of political power than faith or the propogation thereof. I would add that I am not aware of anyone becoming a Catholic because of Proposition 8.
   
   So, if Proposition 8 is to be constitutionally justified, it must be justifiable by means other than religious doctrine. But can this be shown? It seems to me that it can be by the simple articulation of the apparent fact that gay marriage is contrary to the moral sense of the community, i.e., the majority think it is wrong. Morality exists independently of religion, as atheists admit when they insist that a person can be ethical without the aid of religion. Now the wrongness of gay marriage may not be demonstrable if we limit ourselves to utilitarianism, but utilitarianism is not written into the constitution. There is no constitutional requirement that legislation prohibiting conduct is constitutionally permissible only if it can be shown that the conduct in question empirically harms someone. Moreover, the assertion that morality should not be legislated is poorly thought out, since morality is legislated in every Penal Code that prohibits murder and lesser crimes. Morality is not just about sex. The claim that consensual sex between adults should not be a subject of legislation is not self-evident.
   
   But what of equal protection? Assuming a situation where Proposition 8 is operative, gays and lesbians have the same right to marry as anyone else. No one, heterosexual or homosexual, is allowed to marry a person of the same gender. The fact that a homosexual person does not wish to marry a person of the opposite gender makes no difference to the analysis. I have a constitutional right to travel, but there are some locations to which I do not wish to travel. It does not follow that I have no right to travel to those locations. Gay couples have indicated that they feel more normalized when allowed to marry, but there is no constitutional right to that. The attempted analogy between gay marriages and interracial ones is inapt, because gender involves a real biological difference between people whereas race classifications are merely political distinctions. Add to all of this the historical reality that permitting gay marriage required a redefinition of marriage, and the inadequacy of the equal protection argument becomes clear.
   
   But there may be an elephant in the room, and here is the third level of the issue. What if the Unitarian Church decided to marry gay couples and decided to raise a complaint that the government was recognizing all of the marriages performed by the Catholic Church, but did not give such recognition to all Unitarian marriages? Would they then be able to successfully assert that the government was favoring one religion over another in contravention of the First Amendment? It seems to me that there would be some cogency to that claim. So the proponents of gay marriage may have a stronger argument in the First Amendment than in the Fourteenth.

 

[secular_freedom]

I still don’t understand how Proposition 8 violates the Equal Protection Clause.

Sexual orientation isn’t part of the definition of marriage. It’s one of the reasons I don’t see any discrimination in Proposition 8. No where in any marriage law does it state that the individuals MUST BE heterosexual. It only says they must be one man and one woman.

Now if you want to make sexual orientation part of the definition of marriage than you can make anything part of the definition of marriage. At that point marriage as a social and cultural institution ceases to exist.

I take it you don’t see how prop 8 discriminates on the basis of sexual orientation. It discriminates on that basis because it prohibits homosexuals, but not heterosexuals, from being able to marry their partners. The fact that homosexuals have the freedom to marry under prop 8 doesn’t mean they have the same general freedom to marry under prop 8 as heterosexuals.

 

[secular_freedom]

men are allowed to marry those of the opposite sex.

so are women.

no difference.

I discuss how prop 8 also discriminates on the basis of sex in another thread:forums.catholic-questions.org/showthread.php?t=488836&page=2

Under prop 8, men are permitted to do certain things that women are not permitted to do - namely, marry women. Hence, prop 8 restricts a woman’s freedom to marry a woman, while it does not restrict a man’s freedom to marry a woman.

Under prop 8, women are permitted to do certain things that men are ***not ***permitted to do - namely, marry men. Hence prop 8 restricts a man’s freedom to marry a man, while it does not restrict a man’s freedom to marry a man.

 

[secular_freedom]

so, is it a violation of the EPC to require everyone to accurately state their gender when applying for a driver’s license? after all, we are requiring women to state that they are women–they are not allowed to state that they are men.

No, it would not violate the EPC in your example. But tell me: how is this remotely analogous to prop 8?

 

[pismopal]

Here is the opinion, which answers your question. Begin reading on page 110 for the judge’s direct answer of your question (over the next 28 pages).

glad.org/uploads/docs/cases/perry-decision-8-4-10.pdf

Redefining definitions is not anything new to courts in this country and certainly does not justify it’s decision re; Prop 8.

 

[secular_freedom]

you just lost what little credibility you had.

I’m sure you can make an educated guess as to how much that means to me coming from you.

