Patterico's Pontifications


Will the U.S. Supreme Court Rule Proposition 8 Unconstitutional?

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General — Patterico @ 10:44 pm

Law professor Brian Gray argues in this morning’s L.A. Times that California’s Proposition 8 may violate the federal Constitution — and that we could see a ruling to that effect some day, written by one Anthony Kennedy.

Is he right? The answer depends on whether you believe Justices Kennedy and O’Connor, on one hand — or Justice Scalia, on the other.

If you’re inclined to believe Justice Scalia, then Professor Gray may well be right: the U.S. Supreme Court might one day mandate gay marriage.

I’m not sure why Gray relies on the old case of Romer v. Evans, which declined to overrule Bowers v. Hardwick, rather than Lawrence v. Texas, which did. I think Gray is drawing a parallel between Proposition 8 and the measure invalidated in Romer, because each involved a statewide ballot measure to place in a state’s constitution a provision disfavoring gays. But whether Proposition 8 would be struck down depends much more on Lawrence than on Romer, because Lawrence went much further to defend the rights of gays.

So would the Court find Proposition 8 unconstitutional? It depends on who you believe. If you believe the justices in the Lawrence majority, they might not. If you believe Justice Scalia (in dissent), they definitely will.

In Lawrence, Justice Kennedy took care to say that the case’s holding would not necessarily extend to gay marriage — although Kennedy put this elliptically, using the following language:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In other words, it does not involve gay marriage.

Justice O’Connor, in her concurrence, was more explicit:

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.

In dissent, Justice Scalia said that the principles articulated in the majority opinion would necessarily mean approval of gay marriage down the road:

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. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). 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.

Count me among those in that hopeful crowd. I have said that I am a supporter of gay marriage, but I have also said I do not believe that goal should be accomplished through illegitimate judicial legislation.

Tell Tony Kennedy to stay the hell out of this issue.

67 Responses to “Will the U.S. Supreme Court Rule Proposition 8 Unconstitutional?”

  1. SCOTUS ruling on Prop 8. What doesn’t the Supreme Court get or any court or any politician for that matter that … the people have voted/spoken. There is no marriage right in the Bill of Rights.

    Any judge who is incapable of digesting those circumstances and ruling against the people undermines our society.

    We’ve got overtaxing, judges letting crooks loose, cops worried about gun owners instead of criminals and politicians squandering rights in the name of collective justice. Get ready.

    Yogi (310603)

  2. The crucial difference, as I see it, is that in CA persons can choose to live in a relationship that affords all legal benefits of a marriage, without an actual marriage. Hence, there is no denial of any rights or privileges.

    The state has merely put a “label” on an activity and a specialized license which confers no extra privilege.

    Ed (281252)

  3. Ed – The extra privilege is in the details of having the government enforce an idea.

    Apogee (366e8b)

  4. If marriage gives no extra privilege than it shouldn’t be part of a government sanctioned benefit program that excludes one group. Period.

    Obviously there is a ‘privilege’ that comes with it if people are spending millions in deceptive lies and misinformation to exclude a particular social group from engaging in civil marriage. It’s prima facie.

    Anyway, thanks for the post. I think the CA Supreme Court would probably grant an injunction relief as per Romer and the case will be tied up in the U.S. Supreme Court for years to come. Otherwise, if they let this stand, they are effectively setting a dangerous precedent whereby any minority rights can be put on the ballot and voted away by a slim majority. Bring it on.

    PL (eeb0ba)

  5. Unlike marriage, food, shelter and protection from violence (Evans) or loss of one’s freedom at the State’s whim (Lawrence) are not things which traditionally have been the exclusive province of the States. It would be a very big stretch to extend federal Constitutional protection to same-sex marriage.

    nk (2e727e)

  6. What drives me crazy is the argument that gay marriage will not hurt my marriage.

    Nobody ever said gay marriage will hurt my marriage. Divorce will not hurt my marriage. Adultery will not hurt my marriage. Polygamy will not hurt my marriage. It’s a deliberate straw man, or a complete misunderstanding of the argument against gay marriage.

    I am against gay marriage because marriage is and more or less always has been the union of a man and a woman. Gay marriage pretends that two men or two women are the same thing as a man and a woman. That two mothers are the same thing as a mother and a father. They are not. This is a fantasy.

    The level of animosity directed at the opposite sex by gays when I bring the diversity issue up has astounded me. They depreciate the unique role of the opposite sex, of mothers or fathers. As they must to maintain their proposition that sex differences are irrelevant.

    But sex differences are relevant. We do them no favors by pretending that a gay couple is the same as a diverse couple. They are not, and no level of legislation or court rulings will make them so. They are asking us to accept that 2 + 2 = 5. Make no mistake – acceptance of this will be, in historical terms, temporary. It is a fad.

    It would be like legislating that bulimia is a lifestyle that one is born into and made livable with modern technology, like the men I have conversed with who would drug themselves so they can nurse a baby.

    I would never question the fact that they love each other. I do not hate them. But they are not married. I’m sorry, but they are simply not.

    Amphipolis (fdbc48)

  7. Amphipolis–Jolly good show.

    Bottom line: what does the word “marriage” mean?

    Uh, second bottom line: how will SSM affect the societal good? If it will affect society adversely, then government has no reason to privilege same-sex relationships.

