Much of Judge Walker’s opinion focus on the facts, and why he concludes that there is no rational basis on which a person can oppose same-sex marriage. But here’s a key passage from the law section of the opinion, on pages 113-14 (with citations to the record omitted):
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
Waste93 says:
As it stands now. Would not this reasoning also allow multiple marriages?
August 4, 2010, 5:57 pmNorthern Dave says:
“Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”
Thanks for the quote, Orin. I guess my question/thought is that logically isn’t that exactly what the people of California decided was not the case? Ergo Sum the judge has just set himself above the express will of the people by defining a right not in the Constitution….
August 4, 2010, 6:01 pmruuffles says:
So close!
August 4, 2010, 6:02 pmDr. K says:
So when, under this ruling, are we to allow polygamy? Why limit it to only 2 people? Why limit it to people at all? Why not a man and a horse?
August 4, 2010, 6:05 pmTolleyJenkins says:
Waste93:
What about the words and/or phrases “couples,” “a spouse,” and “committed relationship” possibly suggests this applies to multiple marraiges?
Your comment is so unrelated to anything actually stated in this passage, that it’s hard not to think it as some sort of “stock-comment.”
August 4, 2010, 6:06 pmDavid Tomlin says:
Where does it say the person choosing a spouse can’t already have a spouse or two?
August 4, 2010, 6:08 pmAnderson says:
Very insightful ….
August 4, 2010, 6:10 pmMartinned says:
The people of California put something in the California Constitution. This judge’s statement is about the US Constitution. And, just in case it wasn’t clear, any ruling that declares an initiative law unconstitutional involves the judge “set[ting] himself above the express will of the people”.
August 4, 2010, 6:10 pmptt says:
I’m always amazed at the number of heterosexuals who ignore their constitutional right to marry.
August 4, 2010, 6:10 pmAngus says:
Ah, the old “reasoned” Gay=Bestiality argument. That ALWAYS changes people’s minds…
August 4, 2010, 6:12 pmDr. K says:
Reminds me of an old joke:
2 bums are walking down the street and see a dog licking himself “down there”. The first bum says “Damn, I wish I could do that!”
The second bum replies “I’ll bet he’ll let you if you pet him first”
Would that count as mutual consent?
August 4, 2010, 6:12 pmcboldt says:
The few sentences just above the OP blockquote are also important, I think.
August 4, 2010, 6:14 pmProcedurally, may the defendant move to stay, pending appeal?
cboldt says:
The few sentences just above the OP blockquote are also important, I think.
August 4, 2010, 6:14 pmProcedurally, may the defendant move to stay, pending appeal?
Anderson says:
Lawyer readers may appreciate as much as I did this quote from a lawyer at Andrew Sullivan’s blog:
As a lawyer, I can’t say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed – as everyone knows it will be – he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.
If I’m ever a federal judge, my law clerks will be under a standing order to make every trial record their bitch.
(Tho if that lawyer practiced in Mississippi, he would be accustomed to how the intermediate court of appeals dumps page upon page of trial transcript into its opinions, in lieu of analysis.)
August 4, 2010, 6:14 pmAngus says:
Pesky 9th amendment…guess the founding fathers just accidentally spilled ink on paper and it randomly formed words.
August 4, 2010, 6:16 pmcboldt says:
The few sentences just above the OP blockquote are also important, I think.
August 4, 2010, 6:16 pmJosh Blackman says:
I’ve pulled some of the other key quotes in my instant analysis here: http://joshblackman.com/blog/?p=4961
August 4, 2010, 6:16 pmCrazyTrain says:
I predict an en banc ruling (perhaps a full en banc and perhaps an initial hearing en banc as well) that affirms this. I predict a 6-3 decision of the Supreme Court affirming — with Roberts writing the majority. Roberts wants his legacy to be one of the great Chief Justices in history; he knows that he cannot get that legacy if he dissents. And he knows that the praise will be endless from the academy, the media, etc., if he writes the majority. He also, unlike some others, appears to actually know real gay people (not the caricatures of the right) from his law firm lief, and realizes that gays are normal people and that it is really disturbing that they are denied certain rights for no logical reason whatsoever.
My two cents. You heard it here first and I will bet Orin a beer that my predictions are correct.
August 4, 2010, 6:18 pmJOrz says:
“The right to marry has been historically and remains the right to choose a spouse and..”
Didn’t Judge Walker leave out some words? I think he should have written: “the right to choose a spouse of the opposite sex and..” Isn’t the Judge using a straw man argument here?
August 4, 2010, 6:18 pmOhio Scrivener says:
Fails rational basis scrutiny = Fails to be upheld on appeal.
August 4, 2010, 6:19 pmVoice of Reason says:
Animals have neither constitutional rights nor the capacity for consent. They are property. Can you marry your couch under the rationale of this ruling? No? Then get a new argument.
August 4, 2010, 6:20 pmAnderson says:
Procedurally, may the defendant move to stay, pending appeal?
They did so *before* the ruling, and it’s been granted pending the hearing thereon.
August 4, 2010, 6:20 pmJ says:
Now that the judge has ruled that men and women are equal, in all ways, there really is no longer any need for the affirmative action nonsense that is written in many bills and laws. Men and women…..equal and the NOW organization and all their ilk can just fade away. Eureka! I’m looking for the silver lining in a month of judges invalidating the citizens votes.
August 4, 2010, 6:22 pmBart DePalma says:
The federal courts are not doing the Dems any favors.
Missouri’s Prop C showed that the voters are already in full rebellion over an imperial Congress taking control of their health insurance against their will.
