Proposition 8 violates the Equal Protection Clause

[secular_freedom]

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.

It’s a fact that under prop 8, heterosexuals have the freedom to marry their partners (i.e romantic partners). It is a fact that under prop 8, homosexuals do not have the freedom to marry their partners (i.e. romantic partners). Hence prop 8 discriminates against homosexuals because they are treated differently than heterosexuals (by not allowing them to do something that heterosexuals can do). Now, whether the discrimination is justified or not is a separate issue.

If you want to claim that the discrimination is justified, you need provide justification. What is that justification?

 

[JackQ]

It’s a fact that under prop 8, heterosexuals have the freedom to marry their partners (i.e romantic partners). It is a fact that under prop 8, homosexuals do not have the freedom to marry their partners (i.e. romantic partners). Hence prop 8 discriminates against homosexuals because they are treated differently than heterosexuals (by not allowing them to do something that heterosexuals can do). Now, whether the discrimination is justified or not is a separate issue.

If you want to claim that the discrimination is justified, you need provide justification. What is that justification?

Well, you keep begging the question here. You only quoted a small portion of my original post, but the point (of that section) was that no equal protection issue is raised by restricting marriage to people of the opposite gender. (Obviously the Northern District of California disagrees with me, but this is a debate.) Requiring that people drive on the right side of the road does not violate equal protection as to those who wish to drive on the left side. Why? Because no one has a constitutionally protected right to drive on the left side of the road, and the law applies to everyone equally. So, insofar as this is a legal debate, before I have to justify what you refer to as the discrimination, you have to explain why you believe that someone has a constitutionally protected right to marry someone of the same gender.

 

[secular_freedom]

Well, you keep begging the question here.

How so?

You only quoted a small portion of my original post, but the point (of that section) was that no equal protection issue is raised by restricting marriage to people of the opposite gender. (Obviously the Northern District of California disagrees with me, but this is a debate.)

And your argument appeared to be that there was no equal protection issue because prop 8 doesn’t discriminate. If this were true, then I would agree, but prop 8 does discriminate, and I showed how this is so. Now the question is: Is the discrimination justified? Is there some rational basis for it? If the answer is ‘no,’ then it follows that prop 8 violates equal protection.

Requiring that people drive on the right side of the road does not violate equal protection as to those who wish to drive on the left side. Why? Because no one has a constitutionally protected right to drive on the left side of the road, and the law applies to everyone equally.

No, this is not the reason. The reason is: the law does discriminate because it does not treat groups differently. Moreover, the basis for the restriction makes sense.

So, insofar as this is a legal debate, before I have to justify what you refer to as the discrimination, you have to explain why you believe that someone has a constitutionally protected right to marry someone of the same gender.

Incorrect. Equal Protection requires that similarly situated people be treated similarly - whether we’re talking about marriage or something else. If the difference in treatment in prop 8 cannot be justified, then we have a situation where similarly situated people are NOT being treated similarly.

 

[larkin31]

Well, you keep begging the question here. You only quoted a small portion of my original post, but the point (of that section) was that no equal protection issue is raised by restricting marriage to people of the opposite gender. (Obviously the Northern District of California disagrees with me, but this is a debate.) Requiring that people drive on the right side of the road does not violate equal protection as to those who wish to drive on the left side. Why? Because no one has a constitutionally protected right to drive on the left side of the road, and the law applies to everyone equally. So, insofar as this is a legal debate, before I have to justify what you refer to as the discrimination, you have to explain why you believe that someone has a constitutionally protected right to marry someone of the same gender.

Here, beginning on page 113 of the court ruling, Judge Walker addresses your question. All you have to do is read it and you will get your answer. Here is the beginning of that section:

To determine whether a right is fundamental under the Due
Process Clause, the court inquires into whether the right is rooted
“in our Nation’s history, legal traditions, and practices.”
Glucksberg, 521 US at 710. Here, because the right to marry is
fundamental, the court looks to the evidence presented at trial to
determine: (1) the history, tradition and practice of marriage in
the United States; and (2) whether plaintiffs seek to exercise
their right to marry or seek to exercise some other right.