    Patterico: I saw when you said you were against Prop 8. What do you think about the arguments offered in favor of it, like the one’s I just sketched out above?

    Some lawyers for SSM proponents have urged caution *not* to go all the way to the federal court…yet. As they see it, they don’t have good chances there as of now. Quite a different case in the CA state courts, they think.,0,220763.story

    Rich Bordner (9579d7)

  8. Amphipolis,

    You might think it a strawman, but surely you concede that the idea that gay marriage is somehow *dangerous* to the concept of traditional marriage is clearly a bedrock concern of the anti-gay-marriage forces.

    That may or may not be an argument you agree with, but it’s certainly made often, in one form or another.

    You appear to be making a different argument: that marriage should be defined in a certain way, because it always has been.

    But if disallowing gay marriage constitutes discrimination, as I think it clearly does, the issue is whether it’s justified. If gay marriage poses no threat to traditional marriage (which you seem to implicitly concede; correct me if I’m wrong, because I don’t want to misstate your position), the question is whether tradition alone can justify that discrimination.

    I wouldn’t want to be in the position of defending that point of view, because there are too many forms of discrimination that were perfectly traditional, yet that nobody today defends.

    So I think you need something more than tradition. You need a values argument.

    Patterico (3d1f94)

  9. Patt – of course it’s a values argument. Specifically a moral values argument.

    Gay marriage won’t harm *my* marriage, as Amphipolis says. But it does change and degrade our society’s definition of marriage. I say that it degrades it (while others would argue that SSM would enhance it) because I believe homosexual behavior to be wrong. Why else would anyone care about this? One side believes that denying same sex marriage is a moral outrage – the other side believes that granting it is just as outrageous.

    So is it all up for grabs? If we argue that we cannot legislate a particular view of morality, then we have no reasonable basis to refuse any pattern of relationship at all. What harm does it do to me if a man in California is allowed to legally marry an 8 year old girl (or boy) in a loving, committed relationship? How does it affect me or my family if the neighbors down the street have a polyamorous marriage with 2 men and 3 women?

    I don’t think this is even a “slippery slope” argument. I think that the logic necessitates that eventual conclusion, as soon as the public can become sufficiently comfortable with gay marriage for the next group to push their own new cutting edge.

    BTW, to “PL” above: people are spending millions of dollars on both sides of this because they have deeply help moral principles. Not everyone acts only for financial gain.

    Don (47b0b8)

  10. I don’t think SCOTUS will overturn Prop 8. I don’t think they’ll even hear it.

    The California Supremes actually have a very interesting issue to determine as to whether this was a revision (requiring a legislative vote prior to passage, voiding it) or an amendment (in which case it is valid.)

    While the No-on-8 forces have a colorable argument here, I am hopeful that the Cal Supremes will not overturn it; I think it’s both bad law and bad policy to do so.

    I think the end result of further judicial intervention on this point is that the spread of gay marriage to other states will become a much slower process. I view that as a bad thing.


    JRM (355c21)

  11. My argument is that marriage is defined in a certain way because men and women are inherently different, and thus a diverse relationship is inherently different from a uniform relationship. This precludes discrimination, which requires unequal treatment of equals. They are not equal, they are quite different. Two of a kind is not the same thing as a straight.

    My argument is not based on tradition. It is based on what it has always been based on, the inherent difference between men and women which is far more than a tradition or a social construct.

    I do not accept the argument that gay marriage will necessarily damage the institution of traditional marriage. This is sometimes used as a scare tactic. Some make that argument, but to say that they argue that their individual marriage is threatened by gay marriage is a straw man and just silly.

    Amphipolis (fdbc48)

  12. JRM: I admit to not understanding the revision-amendment distinction in CA state law; it looks like a fuzzy arbitrary line.

    aphrael (9e8ccd)

  13. The day America legalizes and mandates gay marriage will be the beginning of the end of this great nation. This country was founded upon the principles of the word of God. Hence the slogan “in God we trust.”. Study history, once gay marriage was embraced as something right and legal, judgment fell on that nation. Look around you. See the signs. The mysterious raging California fires. Rumours of earthquakes and water disturbances. Here in America. America is God’s own country. God’s weapon of righteousness on earth. This is the only country on earth that stands up against injustice and oppression. America is God’s modern day Israel. God’s evangelist and prophet to the nations. We must not make light of this role. Homosexualism is antiChrist. It is the devil’s mandate to destroy and mock God’s image. This country must continue to resist it and overcome it to remain in her seat of power on earth. God hates homosexuality. He will jugde it. However He does not hate homosexuals. He wants them to know there is forgiveness and deliverance for them. John 3:16.

    love2008 (a54233)

  14. If the Colorado Supreme Court overturns Prop. 8, they will be making a huge step toward the destruction of the judiciary.

    SPQR (26be8b)

  15. If the Colorado Supreme Court overturns Prop. 8, the people of both Colorado and Californai will be very confused. :)

    aphrael (9e8ccd)

  16. That’s one weird kind of Christianity expressed in Comment #13. Not only is collective guilt not found anywhere in The New Testament, even in Genesis God would have spared Sodom and Gomorrah for the sake of ten virtuous persons in those cities.

    nk (2e727e)

  17. So the Supreme Court will declare the Constitution un-Constitutional?

    JD (b96a9e)

  18. JD, the issue – as I understand it – is that while ordinary amendments can be proposed via initiative, amendments which are sufficiently big as to constitute a ‘revision’ must go through the legislature first. If this is a revision, the argument goes, then the proper process wasn’t followed and it isn’t actually part of the constitution, sort of like if the states passed an amendment to the federal constitution without Congress doing so first.