Then, last month, a district court judge in AZ decreed that the most popular law in the country – Arizona’s attempt to enforce federal immigration law – was likely unconstitutional because it would be contrary to Obama policy not to enforce the law.
Now, a district court judge in San Fran has literally decreed that homosexual unions are marriages and the voters of CA were irrational to vote otherwise.
The courts may have just added law and order and social issue voters to the tsunami already headed to the ballot box in November.
How many more times does the ruling class think voters can be denied before there is a revolution – first at the ballot box and then if that fails on the streets?
August 4, 2010, 6:23 pmWaste93 says:
The judge talks about marriage historically of which multiple marriages have been far more common and accepted than same sex marriage. Also, if the state has no rational basis to limit marriage to opposite sex, then what is their basis for limiting to a specific number of people. Three or more people can ‘with mutual consent, join together and form a household’. Replace his statements of ‘gender’ with ‘number of people’or equivelent and does it read any different?
Granted the issue of multiple marriages was not before the court, but would the judge rule the same way with that one minor switch?
August 4, 2010, 6:25 pmNorthern Dave says:
Agreed if the judge is ruling on a clear violation of Constitutional law (eg if he had struck down an initiative passed banning the ownership of firearms by Californian citizens in general). In this case direction was being given on rights never before granted, therefore the judge’s ruling is really based on his disagreement with the people of California’s decision (as they were giving direction to the issue as per their right) and he is out of order at a level threatening the social contract. Perhaps that’s the goal??
August 4, 2010, 6:25 pmafmcclint says:
Are they, cboldt?
August 4, 2010, 6:28 pmInstapundit » Blog Archive » FEDERAL JUDGE FINDS CALIFORNIA PROPOSITION 8 unconstitutional. Copy of the decision at the link. (… says:
[...] MORE: Some key language. [...]
August 4, 2010, 6:29 pmJR says:
I’m sure your horse is very pretty, and you love her very much. But, sadly, she’s an animal with a fraction of the mental capacity of a human being, and no ability to clearly express her wishes, if her brain is even capable of forming thoughts or emotions that could fairly be called “wishes.”
So, Ms. Edwina can’t consent to marriage, and as the opinion clearly laid out, marriage is about consent between the parties.
August 4, 2010, 6:31 pmtomemos says:
Didn’t Judge Walker leave out some words? I think he should have written: “the right to choose a spouse of the opposite sex and..”
You left out some words too. He should have written, “the right to choose a spouse of the same race and the opposite sex and…”
August 4, 2010, 6:31 pmAnderson says:
I predict a 6–3 decision of the Supreme Court affirming — with Roberts writing the majority. Roberts wants his legacy to be one of the great Chief Justices in history; he knows that he cannot get that legacy if he dissents.
Interesting prediction, CT, tho it does make an assumption about the direction of the future, as it were.
He would become a very hated man if he did what you predict. Easier to wash one’s hands like Pilate, and say that the law is “uncommonly silly” but that the federal courts are powerless to act.
August 4, 2010, 6:31 pmJohn Hamilton says:
Judge Walker wrote, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.”
August 4, 2010, 6:33 pm.
If that statement were true, there would be no controversy, either in society or before Judge Walker.
wallace says:
This piece of the opinion proves what I have been saying. The only reasons that homosexuals are waging this fight, is that they want the State to call their perversions of marriage ‘marriage.’ That’s what it is all about. They want to force others to accept their relationships as normal, healthy, and equal.
I have news for you Walker, two men or two woman can NEVER have a marriage, no matter what the State calls the relationship. Marriage requires a male and a female, absent that, you don’t have a marriage, even if you want to pretend otherwise.
Your unlawful edicts cannot change that.
August 4, 2010, 6:34 pmiowan2 says:
“Gender no longer forms an essential part of marriage; marriage under law is a union of equals”
This statement declares that at one time gender was essential.
My question then is, where does a judge find the legal jurisdiction to declare what society finds essential today? The judge is judging todays mores as compared to those of the past. The judge is not judging the law or constitution. No doubt opinion varies, no doubt that a judges legal opinion does not count.
August 4, 2010, 6:34 pmRon says:
How long before the Catholic Church is required to “marry” two Bobs? And will religious institutions change the word “marriage” to a phrase like “religious union” to avoid the implications of the redefinition of marriage assigned by the judge in this instance? So many questions.
For those who doubt that animals have capacity to consent, you just wait, it is only a matter of time before they gain full rights and standing in the courts.
August 4, 2010, 6:34 pmiowan2 says:
“Gender no longer forms an essential part of marriage; marriage under law is a union of equals”
This statement declares that at one time gender was essential.
My question then is, where does a judge find the legal jurisdiction to declare what society finds essential today? The judge is judging todays mores as compared to those of the past. The judge is not judging the law or constitution. No doubt opinion varies, no doubt that a judges legal opinion does not count.
August 4, 2010, 6:34 pmRocky Horror says:
“Incest is best, Magenta!”
Hey, I have a cute Mom… Who are you to say?
Remember, when we elect liberals, these are the judges we get. This is what Elena Kagan will be like, for life.
This is a slap in the face to citizens who vote.
I wonder what the Black Churches will say about the democrat party now. Black Christians voted yes on Prop 8 70%-30%.
August 4, 2010, 6:37 pmI Callahan says:
Do you see the irony or not? The fact that a judge decided to put that in his opinion is lost on you? Would you have so readily accepted this judgment if the judge decided to put the word spouses in his opinion as opposed to one spouse?
The point is that the judge drew the line at one spouse each. What stops the next judge from allowing two? If you can keep changing the definition of a word, why stop where the judge stopped?
