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Posted by on May 27, 2009 in At TMV, Politics | 41 comments

California Supreme Court Upholds Proposition 8


For what it’s worth I’ve had the chance to review the decision and I have posted my thoughts and opinions under the fold.

Also, Bush v Gore rivals Ted Olson and David Boies will file suit in Federal Court to seek an injunction on Proposition 8 so the courts can review if the measure violates federal law. I am not sure if the court will take the case and if they do I doubt they will impose an injuction.

Federal courts tend to be pretty conservative on these issues and they may consider it a state issue.


The California Supreme Court has voted by a margin of 6-1  to uphold Proposition 8.

This means 3 of the 4 who voted for same sex marriage rights last year switched this time,

Marriages prior to the passage will remain in effect.

My thoughts below the fold.

I think those who have read my posts are well aware of my views on Proposition 8, same sex marriage and gay rights, but I will restate the fact that I strongly opposed Proposition 8 and find the denial of rights to people based upon their sexual orientation to be contrary to the things the USA is supposed to stand for.

Having said that I offer the following review/commentary on the ruling issued today.

For those who may not be as law oriented, the opponents of Proposition 8 raised three basic issues: 1) that this was a revision rather than an amendment and was thus invalid, 2) that this was a violation of the separation of powers because it shifted judicial power to the voters and away from the courts and 3) that it violated the equal protection rights.

Starting my review with argument #2, the court pretty quickly dealt with that one by stating that since the state Constitution clearly gives the voters and the legislature the power to amend the document then it is not a violation of the separation of powers doctrine for them to exercise that power.

I can’t really argue with that point and neither did the dissenting Justice Moreno.

The second major area they discuss is the revision principle. Just to review, under that California Constitution there are two ways to put amendments on the ballot. One is for the legislature to do so by a 2/3rds vote, the other is for people to get signatures from 8% of the voters.

The key issue is that if the proposed change is an amendment it can be put on the ballot either way, while if it is a revision it can only be put on the ballot by the legislature. Those opposing 8 made the argument that this was a revision because it altered a fundamental right of the people to marry.

I had put a lot of weight behind this argument but looking at the majority opinion I certainly can respect the way they reached their concusion. It is clear that in past cases the term revision means a pretty substaintial change to the document and with fairly extensive language.

For example in the past voters supported measures like Proposition 13 which took the power of taxation out of the hands of local government and put it in the hands of the voters. They passed bills to make major changes to the rights of criminals and the procedures which protected their rights. None of these were held to be a revision.

The only really major example of a revision was a 1911 measure which added about 22,000 words to a 60,000 word document, which was a pretty major change.

So I do think that since this particular change added only a few words to the document that it was reasonable to say it was not a revision. However I do think that a much better conclusion was reached by Justice Werdegar who concluded that while in this particular case she did not think it amounted to a revision that the court was wrong to conclude that there had to be a major scope to the change, that a major impact could happen with only a few words.

Indeed not only do I find his argument compelling but I would have probably joined Justice Moreno in finding that this was a revision for the reasons I had outlined in prior posts, that it impacts a major fundamental right. His analysis finds that the term marriage holds such a special significance in our society that to strip it away from same sex couples is to deny them a fundamental right based upon their suspect class.

He also places a great deal of emphasis on the equal protection argument which is rejected by the majority, holding that the right to the term is such that it is an integral part of the right to marriage which thus must be protected. While only one Justice bought in to my basic arguments I am glad at least one did.

At the same time, I do not think the majority view was entirely unreasonable, even if I think it was wrong. An example I used in discussing this with a close friend was to compare two imfamous civil rights cases, that of Dred Scott and the Plessy decision. Dred Scott held that blacks were not citizens while Plessy held that separate but equal was acceptable.

In both instances I would have dissented, finding the rulings entirely wrong. But in the case of Scott, I would have understood how, in the absence of the 13th, 14th and 15th amendments, that the court could have concluded what they did. In the case of Plessy, no such allowance could be made since those amendments clearly prohibited the discrimination.

In this case, while I do think that the right to marriage is a fundamental one and that it includes the use of the term marriage, I can accept the logic of others that says the issue is the rights of the institution, not the use of the word itself. Indeed I was once in that camp and while my views have changed I cannot fault others who have not.