    I haven’t heard a comprehensive and principled argument defining the amendment/revision distinction.

    aphrael (9e8ccd)

  19. aphrael – If this is subject to the legislature, what is the point of passing it in the first place? That would seem to render moot the entire ballot initiative process. But, that whole system seems awkward to us outsiders.

    JD (b96a9e)

  20. If the SCOTUS overturns Prop.8 then perhaps we should just accept that laws will be written by the judiciary. The CA Supremes will write the new CA constitution, and the SCOTUS can write a new one for the nation. The people and their legislators or ballots have no voice in it.

    Don (47b0b8)

  21. How does same sex marriage differ from any other arrangements that society has forbidden? We don’t allow polygamy. We don’t allow incest, and we don’t allow children to be wed. Shall we change laws to accomodate any more of the above? Since when has a “civil right” been made boundless?

    John425 (eae6ea)

  22. Comment by nk — 11/18/2008 @ 8:03 am
    That is the most sensible thing you have said. You know what, I agree with you. The presence of the righteous in the land can spare the land of God’s judgment. But as for whether God still judges collectively in the New Testament, read your Bible very well. It’s there. I will give you one instance. Israel is experiencing God’s judgment for rejecting the Christ of God. God is still in the business of judging nations. To say God is not judging nations is like saying God is not blessing nations. America is blessed by God for one reason (among others). Isreal.

    love2008 (a54233)

  23. JD: I don’t know. As I said, I don’t understand it. The system seems to be:

    * we can recall legislators pretty much freely
    * we can pass statute by initiative pretty much freely, and those statutes have a higher authority than legislative statutes
    * we can pass constitutional amendments pretty much freely
    * we can only pass constitutional revisions which went through the legislature before going to the voters

    i don’t know what gets you into the ‘revision’ box instead of the ‘amendment’ box.

    aphrael (e0cdc9)

  24. Regarding the thread question, it will get struck down somehow. But homosexuals will not get everything they want from the Democrats. There will always be someone in their way who they have to fight. They are much too useful as radical partisans.

    Like the Republicans and Bush’s curiously non-permanent tax cuts.

    At some point the light goes on and you realize that one side is against you and the other side uses you, but neither side really likes you.

    Amphipolis (fdbc48)

  25. I think Justice Scalia is right.

    When the Supreme Court adopts a cause as its own, the rules change. This is so even in a formal sense. The Supreme Court has made abortion its most special cause, and Casey said that when the court made a big call on a topic like this, it gave itself a special, extra precedential force to outweigh the inevitable reaction.

    When you look at the big activist decisions that the courts have made over a long time, homosexuality emerges as far more of an issue for the courts than for society at large. So this is another of the Supreme Court’s special causes.

    Homosexuality is not as important as abortion (nothing is as important as that), but it is sufficiently favored to trigger the Supreme Court’s will to keep backing the same side (once it has decided to start conferring extra rights on that side), and sufficient to trigger the Supreme Court’s need to preserve its dignity by not giving in to pressure to back off.

    David Blue (c8bc96)

  26. Patrick, I’m with you on both of your final stances. But the trouble is there are so few “Gerald Gunther liberals” out there who prefer a particular policy result BUT who recognize that not every policy they happen to view as terribly important is already guaranteed — is put beyond the reach of democratic votes — by the Constitution.

    Instead, the overwhelming majority of liberals, smart and dumb, believe the Constitution DOES already guarantee the policies they hold dear, and that it’s merely a matter of getting five like-minded Justices on SCOTUS.

    Of course, the trouble with a jurisprudential gate that rubbery is that it can swing both ways (no pun intended): it can allow a hyper-conservative majority, one day, to hold that a 1-month-old fetus is a “person” under the Due Process Clause, for example, and therefore that states violate the Clause if they fail to prosecute and punish abortions just like plain-vanilla murders. And so on, and on.

    Mitch (890cbf)

  27. Comment by aphrael — 11/18/2008 @ 9:35 am

    Amendment v Revision….

    This is the first issue that the Courts will have to deal with in determining standing of the suit to overturn the voter’s approval of P-8.

    Another Drew (57c107)

  28. Another point (don’t think this has been mentioned explicitly): Marriage is not *defined* by cultures as much as it is *described.* Its definition precedes culture, as Amphipolis has implied.

    I’ll get back with more commentary later, but I just wanted to make that quick point now.

    Rich Bordner (ab3562)

  29. Justice Scalia, in his best combination of legal lingo and straight-talk, called Justice Kennedy a fucking liar — and rightly so.

    Icy Truth (aedb2f)

  30. What the hell is “Isreal”? What is real?

    C’mon, love! Mangling ‘Israel’ shouldn’t be acceptable to you.

    Icy Truth (aedb2f)

  31. On a bigger picture, the seeds of the destruction of democracy and personal rights are being sown here. Who grants these “rights” in the first place? If they are inherent, who made them inherent? God, or man? If God, whose God? If man, then what is wrong with democracy ruling?