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

 

[neophyte]

I never claimed prop 8 is discriminatory because it prohibits homosexuals from marry. Instead, I claimed prop 8 is discriminatory because it prohibits homosexuals (but not heterosexuals) from being able to marry their partners…

It does no such thing. Homosexuals are perfectly free to marry under Prop 8. The reality is that by definition homosexuals do not wish to marry… they aren’t interested in having intimate relations with someone of the opposite sex.

 

[secular_freedom]

It does no such thing.

Yes, it does. Prop 8 does prohibit homosexuals (but not heterosexuals) from being able to marry their partners.

Homosexuals are perfectly free to marry under Prop 8.

The fact that homosexuals are free to marry under prop 8 doesn’t mean they’re free to marry their partners under prop 8.

The reality is that by definition homosexuals do not wish to marry…

You are confusing reality with your own imagination. Homosexuals DO wish to marry – which is why they want prop 8 overturned so they can do precisely that.

they aren’t interested in having intimate relations with someone of the opposite sex.

You are confused. Here, you are equating the lack of desire to marry someone of the opposite sex with the lack of desire to marry.

 

[larkin31]

It does no such thing. Homosexuals are perfectly free to marry under Prop 8. The reality is that by definition homosexuals do not wish to marry… they aren’t interested in having intimate relations with someone of the opposite sex.

You cut off his sentence. He wrote, “marry their partners.” And, for the record, no one is “perfectly free” to marry. There are several restrictions on marriage. The question is, is each one justified and constitutional? The recent case challenges ONLY the limitation based on gender.

 

[captainmike]

as with so many things in politics, he who controls the language of the debate largely controls the debate. we Christians need to stop defining people as “gay,” “lesbian” or “homosexual.” instead, we should speak of people who commit “homosexual acts.” once we do this, it’s obvious that there is no EP problem. the only way leftists get to an EP violation is to identify people as “gay.” we should resist this and only identify people as “male” and “female.” once we do this, the EP fiction is exposed.

 

[neophyte]

…The fact that homosexuals are free to marry under prop 8 doesn’t mean they’re free to marry their partners under prop 8.

No one has an absolute right to marry anyone or anything they wish. We cannot marry siblings, or our parents, or those under a certain age, or those who are already married, and we cannot marry again if we are already married. And we cannot marry vegetables, or other species of animal.

You might not like to admit it, but those who commit homosexual acts are indeed as free to marry under Prop 8 as anyone else is.

…Here, you are equating the lack of desire to marry someone of the opposite sex with the lack of desire to marry.

I equate them because by definition they are exactly equal. Marriage is a union of a single man and a single woman, always has been, and always will be. You might as well be telling me that I’m confused because I insist that an hour is made up of exactly 60 minutes, or that bread is made of flour and water and not merely flour and more flour.

 

[larkin31]

No one has an absolute right to marry anyone or anything they wish. We cannot marry siblings, or our parents, or those under a certain age, or those who are already married, and we cannot marry again if we are already married. And we cannot marry vegetables, or other species of animal.

You might not like to admit it, but those who commit homosexual acts are indeed as free to marry under Prop 8 as anyone else is.

Hardly. That is a very narrow definition of “free,” and you know it. The law is designed to keep gays from marrying their partners. This is OBVIOUS, and no one in the courtroom denied it.

 

[neophyte]

Hardly. That is a very narrow definition of “free,” and you know it.

So I take it that you wish to have unions between siblings, parents and children, adults and minor children, multiple husbands and wives, and humans and animals legally regarded as marriages?

You seem to think that freedom is “the ability to do anything you wish without regard for reality”. That’s not freedom, it’s actually the worst form of slavery that exists.

The law is designed to keep gays from marrying their partners. This is OBVIOUS, and no one in the courtroom denied it.

There’s nothing in the law that targets those with homosexual attractions. All it says is that marriage is a union between a man and a woman, which in fact it is. “Unions” between two men are not marriage, nor are “unions” between two women, and they are kept from being marriage by their very nature.

The law is merely intended to prevent something being defined as something that it’s not; it’s no more radical than a law that defines the sun as the closest star to the earth. You might as well be complaining about a law that says a ham sandwich is made with ham, on the grounds that it keeps you from making a ham sandwich out of beef. :whacky:

I’m done here. Your position is pitiably absurd, and I won’t dignify it with any more comment.

