Althouse: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

August 4, 2010

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

329 comments:

«Oldest ‹Older 201 – 329 of 329

Mark O said...: Ah my shortsighted friends. Talk to me about polygamy. Can't now be stopped in California.

Very Big Love.; 8/4/10, 8:46 PM
Anonymous said...: your vaunted "tradition" is a failure and now you want to use the power of the State to enforce a meaningless dogmatic distinction

Palladian -- I can't believe that you of all the people here are denying that gay people can and do get married with no repercussion.; 8/4/10, 8:47 PM
Methadras said...: Palladian said...

shoutingthomas, the word "marriage" does not appear in any of our founding documents.

And yet homosexuals still insist on wanting it too. Go figure. oh wait, nevermind. It doesn't mean anything now.; 8/4/10, 8:48 PM
Sofa King said...: I know the actual issue at stake in this case is important to some people. I respect that, but it is utterly unimportant to me.

What is important to me is that in the name of this issue certain judges are hard at work undermining the very legitimacy of law itself. How can a sane person draw a hard line between law and morality? What sort of blinkered philosophy permits this, and how can it possibly hope to stand apart from naked violence as a source of authority to be obeyed?; 8/4/10, 8:50 PM
Methadras said...: Seven Machos said...

James -- The obvious difference is that the Second Amendment is easily identifiable and it says what it says. It's right there on the parchment.

This judge is using a judicial doctrine based on a few words in the Constitution which in themselves in no way address gayness or marriage. It's penumbras. It's derivative of something that's derivative of something that's derivative.

Well, the only thing preventing a constitutional convention in California at this point is Prop 13 and if that gets challenged and overturned, then this state will see an exodus like never before.; 8/4/10, 8:51 PM
Anonymous said...: shoutingthomas, the word "marriage" does not appear in any of our founding documents.

You're right about that.

But, the Declaration of Independence clearly states that rights are conferred on the individual by God.

This puts a big dent in the theory that our State (as you like to call it) exists to be run according to the dictates of those who deem themselves the most rational.

Your presumption throughout this thread is that lawyers arguing rationality should hold sway.

That's what's happening. And, that looks like a big problem to me.; 8/4/10, 8:51 PM
A.W. said...: Cedarford:

> But his motives for overturning the voter's will for the second time after Prop 8 met and passed every constitutional challenge before being allowed to be voted on surely will be questioned. Widely questioned.

Well, here is the federal judicial code on the topic:

> A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned

I’d say that standard was met.

Allen

> Can Osama bin Laden marry his goat?

Of course he can. There is nothing wrong with intra-species marriage. Its interspecies marriage that is the sticking point.

Dpb

To be fair, the proponents of prop 8 were allowed to defend it themselves. So sure, Jerry Brown threw them under a bus (by the way, his real name is Edmund, who knew?). But they could in theory defend themselves.

The problem was the whole trial from start to finish was improperly done. You never do this sort of thing for rational basis review.

Peter

> Surely you remember the case in which Republican judges ruled in favor of Republican candidate.

First, are they registered republicans?

Second, by that theory virtually no judge can sit in on an election case.

Third, that pales in comparison to the bias when deciding whether or not YOU PERSONALLY can marry anyone you are ever likely to want to marry.; 8/4/10, 8:52 PM
jr565 said...: Palladian wrote:
The ONLY rational thing is for the State to completely remove itself from the "marriage" issue altogether.

So then your argument is really one that destroys marriage. Society can't define marriage in any definable way so should give up trying.
But then doens't that only show that the slippery slope argument is in fact a real one? The only thing preventing a man from marrying his dog, is that the state restricts it. But if the state is not involved in marriage then a person could marry anyone or anything (even if it's an inanimate object). A person could marry a harem, could have three separate marriages.

I do wonder though if the state gets out of the marriage busines altogether wouldn't it have to cease adjudicating cases involving things like inheritances, and custody as well. Since those are predicated on the state being actively involved in the marriage business and two parties essentially entering into a contract. If the state is not there to seal the deal on the contract, is it wrong for the state to then try to adjudicate a dissolution of a marriage, whatever that may mean. What are the rules and who is determining the law?; 8/4/10, 8:54 PM
Methadras said...: shoutingthomas said...

But, the Declaration of Independence clearly states that rights are conferred on the individual by God.

The DoI isn't a legal document though. It's a moral/philosphical framework that sets up the principals by which this nation will live by. The Constitution is the preeminent legal document. Probably the greatest ever created. Well in my mind it is the greatest ever created.; 8/4/10, 8:56 PM
Matt said...: Synova
Seven Machos
The Crack Emcee

Why don't you just admit the KEY reason many are opposed to gay marriage is because they are opposed to homosexuality?

Let's be honest. When people say 'marriage' most of us think of all the things that go into the union of two people, the struggles, the raising of kids perhaps, the sharing of two lives, two visions, etc.

But when people say 'gay marriage' most who oppose it think SEX. Particularly GAY SEX. And that freaks them out. And so they don't want the government allowing for GAY SEX because it might lead to other kinds of SEX they don't like.

The reality is gay marriage is pretty much like regular marriage. But with this ruling rights can be extended for a gay couple in ways they could not before. Sure gays can marry in a fake way. But the rights didn't come with it.; 8/4/10, 8:56 PM
James said...: Seven:

Regarding the Second Amendment being clear: In the cases of Heller and McDonald, I do believe it is clear. The idea that you can ban gun ownership completely is unconstitutional. Beyond that, however, it is much less clear. The types of restrictions a government can place on gun ownership is not decided just by looking at the Second Amendment, but my looking at tests constructed (or soon to be constructed) by the courts.

But I highly doubt that the people calling decisions like the one made by Judge Walker today "elitist judges overriding the will of the people" would say the same thing if a court were to overturn various restrictions on gun ownership (i.e. registration, waiting periods/background checks, mandatory gun training) that aren't covered by the Second Amendment alone.; 8/4/10, 8:56 PM
Palladian said...: "But, the Declaration of Independence clearly states that rights are conferred on the individual by God."

It doesn't actually say that. It says "Creator" and earlier, "Nature's God". The nature of this abstract deity, nor its position on the question of marriage, is not specified.

Marriage was, to the founders, not an issue central to or in the interest of federal government. It's an issue between man and his Creator. I fully support that, and would fully support any church deciding on their own definitions of and restrictions on marriage. I don't want the secular government making or even discussing such decisions.; 8/4/10, 8:57 PM
Methadras said...: Matt said...

But when people say 'gay marriage' most who oppose it think SEX. Particularly GAY SEX. And that freaks them out. And so they don't want the government allowing for GAY SEX because it might lead to other kinds of SEX they don't like.

Well, you better talk to Palladian then because in his world that's the only thing that makes him gay.; 8/4/10, 9:01 PM
Palladian said...: "The Constitution is the preeminent legal document. Probably the greatest ever created. Well in my mind it is the greatest ever created."

In my mind too. The men who wrote that understood that most of the questions of life were not the proper province of government to answer.; 8/4/10, 9:01 PM
chickelit said...: You can do that with a woman too. What's your point?

My point is that there are three distinct pathways for the state-sanctioned marriage franchise: expand, contract, stasis.

You favor contraction or elimination.

Expansion was just decided. While there seems little prospect of same-sex marriage being anything but between gays and lesbians what's there to stop it? What's there to stop it in male-woman marriage besides stigma?

The third option is always status quo, which I favor.; 8/4/10, 9:03 PM
Palladian said...: "Well, you better talk to Palladian then because in his world that's the only thing that makes him gay."

I was merely answering your absurd polemic with my own.; 8/4/10, 9:03 PM
Anonymous said...: Why don't you just admit the KEY reason many are opposed to gay marriage is because they are opposed to homosexuality?

Because it's not true. I imagine that no one here is opposed to homosexuality. I am certainly not. Go fuck some people in the ass, dude. Wail with it. Then come all over some dude's face.

Where in this country is it illegal for two gay people to marry?; 8/4/10, 9:05 PM
Krumhorn said...: James, the principle difference is that gun rights are expressly addressed in the Constitution.

However, you can search through every Article and Amendment and there is no mention of sexual preferences any more than there was any reference to abortion.

Conservatives insist that the clear language of the document and the legislative history govern the outcome of court decisions.

.....the right of the people to keep and bear Arms, shall not be infringed.

In stark contrast, librul activist judges seek to imprint their policy objectives on the inchoate penumbras or stubbornly refuse to see the clear rational basis for society to set criteria and qualifications for certain privileges that support the basic units of society that have historically provided stability and have been the single most important catalyst for human development and growth.