    As I understand it, the founding fathers believed rights were given by God. Apparently, however, these rights are not “self-evident”. Therefore, we revert to the will of the people. The Constitution was set up to codify these rights, but to determine a right, 2/3 of the states had to ratify that Constitution. Everything else was left to the will of the simple majority. No one can truly argue that same-sex marriage was a right intentionally bestowed upon by the 2/3 of the States when the constitution was radified. Even the abolition of slavery had radified by a vote of the States and was not suddenly discovered by a few judges.

    The problem now is this system of determining rights by the will of the people has been taken away by the courts. Rights are now determined by judicial fiat. Of course judges claim these rights were already in the Constitution, but again, you can’t argue a society which was against homosexuality meant to bestow upon that group a right to same-sex marriage.

    The “right” to same-sex marriage must be bestowed by the will of the people if we are to preserve our democracy. If the will of the people are ignored, then our rights will be bestowed and taken away by the God our judges serve. I’m not sure I believe in their God.

    Frank (e799d0)

  32. Patterico,

    Above you asked for values arguments. This link argues the case excellently:

    Sorry for not making it an actual link. For some reason, the link button never works for me on this site when I leave comments.

    Rich Bordner (9579d7)

  33. SCOTUS ruling on Prop 8. What doesn’t the Supreme Court get or any court or any politician for that matter that … the people have voted/spoken. There is no marriage right in the Bill of Rights.

    Any judge who is incapable of digesting those circumstances and ruling against the people undermines our society.

    We’ve got overtaxing, judges letting crooks loose, cops worried about gun owners instead of criminals and politicians squandering rights in the name of collective justice. Get ready.

    Comment by Yogi — 11/17/2008 @ 11:27 pm

    The bill of Rights never sought to name every right, nor did it grant any rights, It is specicly forbids the taking of any rights by the goverment. those it outlines specificly are only the primary examples, The instriment asumes that all rights of any human are intrinsict with exsistance. One of the great concerns of the objecters to the bill of rights is that someone would assume that only those named would be protected.

    Dale (bd0a62)

  34. Logically, the argument for same sex marriage must include polygamy and every other form of consensual sex. How can it not? What possible argument could you make that homosexual marriage is a personal right but polygamy or bigamy, polyandry, polygyny or any other form of consensual sexual behavior is disallowed?

    Either society has the right to define which behaviors are specially sanctioned or it does not. That is the crux of this entire issue.

    I oppose homosexual marriage because it creates a breach in the law (by precedent) that cannot be later closed. If homosexuals have an inherent right to marry then so does anyone else in any sort of consensual sexual relationship.

    If you’re going to support it, at least be honest enough to admit that you support all forms of consensual behavior without restriction by the state in any form. If you refuse to admit that, then you aren’t being logical.

    Antimedia (1285f5)

  35. i just want to know why the government is in the “marriage” business, since “marriage” is a religious institution.

    the government should have nothing to do with “marriages” and any two or more consenting adults that want to get married can do so at whatever church they find that will do so.

    governments should simply recognize and enforce domestic contracts between two or more consenting adults, and let everyone get on with their lives.

    redc1c4 (27fd3e)

  36. == Re: Post # 18 by aphrael: ==
    ==”I haven’t heard a comprehensive and principled argument defining the amendment/revision distinction.”==

    The following websites have some interesting thoughts on the amendment/revision subject:



    Charles (750021)

  37. Show me an attorney that would turn down the possibility of expanding the potential revenue pool/base.

    Gays are just people as well, and it’s portrayed that they have a bit wilder swings in and during relationships. Key word “portrayed”, such is all that hetro couples have to base a decision on. I can only assume that it is the gay community creating such portrayals.

    I can’t judge, and won’t, don’t care never have. Have learned to just respect folks for who they are, not how they desire to get off, cuz lots of folks seem to stray from norms when “getting off” is the desire.

    What I have said, and will continue to say is that gay folks do not deserve or have earned any “special” status amongst us. Hate crime legislation should be removed from all books. Hate comes in a variety of forms, and only a few were addressed in the laws created to eliminate them.

    Such can’t really be done. Just create “another” charge against a citizen for the convenience of a prosecutor. Keep handing them a big enough brush and gawd knows spittin in yer home with children present will be enough to charge you with something criminal!

    Red, marriage is a legal institution! Just ask your pastor/preacher/priest/rabbi/ship captain or attorney! Even you said it, “domestic contracts”. Legal, I doubt such language appears in any religious text, bible, Koran, Tora, bunch of mormon publications and …

    TC (0b9ca4)

  38. First and foremost, we need to understand that marriage is a legal contract. Only from this understanding can we, then, discuss it’s constitutionality. The regulation of contracts have traditionally been the domain of the States. The 10th Amendment allows for the states to regulate legal contracts. With this precedent in mind, each state has historically elected to maitain their own standards in regard to marriage. In some states a female can be as young as 14 and legally enter into marriage with a man at least 16 years of age, as long as they have parental consent. The age varies with each state, but usually the female is allowed to marry at a younger age. No one has ever brought suit against the States for sexual discrimination for allowing a female to marry younger than a male, even though it exists. It has just been accepted. Some states require certain blood tests; some don’t. There are rules and regulations concerning who can legally preside at a wedding and how many, if any, witnesses must be present. Most states don’t allow citizens with Down’s Syndrome the privilege to marry. This is an obvious disability discrimination, but no one has overturned it.