August 4, 2010, 6:37 pmAJK says:
But why couldn’t you say the right to marry has been historically and remains the right choose one or more spouses? What gives Judge Walker the right to say that gender doesn’t matter, but number does?
August 4, 2010, 6:37 pmtomemos says:
“In this case direction was being given on rights never before granted”
I know, I can’t believe he was so radical as to allow interracial marriages, a right never before granted. Wait, what?
August 4, 2010, 6:40 pmJoe says:
I am impressed by the fact finding but somewhat surprised at the breadth of the ruling. I thought, at least as a major minor argument, the opinion would include a less broad reason targeted to the animus of this specific law. For instance, since California already recognizes domestic partnerships with nearly all the benefits of marriage, it is in quite a different situation as even New York, which does not, and surely some state where even “marriage like” unions are blocked from same sex couples.
This ruling appears to be a blanket support of same sex marriage. I agree with it on the merits, but pragmatically, I wonder about it.
August 4, 2010, 6:40 pmBleh says:
I don’t mean to sound ignorant, but how is the equal protection reasoning in this case substantially different — in a general sense — from that at play in Loving v. Virginia? Until very recently, miscegenation was considered by most people to be even more grave a misstep than social conservatives today consider gay marriage; after all, miscegenation directly affects offspring… Or is Loving bad precedent?
August 4, 2010, 6:43 pmChaim says:
How about polygamous marriages???
August 4, 2010, 6:43 pmtomemos says:
“The only reasons that homosexuals are waging this fight, is that they want the State to call their perversions of marriage ‘marriage.’”
The only reason homosexuals are fighting for the recognition of gay marriage under the law is in order to get it? I actually think I agree with you.
August 4, 2010, 6:43 pmDale Sheldon-Hess says:
If you don’t like gay marriages, don’t have one.
August 4, 2010, 6:47 pmRob says:
It might or it might not also support polygamy, but not marriage to an animal – mutual consent requires the ability to provide consent.
August 4, 2010, 6:47 pmcraig says:
“Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.”
Say what?? Parties of opposite sex joining together *is* the historical core of the institution of marriage. This judicial fancy is an attempt to claim that the law’s having long defined X and long enforced X is irrelevant to the historical meaning of the law. That’s like a worker claiming that even though a company refused to hire him and never paid him, and he never did any work, he now claims to have been an employee all along.
If the obligations of marriage do not depend upon opposite-sex relations, then neither do they depend upon lack of consanguinity. Taken to its logical conclusion, this opinion would result in brothers marrying sisters, or fathers marrying sons, purely for legal advantage.
August 4, 2010, 6:47 pmiowan2 says:
“Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
This declares that in the past gender was of essential importance.
The judge has declared that today society (himself) no longer deems gender essential in marriage. No doubt people are of differing opinions about marriage, no doubt a judges opinion does not count. The judge did not rule on the constitution or statute but on his version of todays mores.
But in the end any one can marry who or whatever they please. This is about the govt granting the ability to share ss benefits and inheritence tax relief.
Tax issues are the domain of the legislature.
August 4, 2010, 6:47 pmtioedong says:
I’m trying to remember a place where “gender” wasn’t part of marriage. Africa? No, I’ve worked there. Native American? Not really. Maybe a few transvestites, but most tribes are “homophobic”. Asia? Confucius would turn over in his grave.
And the rest of the argument ignores one little thing: Biology. It is women who get pregnant, and marriage was invented to enable them to have children and not face starvation.
When your argument lies about biology AND anthropology/sociology, in order to change a law that predates the constitution and Christianity by a couple of millenium, you have a dictator doing social engineering. Not a good sign in a democracy.
August 4, 2010, 6:47 pmiowan2 says:
“Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
This declares that in the past gender was of essential importance.
The judge has declared that today society (himself) no longer deems gender essential in marriage. No doubt people are of differing opinions about marriage, no doubt a judges opinion does not count. The judge did not rule on the constitution or statute but on his version of todays mores.
But in the end any one can marry who or whatever they please. This is about the govt granting the ability to share ss benefits and inheritence tax relief.
Tax issues are the domain of the legislature.
August 4, 2010, 6:47 pmDesiderius says:
CrazyTrain,
“He also, unlike some others, appears to actually know real gay people (not the caricatures of the right) from his law firm lief, and realizes that gays are normal people and that it is really disturbing that they are denied certain rights for no logical reason whatsoever.
Gay people are great, but step-families suck.
Guess we’ll see who wins in the long run.
August 4, 2010, 6:47 pmAnderson says:
How long before the Catholic Church is required to “marry” two Bobs?
Never? At least, not until the pope says so?
… The analogies to interracial marriage of course founder on the fact that the 14th Amendment covers race but not sexuality.
But that raises an interesting question. Suppose there *were* no 14th Amendment.
Would there be a rational basis for a law prohibiting interracial marriage? IOW, on this particular issue at least, is the 14th Amendment superfluous?
THAT to me is the much more interesting analogy between race and sexuality on the marriage issue.
What do you think, VCers? Could Virginia or Mississippi state a rational basis, in 2010, for prohibiting interracial marriage in the absence of the 14th Amendment? And if so, what would that be, exactly?
August 4, 2010, 6:54 pmBonsage says:
…and THIS is what passing as legal reasoning among the liberal judiciary? WOW! Walker is an idiot with no respect for the voters of California or the traditions of America and trying to paint this ruling as a defense of the Constitution is absurd.
August 4, 2010, 6:55 pmHarold says:
“Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage”
Gender restrictions were never part of the historical corer of marriage? Is this judge actually living on the same planet I am? Name me all the societies in history that allowed same gender marriage- because off the top of my head, I don’t know of any.