--Krumhorn

.......; 8/4/10, 9:06 PM
Eric said...: I hope someone puts all the ignorant and silly right wing views against gay marriage in a time capsule and then opens it in 50 years so we can all laugh and cringe at them.

The slippery slop argument about incest or dogs is particularly absurd.

That's so true. Just like back when Loving was decided supporters pooh-poohed the idea it would eventually lead to court recognition of a right to gay marriage. Crazy, I know. If only people could open that time capsule and see how that soooo didn't happen.; 8/4/10, 9:06 PM
Palladian said...: "Expansion was just decided."

Wrongly. I oppose this decision on principle, not outcome.

"The third option is always status quo, which I favor."

I think the "staus quo" is completely irrational and the source of much pointless semantic bickering and human misery. That's what makes me a radical I guess.; 8/4/10, 9:06 PM
jr565 said...: Matt wrote:
Why don't you just admit the KEY reason many are opposed to gay marriage is because they are opposed to homosexuality?

Or maybe people don't like being told that 2+2 is the same as 2+3 and has to equal 4 in both cases even though up until this date it produced different results.

The reality is gay marriage is pretty much like regular marriage. But with this ruling rights can be extended for a gay couple in ways they could not before. Sure gays can marry in a fake way. But the rights didn't come with it.,

That's hilarious. You just disproved your own argument. It's "pretty much like regular marriage" except that you have to change the definition of marriage to make it mean the same thing. Don't you think that the word "gay" in front of the word "marriage" signifies that we're dealing with a different animal? How can it be an equal protection argument if we're discussing two separate and unequal arrangements (and by unequal I mean not the same, as opposed to inferior).
In the case of interracial marriage there is really no reason to deny it since so long as they meet other criterion set by the state their relationship is identical to that of any other marriage. Marriage doesn't have to be redefined, as the couple meets the requirements (there is a couple, they are of age, there is a male and a female etc.) A gay mariage requires we change the perameters of what a marriage means.
2+2 =4 but now 2+3=4. Well, if 2+3=4 why can't 2+4 also equal 4?; 8/4/10, 9:06 PM
Anonymous said...: Palladian -- The state has an interest in the transfer of property and the welfare of children. That's just common sense. Moreover, as you know, gay marriage is not illegal.

What people who argue for gay marriage want is recognition by the government of the marriages and certain rights that flow from that recognition.; 8/4/10, 9:07 PM
Palladian said...: "The state has an interest in the transfer of property and the welfare of children."

So what does the sex of the participants have to do with either of those issues?; 8/4/10, 9:08 PM
Anonymous said...: So what does the sex of the participants have to do with either of those issues?

I was just talking with my wife about that, Palladian. The conclusion was that in the event that it becomes common for gay people to raise children and bequeath property within nuclear families, the state would have a responsibility to recognize gay marriage.

It has to start happening with regularity first, though. And, as I have stated here before, I have mild reservations about the idea of gay people raising children within gay families. My wife does not have such reservations, and I hope they are proven unfounded for the sake of the kids in the families. Time will tell.; 8/4/10, 9:13 PM
The Crack Emcee said...: Matt,

"Why don't you just admit the KEY reason many are opposed to gay marriage is because they are opposed to homosexuality?"

Because it's not true. Two gay men I loved, who were in a long-term relationship, recently died of cancer. I wasn't afraid of them, or what they did in private. To suggest otherwise is a lie.

This is about marriage and what feminism did to it. There is no legal basis for no-fault divorce.

A marriage is between a man and a woman - for life. I am not saying divorce is impossible, but it shouldn't be easy, and should take all mitigating factors into consideration - like if someone is merely troubled or tripping (an argument I could easily have made in my proceedings.) There should be no second marriages (except in the case of death) or gay marriage, or polygamy, or incest, bestiality, etc. You can get civil union, or whatever, but you can't call it marriage.

No-fault divorce is the culprit here.; 8/4/10, 9:15 PM
Matt said...: jr565

So let's cut right to the chase here. Why are YOU opposed to gay marriage so much? Why waste all this time writing comments on a blog to oppose something that doesn't actually affect you in any way? Seriously. Does it hurt you so much you have to bitch, moan and cry about it? Reminds me of a friend who told me [correctly] that many conservatives are more obsessed about homosexuality than most homosexuals.

And when I say gay marriage is pretty much like marriage the only difference is that gay male couples cannot actually give birth. But they can adopt. So it is the same save for that one point. But who cares? Marriage is not only about having kids that come from the one of the persons in the marriage.; 8/4/10, 9:16 PM
Methadras said...: Palladian said...

I was merely answering your absurd polemic with my own.

It was neither absurd nor polemic. I don't argue to be a contrarian nor absurd. I present situations that are plausible if not rooted in facts. Would you deny that straight men have infact presented themselves as gay to receive preferential protections against discrimination? How about using it to acquire certain personal advantages? How about straight men who have gay sex? I can go on and on and yet, you think you are giving me an absurd answer to your opinion of absurdity at my presented situation.; 8/4/10, 9:19 PM
James said...: Krumhorn-

And there are many people who would say that the Constitution does address issues such as this, specifically in the 14th Amendment, which Judge Walker used to overturn Prop 8.

A lot of it depends on how you view homosexuals and the idea of marriage. If you think homosexuality is a choice, or if you think that the fact that a homosexual can choose to marry a person of the opposite sex is enough to satisfy equal protection concerns, then obviously you won't think banning gay marriage conflicts with the Fourteenth Amendment. However, to say that Vaughn Walker's interpretation is completely outrageous and not based on any solid constitutional framework, is absolutely ridiculous in my opinion. If you believe homosexuality is part of nature, and don't go into the ridiculous "oh, well then what about pedophilia and bestiality" territory with your argument, it is easy to see how one can find this proposition unconstitutional.; 8/4/10, 9:20 PM
Anonymous said...: Marriage is not only about having kids that come from the one of the persons in the marriage.

It's rational and certainly constitutional for people in their communities to decide that it is.; 8/4/10, 9:23 PM
Eric said...: And there are many people who would say that the Constitution does address issues such as this, specifically in the 14th Amendment, which Judge Walker used to overturn Prop 8.

If you're prepared to read the 14th amendment that broadly, between that one and the commerce clause the powers of the federal government are entirely unconstrained.; 8/4/10, 9:25 PM
Matt said...: The Crack Emcee

I feel you are talking about apples and I am talking about lasagna. What does gay marriage have to do with divorce? Are you saying that gay marriage should not be allowed because it will just open the door to more divorces?

If you respect marriage so much then why deny it to people who are life long partners? Most gay couple I know stay in long term relationships as opposed to my straight friends.; 8/4/10, 9:25 PM
Anonymous said...: The state, the state, the state, THE STATE!!

Look at your language, people.

Who gives a fuck about what the state wants, or what is in the interests of the state?

This is a terminally confused discussion.

In our democracy, believe it or not, the people are supposed to be pre-eminent.

Sure, the lawyers are running us and telling us what to do. This discussion seems to be premised on kow-towing before this rather dismal reality.

This is a tedious and stupid discussion.

Fuck the lawyers. Fuck legalism.; 8/4/10, 9:25 PM
Synova said...: "Why don't you just admit the KEY reason many are opposed to gay marriage is because they are opposed to homosexuality?"

I'm not sure that it's relevant, Matt. Bad law is bad law.

I disagree in any case because I think that the KEY reason that most people are opposed to gay marriage is because they see marriage being destroyed around them but unlike, oh, Crack, they don't get that the foundational elements destroying it have nothing to do with gay people.; 8/4/10, 9:32 PM
Matt said...: Seven Machos

It's rational and certainly constitutional for people in their communities to decide that it is.

So therefore these communities can also determine that if a heterosexual couple does not have kids [or if they adopt] then they can legally break-up the marriage? What the what?

Sorry to report the news to you but millions of people get married and have no kids or choose to adopt. Hard to believe, I know.

Fortunately, they don't live in these communities you talk of.

Oh, but I guess you are arguing that communities with "standards" can decide not to allow GAY couples to have kids. Wonder why? Oh, right. It's that SEX thing again. Scares ignorant people.; 8/4/10, 9:33 PM
traditionalguy said...: Finding that there is no rational basis to prohibit same sex relations declares that we are free from the laws set forth by Jehovah. Remember Him? He was the creator God whom the Federal Government now declares to be dead. Neitzsche Rules!; 8/4/10, 9:35 PM
Matt said...: Synova

What do you mean marriage being destroyed around them?