    The bottom line is that it’s a contract, and no one has a legal right to enter into a state-recognized contract with another party. The law doesn’t discriminate between a gay man and a straight man in regards to their right to marry a woman based on their sexual status. Nor do most of the states allow a straight man to marry another man, just as they deny it to a gay man. The law is consistent in it’s explicitness of its defining marriage as that between a man and a woman regardless of one’s sexual preference, just so long as they meet that state’s other legal requirements regarding health and age. Also, no one has the right to marry anyone they want, period. I’d like to marry Alyssa Milano, but I can’t unilaterally do it. It is not an individual right, therefore it can’t be seen as being abridged as such. It is a contract between two, and only two, parties. The states can’t mandate that one party can freely enter into a contract with another. I’d like to sign a multi-million dollar contract to play with the Dallas Cowboys, but I don’t have the right to do so. The NFL is allowed to regulate who the Cowboys can sign based on their criteria, and the Cowboys also have their own highly discriminatory criteria based on exceptional athleticism and other factors. Entering into a contract is not a right.

    PC=NewSpeak (695dcc)

  39. There are a lot of issues here. Like it or not, nearly 20,000 gay people in Callifornia have marriage licenses, legally married under a supreme court decision voiding prop 22. The short wording of prop 8 does not address marriage prior to its passage, a huge blunder on the drafters on prop 8. Generally ambiguous law is construed broadly. The governor and the attorney general of California appear to be in sync that those marriages will remain legal.
    With regard to civil rights, the courts generally believe (again like it or not) that the rights of a minority are not determined by the popular vote of the majority. If they were, then minorities would only have rights that the majority saw fit to grant them. That is why we have Supreme Courts, to interpret these difficult issues. The Court will likely look at prop 8 as a ruse to get around their prop 22 decision. In conunction with the fact that there are already 20,000 legal gay marriages in California thanks to their ruling on prop 22, they will have no alternative but to seriously consider overruling prop 8. If the court intended to do otherwise, it would have granted a stay implementing the start of gay marriage until after the election. It didn’t, so it could now point to the 20,000 legally married and say how unfair is it to allow them to be married, but no one else?
    Also, just because you call something by another name does not change its fundamental meaning. For example, a company calling severance pay salary continuation so that you can’t collect unemployment benefits does not make it so. The Supreme Court has ruled that not matter what you call severance, it’s still severance, period. So don’t take prop 22, repackage it as an amendment to the constitution, call it prop 8, and expect it to fly.
    One last thing about the argument that gay marriage will lead to polygamy etc. Laws against polygamy apply to all persons, not only to a protected minority. Remember, the citizens of California voted in favor of the death penalty, fully knowing that one day, they, too, could be subject to it.
    There is a difference and an injustice in laws that apply to some and not to all.

    tom conten (12dcfd)

  40. Comment by tom conten — 11/19/2008 @ 9:51 am
    In conunction with the fact that there are already 20,000 legal gay marriages in California thanks to their ruling on prop 22, they will have no alternative but to seriously consider overruling prop 8.

    Since the CA Supremes were aware of the Proposition at the time they made their ruling and were made aware of the possible consequences of these “marriages” being voided, yet chose not to stay their ruling until after the results of the election were in, I have no sympathy for this argument. Seems to me the legal limbo that these couples are in was entirely created by the court and to use that as a basis to overturn the popular vote is disingenuous to put it mildly.

    It didn’t, so it could now point to the 20,000 legally married and say how unfair is it to allow them to be married, but no one else?

    A plain language reading of Prop 8 would preclude the state from recognizing those “marriages”. Should be interesting to see what they do here.

    “Laws against polygamy apply to all persons, not only to a protected minority. “

    Again, this “protected minority” status was newly created by the CA Supremes. This is just another way of creating special “rights” for a favored few.

    Basically, you see here why so many people have nothing but contempt for the legal system.

    Jay Curtis (8f6541)

  41. Tom,

    I add to Jay’s comment: Behaviors, inclinations, and desires are not a proper grounding of rights, and they are not a proper grounding to determine a “minority class” of people.

    Laws about SSM apply to all people, gay and straight, just like laws about polygamy.

    Rich Bordner (ab3562)

  42. tom conten –

    Laws against polygamy apply to all persons, not only to a protected minority.

    If gays are a protected minority, meaning that sexual preference, whatever that means, makes you a protected minority – well then people who want multiple partners should be protected as well. Because they love each other, and who are you to deny them.

    The exact same rationalle applies.

    Amphipolis (e6b868)

  43. The California Supreme Court has agreed to hear a legal challenge on whether the voters have the authority to Pass Prop 8 in the first place.

    I voted against Prop 8 but this is an outrage. It is part of the CONSTITUTION now so there is no conceivable argument — even if you buy the “living constitution” claptrap that a gay marriage ban is unconstitutional. To strike it down anyway would be nothing less than a judicial coup and I will personally work to recall any judge who rules as such, whether the statute gets struck down or not.

    Sean P (e57269)

  44. Amphipolis

    If gays are a protected minority, meaning that sexual preference, whatever that means, makes you a protected minority – well then people who want multiple partners should be protected as well. Because they love each other, and who are you to deny them.

    The exact same rationalle applies.

    This was precisely my point. There is no basis in logic to argue otherwise, and anyone that does is simply not being logical.

    tom conten

    One last thing about the argument that gay marriage will lead to polygamy etc.

    I want to point out that I never made this argument, and I find it detestable that you claim that I did.