But not all is lost here. If you look at the ruling the justices take several opportunities to communicate within the ruling. For example on Page 3 of the ruling they make a rather detailed statement to discern between their own personal viewpoints on the issue and their duty as judges to uphold things they do not like.

This struck me as unusual and in discussions with some legal scholars I am told it is quite extraordinary to make such a statement.

Similarly, they take care to discuss a proposed initiative which would have stripped the legislature of the right to extend marriage benefits to same sex couples and to contrast that with their decision here. The clear suggestion is that such a move would have been struck down. Again, this is rather unusual.

Finally they take time to discuss the fact that many people find the current initiative process to be flawed and hint at the idea that it should be changed. This is a little more common, for the court to prod the legislature to make changes, but combined with the above it is pretty significant.

So is a suggestion that there be an amendment to the document to limit what rights can be changed by mere amendment (a provision that is part of many other State Constitutions).

All in all I am unhappy about the ruling and I thinkt he courts got it wrong. But I cannot say that they were entirely unreasonable in their conclusion. Further I think it is pretty clear the court took pains to express their displeasure at the decision, even as they recognized the need to make it.

Finally, I take solace in the fact that time is on the side of those who support these rights. I will discuss future steps in another post.


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  • Silhouette

    6-1 eh? That’s sort of sending a message. I think they wanted to put this one to bed. I wonder if that movie the pro-GLBTs [but not polygamists] put out “Do Ask Do Tell” that essentially threatens blackmail to legistlators and officials should they dare to have an opposing opinion to deviant marriage, had anything to do with the overwhelming backing of Prop 8 by the CA Supreme Court?

    I’m betting that without the release of that film, the vote would’ve been more like 4-3..?

  • Very sad. The good news here: at least the 18000 marriages that took place in good faith in the 6 months prior to the election will remain intact. And suddenly having a simple majority able to change the constititution is on the side of those looking for marriage equality. If the margin went from 22% in 2000 to 4% in 2008, and since we all know the trend toward equality will continue in this manner, I think we’re only a few years away from changing the constitution again, upholding the right of any consenting, adult couple to marry.

  • AustinRoth

    There is no message, nor a real ‘switch’ by the Justices that voted differently. The cases were different.

    Justices can support gay marriage as a principle, but still vote that a specific measure, such as Proposition 8, was voted on correctly. That is in fact what I would hope they would do, if they see the law says it is so that way.

    Invalidating or voting against what you believe the law says was done properly simply to meet a personally held point of view is misconduct.

  • Silhouette

    True. You know how I can be cynical at times…lol… The voters have spoken. If gays want the right to marry they’ll need a new ballot initiative. Look for that this Fall. One thing I’ve been wondering about though, why such the emphasis on this particular decision with regards to sexual deviants getting to marry? There have been others. Is there something intrinsic about the CA decision that is pivotal?

  • Yes, CA is pivotal, Sil. Most populous state in the union, generally considered a bellwether, plus CA is split right down the middle (geographically) as far as the liberal/conservative divide. The last point is important because not every gay couple can live in a flourishing liberal community, so a lot of people who are otherwise discriminated against on a regular basis would at least get their right to be recognized as married. Most of the other tiny New England states that have laws allowing gay people to marry are already liberal, through-and-through. It’s awesome that these states are passing equality laws, but sheer numbers-wise, California is huge and very diverse.

    I do agree with AustinRoth that it seems that the court did the right thing as far as the way the courts are supposed to work and the way the California system is set up, even if these kinds of desisions come from it, morally repugnant as they are to anyone who think civil rights are, um, important. Once we get equality passed here in 2010, there should be a major push to get a system that doesn’t allow a simple majority to take away the rights of the few.

    • AustinRoth

      roro –

      there should be a major push to get a system that doesn’t allow a simple majority to take away the rights of the few.

      Be careful what you wish for. Tyranny of the minority can be just as bad, and often is much, much worse, for both individuals and society.

      It is, after all, the basis of all dictatorships, as the extreme example.

      • Ryan

        AR: So if the ballot initiatives are abolished, and the legislature must approve by 2/3 supermajority any amendments, then a dictatorship is the result?

  • Gegenschattenbild

    Still waiting on the day that Sil stops deliberately using the word “deviant” in a non-neutral tone.

    Thanks for roro80’s reminder that not all gay folks live in flourishing liberal communities. People of a disliked/disadvantaged class (however defined) living as minorities are always in danger of the results when “the people have spoken.” In the situations I am describing, the “people” usually “speak” against the minority. Those who have had this experience can probably relate. How about you, Sil?