Destroyed because gays are allowed to marry? Or destroyed because no one seems to respect the institution and STAY married?

I won't disagree that marriage is a failed institution. But that is EXACTLY the reason I want gays to marry. Their success rate may end up being higher than heterosexuals. But even if it is not who cares? I just don't see it being a threat to anyone.

And again, let people try the slipper slop argument. They will get laughed out of court.; 8/4/10, 9:38 PM
Anonymous said...: Destroyed because gays are allowed to marry?

Matt -- You are being troll-like. Gays are allowed to marry everywhere in teh United States. Do you continue to deny this out of deceit or stupidity?; 8/4/10, 9:43 PM
The Crack Emcee said...: Matt,

I notice you've dropped your homophobia argument - good.

"What does gay marriage have to do with divorce?"

The battle with the Mormons was over marriage as one man and one woman for life. No-fault changed that, redefining marriage as whatever someone desired. That was the slippery slope.

"Are you saying that gay marriage should not be allowed because it will just open the door to more divorces?"

No, I'm saying if marriage is one man and one woman for life than there's no such thing as "gay marriage" or any other kind.

"If you respect marriage so much then why deny it to people who are life long partners?"

I look at it another way: if gays respect marriage so much, why did they allow San Francisco Mayor Gavin Newsom - a divorced man who slept with his best friend's wife and destroys every thing he touches - act as their standard bearer in this battle? I say it's because they're being disingenuous, and just want to stick one to the "breeders" they think have done them wrong.

"Most gay couple I know stay in long term relationships as opposed to my straight friends."

I agree - because of no-fault and feminism. I see this like the pot legalization issue: the proponents for pot are screaming medicine when, in truth, they just want to get high and don't think they can win with that argument. Gays are screaming "marriage" when the issues go way beyond what even gays are comfortably willing to talk about.

We need more light and all we're making is heat. Your charge of homophobia is a perfect example. You're not leaving any room for an honest discussion of gay issues - including gay "pride" behavior that no one wants to be a part of - so we get stuck in this silliness about dogs and blacks and shit.; 8/4/10, 9:45 PM
sunsong said...: Marriage really has no meaning other than what individuals give it. It has always been changing - even though many would deny that. Now, it has changed in a way that is undeniable.

I don't think it has ever really been the case that everyone agreed on the definition of words. I think we have a *sense* of what each other means - but until we actually listen and talk to each other - we don't know. And so many people, sadly, haven't a clue that other people do not share their every thought, belief or value.; 8/4/10, 9:48 PM
Bender said...: So, are there any gays who are now in favor of enforcing criminal adultery laws against those who violate gay marriage?; 8/4/10, 9:50 PM
Anonymous said...: Marriage really has no meaning other than what individuals give it.

Great, then. The people of California wish to give it this meaning: it is a relationship that can be had between one man and one woman only.

Shallow much? Hope you get that 'B' in Intro to Philosophy, and that you enjoy being hoisted on your own insipid petard.; 8/4/10, 9:52 PM
Bender said...: Marriage really has no meaning other than what individuals give it. It has always been changing

So, could you please cite an example when, in the past 10,000 years, individuals gave a meaning to marriage of something other than a man and a woman? When the spouses were called something other than "husband and wife" or "man and wife"?

Please tell us of all these other meanings that individuals had.; 8/4/10, 9:54 PM
Revenant said...: Marriage really has no meaning other than what the courts give it.

Fixed. :); 8/4/10, 9:57 PM
The Crack Emcee said...: "Marriage really has no meaning other than what individuals give it. It has always been changing."

Bullshit. I just cited the fight with the Mormons over polygamy.

Marriage is one man and one woman for life.; 8/4/10, 9:59 PM
Gospace said...: Someone else said it, and I'm going to say it a little differently. Gay men (or women) have the same right to marry as an ugly man (or women) does- to any woman (or man) who will have him (or her).

And its not just us ignorant Christians and religioists who see something wrong with SSM. No communist country allows SSM. No religious motivation there. It doesn't exist in either China.

The rational basis is extremely simple. Man plus woman plus sex equals children. Which are then raised by the aforementioned man and woman. It works whether they are Christian, Jewish, atheist, Confucian, Taoist, Hindu, Buddhist...

Man plus man plus sex does not equal children, ever. Woman plus woman plus sex does not equal children, ever. Hay couples with children have either adopted or one of the partners has committed adultery, which is grounds for divorce.; 8/4/10, 10:05 PM
MadisonMan said...: are there any gays who are now in favor of enforcing criminal adultery laws against those who violate gay marriage?

If those laws are also applied to heterosexuals, why not?; 8/4/10, 10:08 PM
sunsong said...: Most ancient societies needed a secure environment for the perpetuation of the species,a system of rules to handle the granting of property rights, and the protection of bloodlines. The institution of marriage handled these needs. For instance, ancient Hebrew law required a man to become the husband of a deceased brother's widow.
Different periods of time and different cultures have very different histories when it comes to women. Ancient Egypt, in theory, gave women equal rights, but it wasn't always practiced. Medieval women faced dual responsibilities to religion and marriage.
Throughout history, and even today, families arranged marriages for couples. The people involved didn't and don't have much to say about the decision. Most couples didn't marry because they were in love but for economic liasons.
Some marriages were by proxy, some involved a dowry (bride's family giving money or presents to the groom or his family), some required a bride price (the groom or his family giving money or a present to the bride's family), few had any sort of courtship or dating, but most had traditions.
One nearly universal tradition is that of the engagement ring. This custom can be dated back to the ancient Romans. It is believed that the roundness of the ring represents eternity. Therefore, the wearing of wedding rings symbolizes a union that is to last forever. It was once thought that a vein or nerve ran directly from the "ring" finger of the left hand to the heart.
The notion of marriage as a sacrament and not just a contract can be traced St. Paul who compared the relationship of a husband and wife to that of Christ and his church (Eph. v, 23-32).
Joseph Campbell, in the Power of Myth, mentions that the Twelfth century troubadours were the first ones who thought of courtly love in the same way we do now. The whole notion of romance apparently didn't exist until medieval times, and the troubadours.
The statement of Pope Nicholas I in which he declared in 866, "If the consent be lacking in a marriage, all other celebrations, even should the union be consummated, are rendered void", shows the importance of a couple's consent to marriage. It has remained an important part of church teaching through the years….continued

link; 8/4/10, 10:10 PM
Anonymous said...: Ahh...

About.com. Is that a step above wikipedia, or a step below? I say a step below, as I understand that it is owned by the acute businesspeople at the New York Times.; 8/4/10, 10:12 PM
Anonymous said...: Madison -- You are so close to being right. If people in a community want gay marriage, fine. If they want criminal adultery laws, fine.

I feel like this could a be a breakthrough for you.; 8/4/10, 10:14 PM
Synova said...: Matt, I mean that marriage is being destroyed around us. It's about as serious as "shacking up" as people my parent's ages would call it. About all it is good for is getting a person hosed by the courts when the other party decides they have other options.

Do you dispute this?

People are not reacting to something that is not *real* so that their motivation must be attributed to fear of gay people and what those scary gay people do when they're alone together. I believe it's as simple and human as preferring to see fault further from home than to clearly see one's own culpability.

It's not apples and lasagna. It's talking lasagna and refusing to see the pan it was cooked in.; 8/4/10, 10:16 PM
The Crack Emcee said...: And another thing - regarding feminism:

When my marriage came apart, my wife's supporters were her her girlfriends and gay men. No talk of the importance of marriage then. No, I was "a man" - meaning a straight man with values - and that was my crime in their eyes. I know, because I appealed to them all for help (I knew my wife was slightly nuts and there was something very wrong occurring) but none of them was willing to even give me the time of day.

Of course, as you know, my wife went on to kill two more people (after she had already killed her mother with the man she ran off with) which I see as blood on all their hands.

Now, do you wanna keep telling me how it's supposed to be and what compassion for others desires I'm supposed to have?; 8/4/10, 10:17 PM
Bender said...: What's your point sunsong -- all of those references you give involve a MAN and a WOMAN. There were no differences in meaning there.; 8/4/10, 10:18 PM
The Crack Emcee said...: Synova,

"It's not apples and lasagna. It's talking lasagna and refusing to see the pan it was cooked in."

Wow - that's good!; 8/4/10, 10:19 PM
Lawyer Mom said...: Some of these comments amaze me.

@Quayle laments, "Morality as determined by the majority of the citizens is insufficient grounds for public law."

Umm, how about the Heart of Atlanta Motel case? Bad law, would you say? I mean, a majority of citizens had decided that excluding blacks was okay.