 

[Oresteian]

so, is it a violation of the EPC to require everyone to accurately state their gender when applying for a driver’s license? after all, we are requiring women to state that they are women–they are not allowed to state that they are men.

No you are when you apply for a driver’s license it asks you for your sex, not your gender. Male and Female are you sex. Masculine and feminine are gender terms and are socially constructed. On the front of my NY Driver’s license under my DOB there is an entry for “SEX”.

For a woman to state that she is a man would be technically incorrect because that is determined by having XX chromosomes. Same with a man reporting as a woman.

 

[secular_freedom]

But what of equal protection? Assuming a situation where Proposition 8 is operative, gays and lesbians have the same right to marry as anyone else. No one, heterosexual or homosexual, is allowed to marry a person of the same gender. The fact that a homosexual person does not wish to marry a person of the opposite gender makes no difference to the analysis.

It does. Under prop 8, homosexuals (but not heterosexuals) are prohibited from marrying their partners. The fact that homosexuals have the right to marry under prop 8 doesn’t mean they have the same general freedom to marry under prop 8 – again, unlike heterosexuals, homosexuals do not have the freedom to marry their partners. Hence, prop 8 denies homosexuals certain freedoms granted to heterosexuals.

 

[captainmike]

It does. Under prop 8, homosexuals (but not heterosexuals) are prohibited from marrying their partners. The fact that homosexuals have the right to marry under prop 8 doesn’t mean they have the same general freedom to marry under prop 8 – again, unlike heterosexuals, homosexuals do not have the freedom to marry their partners. Hence, prop 8 denies homosexuals certain freedoms granted to heterosexuals.

when has the supreme court ever held that the EPC protects homosexuals per se?

 

[secular_freedom]

when has the supreme court ever held that the EPC protects homosexuals per se?

See Romer v. Evans. But your question is irrelevant since, Equal Protection doesn’t only apply to protect certain groups and not others.

 

[larkin31]

Redefining definitions is not anything new to courts in this country and certainly does not justify it’s decision re; Prop 8.

Well, then all you have to offer in reply is dogma-in-disguise? Have we finally cut to the chase on this matter? Really, what you are stating, then, is that your God defines marriage as between man and woman and that the state will never be justified with ANY reason ever to change it to include men marrying men and women marrying women? Have I summed up your most basic position on this?

 

[larkin31]

See Romer v. Evans. But your question is irrelevant since, Equal Protection doesn’t only apply to protect certain groups and not others.

And see Judge Walker’s ruling, where he reviews and names all the cases that he is referencing to make his ruling.

Here it is again: glad.org/uploads/docs/cases/perry-decision-8-4-10.pdf

 

[colmcille1]

More dogmatizing and question begging. If you are gonna make this a theological discussion, I think this will be the last i will say to you. You just retreat to your Catholicism like self sealing shell that it is and not address ANY of the salient points being made by myself and others (Even Betterave and Los_Angeles made the attempt to keep it in the world of people)

Ich wasche meine Hände in dieser (Yeah I can quote scripture just as well as any Catholic)

Oresteian,
I repeat: I NEVER retreat.
It is dreadfully obvious to me that hatred makes you happy.
I knew that sooner or later your hatred would manifest itself.
This is a serious defect in your character and is an obvious impediment to your debating capability.
But, happily, said hatred is not irreversible. As a sinner, there is a Sacramental remedy.
I caution you though that you must receive with a contrite heart.
Your reference above to other posters on this thread is symptomatic of an immature and uncharitable mind.
And tell me please, where exactly did I post a Scriptural reference?..
That’s it, I did no such thing. But the bloodlust in your mind made you assume (as a lot of non-believers are wont to do) that I had.
So, in conclusion, I will pray for you, my friend, because, despite all the words you post here and the conditions you lay down for said posting, your heart speaks to me with a deeper, more disturbing, tone.
God gives us the strength to change.
God Bless,
Colmcille.

 

[JackQ]

It does. Under prop 8, homosexuals (but not heterosexuals) are prohibited from marrying their partners. The fact that homosexuals have the right to marry under prop 8 doesn’t mean they have the same general freedom to marry under prop 8 – again, unlike heterosexuals, homosexuals do not have the freedom to marry their partners. Hence, prop 8 denies homosexuals certain freedoms granted to heterosexuals.

When you say they can’t marry their partners all you are saying is that they can’t marry who they want to. “Partner” can’t mean any more than that in this context. But equal protection doesn’t mean that everyone gets to do what they want to do, just that everyone is treated the same under the law.