 

[secular_freedom]

You might not like to admit it, but those who commit homosexual acts are indeed as free to marry under Prop 8 as anyone else is.

Sorry, but this just doesn’t respond to my point that prop 8 discriminates against homosexuals. As I pointed out, Prop 8 prohibits homosexuals (but not heterosexuals) from being able to marry their partners. You may think this discrimination is justified, but it is rationally undeniable that this difference in treatment is discrimination.

I equate them because by definition they are exactly equal.

And your equivocation is, as I pointed out, fallacious. The fact that Fred lacks a desire to marry Jane doesn’t mean Fred lacks a desire to marry Steven.

Marriage is a union of a single man and a single woman, always has been, and always will be.

Except in cases where it hasn’t been.

You might as well be telling me that I’m confused because I insist that an hour is made up of exactly 60 minutes, or that bread is made of flour and water and not merely flour and more flour.

Not even remotely analogous.

 

[secular_freedom]

There’s nothing in the law that targets those with homosexual attractions. All it says is that marriage is a union between a man and a woman, which in fact it is. “Unions” between two men are not marriage, nor are “unions” between two women, and they are kept from being marriage by their very nature.

You don’t seem to understand the distinction between what a law says and what a law does. What prop 8 does (and was intended to do) was to prohibits gay and lesbian couples from being able to marry each other.

The law is merely intended to prevent something being defined as something that it’s not;

Your claim that marriage cannot be a union between a same-sex couple is question begging and asserted without argument.

it’s no more radical than a law that defines the sun as the closest star to the earth. You might as well be complaining about a law that says a ham sandwich is made with ham, on the grounds that it keeps you from making a ham sandwich out of beef. :whacky:

“Marriage” isn’t a law of a nature that must be a certain way because nature is a certain way. Marriage is a human institution, and human institutions can (and do) change. So your analogy is way off (again).

I’m done here. Your position is pitiably absurd, and I won’t dignify it with any more comment.

Translation: “I need to go, because I’ve run out of talking points that haven’t already been refuted.”

 

[larkin31]

So I take it that you wish to have unions between siblings, parents and children, adults and minor children, multiple husbands and wives, and humans and animals legally regarded as marriages?

This is so juvenile to state that I will no longer reply to these remarks.

You seem to think that freedom is “the ability to do anything you wish without regard for reality”.

Another ridiculous summary of my position. It merits no other response.

There’s nothing in the law that targets those with homosexual attractions. All it says is that marriage is a union between a man and a woman, which in fact it is. “Unions” between two men are not marriage, nor are “unions” between two women, and they are kept from being marriage by their very nature.

The EFFECT is only upon homosexuals. No one in that courtroom in their testimony tried to claim what you have claimed. Everyone knows that the intent of the Proposition was to reverse the move of having broadened civil marriage to include gay couples. Dogs couldn’t marry. Siblings couldn’t marry, and parents and children could not marry. Only heteros and gays to other consenting non-related adults of their romantic choosing. If you claim anything else, you are simply being disingenuous.

The law is merely intended to prevent something being defined as something that it’s not; it’s no more radical than a law that defines the sun as the closest star to the earth. You might as well be complaining about a law that says a ham sandwich is made with ham, on the grounds that it keeps you from making a ham sandwich out of beef. :whacky:

You seem to be persisting in this nonsense. The Prop 8 appeal, hopefully, will not include your claim that this appeal is not about denying gays the ability to marry, that it really is meant to deny dogs and siblings the ability to marry as well.

I’m done here. Your position is pitiably absurd, and I won’t dignify it with any more comment.

Bye.

 

[larkin31]

Translation: “I need to go, because I’ve run out of talking points that haven’t already been refuted.”

That was one of the more disingenuous lines of argument that we have seen: “This isn’t about gays. This is about definition, like what is a ham sandwich.”

 

[Daedelus76]

T
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.

This shows an ignorance of gay sexuality frankly. It’s a crass, childish comparison speaking from stereotypes of homosexualit… Not all heterosexual acts produce babies and your assumption that the purpose of sexuality is exclusively about reproduction is nothing but dogmatism not affirmed by natural sciences.