Our system of government has CHECKS AND BALANCES. And ideally, our courts provide a check against unconstitutional discrimination.

I'd like to read the opinion before I weigh in. But I saw an article in an American Airlines Magazine (that great intellectual clearinghouse in the sky) about Ted Olson and the arguments he advanced in the case.

What he said made perfect sense: this is about individual liberty and stopping the government from interfering.

Yes, I know your next question will be: should we let people have multiple spouses at the same time? Or marry animals?

So go right ahead. But the "slippery slope" argument isn't terribly persuasive here.; 8/4/10, 10:24 PM
Bender said...: Justice Scalia, dissenting, Lawrence v. Texas --
"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision"; 8/4/10, 10:25 PM
Anonymous said...: Where in the Constitution is human sexuality mentioned, Mom?; 8/4/10, 10:26 PM
Eric said...: Could be worse, Crack. Your wife could have had a child by another man and then forced you to pay for it.; 8/4/10, 10:26 PM
The Crack Emcee said...: "The 'slippery slope' argument isn't terribly persuasive here."

I've made one and I think it's very persuasive. Or, at least, no one's rebutted it yet.; 8/4/10, 10:28 PM
Synova said...: "What he said made perfect sense: this is about individual liberty and stopping the government from interfering."

How does it stop government from interfering? Does it in any way weaken government interest in marriage? As far as I can tell the whole issue is in order to force government to oversee a personal relationship that government was previously not involved in overseeing.

No?; 8/4/10, 10:30 PM
Matt said...: Seven Machos

I guess I am missing your argument. You say gays can marry anywhere in America? You're saying any gay couple can right now marry anywhere in the USA and have the exact same rights as a hetero couple? Then why do we need a judge to make this ruling? Why will it be appealed all the way to the Supreme Court? Why are we arguing if it is perfectly legal for gays to marry.

Crack Mecee

Maybe you are just putting me on? Or maybe your thoughts are just way up in the ether. Either way I don't think it is disingenuous for gay people to want to marry. And the Gavin Newsom quip was odd. You are letting your definition of marriage get in the way of a clear thought. Newson's getting a divorce was not the issue. Gays having equal rights to marry was. [And anyway he divorce after he made his SF gay marriage decision].

Look, the bottom line is if you oppose gay marriage on whatever reasons you think legit, fine. That is your right. But eventually gays will have all the rights to marry and no one will care except a few religious nuts.; 8/4/10, 10:30 PM
The Crack Emcee said...: Eric,

"Could be worse, Crack. Your wife could have had a child by another man and then forced you to pay for it."

I hear you, and that's feminism again.; 8/4/10, 10:30 PM
Bender said...: What is the check and the balance against a tyrannical judiciary, Mom?

Because that is what Prop. 8 was -- a check, by the people, against the fiat judiciary of California, which, as here, made up rights, not to mention truth, out of whole cloth.

Prop. 8 isn't an act of "the government" -- it is an act of self-government. It is about the people having the fundament right to decide for themselves how they wish to be governed. Today's ruling said you do not have that right, Mom. The people are not supreme, rather, the judges are.; 8/4/10, 10:31 PM
Bender said...: And by the way -- we already slipped off that slippery slope into the abyss several years ago.; 8/4/10, 10:32 PM
former law student said...: Thinking about it further: the prohibition against incest = "ick" factor + Old Testament law + 20th century eugenics. And ick factor + Old Testament law was not enough to bar same sex couples, so the door to incest should be open just as far.

Further, I know a black couple that has produced children with sickle-cell anemia. And I know a Jewish couple who has produced children with genetic defects. If we are worried about couples producing genetically defective children, should we not make genetic compatibility testing mandatory for all prospective married couples? Or should we keep black people from marrying each other and Jewish people from marrying each other, to eliminate the all-too-real possibility of their producing genetically defective children?; 8/4/10, 10:33 PM
Anonymous said...: Matt -- Marriage exists without the state, just as any contract. The state chooses to recognize marriages between men and women because it has an interest in them, namely the welfare of children and the transfer of property between generations. I have been making this exact argument for hours now.

Does you own existence and the existence of the things you hold dear are only given any sort of quickening through the state?

It's obvious that you are dense but your view of the power of the state is frightening.; 8/4/10, 10:35 PM
jr565 said...: Matt wrote:
So let's cut right to the chase here. Why are YOU opposed to gay marriage so much? Why waste all this time writing comments on a blog to oppose something that doesn't actually affect you in any way? Seriously. Does it hurt you so much you have to bitch, moan and cry about it? Reminds me of a friend who told me [correctly] that many conservatives are more obsessed about homosexuality than most homosexuals.

It's not about hatred of gays. I happen to think that the whole rationale for allowing gay marriage posited by gays is based on a faulty premise. The premise sappears to be that society is not allowed to define what marriage means. Society honors marriage as between a man and a woman specifically because of the children in a marriage. Men and women produce children. Becasue the state doesn't want to raise children it honors the relationship that best achieves that result. You may marry someone out of love, but society doesn't care about love between couples. So not all relationships are equal. In the case of gay marriages, they cannot produce children within the context of said marriages, so why honor that relationship as if it were equivalent to the relationship that can. Again, Im talking about society valuing the relationship not individuals. Which is why I'm for civil unions. that's what gay marriages are, and they provide nearly all the rights afforded to marriage to gays. But gay marriage does not equal straight marriage, simply based on the fact that i'ts different. Where I object is when gays say that society can't discriminate against people in marriage. Which is where all of the comparisons to incest and polygamy come from. If society can't discriminate then explain how society CAN discriminate against those relationships. You seem to think that courts would laugh a demand for two family members from marrying, but I would argue that that is as much a bias as someone saying that gay marriage is wrong. If you can demand that the perameters be changed to allow same genders to marry, why couldn't siblings demand that the rule banning their marriage similarly be changed. I'm assuming that you still think incestual marriages SHOULD be banned. But then you can't possibly believe that society is not allowed to discrminate against couples or trios or what have you.
Let me ask you - are you against polygamy, polyandry, marriage between adults and children, incestual marrages, marriage between humans and animals. Is society allowed to make any distinctions there whatsoever? If so, then again, the premise by which you are arguing for gay marriage is wrong. IF you DO think that some of these marriages should be outlawed, then you are saying, that even though there are people who may want to have their relationships acknowledged by the state, they SHOULD continue to be discriminated against, because those relationships are harmful or not socially valuable. Whatever. How is that different than saying gay marriage is not the same as straight marriage? You're as much a bigot as anyone else then. Because you think that society SHOULD continue to discriminate against those other relationships, just change the definition of marriage to suit your particular preference. OR you think society shouldn't be involved in marriage in which case there is no slipperly slope there is a steep cliff and truly anything goes.; 8/4/10, 10:35 PM
Anonymous said...: The prohibition against incest = not wanting fucked up babies with terrible diseases.; 8/4/10, 10:36 PM
Krumhorn said...: ....

James

And there are many people who would say that the Constitution does address issues such as this, specifically in the 14th Amendment, which Judge Walker used to overturn Prop 8.

Sure. The decision turned on the equal protection clause. And any first year law student can recite the tortuous history of the Supreme Court over the decades in determining how those two words are to be applied.

Which is why we are talking about the rational basis test. And this particular judge couldn't bring himself to admit that there is a rational state interest in what the qualifications and conditions might be in determining what special privileges and benefits accrue to those who have married. Because he would have to agree that society has a rational basis for saying that a union of unrelated adults of different gender is superior to any other as the essential building block of society that, over the many millennia of human social order, has done more to promote the security and prosperity of women, the civilization of males and the constructive propagation of the species that advances the growth and development of mankind from generation to generation.

That would have been a self-abnegating conclusion for this particular judge.

And yet society clearly has an important interest in nurturing this essential building block of society. We do that through tax benefits, statutory rules regarding property and many other provisions that recognize the historic value of this kind of union.

In light of that, our society as a whole bears the cost of those benefits. For example, health insurance benefits under employer health plans extend naturally to the wife and kids. A spouse receives survivor pension and social security benefits.

But what value is society buying when those same benefits are extended to gays or significant others? Or tax benefits? Or social security or pension survival benefits?

All these cost a great deal of money. What value does society receive that would justify this cost the rest of us have to pay?

I mean, really. Ok, so the drapes and the carpets match nicely and the old gay couples who run the antique stores are so cute. But what long term societal value is gained that comes anywhere close to the importance of the traditional nuclear family?

Still, there shouldn't be any objection to a certain class of benefits that would be granted to civil unions such as hospital visitation rights, automatic health care proxy powers or other non-economic benefits.