August 4, 2010, 6:57 pmRon says:
The traditional, religious and historical definition of marriage is man and woman regardless of race. Governments put in place anti miscegenation laws to narrow the definition, which were rightfully overturned. Now the courts are saying marriage is not what it has been for centuries. Query why the government gets to even define “marriage”? Why not just recognize civil union contracts and let the churches continue to call the ceremonial celebration “marriage” that in turn qualifies as a civil union for gov’t bean counter purposes? Problem solved. Methinks that there is an agenda here and the courts are being used as a tool to achieve the desired result.
August 4, 2010, 7:02 pmLN says:
Look, to be honest all you people who want to marry your dog or your horse make me sick to my stomach, but if your love is that strong then why don’t you launch some sort of political campaign to achieve your dreams?
August 4, 2010, 7:02 pmFederal Farmer says:
In my, admittedly meager, opinion, marriage is the ultimate expression of the right to freely associate. It is the ultimate association of two people. I think this ruling is correct.
August 4, 2010, 7:02 pmSuperSkeptic says:
Waste93 gets it.
CrazyTrain,
Do you think CJ Roberts will acknowledge the implications Waste93 points out in his historic affirmance?
August 4, 2010, 7:02 pmt1 says:
Actually, if you read the opinion, you’ll see that the “expert” offered by proponents of Prop 8 testified that even in polygamous situations, the fundamental character of marriage wasn’t changed since it was actually a series of man+woman marriages.
So under the definition offered by the Prop 8 backers, polygamy is probably more acceptable than letting teh gays marry. I imagine they would allow a man and a (female) horse or a woman and a (male) horse to marry before teh gays, too.
So there’s hope for you and beloved, yet.
August 4, 2010, 7:03 pmCareless says:
Indeed, that’s a right that’s existed for almost all of history. Bans on it were an exception.
“gender restrictions shaped marriage during eras of… gender inequality, but such restrictions were never part of the historical core of the institution of marriage.”
Is he serious?
August 4, 2010, 7:03 pmtomemos says:
Comments are posting real slowly so I’m going to put a couple responses at once.
Iowan2:”The judge has declared that today society (himself) no longer deems gender essential in marriage. No doubt people are of differing opinions about marriage, no doubt a judges opinion does not count. The judge did not rule on the constitution or statute but on his version of todays mores.”
Not true: he was ruling on the various laws governing the role of men and women in marriage. Used to be women lost their property when they got married, now they don’t; and so forth. The only remaining law governing the role of gender in marriage is the law against same-sex marriage, which has no rational basis. It has nothing to do with “mores,” but with laws.
Craig: “Parties of opposite sex joining together *is* the historical core of the institution of marriage.”
Actually, a woman becoming a man’s chattel is the “historical core” of the institution of marriage. Oh, and that they both be the same race, of course. The idea of marriage as a mutual agreement that any two adults (only of the opposite sex, of course!) can enter into with equal rights is an extremely modern construct.
Craig again: “If the obligations of marriage do not depend upon opposite-sex relations, then neither do they depend upon lack of consanguinity.”
There is a rational basis to oppose sexual relationships between members of the same family—the likelihood of birth defects, psychological testimony of the unhealthiness of such relationships, and so forth. No such basis exists for homosexual relationships.
Rob: “How long before the Catholic Church is required to “marry” two Bobs?”
Infinity years. Ask yourself: is the Catholic Church required to “marry” two Orthodox Jews? Does that mean Orthodox Jews aren’t allowed to get married??
August 4, 2010, 7:06 pmAnderson says:
If you notice the part of Walker’s opinion that says “tradition” is not a basis for denying a fundamental right, that evaporates about half the comments here.
The social understanding of marriage has evolved to where it has no necessary connection to sexual reproduction or to anything else that heterosexuals can do but homosexuals can’t. Infertile people can get married, etc.
The law effectively defines marriage as a domestic partnership between two individuals, and that makes it very difficult to explain why gays can’t marry.
It’s not an airtight argument — what is? — but it’s a pretty darn good one.
August 4, 2010, 7:08 pmfact check says:
Walker was a Bush appointee. Care to try again?
August 4, 2010, 7:09 pmSmack says:
YAWN…..
Seriously, who cares about this dead issue anymore? Yeah, the 10th Amendment leaves to the states and people respectively powers not explicitly granted to the US government by the constitution. Yes, the 10th Amendment has been “interpreted” to mean Health, Safety, and General Welfare. Does the definition of marriage put forth by Prop 8 further any health, safety, or general welfare interest of the state? Does banning gay marriage make people healthier, safer, or generally better off? I think not, so there really is no legitimate state interest being protected or advanced and, as such, the federal court was within their right to over-rule the legislation if, in fact, it interfered with baseline rights afforded by the US Constitution and incorporated against state power by the 14th Amendment. Yada, yada, yada.
This is more of an issue of false leadership. Whenever a purported “conservative” candidate needs to save their political bacon, they bring up some crap like Prop 8, find some gays to kick around, and scare people into to voting them back into office. “Teh gheys, Teh gheys, they’s invadin our skools, they’s invadin our politiks, and perty soon they’s be invadin yer homesssssssssss.” Frankly, I’m effing tired of it. If this is what it takes to castigate out the cravenly social conservatives from the republican gravy train so that actual, honest to goodness, real issues of political import can be taken up by serious politicians then so be it. And while very few things disgust me more than judicial opinions on monumental issues that are long on fact and slight on the law (like this one mind you), I’d be more than willing to accept it if these needlessly divisive issues could just fade away from the public consciousness.
August 4, 2010, 7:14 pmJoe says:
But that raises an interesting question. Suppose there *were* no 14th Amendment.