People will be gay wheather homosexuality is “normalized” or not. But with more normalization, gays will live less tortured lives perhaps.

 

[JackQ]

How so?

And your argument appeared to be that there was no equal protection issue because prop 8 doesn’t discriminate. If this were true, then I would agree, but prop 8 does discriminate, and I showed how this is so. Now the question is: Is the discrimination justified? Is there some rational basis for it? If the answer is ‘no,’ then it follows that prop 8 violates equal protection.

No, this is not the reason. The reason is: the law does discriminate because it does not treat groups differently. Moreover, the basis for the restriction makes sense.

Incorrect. Equal Protection requires that similarly situated people be treated similarly - whether we’re talking about marriage or something else. If the difference in treatment in prop 8 cannot be justified, then we have a situation where similarly situated people are NOT being treated similarly.

This is why I think you are wrong. Lawrence -v- Texas was a 2003 United States Supreme Court case that struck down, on due process grounds, a Texas statute making sodomy illegal. Justice O’Connor concurred in the result, but said she would strike it down on the basis of equal protection, reasoning that the statute was directed toward a group rather than an act. (The defendants had argued that the Texas law prohibited only homosexual sodomy.) Justice Scalia noted in his dissent that if Justice O’Connor’s reasoning was applied, then it would be doubtful that laws prohibiting gay marriages would be able to pass rational basis scrutiny. Justice O’Connor, for her part, wrote that a law limiting marriage to heterosexual couples would pass rational basis scrutiny provided that the law was directed to protect traditional marriage rather than being based on the state’s dislike of homosexual persons.

The majority in Lawrence -v- Texas did not strike down the sodomy law in question on equal protection grounds. If they had, as Justice Scalia noted, an equal protection argument for gay marriage would have more legs than it has now. But, even if the majority had adopted Justice O’Connor’s view, it is to be noted that Justice O’Connor herself wrote that the protection of traditional marriage would have provided the necessary rational basis.

Therefore, it is for you to first explain how we even get to the need for a rational basis evaluation before the rational basis is provided. This cannot be done by begging the question by assuming what needs to be proven, i.e., that homosexuals are being denied equal protection by Proposition 8.

Your move.

 

[secular_freedom]

This is why I think you are wrong. Lawrence -v- Texas was a 2003 United States Supreme Court case that struck down, on due process grounds, a Texas statute making sodomy illegal. Justice O’Connor concurred in the result, but said she would strike it down on the basis of equal protection, reasoning that the statute was directed toward a group rather than an act. (The defendants had argued that the Texas law prohibited only homosexual sodomy.) Justice Scalia noted in his dissent that if Justice O’Connor’s reasoning was applied, then it would be doubtful that laws prohibiting gay marriages would be able to pass rational basis scrutiny. Justice O’Connor, for her part, wrote that a law limiting marriage to heterosexual couples would pass rational basis scrutiny provided that the law was directed to protect traditional marriage rather than being based on the state’s dislike of homosexual persons.

The majority in Lawrence -v- Texas did not strike down the sodomy law in question on equal protection grounds. If they had, as Justice Scalia noted, an equal protection argument for gay marriage would have more legs than it has now. But, even if the majority had adopted Justice O’Connor’s view, it is to be noted that Justice O’Connor herself wrote that the protection of traditional marriage would have provided the necessary rational basis.

Therefore, it is for you to first explain how we even get to the need for a rational basis evaluation before the rational basis is provided. This cannot be done by begging the question by assuming what needs to be proven, i.e., that homosexuals are being denied equal protection by Proposition 8.

Your move.

I’ll take your last point first. Your claim that I’ve begged the question by assuming that homosexuals are being denied equal protection is false – no where in my argument for this conclusion have I assumed it. If you look at the structure of my argument (see op), you’ll notice that it is logically valid, and thus the only way to resist the conclusion is to reject one of its premises. Nothing you wrote does that.

Second, I don’t know why Lawrence is relevant here; as you noted, the majority struck down the statute on due process grounds, but in this thread, I’m only concerned with equal protection. One can challenge a statute solely on equal protection grounds, solely on due process grounds, or both. You seem to be under the impression that I need to show how Prop 8 first violates due process before I can show how it violates equal protection, but this is simply mistaken.