Why waste all this time writing comments on a blog to oppose something that doesn't actually affect you in any way? Seriously. Does it hurt you so much you have to bitch, moan and cry about it?

Changing the conditions of marriage to include gays causes me no direct harm other than the needless and unjustifiable additional economic costs, however, I very often get the feeling that this whole business has less to do with "equal rights" and more about getting into our faces about it. After all, if gays are equally entitled to marry, society is essentially saying that those unions have the same societal value as heterosexual unions.

And it also moots out the moral issues about what is and is not "normal" or "perverse" since the new legal status per se mandates those questions as answered.

No doubt we will be obliged to ensure that elementary school kids be given to understand that there is no acceptable disagreement about it either.

The gays I most admire are the folks who live their lives in quiet dignity and stay out of other people's faces about it.

--Krumhorn

,,,,,; 8/4/10, 10:38 PM
Anonymous said...: Further, Former, sickle-cell anemia and the Jewish thing -- the name escapes me -- is the same problem with much more dilution because there are more people in the group. A nuclear family is a much, much smaller group. Thus incest is likely to produce much more disease.

You are arguing for banning incest by bringing up these issues.; 8/4/10, 10:39 PM
former law student said...: not wanting fucked up babies with terrible diseases.

So you agree that black people should not be allowed to marry each other. Nor should Ashkenazic Jews be allowed to marry each other: because we don't want fucked up babies with terrible diseases.; 8/4/10, 10:39 PM
Krumhorn said...: ....

James

And there are many people who would say that the Constitution does address issues such as this, specifically in the 14th Amendment, which Judge Walker used to overturn Prop 8.

Sure. The decision turned on the equal protection clause. And any first year law student can recite the tortuous history of the Supreme Court over the decades in determining how those two words are to be applied.

Which is why we are talking about the rational basis test. And this particular judge couldn't bring himself to admit that there is a rational state interest in what the qualifications and conditions might be in determining what special privileges and benefits accrue to those who have married. Because he would have to agree that society has a rational basis for saying that a union of unrelated adults of different gender is superior to any other as the essential building block of society that, over the many millennia of human social order, has done more to promote the security and prosperity of women, the civilization of males and the constructive propagation of the species that advances the growth and development of mankind from generation to generation.

That would have been a self-abnegating conclusion for this particular judge.

And yet society clearly has an important interest in nurturing this essential building block of society. We do that through tax benefits, statutory rules regarding property and many other provisions that recognize the historic value of this kind of union.

In light of that, our society as a whole bears the cost of those benefits. For example, health insurance benefits under employer health plans extend naturally to the wife and kids. A spouse receives survivor pension and social security benefits.

But what value is society buying when those same benefits are extended to gays or significant others? Or tax benefits? Or social security or pension survival benefits?

All these cost a great deal of money. What value does society receive that would justify this cost the rest of us have to pay?

I mean, really. Ok, so the drapes and the carpets match nicely and the old gay couples who run the antique stores are so cute. But what long term societal value is gained that comes anywhere close to the importance of the traditional nuclear family?

Still, there shouldn't be any objection to a certain class of benefits that would be granted to civil unions such as hospital visitation rights, automatic health care proxy powers or other non-economic benefits.

-- Krumhorn

.....; 8/4/10, 10:40 PM
bagoh20 said...: Is there a rational basis for fairness or equality? When was it invented - before or after marriage?; 8/4/10, 10:41 PM
Harsh Pencil said...: The question keeps being asked Seven Machos "Who says gays can't marry in every state already?" and he keeps hearing crickets.

He is, of course, correct. The set of people a gay man can marry is exactly the same as the set of people a straight man can marry: the set of single woman who will have him. The only difference between a gay man and a straight man is that the gay man doesn't like this set as much.

Well boo hoo. Since when did preferences determine rights? Some men really, really, really like to have sex with lots of different women, but are too ugly to get them without paying for them? If I put a name on this group of men (hornyvarietyseekinguglysexuals) can I say that they are being "discriminated against" because it is illegal for them to pay for sex.

Nonsense. It's illegal for everyone to pay for sex. Some just find this more of a hassle than others.

Boo hoo.; 8/4/10, 10:42 PM
Bender said...: More Justice Scalia, dissenting, Lawrence v. Texas --

[Concurring Justice O'Connor's equal protection] reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).; 8/4/10, 10:44 PM
Eric said...: Further, Former, sickle-cell anemia and the Jewish thing -- the name escapes me...

Tay-Sachs disease.; 8/4/10, 10:44 PM
former law student said...: The other issue is the widespread acceptability of polygyny, which predates any same-sex marriage anywhere. On my first trip to Singapore, I noticed an obituary of a rich Chinese dude featuring his two grieving widows. I mentioned it to a co-worker from Hong Kong, who commented that multiple wives were common there as well. In fact, he was somewhat surprised to find out it was against the law in the US. (Truly, what is the "rational basis" for such a prohibition?) This doesn't even begin to count the places where polygyny is permitted to accommodate Muslims. Surely the free exercise of religion should allow adherents to fully exercise their God (or Allah) given rights.; 8/4/10, 10:45 PM
Peter Hoh said...: Krumhorn,

But what long term societal value is gained from recognizing the marriage of Newt Gingrich and his most recent affair partner?

Still, there shouldn't be any objection to a certain class of benefits that would be granted to civil unions such as hospital visitation rights, automatic health care proxy powers or other non-economic benefits.

Which is why Tim Pawlenty vetoed a bill that would have given same-sex couples the ability to give each other power to make funeral decisions for each other.; 8/4/10, 10:46 PM
The Crack Emcee said...: Matt,

Crack Mecee  Maybe you are just putting me on? Or maybe your thoughts are just way up in the ether. Either way I don't think it is disingenuous for gay people to want to marry."

Gays can want anything - Oprah once said she wished she was white - doesn't mean you're supposed to get it.
"And the Gavin Newsom quip was odd."

No it isn't: how can you say you respect marriage and your standard bearer is the very antithesis of it?

"You are letting your definition of marriage get in the way of a clear thought."

It's not MY definition of marriage, it's THE definition of marriage.

"Newson's getting a divorce was not the issue."

No, but his getting a divorce and then sleeping with his best friend's wife doesn't help your case when you're trying to sell me on how much gays, who support him, respect the institution.

"Gays having equal rights to marry was. [And anyway he divorce after he made his SF gay marriage decision]."

Gays don't have an "equal right" when marriage is between a man and a woman for life, as the battle with the Mormons defined it.  "Look, the bottom line is if you oppose gay marriage on whatever reasons you think legit, fine. That is your right. But eventually gays will have all the rights to marry and no one will care except a few religious nuts."

Bullshit. I care. As I said, I want to live in a country that makes sense. If gays redefine marriage, then all that shit with the Mormons was rubbish - it made no sense and polygamy is O.K. and all the rest. The only way you can win is by making marriage meaningless - and, thus, you've won nothing and destroyed everything. And here's the kicker:

Gays know that.

I'm no babe in the woods. I've been around gays all my life, and I ain't sold on this holier-than-thou "we just equality" bullshit. Like I said, there's a lot gays aren't comfortable discussing, about their habits or ambitions. There's no love for straights here, so don't think you can bullshit this "breeder" about the issue. I used to be a liberal, so if you think you can fool me into buying your bullshit, think again.; 8/4/10, 10:46 PM
Bender said...: Still more Justice Scalia, dissenting, Lawrence v. Texas --

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). . . . At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. . . . Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.; 8/4/10, 10:47 PM
Synova said...: "And the Gavin Newsom quip was odd. You are letting your definition of marriage get in the way of a clear thought. Newson's getting a divorce was not the issue. Gays having equal rights to marry was. [And anyway he divorce after he made his SF gay marriage decision]."

So? The point is that he doesn't respect marriage. It's not *important* to him. So what is then?

Bringing him up is every bit as relevant as bringing up Newt and his several wives. One can conclude that very probably he doesn't actually value marriage either.

Sure, there are legitimate reasons for divorce and if you've kept up your end you shouldn't feel like you can't support the value of marriage on account of what someone else has done to you... but seriously? We're supposed to think that someone *values* marriage when they have a personal history like that no matter what side of the issue they fall on?

So it's not about marriage, is it.

And it's a little bit hard to argue to someone who *does* see gay marriage as an attempt to further destroy marriage that this isn't true when it's obvious to everyone that proponents *really* *don't* *care* what happens to marriage in the end.