It might be tricky to find grounds for a federal judge to strike down a state law in this fashion but in respect to DOMA, the due process clause and ninth amendment (and what is “proper” for the government to do overall) could fill in the details. See, segregation in D.C.
August 4, 2010, 7:15 pmG.R. Mead says:
Rational basis, eh?
Equal dignity does not require sharing the same facilities, legal or otherwise. Indeed, this insane and foolish “consistency” results in basic loss of dignity that is proper to the sexes, as sexes.
I propose a lawsuit on the same reasoning: outlawing those horrible discriminatory single gender restrooms and athletic dressing rooms. There is NO rational basis to permit gay men to ogle other men in a state of deshabille without providing the same benefit to heterosexual men to ogle women — it is only natural after all and a result of desires over which they have no control.
– Equal right of ogling should be denied to no one on the basis of sexual preference or gender…
I would say this is all reduction to the absurd — but we are so far past that now …
August 4, 2010, 7:26 pmt1 says:
Actually, if you read the opinion, you’ll see that the “expert” offered by proponents of Prop 8 testified that even in polygamous situations, the fundamental character of marriage wasn’t changed since it was actually a series of man+woman marriages.
So the outcome that you have posited as the absurdity at the end of the slippery slope was actually more acceptable to the Proposition 9
bigoted dumbassessupporters than letting teh gays marry.I imagine they would allow a man and a (female) horse or a woman and a (male) horse to marry before teh gays, too. So there’s hope for you and beloved, yet.
August 4, 2010, 7:27 pmGuy says:
I’m only aware that polygamy has ever been one husband, multiple wives, which is exactly the antithesis of gay marriage in that it makes the relative genders of the people involved absolutely essential, a “gender neutral” marriage law, on the other hand, would fare a little better, but there are still plenty of rational bases available, including ensuring that marriages indicate an actual relationship, and avoiding fraud and other abuses.
August 4, 2010, 7:32 pmGuy says:
I’m only aware that polygamy has ever been one husband, multiple wives, which is exactly the antithesis of gay marriage in that it makes the relative genders of the people involved absolutely essential, a “gender neutral” marriage law, on the other hand, would fare a little better, but there are still plenty of rational bases available, including ensuring that marriages indicate an actual relationship, and avoiding fraud and other abuses.
August 4, 2010, 7:32 pmMichael Ejercito says:
He has to be worse that Judge Joseph Battailon.
He never heard of Murphy v. Ramsey, which was cited in the summary/analysis of DOMA . “union for life of one man and one woman in the holy estate of matrimony.” The history of anti-bigamy legislation demonstrates that gender restrictions were part of the historical core of the institution of marriage.
And why did he mention racial restrictions? No one was credibly claiming that white people, but not black people, could “marry” someone of the same sex.
And the very Fourteenth Amendment the judge cited was also an artifact of that time.
It would be left to the states, just like banning handguns would have be left to the states.
They would not have to.
Did the judge mention that anti-bigamy laws were upheld, and the rationale justifying the upholding of such laws.
Except that Murphy, quoted in Davis v. Beason, stated that “[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take [its] rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” Davis upheld a conviction of man who violated a law that forbade polygamists, and advocates of breaking laws against polygamy,against several constitutional challenges, including an equal protection challenge. The paragraph quoted in Davis did not refer to race at all.
Very few laws are overturned by animus. In order for a law to be revoked on that basis, it has to be shown that the reasons offered for it that “the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”
Those are the key words. It has to be shown that animus is the only possible reason for such a law. And in this case, it is belied by the Mormon anti-polygamy cases that went before the Supreme Court. (As a historical matter, the anti-polygamy laws in the territories were motivated by religious discrimination and animus towards Mormons, and yet the Supreme Court found other reasons for upholding the laws against legal challenges.)
August 4, 2010, 7:33 pmrobbie says:
I understand freedom of association to be a right and thought marriage was the licensing, recognition and approval of a particular relationship which society defined at its discretion.
If marriage is an individual right, what would be the rational for preventing brother-sister or father-daughter marriages?
August 4, 2010, 7:36 pmMorat20 says:
*shrug*. There’s ‘marriage’ the religious concept, and ‘marriage’ the civil contract (IE: that lovely piece of paper that, effectively, grants you and your spouse a parsel of legal rights and obligations and tax changes to each other).
Under the Constitution, the former is not the government’s business, and the latter cannot discriminate based on gender or race.
The problem is that most people view them as the same thing. They’re not — as noted upthread, no one expects a Catholic Priest to marry an pair of Orthodox Jews (indeed, I’ve heard plenty of stories of churchs, individual priests, and whatnot refusing to perform marriage ceremonies for all sorts of reasons — and the law has never cracked down on them, and the couple in question has merely found someone else to sign their wedding license).
So in one sense, people do recognize that you can get married happily even if your Church says “No”. Lots of people do. They find a JP, or someone ordained over the ‘net, or simply go to another Church where the pastor/reverend/father doesn’t have a problem with it.
As an amusing side-note — several churchs will quite happily marry gay couples. Those couples simply can’t get a wedding license.
So, in short, this should be a no-brainer. There exists a standard contract, used thousands of times daily, between two people to solidify a specific set of legal changes and agreements. Lots of times, that couple has a giant ceremony instead of just filling out a form, and often they involve their religion.
There’s no rational basis to say that contract can’t happen between two men or two women. All the objections boil down to “Eww!” or “Tradition!” or “My Church Says No” — none of which will pass constitutional muster. They’re GREAT reasons for you not to marry someone of the same sex, or your pastor not to perform a ceremony, or for you personally not to hang out with gay people. But the government’s not really allowed to discriminate based on gender, race, or religion.