Third, the burden falls on prop 8 proponents to show that, at the very least, there is a rational basis for the restriction. Why? Because I’ve already shown how prop 8 does discriminate (in the neutral sense) on the basis of sexual orientation and sex (see other thread). Hence we are left with the question: is the discrimination justified or not? If there is no rational basis for the discrimination, then it follows that prop 8 violates equal protection. In other words,one cannot hold that prop 8 doesn’t violate equal protection even though the discrimination can’t survive rational basis scrutiny. The following are mutually exclusive:

1. Prop 8 discriminates on the basis of sexual orientation and sex but doesn’t violate equal protection.
2. Prop 8 can’t survive rational basis scrutiny.
3. and 2) are not compatible. The only way that 1) can be true is if the discrimination does, at the very least, survive rational basis scrutiny.

Fourth, O’ Conner’s comments on same-sex marriage are 1) ambiguous, and 2) mere dicta. They’re ambiguous because her whole statement depends on what does it mean to “protect traditional marriage.” If traditional marriage will not be threatened in the relevant sense, then laws restricting same-sex marriage cannot survive rational basis (per Conner’s view).

 

[Betterave]

My claim is based on historical and modern observations. Homosexuality here is irrelevant. I am dealing with the particular claim that marriage was solely about procreation and having children which is what many of you are building your arguments on. Furthermore it is not true that there was NEVER same sex marriage in the past, for example the Ancient Romans and a couple others did have it.

My claim is that the justifying reason for the secular institution of marriage is the actual value to society of procreation.

Please tell us about the Ancient Roman institution of ‘same sex marriage’ and how it was justified.

Abraham, Jacob, Moses, David, Solomon? Men after God’s own heart? totally relevant because it is evidence against the one man one woman argument. Polygyny was not uncommon among than Hebrews and many other groups in the ancient world. Indeed, all sorts of marriage arrangements exist today that do not conform to your conception of marriage that is based on your religious dogma.

Your claim: ‘biblically speaking, marriage was hardly ever “one man, one woman” as polygyny was quite common.’ That claim is false and you have provided no evidence to the contrary. Your comment about my religious dogma is groundless and stupid. It is clear evidence of your own anti-religious bigotry. Did it ever occur to you that you might be a bigot? In general I think it’s interesting to note that those who habitually accuse others of bigotry or dogmatism never stop to consider whether they themselves are bigoted or dogmatic.

I never said that marriage was not “good” for children, but that is not what is in contention. What is at contention is whether Prop 8 is justified in its discrimination against same sex couples (what it was designed to do no matter how much some of you deny this!)

This charge of discrimination has not been simply denied, no matter how much some of you deny this! Very clear reasons have repeatedly been given explaining why Prop 8 is not a case of discrimination on the basis of sexual orientation. Go ahead and take a shot at responding to my post 250. secular_freedom’s attempt was ridiculous.

People get married for a variety of reasons with children only being ONE of those reasons. Why is so much emphasis placed on only this aspect and not the others? Why cannot same sex couples get married for those same reasons and why would that relationship be “bad” ? I do not think you are able to establish those reasons,

Right, you’re talking about personal reasons for getting married, and what you say is true. I’m talking about the secular justification for the institution of marriage as such, which is logically prior to an analysis of personal reasons for entering into that institution.

 

[Betterave]

Your initial premise is clearly actually a conclusion.

So, how do you get to this conclusion? You can’t mask a premise as a conclusion in this semi-syllogism.

The “purpose” of marriage is not about “honoring” anything until you demonstrate it as such.

SO, we wait for you to do this.

Secondly, you need to argue/demonstrate that marriage is “only” about doing this, to give you grounds for denying marriage to those forms that do NOT honor it.

All premises of deductive arguments are conclusions from inductive inference. Inductive inferences are not subject to demonstration in the strict sense. I have claimed that the well-established traditional restriction of marriage to heterosexual unions should reasonably be said to be grounded in the fact that the secular institution of marriage as such has no other justifying raison d’etre than to honor the value of procreation to society. If you want to challenge this claim, please go ahead and do so with some concrete reasons.