  • Yeah, AR, I can’t really see that being applicable in a situation where the bar iwould be maybe a bit higher for changing the supreme controlling document for the state. Laws are one thing — they can be struck down much more easily if unconstitutional. It’s far, far harder to get a new tax passed in California than to change the constitution. That doesn’t seem right to me. Other states have a higher bar for changing the constitution, and they seem to be living without dictatorships.

  • AustinRoth

    I did not say there would be a dictatorship. I said it is the ultimate example of tyranny by the minority, a reductio ad absurdum to show why unfettered elimination of majority rules can backfire.

    I do not think for one second that is what would happen in California, or anything like it. Give me some credit, guys.

    • Ryan

      You’ve failed to provide a connection between requiring a supermajority to amend the constitution and the tyranny of some minority, which by definition can never constitute a supermajority.

      • AustinRoth

        Ryan – I never raised the supermajority issue, which in fact is a legislative rule, not direct vote issue. All I was responding to was a comment about a desire to eliminate the concept of majority vote rule.

  • troosvelt_1858

    One idea I think has merit is to require that a majority of *registered* voters approve any amendment.

    This last time around I think about 80% of registered voters showed up, so that would have meant you needed about 62.5% of them to approve in order to get to 50% of registered voters. That seems a reasonable idea because on the one hand it requires a clear majority while at the same time leaves some power in the hands of voters.

    Also reasonable would be raising the number of signatures required as 8% (the current rule) seems a bit low.

  • Silhouette

    I’m still having difficulty grasping how some fetishes, labelled “gay, lesbian, bisexual and transgender” are a cohesive group with an identifying qualifyer?

    The only thing binding these people as a group is that they have a deviant usage of the procreative sex drive? [Please help me define the grouping if you can, I seek to understand..] Inasmuch as the evidence supports that sexual preference is learned in humans, what we essentially have is a group of people who have learned to associate the endorphin rewards of the sex drive with objects other than the opposite gender? I’m at a loss to understand how a group that practices certain loosely related behaviors under the spotty umbrella of “deviant” from the evolutionary purpose of sexual reproduction can form a cohesive “minority group”? The people who practice these deviations have no other link to their group other than a behavioral phenomenon that they’ve decided to turn into a culture which for political purposes, ONLY includes the fetishes of “gay, lesbian, bisexual and transgender”, but not other fetishes.

    Then we get into polygamy…which IS coming next at a courtroom near you. Passing the buck like the CA Supreme Court did is really going to cost the State of CA a serious glut of legal cases challenging challenging challenging the marriages allowed to remain legal in spite of the law saying they aren’t…why can’t other gays be married when their next door neighbors are…yadda yadda…

    And let’s not even go to the totally known about but purposefully overlooked butch/fem thing…imitating the normal they are striving for while ironically seeking to blend the lines [please, again, I’m striving to understand this phenomenon..can anyone help?]. There just are so many red flags to this drive to normalize something that isn’t that it boggles my mind anyway. I guess people who are good at stepping over elephants don’t have a problem with it at all. Maybe it really is just my problem, but I have a hunch there’s more than one person wondering what we’re doing with this?

    These things need to be said. The next election may actually hinge on the private voting-booth feelings that people have about the current track the democratic party is on. Should the extreme liberal left strongarm the party to the extent that it may hurt us in 2010? The GOP may pick up more than a baker’s dozen of voters who, like me, are hardheaded pragmatists, realists, sitting on the fence and scratching their heads in wonderment at the spectacle unfolding.

  • Silhouette

    [in response to stockboy’s comments on Prop 8 being descriminatory towards gay liberties and freedom of enjoyment in the other thread being lost on this topic]
    Some people also think its wrong to descriminate against the unborn friend. Where are you going to draw the line? Clearly it needs to be drawn somewhere. And no, I’m not a pro-lifer but am using the example to get you to see the absurd… Gays apparently just want the right to rub their hoo hoos together and proclaim it to the world as normal. The unborn probably would be OK if they could just get the “right” to breathe and look around, maybe? I dunno.. But one thing I do know, statistically speaking…the majority of the hoo hoo rubbers would be the first to stand in line to promote abortions as “freedom” of theirs….which just happens to be affecting the freedom of other, albeit very young and undeveloped people..and so on….Most gays will tell you they aren’t in favor of granting rights to polygamists when privately they could care less, just so polygamists pleas for equality won’t bungle their political agenda..I just cannot stand hypocrites, diversions and subterfuge..