    I simply stated that you cannot logically allow gays to marry, under the law, and deny marriage to any other consensual sexual arrangement. To claim otherwise is to deny the only logical conclusion that can be derived (and which the courts will most certainly conclude over time), and to do so knowing full well what the argument is (as you have done) is disingenuous.

    Furthermore, your argument that gays are a minority that should be protected by law is based upon circular logic. By the same logic every single citizen would be a protected minority (and therefore none would be), because every single citizen can point to some behavior unique to them that is not shared by the majority of the population.

    Whether or not gays are “born that way” is irrelevant. It is their behavior that they seek to achieve state sanction for not their being. Gays simply are what they are. When they seek to enter into the contract of marriage, they a seeking state sanction for their behavior just as heterosexuals are. The difference is that the state has a special interest in heterosexual marriage because it results in progeny, in the norm, which benefits society (although there are exceptions, of course….lousy parents, divorces, couples who choose not to procreate, etc., etc.)


    i just want to know why the government is in the “marriage” business, since “marriage” is a religious institution.

    Marriage under the law is a contract not a religious institution. They are two separate things. For example, one can get married by a justice of the peace, without any religious ceremony whatsoever, or one can get married by a minister, in a church, with all the ceremony associated with that. However, the acquisition of the license is a separate matter from the ceremony in the church.

    The legal purpose of marriage is to sanction arrangements which result in children who are raised in a stable environment and become contributing members of society. The argument that this is not always the case therefore gay marriage is no different is silly. The fact that not all marriages result in children or that many marriages end in divorce does not negate the purpose of the marriage contract. Nor can allowing gays to enter into the same contract achieve the same purpose, in which the state has a strong interest.

    Yes, some gays can adopt children and raise them to be solid, contributing members of society, but that is not the norm or expected result of gay marriage. It is of heterosexual marriage.

    Antimedia (1285f5)

  45. To classify an individual as a minority based on their sexual inclinations or deviations is going down a slippery slope. That would open up Pandora’s box to sadomasochists, necrophiliacs, pedophiles, polygamists, polygynists and bestiaphiles as claiming minority status, regardless of whether or not they admit to indulging their inclinations. One may argue that recognizing homosexuals as minorities and legalizing same-sex marriage wouldn’t necessarily imply extending to these other “alternative lifestyles” because most of their activities are considered illegal. But one should also realize that homosexual behaviors, such as oral copulation and sodomy, are still considered illegal acts in some states. To consumate a marriage, especially between two men, would necessarily involve felonious activity. Consumation of marriage is still considered legally important in most states in regard to separation, divorce and anullment.

    Regardless of the enormous tar-baby repricussions concerning recognizing new “minorities”, the most important principle involved in this issue is the very essence of the Constitution itself in protecting our fundamental right to self-determination. The voters of California directly passed a law defining marraige as that between a man and a woman. This was not an act of the legislature of California. This was Direct Democracy, and a mandate of the will of the people. When the State Supreme Court overstepped their constitutional authority in overturning the original Prop 22, the people sought to legally address the Supreme Court’s issue, which was the question of it’s constitutionality. The State Constitution was changed by Prop 8 to eliminate that argument by the high court. To overturn the State Constitution by the California Supreme Court would be tantamount to a rebellious assertion of oligarchic rule.

    PC=NewSpeak (695dcc)

  46. Sean P: I haven’t had a chance to look at the links which were provided above, but the argument is about whether the proper process was followed.

    If the wrong process was followed, then it isn’t in the Constitution.

    aphrael (e0cdc9)

  47. I respect all your responses to my post. Like I said, by allowing the marriages to go through, rather than issuing a stay until prop 8 was decided, gives a hint of the court’s thinking on this matter – that prop 8 is a repackaged prop 22 given another name. One passed 61/39, the other 52/42. Pretty obvious what direction we are going. I really don’t care one way or the other what the outcome is. But if the justices thought it was important to see what the vote on 8 would be before allowing marriage licenses to be issued, they would have granted the requested stay.
    The governor and the attorney general are against the passage of 8…not a good sign since the attorney general has to argue for the proposition.

    So if you were a slave, and were told you can leave the plantation, you can go any place in america, you can build a house and start a family, you can sow,tend and sell your own crop, keep the money and be accountable to no one…YOU JUST CAN’T SAY YOU ARE FREE,(because only white people can be free) would you still be a slave? The point is in California domestic partnerships and marriage are 99% identical from a legal and contractual standpoint. The divorce process is identical, just as costly, and can be just as mean spirited. YOU JUST CAN’T SAY YOUR MARRIED! Notice no one is fighting use of the word divorce. domestic partnerships are dissolved. Whatever the word, same outcome.

    tom conten (12dcfd)

  48. tom, your response to the polygamy slippery slope argument is frivolous. The same-sex marriage movement is about redefining marriage. Once you state that people can redefine marriage under the claim that failing to recognize their definition is discrimination, then laws against polygamy can be attacked the same way – that the prohibition discriminates against polygamists.

    And the reality is that polygamy has a real historical and contemporary basis in human society and same sex marriage does not.