BTW, I disagree with Crack than SSM is necessarily a bad thing, but I agree entirely that no-fault and, yes, feminism too, have produced a situation where there is no respect for the Union. There just isn't.

And it's trivially easy to give away a worthless thing.; 8/4/10, 10:48 PM
jr565 said...: A lawyers mom said:
What he said made perfect sense: this is about individual liberty and stopping the government from interfering.

Yes, I know your next question will be: should we let people have multiple spouses at the same time? Or marry animals?

So go right ahead. But the "slippery slope" argument isn't terribly persuasive here.

Ok, I will go right ahead. If the principle is about individual liberat and stopping the govt from interfering then why shouldn't people be allowed to have multiple spouses at the same time or marry animals? Are those cases not based on individual liberties? Is there no govt. interference.
The slipperly slope argument is perfectly valid here because unless you are arguing that society/govt shouldn't interefere in the case of multiple marriages or marriage with animals, or unless you are arguing that somehow those engaging in those types of relationships are somehow exempt from questions of individual liberty then Ted Olson isn't being very forthright here because I doubt he's arguing that society should not step in disallow multiple marriages or marriage between pets. But EVERY relationship is based on individual liberty, be it between couples, families, trios, animals, inanimate objects. Is the argument really that society should never interfere? Do you honestly believe that?
Doesnt' that invalidate any restriction society places on marriage? Why are gay marriages cases of individual liberty, but incestual marriages not?; 8/4/10, 10:48 PM
Bender said...: Justice O'Connor, concurring, Lawrence v. Texas --

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.; 8/4/10, 10:52 PM
former law student said...: 7M: How do you get the law to acknowledge that an unrelated human being is your next of kin?; 8/4/10, 10:52 PM
Eric said...: So go right ahead. But the "slippery slope" argument isn't terribly persuasive here.

You can repeat that as often as you like, but that doesn't make it true. The slippery slope argument is not only persuasive to me, but it seems an inevitability.; 8/4/10, 10:54 PM
Bender said...: The point of these Lawrence v. Texas quotes is to show that, in that case, both Justice Scalia and Justice O'Connor addressed the slippery slope argument that finding a constitutional right to engage in homosexual sodomy would lead to finding a right to "gay marriage."

We don't need a new slippery slope argument, we have plenty of past slippery slopes that have caused us to slip right off the slope entirely.; 8/4/10, 10:58 PM
Revenant said...: The "fucked up babies with terrible diseases" argument for keeping incest illegal fails in the case of (a) homosexual incest and (b) incest where one or both partners are infertile.; 8/4/10, 10:59 PM
Anonymous said...: How does a referendum voted on by millions of people "advance" a basis for anything?; 8/4/10, 11:00 PM
sunsong said...: Changing the conditions of marriage to include gays causes me no direct harm other than the needless and unjustifiable additional economic costs, however, I very often get the feeling that this whole business has less to do with "equal rights" and more about getting into our faces about it. After all, if gays are equally entitled to marry, society is essentially saying that those unions have the same societal value as heterosexual unions.

And it also moots out the moral issues about what is and is not "normal" or "perverse" since the new legal status per se mandates those questions as answered.

This is what Matt, myself and others have said all along is at the root of much of the resistance to the inevitability of gay marriage.; 8/4/10, 11:01 PM
galdosiana said...: I just read this entire thread, and have one comment to add to the discussion, directed at those who claim incestuous relationships as illegal because of the nature of the "wacky" offspring that they might produce... I see no reason why this should matter, unless we are backing some form of federal eugenics (which the current law obviously does--and in the sake of eliminating discrimination and promoting equality, those promoting gay marriage rights should also promote, with the same logic, the right to this type of marriage). If we are to uphold this ban on incest because of the potentially "damaged" offspring, then should we not also apply this ban to heterosexual couples with genes that, when combined, also produce inherited defects? The argument against incest, in the face of the argument against the traditional definition of marriage, does not stand.

Assuming this becomes federal law, I do not see how we can possibly restrict marriage between any two consenting adults, regardless of shared gender or genetics.; 8/4/10, 11:01 PM
Synova said...: "7M: How do you get the law to acknowledge that an unrelated human being is your next of kin?"

I think that's why we'll never get the state out of the issue.

People have been talking about kids, but the state also has an interest in determining who is responsible to pay the bills when kids are not involved.

That is also undermined, btw, when marriage is devalued. "For better or worse, sickness or health," essentially means that someone is around to handle the bad crap... only generally they've taken off and aren't around to handle the bad crap so the utility and state interest of having someone around to be legally responsible for the bad crap is subverted.; 8/4/10, 11:01 PM
Anonymous said...: Let us return to the biblical standard of marriage. One man, 600 wives (or thereabouts). King David did it.; 8/4/10, 11:03 PM
The Crack Emcee said...: Synova,

Sorry but I never said I see gay marriage as bad. What I see is marriage as already defined, so there's no argument for gay marriage.

What I do see as bad is the disingenuous arguments being used to advance the gay agenda, just as I see it happening in the pot debate. And Matt's final line rubs me wrong as well:

"Eventually gays will have all the rights to marry and no one will care except a few religious nuts."

There's no desire for rationality there, no right and wrong - just what he wants, like a child, along with the delusional idea no one else cares about these things (rationality, right and wrong) either. There's no honesty, or maturity, there - just an ends justifies the means ruthlessness and a disgust for "religious nuts" who may or may not be correct. Either way, he doesn't care, because it's all about him and what he wants.

As someone said, this isn't like the black struggle. Blacks were never sucking dicks in alleyways and demanding anyone had to respect it - and they don't like being compared to it. This ain't "Will & Grace" either. Both of those images are not quite the truth and yet have truth in them. This is a whole other multi-layered animal that no one wants to talk about honestly, least of all gays.

I do - because I want to live in a world that makes sense.; 8/4/10, 11:08 PM
sunsong said...: My view is that the far left and the far right both want to control society through their own particular version of *social engineering*.

The right invokes their ideas of *morality* as justification and the *state's interest*. The left does pretty much the same - though they use different words.

They despise each other for trying to socially engineer society in a way that they don't agree with. Neither side, sadly, questions their own reasons for wanting to shove their values on the rest of us.; 8/4/10, 11:09 PM
The Crack Emcee said...: Sunsong,

I haven't invoked morality once, unless you count right and wrong. My argument is for rationality. We told the Mormons marriage was between one man and one woman for life. Where gays fit in that, I don't know.

And let me ask you this:

If that's not true, now, can the Mormons sue for what we did to them?

I'm just askin' - I don't know. I don't even know if it's an intelligent question.; 8/4/10, 11:20 PM
Phil 314 said...: newsong;
Marriage really has no meaning other than what individuals give it.

I can't begin to tell you how much I disagree. And I would suggest that belief is at the core of failed marriages. It IS more than the sum of the two parts.; 8/4/10, 11:25 PM
jr565 said...: newsong wrote:
newsong;
Marriage really has no meaning other than what individuals give it.

So if I say marriage is between a man and a stapler then that is marriage?; 8/4/10, 11:31 PM
sunsong said...: If that's not true, now, can the Mormons sue for what we did to them?

Interestingly, I live in Utah - was raised Mormon - though I left at age 15. I don't believe what they teach.

The Mormons were told that if they wanted to join the Union - they would have to end the practice of polygamy (which as a side note is NOT one man and one women [which we have been told is all that marriage ever was :-)])They agreed to that of their own choice, right?

So, I'm not sure I agree that anything was done to them. If you are talking about them being chased out of Illinois of whatever - well, perhaps the Indians were treated far worse, were they not?

I'm really not much into victimhood and especially not for things that happened over a hundred years ago. What about witches? What kind of payment should be made to them? Or women in general - who were considered property for so many, many years. Maybe they should be repaid before any other group. I am half joking here

I haven't invoked morality once, unless you count right and wrong. My argument is for rationality.

Right and wrong are about morality are they not? :-) That's how I would describe them.

I'm not sure how rationality plays into this - other than that, as you have pointed out, marriage has already changed due to no-fault divorce. It is not what it once was. It's meaning has changed.

Now, what seems, not rational, to me, is to deny gays the same liberty to marry that straights have.; 8/4/10, 11:48 PM
A.W. said...: Seven machos

> The prohibition against incest = not wanting fucked up babies with terrible diseases.

Oh, so if two brothers want to marry each other, you are okay with that?

But it is actually a myth that our anti-incest laws are about avoiding mutant children. Most states that ban incest include relationships among step children and step parents and among adopted children. In short Greg Brady cannot marry Marsha Brady. And moving to Different Strokes, if Willis wants to marry his sister-by-adoption Kim, in most states the law will say, “What’re you talking about, Willis?” and refuse to allow it. in fact, he can go to jail for it. This is all true despite their lack of blood relation.