    Back to my last point on my previous post. Wasn’t there an expectation originally of Prop 8 failing last Fall? And yet it passed by margins that surprised pollsters. Seems the overt pats on the back to the GLBT crowd may not totally reflect the feelings of all their friends? Also similarly reflective were the expectations of a 4-3 vote to uphold Prop 8. Actually it surprised us again 6-1. Look for the predictive trends in the future to run along the same lines..

    Just saying… Damn those curtains on those little booths, right?

  • kathykattenburg

    Inasmuch as the evidence supports that sexual preference is learned in humans

    The evidence does not support that. Which of course you already know.

    I’m at a loss to understand how a group that practices certain loosely related behaviors under the spotty umbrella of “deviant” from the evolutionary purpose of sexual reproduction can form a cohesive “minority group”?

    What do you mean by a group that “practices certain loosely related behaviors under the spotty umbrella of ‘deviant’ from the evolutionary purpose of sexual reproduction”? There isn’t one such group. There are dozens of such groups. Just a few examples: couples who are childless by choice, couples who are childless not by choice, couples who are past childbearing age but continue to have sex, couples who have participated in the evolutionary purpose of sexual reproduction to a certain point — i.e., they may have one or more children whom they biologically created through sexual reproduction, but at a certain point they stop reproducing children and yet continue to have sex.

    All of these groups are deviant from the evolutionary purpose of sexual reproduction. I am guessing that each one of these groups is a minority group, since no single one of these groups probably adds up to more than 50% of the population. They are all minority groups, and they are all deviant, because they have sex for physical enjoyment or emotional connection, which is not the purpose of sex — evolutionarily speaking.

    [Please help me define the grouping if you can, I seek to understand..]

    No, you don’t.

    • AustinRoth

      Well put Kathy, but certainly you know Sil just likes to throw terms around guaranteed to elicit a response. She is the ultimate troll.

      • undertoad

        She is the ultimate troll

        As an expert in online community, I say, feel free to ban people who don’t want to contribute in a meaningful way.

  • kathykattenburg

    You are right, AR, and I did know that.

  • AustinRoth

    BTW – Ted Olson has announced the he and David Boies are going to try and raise THE Constitution point gay-rights supporters have argued should be the basis of any successful strategy at the Federal level – due process and equal protection rights under the 14th Amendment.

    It will be interesting to see this as it winds its way through the courts. It has a fairly good chance of succeeding in the lower courts, but unless someone can get Kennedy to change his mind, or between now and the time it reaches SCOTUS a conservative jurist is replaced by a liberal one, it will ultimately fail at the SCOTUS level.

    And I will bring up the point from the past that was discussed when this was being kicked around in light of Lawerence v. Texas. If this argument does prevail (unlikely as it may be), then almost no form of marriage between consenting adults (and likely those of legal age to marry) can be denied. While I personally have no issue with that, I do not think that position is shared by anywhere near a majority of the U.S.

    The long-term potential for unintended consequences for proponents of gay marriage is huge. On the one side, if the argument prevails, a worst-case scenario of a Constitutional Amendment banning anything other than ‘traditional’ marriages becomes a real concern. On the other side, if it does NOT prevail, then little to no hope of an Amendment in the other direction exists, and the movement as whole probably gets set back decades, at a minimum.

    I think that this is a premature legal action myself. As more and more states are passing laws legalizing gay marriage, waiting what appears to be just a few more years then launching a series of Federal suits based on ‘prevailing consensus’ has a greater chance of winning at the SCOTUS level, limits the scope of the actions to gay marriage only, and reduces the risk of the anti-gay marriage amendment movement gaining traction.


  • Silhouette

    “meaningful way” = pro gay agenda. Is this more blackmail? Like “Do ask, do tell”, will you threaten to ban me if I have opposing viewpoints?

    Interesting *jots in notebook*

    I could’ve sworn this is the MODERATE voice where opposing viewpoints are allowed. I’ve been trolled against more times than I can count. Meanwhile those that troll me, if I have any points with teeth, suddenly I am the troll and I need to be banned. Look at it this way. I am the devil’s advocate. I am the states you folks need to win over in order to get your agenda across. I am the lone voter who you cannot ban, threaten, blackmail or control behind that little curtain. I am the one who has taken the time to point out to you what others are factually thinking, postulating and using to come to decisions in their mind.