As for the polygamy and bestiality arguments — look, we all know that’s stupid rhetorical screaming, not an argument. But if you insist on having that stupidity beaten down: Animals can’t enter into contracts, and trying to create a boilerplate legal agreement that covers the same territory as a marriage license, between more than 2 people is pretty much impossible. How do you even work, say, power of medical attorney? If Bob sick and incapacitated, which of his two wives gets to decide what his medical treatment is?
Since the government can’t offer a stock solution to that — or the other myriad related items — they have a rational basis not to offer it.
August 4, 2010, 7:39 pmJohn Hamilton says:
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August 4, 2010, 7:39 pmNothing about limiting the legal definition of marriage in any way interferes with anybody’s right of free association. Gay couples can spend as much time with each other as they wish, can engage in ceremonies which they are free to call “weddings” and the result of which they are free to call “marriages”. They are free to engage in sexual activities with one another.
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In short, no free association issues. In any case, I’m reasonably confident that the plaintiffs would have challenged the law on that basis if they thought that such a challenge might succeed.
chiMaxx says:
Rocky Horror:
Yeah, like those notorious liberals Ronald Reagan and George H.W. Bush who nominated this judge to the federal bench.
August 4, 2010, 7:41 pmChris Travers says:
Honestly, it’s better than the reasoning of the State’s lawyer….. How can you argue with a straight face that procreation by homosexuals is inherently responsible and that for this reason same-sex marriage need not be recognized?
August 4, 2010, 7:46 pmCJS says:
The idea of marriage as an individual right is what gives rise to the question of whether this decision would require, or lead to, recognition of polygamous marriages. The key question is if gender is an arbitrary and capricious category to restrict, then why is number not an arbitrary and capricious category to restrict. Particularly if the right is keyed upon the consent of adults who want their relationships recognized and not discriminated against.
August 4, 2010, 7:47 pmJared says:
“…and why he concludes that there is no rational basis on which a person can oppose same-sex marriage.”
I haven’t read the entire opinion yet, but isn’t the decision based on whether a rational basis exists for the State to prohibit SSM? Rather than whether there is a rational basis on which any person might personally oppose it?
August 4, 2010, 7:50 pmChris Travers says:
I think it shows who is really conservative when Reagan/Bush/Ford nominees are accused by “conservatives” of being the engines of liberal jurisprudence.
August 4, 2010, 7:52 pmJohn Herbison says:
During the time after the Supreme Court of California ruled that the State Constitution required recognition of same-sex marriage and the time that Proposition 8 was adopted–a time during which 18,000 same sex couples availed themselves of the opportunity to marry in California, did any heads explode among those on Eric Rudolph’s side of the culture wars? What about in Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, Canada, and the European nations that recognize same sex marriages as valid?
The challengers and defenders of Proposition 8 had a full blown trial, and both sides were well funded and represented by able counsel. If some kind(s) of harm results from extending the benefits of marriage to same sex couples, doesn’t it make sense that the Defendant-Intervenors would have adduced evidence of harmful effects from the jurisdictions (including an interim time in California) where same sex marriage has been lawful?
Apparently, though, the defenders of Proposition 8 took the “We don’t need no stinkin’ evidence” approach, and now they have been handed their heads.
August 4, 2010, 7:52 pmGuy says:
Here’s a rational basis for banning polygamy: ensuring that the relationship in question is actually significant and evinced by two people with close economic, social, and emotional ties and not merely a legal arrangement for convenient pseudo-fraudulent purposes. Okay? can we stop saying it’s the same as gay marriage now?
It’s also worth noting that polygamy as it’s usually practiced is basically the opposite of gay marriage since it makes gender an absolutely essential component of the institution (men are allowed to take multiple wives but not the reverse.)
August 4, 2010, 7:52 pmrobbie says:
“There exists a standard contract, used thousands of times daily, between two people to solidify a specific set of legal changes and agreements. Lots of times, that couple has a giant ceremony instead of just filling out a form, and often they involve their religion.
There’s no rational basis to say that contract can’t happen between two men or two women.”
California is a “civil union” state. That contract is already available to same gender couples.
So why try to force “Gay marriage” through the courts? It’s not about “rights”. It’s an attempt to extort OFFICIAL CERTIFICATES OF RECOGNITION AND APPROVAL from a society which doesn’t approve and would rather not recognize.
August 4, 2010, 7:54 pmParenthetical Greg says:
Eh? Reagan and George H.W. Bush are liberals? You have to thank that dynamic duo for unleashing Walker on the democratic masses.
August 4, 2010, 7:54 pmStarman says:
Sure enough. It would be quite astonishing if polygamy was something other than one husband, multiple wives. Now as for polyandry…
August 4, 2010, 7:58 pmAnd polyamory? Good God!
Guy says:
There’s no indication of that in the text of the Amendment, the intent of the 14th Amendment was to protect the rights of the freed slaves, but it is phrased to protect everyone’s rights. That it has been interpreted to prohibit racial discrimination more strongly is not surprising given the close entanglement of slavery and racism, but that doesn’t mean that racial discrimination is all it prohibits, or even the core of the EPC’s prohibition. I would think the central core of the prohibition is animus against people based on a previous condition of servitude, though that’s not terribly relevant today.
August 4, 2010, 7:59 pmTranx says:
It would create a burden for the state in tracking marriages to multiple people. The Judge noted that Proposition 8 doesn’t create a similar burden. In fact, Proposition 8 creates a greater burden on the state because they are required to keep the separate yet not quite equal “domestic partners” registry in addition to marriage.
Try reading the opinion before responding.