So what is the ban on incest really about? It is about the concern that these relationships are inherently psychologically unhealthy. Or, that is the official gloss. The real answer when you ask why two gay brothers can’t marry is really, “ick.” And “ick” has underlied our law in that area for years.

But if “ick” or even a belief that the relationship is unhealthy can allow us to ban incest, why not gay marriage? There is no principled reason. Which is why even Lawrence is wrong. Mind you, I don’t want gay people sent to jail for gay sex, but I refuse to pretend that my policy preferences are demanded by the constitution. Sorry.

BY THE WAY, IT IS NOT A SLIPPERY SLOPE ARGUMENT. It is requiring people to enunciate principles that differentiate the cases. We all know that incest can be banned. We know there is no constitutional right to it. but you have to explain how we justify the ban, in terms that differentiate it from gay sex/marriage.; 8/4/10, 11:52 PM
Methadras said...: A Lawyer Mom's Musings said...

Our system of government has CHECKS AND BALANCES.

Indeed, where government writes the checks and we get to carry the balances.; 8/4/10, 11:56 PM
The Crack Emcee said...: Sunsong,

"I'm not sure how rationality plays into this - other than that, as you have pointed out, marriage has already changed due to no-fault divorce. It is not what it once was. It's meaning has changed.'

But what is the legal basis for that change?; 8/4/10, 11:58 PM
Bender said...: marriage has already changed due to no-fault divorce. It is not what it once was. It's meaning has changed.

Who was getting fault divorces and who was then able to get no-fault divorces? In both cases it was marriages of men and women.

The meaning of marriage didn't change -- and it hasn't changed no matter how many times you repeat this preposterous claim, while every example you give involves the marriage of a man to a woman, whether singularly or multiply.

And gays have always had "the same liberty to marry that straights have." Simply because a gay man did not want to marry a woman does not mean that he did not have that liberty to do so.; 8/5/10, 12:04 AM
sunsong said...: The Crack Emcee,

But what is the legal basis for that change?

Does there have to be a legal basis for change? Or does change come first? Or is it sometimes one, sometimes another - sometimes an precipitating event - like a war or a depression? I don't really know.

Change is part of life, I think. I know I've changed over the years. I believe different things than I used to, thankfully :-) I make different choices.

And society changes, too. We are not the society we were in 1776 - thank God. Nor are we the society of the 1950's. Again, for me, thank God.

But change is scary - there is an unknown about it - an uncertainty. And it can be unfair. Things can go wrong. And things can go wonderfully :-)

So how can marriage have changed like this? I believe that it is human nature to continually seek greater freedom and greater self-determination. I could be wrong about that - but I believe that right now. So, it makes sense to me that people would want out of bad marriages.

And from that a means is created. At least that's my impression :-)

Anyway, I don't see any justification for government - at this point - to deny gays equality of liberty.; 8/5/10, 12:24 AM
The Crack Emcee said...: Sunsong,

That's a pretty weak answer. Where are you in Utah?; 8/5/10, 12:34 AM
sunsong said...: The Crack Emcee,

That's a pretty weak answer. Where are you in Utah?

LOL - weak in your opinion :-)

But then, the question wasn't really salient, was it? :-)

I am in a suburb of Salt Lake City.; 8/5/10, 12:51 AM
jr565 said...: sunsong wrote:
Anyway, I don't see any justification for government - at this point - to deny gays equality of liberty.

All that means is that those who are for gay marriage....are for gay marriage.
Does that mean that society has to change the rules of marriage simply because it's your opinion that they do?

I will say though that that is at least more honest than the standard argument for gay marriage, namely that society CAN'T legislate morality and ddiscriminate against people in marriage and HAVE to change the definition of marriage otherwise society is bigoted and hates gays.

Can we agree that society can place restrictions on marriages (whether you agree with them or not). fi society can, then it can place restrictions on gender, and number and age. If not, then it can't really restrict any of those (hence the slippery slope argument and discussion of incest). Gays don't like this argument but it's their own fault for arguing the absolute position they do.; 8/5/10, 12:54 AM
Matt said...: The Crack Emcee

You want to live in a world that makes sense but you make none.

You completely missed the point about Newsom. Why the hell does it matter what he does in his personal life? Newsom was no more than a politician who put forth gay marriage. It could have been anyone else but it just happened to be him. And what was the gay community supposed to do? 'Well Gavin we think you may divorce your wife someday so we are going to wait a few years and get behind some other politician who we know will be faithful to marriage". WTF?

You're a crack-up man.

You're also a presumptuous fool if you think you know that ALL gays somehow are latching onto what YOU define are their true goals.

You want to live in a world that makes sense? Homosexuality exists. Gay rights to marry and be recognized under the law as married does not. It's time to take off the chains brother. Use your imagination and step into the 21st century. Gay marriage will eventually become the law of the land. Despite your death throes against it.

You don't like it? You think kids will grow up all confused, crying because Jimmy can marry Tommy. Then move. Move to a country where they stone you to death for divorce. Or for being gay. That would suit you it seems.

And who the hell cares what we told the Mormons? They want to take their case to court. Go for it. Bring it on. Frankly, I have no problem with their view of marriage. But that is a different issue and one the courts will not revisit.

You want to live in a world that makes sense? Try telling gay couples to fuck off when they try to enter a hospital room but can't because they aren't family. Tell them to fuck off when they can't get the same benefits and rights as hetero couples. Tell them to fuck off when they ask for equal rights.

Your conservatism has clouded your brain. But there is hope. You will see the light. And it will make sense. And the kids will be alright. And the sun will shine.

Peace, out.; 8/5/10, 1:09 AM
sunsong said...: Can we agree that society can place restrictions on marriages (whether you agree with them or not). fi society can, then it can place restrictions on gender, and number and age. If not, then it can't really restrict any of those (hence the slippery slope argument and discussion of incest). Gays don't like this argument but it's their own fault for arguing the absolute position they do.

This will be my last post for the night - as sleep is calling...

Society has done a lot of things that are clearly wrong - as has the government. Wasn't that Bill Clinton's excuse - he fooled around "because he could". The argument that society *can* impose restrictions doesn't persuade me of anything. That government uses force is agreed to.

Gay marriage is about correcting a wrong. Gays have made their case. Walker accepted it. My prediction is that Justice Kennedy will as well :-)

So perhaps we can agree that in this case - Olsen and Bois made the better argument - the one that was more in line with the Constitution than the one that said, this is the way things have always been, we have always excluded gays; 8/5/10, 1:23 AM
Anonymous said...: Pee Wee Herman could have argued this case and Judge Walker would have issued the same ruling.; 8/5/10, 1:42 AM
Krumhorn said...: Lawyer's Mom and others are making far too great a leap in jumping from race issues to sexual preference questions in promoting an equivalency.

The Court has always identified the proscription against race classifications as the "central meaning" of the 14th Amendment in equal protection analysis. And when it has examined racial classifications, the Court has done so with the "most rigid scrutiny" to find some concrete and unassailable governmental purpose.

That test is almost never met...except with respect to reverse discrimination cases.

While there are other "suspect" classifications such as sex or alienage, sexual orientation was treated in a CO case with a relatively relaxed standard that tested for a rational relationship to a legitimate state interest compared to the heightened standards that apply to suspect classes.

So all this hyperventilation that we see on this question that attempts to equate same sex marriages with racial classification just isn't remotely supportable.

Marriage has been determined to be a fundamental civil right that also draws in the due process clause, but in Loving, for example, the main analysis of both the equal protection and the due process issues were centered entirely on racial classifications.

I rather imagine that a court could almost take judicial notice of the centuries of understanding that the inescapable definition of marriage, at the very least, is immutably a boy/girl thing.

Unless some judge plans to impose his or her preferred policy objectives to this issue rather than stick to the legal knitting, it's very hard to see how the voters of CA can be ultimately overturned on this. Because to do so would amount to a massive judicial bigfoot overreach on the scale of Roe that will bring us decades of political bitterness and grief.

Unfortunately, that's how the lefties roll. Unwilling to sell their case over time to the public, they prefer the tyranny of unaccountable judges to dictate and impose the outcome....accompanied by smug moralizing, hectoring and nasty facile claims of religious bigotry and animus.

--Krumhorn

.....; 8/5/10, 1:57 AM
Peter Hoh said...: Ted Olson is a leftie?; 8/5/10, 2:11 AM
amba said...: I know people who are married to their first cousins. It's not universally illegal in this country.