    I am the representative of what you have to win over. And banning me ain’t going to help your cause.

    So, again, please explain in terms “I” can understand why, just for starters, for instance, gays form mock-hetero pairs that are butch/fem when simultaneously they tout themselves as ‘queer’ and use that as their binding glue to declare themselves a “minority group”. Yes, lets’s start there and you can convince me on other points once we’ve gotten over that hurdle..

    I want to [I really do] intricately discuss and understand the fine inner-workings of what it is that is trying to gain access to marriage. I want to know if it is a cohesive group of a true minority, or a group of otherwise unrelated people who have decided to make a culture out of sexual fetishism. I want to understand the dynamics of the butch/fem issue so that we can write psychologically-oriented childrens’ books to help them understand why their of their two mommies that supposedly prefer women sexually, one of the dresses, looks and acts like a man. Children will ask these questions aloud and in their minds. I want the answers for them, in advance. And you know how kids are…they don’t take “just because” as good enough. My four-year olds would follow me around the house when something bugged them and continually ask “but WHY?” repeatedly. And the damned thing is, they would have good points. I had to concede that they were excellent debators…sometimes four-year olds can really piss off adults and the reason why is that they have a keen sense of logic and what makes sense while we have selectively muddled our own reasoning process in favor of what we learned to avoid or gravitate to via social pressures. They haven’t gotten there yet. yeah, they’re irritating…like I’m no doubt irritating.

    So think of me as the board four-year old…I want to know “But WHY?”…humor me..

    • jchem

      Sil, you cannot be serious. I have tried to engage you in a discussion concerning science and the numerous studies published (in addition to and since the one you always talk about). I’m not trying to win you over, I’m just trying to point out some flaws in your thinking. Your points with teeth? I and several others have taken them head on, and you continually fail to address them. I’m not sure there is any way to get through to you.

      So…why don’t we start with the basics. You claim an overwhelming scientific consensus that supports your view, citing comparative psychology and animal behavior. I cite the APA and the 84 subsequent citations to the Pfaus article you bring up. So maybe we’re at an impasse. Perhaps you should try to convince me why I am wrong to continually bring up my points. Is that Pfaus article the end all be all? Are all other studies irrelevant to the discussion at hand? I am willing to hear you out, but so far you haven’t done a very good job articulating anything with real “teeth” that is supported by any evidence.

    • Ryan

      Sil, you’re more like the George Wallace of gay marriage. You’re not going to be won over, you’ve already made up your mind, which I suppose is quite similar to a four-year-old’s in some of the less beneficial ways. Eventually you’ll just be an embarrassing relic of a prior era.

    • Dr J

      Silhouette, your sin is not in having an opposing viewpoint but in your bad faith discussing it. You keep repeating in sneering terms the same long-debunked claims, innuendo, accusations, and FUD, neither engaging nor absorbing people’s responses. Meanwhile you make disingenuous statements about seeking to understand. Kathy is quite right, you seek nothing of the kind.

      And you’re not representative of whom anyone has to win over, you’re a fringe hater. We’ll win the issue without you.

  • Silhouette

    OK, you want to debate that subject. I choose ranchers’ knowledge of animal behavior over all other fields. Here’s why: many of them are college educated, the big ones anyway [think Iowa]. They don’t spend a paltry 15% of their time in the lab, they spend 100% of their time in the lab. Their mortgage, food and clothes depend daily on their accurate and keen observations of animal sexual behavior. When they tell me an otherwise hetero bull can be trained quiet easily to forego cows and learn to only prefer steers sexually…I perk up and listen. If you’re going to tell me that the field of comparative psychology [Darwin, Skinner] aren’t viable, then you’ve got your work cut out for you.

    So, ergo, sexual preference is learned and can be taught. That goes some distance into educating us into what it is that is seeking normalcy via marriage. We really need to understand what it is that cohesively binds this selective fetish group calling itself “GLBT” before we can declare that it is being descriminated against. What is being descriminated against, the people or their adopted behaviors? And don’t we descriminate daily against other people’s behaviors, like felons, men wanting to use the women’s showers, shoplifters and so on? What exactly is the binding glue in the GLBT movement other than acquired sexual fetishes that have become their adopted culture?