August 4, 2010, 8:03 pmrobbie says:
The same SCOTUS which struck down laws against black-white marriage voted 9-0 against 14th Amendment protection for gay marriage.
August 4, 2010, 8:09 pmGuy says:
d’oh, sorry for the kind-of double post, my connection’s slow it didn’t seem like the other one got through.
August 4, 2010, 8:10 pmTranx says:
And expressing moral disapproval of a group of citizens is the CLEAREST VIOLATION of our Constitution. Our laws do not exist so you can make other people feel unworthy.
August 4, 2010, 8:12 pmGuy says:
Also, I don’t think the opinion really relies on this point, since it applies rational basis, but gender-based categories usually trigger a higher level of scrutiny than number-based categories.
August 4, 2010, 8:13 pmJerry says:
Polygamy usually refers to any form of marriage where one person has multiple spouses. Polygyny is the term for the specific form of polygamy where a single husband has multiple wives. Polyandry is the term for a polygamous marriage where a wife has multiple husbands.
Historically, polygyny has been much more common than polyandry.
August 4, 2010, 8:14 pmConstantin says:
There’s no legitimate legal rationale for denying the protections granted in today’s ruling to consenting adults seeking polygamous or intra-family marriage. SSM advocates embarrass themselves when they try to draw a distinction or make it a matter of degree. Either adults can marry each other in a free society, or you grant the state the ability to draw the line and basically live with the results.
The bottom line is that there’s no political lobby seeking to legalize polygamy or consensual incest. The same can’t be said for SSM. That’s the difference.
August 4, 2010, 8:15 pmChrisZ says:
If you can’t think of a rational basis for outlawing polygamy you shouldn’t want to outlaw polygamy. If, however, you can think of one then I don’t see how this decision impacts polygamy.
August 4, 2010, 8:16 pmjrose says:
Walker’s argument (summarized in Orin’s post) that the right to marry someone of the same sex is fundamental is persuasive. However, is it for him to make this determination in light of Baker v Nelson, or should it only be SCOTUS that does so?
August 4, 2010, 8:21 pmGuy says:
I think the reason most people are upset is that they don’t want to have to think of rational bases for their policy decisions, because having irrational opinions is so much easier. People who argue that there IS a rational basis for banning gay marriage are at least trying to be reasonable, which is miles better than just screaming “polygamy!” over and over, even if those proposed rational bases are usually either homophobic or sexist.
August 4, 2010, 8:21 pmbadlaw says:
Hmm. Interesting. He says this in another part, emphasis mine:
So, which is it? It seems to me “tradition alone cannot support legislation” only applies when it comes to defining marriage in a way that doesn’t accommodate gay couples. Because “historically” marriage has been more specific than “…the right to choose a spouse and, with mutual consent, join together and form a household.” It’s never been that broad. Never.
Like I said, this is an appallingly bad decision.
August 4, 2010, 8:25 pmcustard says:
Bollocks. I think you’ll find that women were having children and not starving to death long before marriage came along.
August 4, 2010, 8:26 pmBy your logic marriage would be defined as only between men and women capable of of producing offspring. Infertile or older couples should be banned from marrying?
Constantin says:
Let’s not get too full of ourselves, chief. In the last hour you wrote that the state should have the power to determine whether a proposed marriage “is actually significant and evinced by two people with close economic, social, and emotional ties and not merely a legal arrangement for convenient pseudo-fraudulent purposes.”
That’s insane, not to mention creepy. I wouldn’t go ridiculing anyone else’s analysis here–save for the “let’s marry horses” troll, he’s fair game–just yet.
August 4, 2010, 8:27 pmbartman says:
Thanks to Morat20 for being the first to point out the obvious: with civil marriage, the government gives a bunch of legal benefits and privileges that can not be enjoyed by people who are statutorily barred from marrying.
The answer is to get the government out of the marriage business, and then it’s simply up to two people and whatever higher power they believe in.
August 4, 2010, 8:27 pmJohn Hamilton says:
As I’m sure all on this board know, rational basis is a very easy standard to satisfy. The government (here the state of California via its citizens vote on Prop 8)need only show that there is a rational basis for the law — any rational basis (except for sheer animus). It doesn’t even have to be a very strong basis. The burden is on the challenger to show that the government has NO rational basis for the law. In this case the rational basis could be that there is a fundamental difference between the union of two people of the opposite sex as opposed to two people of the same sex. The judge’s opinon as to whether the people/government is correct about this is irrelevant so long as it is rational — which it clearly is regardless of whether one disagrees with that notion or not.
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I cannot see how the courts can rule against Prop 8 based on rational basis review.
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Those who favor homosexual marriage — those who seek a fundamental change in society — have a (not legal but) practical burden to show that this change in the society will benefit society, or at least not harm it. Failing that, I don’t see why society should submit to their demands.
August 4, 2010, 8:29 pm.
They can do so in a number of ways (if in fact they are correct). For example, they can move in large numbers to a state and pass a law to their liking. Having done this, time will tell how things work out. This is — or at least was originally designed to be — the beauty of dual sovereignty.
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Ironically, homosexuals have in large numbers moved to certain states like California, and even in those cases and even where their cause is more popular than elsewhere, they have failed to convince a majority of the voters of the righteousness of their cause. Maybe they should chose a state with a smaller population? I suggest Vermont.
Chris Travers says:
Some of the rights and responsibilities of marriage would have to be adjusted to work with multiple marriage partners, and because they are not similarly situated, there is no 14th Amendment claim. No rational basis needed.
Now, the larger question is whether Lawrence v. Texas will eventually require eliminating bans on de facto bigamy. I think it would.