I still think that according to the central logic of those who would restrict marriage to a man and a woman, marriage should also be denied to childless heterosexual couples who decline to adopt.; 8/5/10, 2:22 AM
Opus One Media said...: DKWalser said...
"The fact many can articulate a rational basis for reserving marriage for heterosexual couples shouldn't prevent a judge from finding, as a matter of fact, that there is no rational basis."

perhaps because the right wing can't articulate a rational basis? Did you ever think of that?

No. Of course not. Never entered your mind did it. sigh....how do we produce such idiots.; 8/5/10, 7:06 AM
jr565 said...: Sunsong wrote:
Society has done a lot of things that are clearly wrong - as has the government. Wasn't that Bill Clinton's excuse - he fooled around "because he could". The argument that society *can* impose restrictions doesn't persuade me of anything. That government uses force is agreed to.

Gay marriage is about correcting a wrong. Gays have made their case. Walker accepted it. My prediction is that Justice Kennedy will as well :-)

So perhaps we can agree that in this case - Olsen and Bois made the better argument - the one that was more in line with the Constitution than the one that said, this is the way things have always been, we have always excluded gays.

That doesn't really answer the question though does it. What I want to get from you is that society CAN set limiits on marrriages, and that said limitations are in fact discriminatory and deny people the right to marry if they fall into the category that is excluded. Are you ok with that or not? Not in the specific instance of gay marriage, but in the general sense. IF you are ok with that then aren't you practicing exactly what you say those who don't want gay marriage are practicing? You say allowing for gay marriage is righting a wrong, but clearly as laid out by many restricting three parties from marrying may be a wrong, denying polyamorous marriages may be a wrong, denying family members from marrying may be a wrong, do you think society has an obligation to right all those wrongs or do you think society should right those wrongs, because (in your opinion) those restrictions are not in fact wrong.
If you believe society has a right to restric marriages (just not gay marriage) then in fact the entire argument posited by gays has been a crock of shit. If you think society cannot discrmininate in any way, then, frankly you are trying to devalue marriage to the point of meaning anything, and thus are simply trying to destroy and undermine social values.

Please tell us if society can restric a marriage to two people alone and why, if it can restrict age and why, if it can restrict marriage to not being amongst family members and why, and/or if it even requires two or more "people" and why.
And then when you do, I'm going to explain how you are in fact discriminating against that person and will call you a bigot as per the standard argumentative position of gays arguing their case.; 8/5/10, 7:09 AM
Opus One Media said...: I'm waiting for the uberrecht to raise the issue of frogs marrying princesses and dashing the hopes of so so so many women.; 8/5/10, 7:09 AM
traditionalguy said...: The thrill of victory by a single judge who choses to see rational categories his way and no other vision measures up. Not even the rule of law can withstand his warped vision. Self will uber alles. Neitzsche sees as rational only what Neitzsche wills to see, and to hell with anyone else's view expressed in an election. This revolutionary judge has gone his own way and forbidden anyone from going any other way. That conduct in itself makes everyone in society, including Gay people, profoundly unsafe.; 8/5/10, 7:27 AM
jr565 said...: This comment has been removed by the author.; 8/5/10, 7:35 AM
jr565 said...: HDHouse,
Why not answer the question rather than resort to your standard snark. FLS laid out a bunch of examples that suggest that incestual marriages could be allowed with the following:

"Thinking about it further: the prohibition against incest = "ick" factor + Old Testament law + 20th century eugenics. And ick factor + Old Testament law was not enough to bar same sex couples, so the door to incest should be open just as far.

Further, I know a black couple that has produced children with sickle-cell anemia. And I know a Jewish couple who has produced children with genetic defects. If we are worried about couples producing genetically defective children, should we not make genetic compatibility testing mandatory for all prospective married couples?"

Other than the ick factor, what rational basis do you have to deny these marriages? Are they not couples, do they not meet the age requirements? Please answer the question.

S/he also laid out the case for polygamy and harems based on cultural and religious reasons, both of which predate gay marriage and both of which involve far more people, and both of which are similarly denied:

"The other issue is the widespread acceptability of polygyny, which predates any same-sex marriage anywhere. On my first trip to Singapore, I noticed an obituary of a rich Chinese dude featuring his two grieving widows. I mentioned it to a co-worker from Hong Kong, who commented that multiple wives were common there as well. In fact, he was somewhat surprised to find out it was against the law in the US. (Truly, what is the "rational basis" for such a prohibition?) This doesn't even begin to count the places where polygyny is permitted to accommodate Muslims."

Is our society wrong to prohibit these marriages. Is such prohibition discriminatory. WHy or why not? Why should marriage be changed to allow for gay marriage but not for polygamy and/or incestual couples.; 8/5/10, 7:42 AM
X said...: the most significant part of this ruling is that there is now no rational basis for priveledging couples over individuals. so do marrieds give up their bennies or do individuals get the same bennies (or their cash equivalent)?; 8/5/10, 7:49 AM
bagoh20 said...: Another layer of discrimination against singles is being built. If we just had more passion, we might fight for our rights - or if we had less, get married and take our government cheese.; 8/5/10, 8:44 AM
Salamandyr said...: This comment has been removed by the author.; 8/5/10, 9:08 AM
milowent said...: can we finally repeal virginia v. loving as well? those f***in blacks should not be marrying whites, equal rights does not mean the freedom to marry whoever you want.; 8/5/10, 10:22 AM
milowent said...: these pansy-ass liberals like TED OLSON, LAURA BUSH, and DICK CHENEY are ruining america.; 8/5/10, 10:23 AM
Anonymous said...: Sometimes when a boy cries wolf, a wolf is actually there.

Sometimes when someone warns of a slippery slope, things actually do start sliding down that slippery slope.

Based on Scalia's warnings in Lawrence and the fact that we are clearly sliding where the opinion in Lawrence said there isn't a slide, it would seem that the burden is now on the proponents of homosexual marriage to tell us what in fact will prevent a Constitutional right to polygamy or of marriage to a favorite animal?

Is it the present dearth of federal judges that are openly into bestiality? Is that the essence of the assurance that we won't slide further down the slippery slope?; 8/5/10, 10:27 AM
former law student said...: Crack has a point about Newsom: Marriage apparently means little to Newsom, because he had no problem leaving one marriage and contracting another, in the process having an affair with the wife of one of his best friends. So what does Newsom's endorsement of same-sex marriage mean? A temporary living arrangement you pursue as long as it suits you, which shouldn't hinder your search for sex partners?; 8/5/10, 10:36 AM
The Crack Emcee said...: Matt,

You are as revealing in what you say as what you leave out:

You always mention Newsom is divorced - never his betrayal with his best friend's wife - why? Because, together, they reveal that he, and his supporters, don't respect marriage one bit. So you leave it out.

You're flailing, dude - you even regressed back to homophobia with that "crying because Jimmy can marry Tommy" argument - and that's sad, because it shows you got nothing else.

Listen, you haven't won yet - and you've been disappointed before - so, if I were you, I'd be preparing myself for another disappointment in the future:

The people have spoken.; 8/5/10, 10:45 AM
Jenner said...: This comment has been removed by the author.; 8/5/10, 10:54 AM
Jenner said...: This comment has been removed by the author.; 8/5/10, 10:55 AM
jr565 said...: milowent wrote:
can we finally repeal virginia v. loving as well? those f***in blacks should not be marrying whites, equal rights does not mean the freedom to marry whoever you want.

Again with the bogus interracial marriage comparison, but also again with the absolutist equal rights argument that suggests marriage means anything.
Ok, so I can marry whoever I want? I want to marry 6 people 3 of them being my sister, my father and brother, and 3 gay guys, one of them who's 12. I also object to the idea of the word "whoever". why not whatever? I want to marry a dolphin a dog and a blowdryer. Plus stay married to the harem I had previously mentioned. what's the problem there? Shouldn't I be allowed to marry whoever I want? In however many marriages I want? And I would add, with WhATEVER I want? And shouldn't it all be equal? We should be able to marry whoever we want right?

Now, here's another point that Seven Machos argued. you could marry 6 dudes now. It just won't be sanctioned by govt. I could have a ceremony that marries me to my dog, but the govt certainly will not recognize it.
but this whole, equal rights means freedom to marry whoever you want, also implies that the govt should in fact sanction those relationships.
So what say you? Does my harem stand? And my interspecies marriage?; 8/5/10, 11:44 AM
Fred4Pres said...: It is so much easier to legislate when you do not need a consensus. Let the judges run things. They know better.; 8/5/10, 12:49 PM