    In order for Austin’s good points about the Amendments to apply, we need to see if we even have a viable and definitive intrinsic and differentiated “group” that is being “descriminated” against..

    Here’s today’s logic brainteaser. If I love my grandmother dearly, and I am a woman who is over 18, why can’t I marry her? Don’t cite incest because the logic against incest is to prevent inbreeding. Since two females cannot produce offspring, why can’t I marry my grandmother since I love[d] her more than anyone I’ve ever known…and she needs me. Why not? To preserve the ideas of a traditional family? Please….that is passe’ Am I confusing “love” with sex? Am I confused wanting this? [hypothetically of course]

    [present your answers with an opening paragraph, three of the body and a conclusion]…lol..

    Marriage, the idea of it, is an important skeletal framework that preserves important boundaries and gets us to recognize the differences between love and sex. Once we start normalizing the blending of the two, there really is no viable place to draw the line as the generations march on..

    • jchem

      Sil: “So, ergo, sexual preference is learned and can be taught”

      How can you say this? Your opening paragraph is nothing more than anecdotal; you throw out numbers as if we’re all just to assume that they are true. You bring up Darwin and Skinner in a simplistic appeal to authority. What did they say that fits into this conversation?

      And by continually trying to drive this point as your premise, you completely dismiss the APA and the many scientists who are actually doing this research. Why should I give what you say any more credibility than an organization who actually does the research? Please tell me why you are right and the APA is wrong. I’m sure that would make for an “easier” conversation starter.

  • Silhouette

    Ok dear, let me spell it out for you more

    If animals [mammals like us] can learn and be taught sexual preference, then the field of comparative psychology forces us to extrapolate that humans also can learn and be taught sexual preference. I’ve said that in other posts. Skinner and Darwin are just two of the most famous of hundreds [thousands] of scientists who “buy” the field of comparative psychology.

    • jchem

      Sil: “then the field of comparative psychology forces us to extrapolate that humans also can learn and be taught sexual preference”

      Wow…now that requires a heavy load of thinking. Monkeys can crap in their hands and throw it at their neighbor. So I am forced to extrapolate that my neighbor has a bulls eye on his face the next time he makes too much noise, right?

      Skinner and Darwin have quite the body of work, especially if you put them together. Why can’t you you cite at least one study of them articulating your contention? And, I should point out, they and other scientists don’t “buy” anything. They ask questions, perform experiments (aka studies), and ask more questions as a result. It’s called science.

      Hopefully, this was s-l-o-w and c-o-n-c-i-s-e enough for you “sweetie”, now that we are free to speak informally.

  • AustinRoth

    Instead of beating your heads against the wall that is Sil, anyone have any comments on my last post? I was really hoping to start a good discussion around the various legal strategies available, and the pros and cons of each, but maybe this is just the wrong forum.

    But as Deter would say, “I find this conversation…tedious. Let’s dance, my little Spockets.”

    • Ryan

      OK. You say that more and more states are legalizing same-sex marriage… this really seems to be more about the states that didn’t ban it immediately filling in the gaps. 26 of them have constitutional bans in place, so good luck dislodging those with anything short of a SCOTUS ruling à la Loving v. Virginia. I’m really not sure whether the people or the courts are going to be slower on this.

    • jchem


      I’ll admit that I will need to read more about the case you mention. I don’t have much of a problem with marriage among consenting adults. I’m not all that certain of the “long term consequences” you mention though. I don’t think there will be any more consequences than there are for heterosexual couples. Who knows, perhaps the current divorce rate would go down if we actually allowed committed gay couples to be married? From what I have read about the decision in CA, it seems obvious that this will be on the ballot again the next time it is eligible, at which point I would expect it to pass. And to the larger issue, what happens to all of those state amendments that currently ban gay marriage if a “prevailing consensus” is reached at the Federal level? Do they just become null and void?

      • AustinRoth

        jchem –

        My point of consequences was political results from the current legal strategy being launched by Olsen, et. al.

        It is, in my mind, a dangerous path, as I stated. I wasn’t making any point of the consequences for individual couples, straight or gay.

        I agree that it will go on the ballot again, and that, to me, is a correct response. Federalizing the case, especially using the 14th as the basis, is the concern.

        And yes, if the Supreme Court rules based on either underlying legal issue that bans are un-Constitutional, any existing state level bans are indeed null and void. That is why a ruling that focuses more directly on gay marriage alone, instead of the broader implications of a 14th Amendment-based ruling, would likely cause less backlash.