    SPQR (26be8b)

  49. LAST THOUGHT: As the law stands now, in California you can be fired by your employer or refused housing or prohibited from adopting if you are a polygamist. Unless Mormons take over our Supreme Court, that’s not going to change. None of the above can happen to the suspect class of citizens, homosexuals, based on California law. Bans against inter-racial marriage have a real historical and contemporary basis in human society as late as the 1960s in Virginia. Today it’s laughable that courts once cited creation of mutt-like races as the reason for races not to inter-marry. The other day our president elect referred to himself as a mutt. And in the not too distant future it will be laughable that 2 persons of the same sex could once not enter into the contract of marriage. Try as you might to stop it, the future always arrives when it comes to these issues. Do you think the lifting of the ban on inter-racial marriage redefined marriage? Or did it just refine marriage into a more fair union?

    tom conten (12dcfd)

  50. Well, I fully expect that the 4 CA Supremes that found the right in the state constitution before Prop 8 can find it in the federal constitution just as easily. Of course, that means it can be appealed.

    And I’m sure that the 9th Circuit will affirm after a stay and a suitable delay.

    Kevin Murphy (0b2493)

  51. Well, I fully expect that the 4 CA Supremes that found the right in the state constitution before Prop 8 can find it in the federal constitution just as easily. Of course, that means it can be appealed.

    That’s just the point. They Supreme Court justices did NOT find the right in the state constitution for gay marriage. Gay marriage is an expansion of rights. Gays have just as much right as anyone else does to get married, just so long as it is with a member of the opposite sex, and that they don’t have any number of genetic disorders or diseases that the state uses to bar people from getting married. Gays are not excluded from marriage any more than anyone else. You may argue that they don’t have the right to marry anyone they want, but NO ONE has that right either. I can’t marry a supermodel just because I want. The Supreme Court expanded the definition of marriage based on whatever line of thinking they were engaged in at the time. The court unilaterally added to the constitution. There was never anything there that addressed marriage before, therefore Prop 8 is not a revision to the constitution. The Supreme Court should strike down gay marriage, but I’m not sure that they will since they have a long history of liberally legislating from the bench like oligarchs. I suspect this will go to the U.S. Supreme Court.

    PC=NewSpeak (695dcc)

  52. Do you think the lifting of the ban on inter-racial marriage redefined marriage?

    What a crock. Do you think the difference between a white person and a black person is in ANY WAY comparable to the difference between a same-sex couple and a multi-sex couple, other than that both consist of two people? We need to have a little talk.

    Opposite sex couples are inherently and vastly different. We are talking apples and oranges. But I suppose people have become so confused that they don’t see the difference any more. This is a temporary situation.

    Amphipolis (fdbc48)

  53. tom –

    You can’t say you are married, because your union does not have the diversity of a multi-sex union. It is as simple as that.

    Men and women are different, fathers and mothers are different. One of each is different from two of the same. Marriage is the union of man and woman, not the union of man or woman.

    Amphipolis (fdbc48)

  54. In an interview on CNN California’s republican governor, said he hoped Prop 8 would be over turned. As only he could say in his broken english: “It’s unfortunately, obviously, but it’s not the end. I think that we will again maybe undo that if the court is willing to do that and then move forward from there and again lead in that area.”
    Twice in the last few years the state legislature sent same-sex marriage bills to the governor and he vetoed them. Now he seems to be on board with the idea. So you have all 3 branches of government in California, executive, legislative and judicial in favor of gay marriage. That does not forbode well for those against it.
    Maybe the real issue here is the need for a law that prevents a republican from marrying a Kennedy. God bless Maria Shriver, the brain of the terminator.

    tom conten (12dcfd)

  55. As a matter of established precedent marriage qua “marriage” is a fundamental right. Proponents of same-sex marriage have no judicial mechanism for forcing a change in this fundamental right without breaking the law.

    That’s exactly what various courts have done in order to secure a desired policy outcome.

    The legal reasoning behind the Massachusetts (California, Connecticut & various others Hawaii, N.J.)doesn’t have to be, nor is it meant to be a, “logical, valid, wise, effective, or constitutionally defensible” approach.

    What it is, is.

    #1. Necessary – for them to use (as they have) the courts as wedge to make their agenda politically feasible it is was (and remains) necessary to call any argument against there agenda “irrational”.

    But for that they would have had a hard time getting anyone to even co-sponsor a civil unions bill in Hawaii or Vermont.

    On this central point I urge you all to read Conciliating Hatred by Steven D. Smith 2004 First Things (June/July 2004).

    #2. Effective In the Leninist rhetoric strident sense of the term. Its moral blackmail and demagoguery. It co-opts the moral weight of a different kind of thing and turns all opposition into mindless bigots. This has always been an effective approach for demonizing all opposition. I’m sure many a Californian voted no on 8 simply because they did not want to think of themselves as bigots, or segregationists, or hateful people.

    A reasoned, cogent, well thought out argument for same-sex marriage doesn’t lend itself to success. They know this and actively chose the demagogic tract.

    Fitz (a95d59)



    I am married. My marriage is recognized as such by me and my husband; by our friends and family; by our coworkers and our community. (I live in a county in which Prop 8 failed by more than a 2/3 margin; the local community, at least, recognizes the legitimacy of the marriage).

    All Prop. 8 says is that the state may not recognize my marriage. I think that’s a big deal; but it’s also limited in scope. The state has no power to deny that I am married; state recognition does not make the marriage exist or not exist. And it certainly has no power to say I can’t call my marriage a marriage.

    It just means that the state won’t call it a marriage.

    aphrael (e0cdc9)

  57. Twice in the last few years the state legislature sent same-sex marriage bills to the governor and he vetoed them. Now he seems to be on board with the idea.

    Gov. Schwarzenegger’s position when he vetoed the bills was that the courts or the people should decide.

    He was opposed to Prop. 8 but did not campaign against it, something I will hold against him for a long time.

    Now his position seems to be that the courts should decide.

    aphrael (e0cdc9)

  58. A reasoned, cogent, well thought out argument for same-sex marriage doesn’t lend itself to success

    Sure it does. Look at the difference between the Prop. 22 and Prop 8 results; public opinion in California is slowly shifting on this issue.

    It just lends itself to success less quickly.

    aphrael (e0cdc9)



    I am married.

    Well – in that case,…I’m married.

    Fitz (a95d59)

  60. It is difficult to find your argument in your prose, Tom, but all I can see is that you are saying its good to discriminate against polygamists ( evidently because you falsely believe that Mormon and polygamist are equivalent terms ) but bad to discriminate against homosexuals.

    And that remains a frivolous argument.

    SPQR (72771e)

  61. “Sure it does. Look at the difference between the Prop. 22 and Prop 8 results; public opinion in California is slowly shifting on this issue.”

    There is an intervening superseding event between those two votes. That is the rulings in California, Massachusetts Vermont, N.J. Connecticut.

    I would argue that “BUT FOR” these (essentially) moral proclamations by various State Supreme Courts – same-sex “marriage” (and even civil unions) would be very hard sell across the country and even in California.

    Especially considering that the California Supreme Court did intervene and created a situation were voters were forced to vote against powerful elite opinion & an already (although newly) created right of same-sex “marriage”.

    In my above comment when I claim the judicial approach necessary – I mean “necessary”. (In social, moral, legal, and the democratic sense)

    Fitz (a95d59)

  62. Fitz: I would argue that my act, and that of thousands like me, of holding myself out to be married to my community does more to persuaded the people I interact with than the moral declaration of the court does.

    aphrael (e0cdc9)

  63. “Fitz: I would argue that my act, and that of thousands like me, of holding myself out to be married to my community does more to persuaded the people I interact with than the moral declaration of the court does.”


    Well that would also work with my thesis. The fact that your marriage was (is) legally recognized help the “community” become acclimated to the idea.

    Without such recognition even thousands of such “holding outs” look more like personal stances than a serious social problem much less a constitutional issue.

    Fitz (a95d59)

  64. apharel: I’ve heard that argument, but I frankly don’t get it. If the initiative didn’t properly qualify for the ballot surely Secretary of State Bowen (a Democrat) wouldn’t have placed it on the ballot in the first place. If you have a legal resource on that matter I’ll read it, but to me this argument sounds like the intellectual equivilent of the nuts who claim there is no income tax because the Sixteenth Amendment wasn’t properly ratified.

    Sean P (e57269)

  65. Sean P: I also don’t understand the argument. I mean, I understand it on the surface, but I have no idea where the line is between revision and amendment.

    The Secretary of State has never, so far as I know, ruled that something is a revision and therefore not qualified for the ballot. The Supreme Court of California has done so a couple of times, but it’s pretty rare.

    aphrael (bc967d)

  66. aphrael

    Fitz: I would argue that my act, and that of thousands like me, of holding myself out to be married to my community does more to persuaded the people I interact with than the moral declaration of the court does.

    Persuade people of what? I live on a cul-de-sac with six houses. Four houses from me there lives a homosexual couple. I am persuaded that they love each other, that they have a committed relationship and that I wish I could talk them in to doing my landscaping (because they do a great job of it at their home.)

    I am not persuaded that the state of Texas should change its marriage law to accommodate them. (And frankly I don’t think they really care.)

    So I’m not sure I get your argument. If you want people to accept same-sex relationships, I think you’re a long way toward accomplishing that. (I’m a Christian. I think homosexuality is a sin. But I really could care less how you live your life. It’s your sin, not mine, and I have plenty of my own to be regretful for.)

    However, I think many Americans draw the line at redefining marriage. I object to it on the grounds I’ve written about above, not because I care what someone else does in their private life.

    BTW, I commend you for discussing this intelligently rather than hyperventilating about it. I respect your view, although I disagree with it, and I suspect you do the same with mine.

    Antimedia (1285f5)

  67. A revision would be anything the justices don’t mind accepting. An amendment would clearly be different.

    As far as acceptance is concerned, if I am being asked to accept that a same-sex relationship is the same as a multi-sex relationship, good luck. The two are significantly different, always have been, always will be. There is no union of inherent difference. There is no fertility issue (I know not every hetero couple has this, but 99% do in one way or the other). The fertility issue alone means that almost all hetero couples are vastly different.

    To deny what I am saying is to deny the unique contribution made by the rejected sex. I have embraced the opposite sex. This is the union of marriage. You have rejected it – if you say that you can never ever have a relationship with a member of the opposite sex, you reject it. That’s certainly your prerogative, but it is not the same.

    You want me to accept that your relationship is the same as a multi-sex relationship, yet to do so I would have to accept that motherhood or fatherhood are not uniquely different and necessary. Not going to happen.

    All I keep hearing is – we love each other! I got that. I’m OK with that. But you are not the same as a diverse couple. That is the issue you are running from.

    Amphipolis (fdbc48)

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