        If indeed not only gay marriage, but all forms of polygamous marriage (the one that would indirectly benefit the most from such a finding) suddenly become unpreventable, along with potentially other forms of non-traditional marriage, then it becomes significantly more likely that a more general response would occur, and the response would very likely be a Constitutional Amendment.

        It is easy to forget, too, that one of the lessons learned from Prop 8 is that while White Liberals as a group are open to gay marriage, if not all other forms of non-traditional marriage, that openness is not shared by other ethnic groups, blacks in particular.

        • Ryan

          AR – the problem with the constitutional amendment is that they’re (correctly) hard to pass at the federal level. If you have some theoretical SCOTUS ruling that yanks all restrictions from marriage, in order to amend the Constitution you would have to come up with something that can get the supermajorities in Congress and the states. If you put up the one-man-one-woman amendment it’s going to be tough finding 67 senators, 38 state legislatures, etc that will sign off on it. There’s a reason it never went through under Bush.

          • AustinRoth

            Ryan – I agree, it would be tough going, and will never happen if simply gay marriage is allowed, at least IMO.

            It is the potential expansion to other forms of marriage that could tip the scales, so to speak. What do I base that concern on? If a ‘right to marriage’ is indeed incorporated within the due process and and equal protection clauses of the 14th Amendment, and is found to prohibit the restriction of marriage to only opposite sex couples, then where would any justification of limiting that right to only couples, gay or straight, exist? In fact, it could not.

            The language being used for the basis of the challenge, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws is exceeding broad. Crafting a narrow ruling that it only applies to couples, in the absence of any limiter other than citizens and any person makes it impossible.

            The current reasoning, as expressed in Reynolds v. United States, is that polygamy could be banned based on “actions which were in violation of social duties or subversive of good order”. That becomes an exceedingly weak argument once the barrier to restrictions on marriage to traditional norms has been removed and in light of Romer v. Evans and Lawrence v. Texas, as they already have substantially weakened the “subversive of good order” leg of Reynolds.

            Considering 29 states currently have Constitutional bans, and another 14 already limit marriage to one man/one woman, it is not a great leap, in a politically charged atmosphere, to think that 38 is achievable. As to the Senators, well, 58 come from those 29 states with Constitutional bans, and another 28 from the 14 with laws against gay marriage, and the pressure could be huge on many others. So, while it certainly is not a ‘done deal’ if SCOTUS does rule for a Constitutional right to gay marriage under the 14th Amendment (which again, I say is VERY unlikely), it is not even in the realm of wildly outlandish to think it could lead to a new Amendment.

  • kathykattenburg

    I could’ve sworn this is the MODERATE voice where opposing viewpoints are allowed.

    Opposing viewpoints are fine; hateful language that is intended to inflame and insult isn’t fine.

  • kathykattenburg

    So, ergo, sexual preference is learned and can be taught.

    It’s not a preference, but I know you have to think it is, or you could not maintain your absurd belief that anyone is “taught” how to feel attraction or toward whom to feel it. I never “learned” to be attracted to men; I just am, and have been, always.

    … please explain in terms “I” can understand why, just for starters, for instance, gays form mock-hetero pairs that are butch/fem when simultaneously they tout themselves as ‘queer’ and use that as their binding glue to declare themselves a “minority group”.

    I’m not sure there *are* any terms you will understand in the context of this particular discussion, but I’ll give it a try: This — “why, just for starters, for instance, gays form mock-hetero pairs that are butch/fem when simultaneously they tout themselves as ‘queer’ and use that as their binding glue to declare themselves a “minority group” — is bullshit. Sheer, unadulterated bullshit. You do not know what you’re talking about. I know and have known many, many gay and lesbian couples, and none of them are “butch/fem.” Gay and lesbian people do not “tout” themselves as “queer” or use their “queerness” to declare themselves a minority group. Gays and lesbians obviously are a minority statistically, but it’s phobic haters like you who turn a statistical minority into a political minority.

    What is being descriminated against, the people or their adopted behaviors?

    The people. Next question?

    If I love my grandmother dearly, and I am a woman who is over 18, why can’t I marry her?

    First of all, I am relieved beyond measure to find out that you are capable of feeling love, and that your entire being is not consumed with hatred. There’s hope for you.

    Second — and I’m sorry to have to tell you this just when we were beginning to see some light at the end of the tunnel — your analogy is asinine. I loved my father as dearly as you love your grandmother, and since he died when I was 28, I was for 10 years old enough to marry him. Rather than repeating your question of why couldn’t I have, I will ask, Why would I have wanted to? The answer to that question is simple: Since I am a heterosexual woman, meaning I am attracted to and fall in love with men, then it naturally follows that I would have wanted to marry my father when he was still alive — just as it’s completely logical that if you are a woman and if you are homosexual, you would want to marry your grandmother because she too is a woman.

    It gets complicated, though, because I also have a brother of whom I am very fond. So, since I am a woman who is attracted to the opposite sex, that must mean I want to marry my brother.

    Fortunately, though, I don’t want to marry my daughter because, even though I adore her, she is a woman, and I am not attracted to women.

    • AustinRoth

      Kathy –

      You keep posting like this, I am going to be forced to like you! 🙂

  • Silhouette

    “I was really hoping to start a good discussion around the various legal strategies available, and the pros and cons of each, but maybe this is just the wrong forum.
    “~ Austin

    Fair enough. I think too it’s interesting to note the descrepencies, the surprises at the polls and the recent 6-1 against gay marriage in the Ca Supreme Court vote. Correct me if I’m wrong but I clearly remember them expecting Prop 8 to fail and yet it passed with a margin that surprised many.

    In any event, what I’ve been discussing all along goes directly to the arguments pending in various Courts. For one thing, in order to prove descrimination, they will have to show they are a coherant group of innately similar individuals. A behavioral group cannot be a minority. As it stands now, with the evidence we have, an acquired sexual fetish does not a minority make. It would be something like people convicted of felonies, for whatever reason led them down that path, suddenly banding together and wanting the right to vote. Their deviant lifestyle would then be their uniting banner, a subculture of people who’s binding glue is that of having done something outside what society deems acceptable or normal, if you will. They could even plead that their behaviors stem from a genetic profile that makes them predisposed to this behavior [and factually there is more evidence to support this than sexual fetishes such as homosexuality]. So not being able to vote, for felons, may actually be a more compelling case than homosexuals pleading for the right to marry?

    Yes it’s irritating to hear, but if you follow the path with logic and blind justice, really, the facts are all that are weighed on those scales the lady is holding up in front of her blindfold…not sentimentalism..or political correctness…

    The basis of the entire GLBT [but not polygamists for now] argument hinges on their being a minority group. I’m wondering how much of a legitimate minority group they are and what, specifically, are they pointing to as their binding identifiable factor outside of having sexual fetishes they want to flaunt and legitimize as normal and acceptable [and something to model after?] by the stamp of marriage?

    I mean, really? If you don’t have a minority, you don’t have a case at all. What exactly is the identifying factor of the “GLBT” “minority”? If it is people seeking to marry who don’t fit the description of “between one man and one woman”…if that is the only binding glue, then the polygamists must also be included and the proper label should be GLBTP {etc.}, speaking from a purely blind-justice standpoint.

    I’m going to put this direct question out to the gay community and I want a simple answer as is possible. Q. What exactly is the binding factor between G, L, B, T that necessarily excludes P [polygamists] when pleading for the “right” to rewrite the definition of marriage?
    A: ??????

    • Dr J

      Sil, your argument about minority status is off the mark. I don’t support the “group rights” for minorities cited to justify affirmative action, but this is an issue of individual rights. Whether gays are 5.2% or 52% is immaterial to whether they should be able to marry.

      And your question about polygamists is as irrelevant as ever. Gays are lobbying for their own cause. They may or may not be lobbying for the polygamists’ cause as well; that has no bearing on the merit of their claim. Personally I don’t see much of a problem with polygamy, but I’m not going to champion it. Having no use for even one wife, I’m not about to go fight for the right to have a whole bunch. Suppose they’re all as charming as you?

  • AustinRoth

    A behavioral group cannot be a minority.

    Wrong again. Religion is a behavior.

    And the question is not are they a minority. By any definition they are. The question is one of two. Are they a protected minority, or does this form of discrimination not require a finding of minority status to prevail.

    On the second point, an example is women. Women represent a MAJORITY of the population, but various forms of discrimination are explicitly prohibited against women.

  • kathykattenburg

    You keep posting like this, I am going to be forced to like you! 🙂


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