August 4, 2010, 8:29 pmSteven Appelget says:
Nice to see so many solid fundamentalist Christians posting on a blog run by a couple of secular jews.
/snark
August 4, 2010, 8:31 pmbadlaw says:
This is almost exactly what I said in Prof. Carpenter’s thread. If the importance of gender in marriage is going to be decided, and if seven million voters in CA can’t determine it, where is he endowed with the power to do so?
August 4, 2010, 8:33 pmChris Travers says:
It’s there in the closing arguments. The state argues that they don’t even have to submit evidence, and one rational basis is that homosexuals are so much more responsible in childrearing than heterosexuals that recognition of homosexual marriage is not necessary.
It’s not the poor judge’s fault. I think it’s admirable that he didn’t break out laughing at several points in the closing arguments.
August 4, 2010, 8:34 pmJohn Hamilton says:
I must say that the “proponents”, aka Prop 8 representatives in the Fed Court, put on an amazingly poor case. This from one who is in favor of Prop 8.
August 4, 2010, 8:36 pmjrose says:
That’s what those finding of facts were for. If you accept them as fact, then the plaintiffs have met their burden and rebutted every conceivable rational basis
August 4, 2010, 8:38 pmMichael Ejercito says:
It is not in the case of polygamy, if you consider the history of anti-bigamy legislation and legal challenges that went to the Supreme Court.
Only SCOTUS can overrule or limit the scope of Baker, Reynolds v. United States, Davis v. Beason, Loving v. Virginia, and Lawrence v. Texas.
It would be just as wrong for a lower court judge to strike down a polygamy ban in an equal protection challenge, or uphold an anti-miscegenation law against an equal protection challenge.
That approach was right under Supreme Court precedent. See FCC v. Beach Communications , written by Justice Thomas:
Would a law permitting plural marriage to men while denying it to women even pass a rational basis test?
But moral disapproval of behavior is not. See the Mormon anti-polygamy cases.
August 4, 2010, 8:39 pmJohn Hamilton says:
@Chris Travers
August 4, 2010, 8:40 pm.
I posted my comment about the patheticness of the proponents case, even before you replied to my comment about rational review.
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I think that a case for a rational basis could have been made incredibly easily.
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But, I have to agree that the proponents may have failed this simple task.
robbie says:
Peoples’ expression of approval or disapproval is a Constitutionally protected right, a violation of nothing and none of the federal court’s business.
If someone feels unworthy inside, I doubt receiving an Official State Certificate of Worthiness will help much.
August 4, 2010, 8:42 pmOwen H. says:
Yeah, it is. And this from a supporter of poly relationships and marriage. The laws as they stand cannot deal with multiple-partner marriages without fundamental changes. Homosexual couples don’t change anything within the law except to remove gender from the lines of who is getting married on the forms.
August 4, 2010, 8:45 pmKamal says:
Why defend laws against polygamy? What’s wrong with group marriages? I see what’s wrong with only allowing men to take multiple wives and not allowing women to have multiple husbands, but what’s wrong with more than two people forming a union? It may take additional logistics, but if we are going to have the government recognize marriage at all, I don’t see why we need to limit it to what Judeo-Christians feel comfortable with.
August 4, 2010, 8:45 pmJohn Hamilton says:
Tranx: And expressing moral disapproval of a group of citizens is the CLEAREST VIOLATION of our Constitution. Our laws do not exist so you can make other people feel unworthy.
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August 4, 2010, 8:46 pmAgreed. However, our laws also do not exist for the purpose of making someone feel worthy. Much of the argument of the plaintiff’s is that being married will make them feel worthy, or similar feelings.
Perseus says:
Judge Walker’s deconstruction of that history is indeed quite breathtaking.
August 4, 2010, 8:46 pmMichael Ejercito says:
And, as I have pointed out, as a matter of law, they did not need evidence. From FCC v. Beach Communications:
There should not have been a trial in the first place.
And plus, there are actual Supreme Court precedents that upheld laws restricting the definition of marriage.
August 4, 2010, 8:47 pmyankee says:
I take Judge Walker to be referring to the fact that California’s marriage laws are sex-neutral except for the constitutional qualification issue. While sex distinctions such as the husband’s control over his wife’s property were once central to marriage laws, those distinctions have been abolished.
August 4, 2010, 8:49 pmbadlaw says:
Anderson:
Two things: first, elaborate on how marriage has evolved to where procreation doesn’t matter to the institution of marriage. Says who? Where’s the consensus on this point? “Infertile people can get married, etc” is a tossed-off statement you’re perhaps hoping we wont notice…because homosexual relationships are inherently infertile. There’s nothing exceptional about infertility in homosexual relationships, while there is in heterosexual ones. And also, no one has said there was once a strict requirement that people reproduce in order to be married. They’ve argued it’s a big part of the reason the government concerns itself with marital status in the first place.
Because the law effectively defines marriage as a husband and a wife, not this arbitrarily general definition you’ve come up with.
August 4, 2010, 8:51 pmsagit says:
Rather than arguing about what marriage IS, the law and courts need to settle what it is NOT.
Previous posts have discussed some of the possibilities that flow from Judge Walker’s reasoning.
Advocates of what we now call incest and polygamy could use virtually identical arguments in their lawsuits.
Without a clear definition of what marriage is NOT the word will loose any commonly understood practical meaning, and many laws that reference it will become irrelevant or moot. Are we really ready for that?
August 4, 2010, 8:52 pmBrianTH says:
That suggested “rational basis” is nothing more than a reformulation of what we already knew: the state has decided to treat these two classes differently. The rational basis test is indeed usually an easy one to meet, but it isn’t THAT easy–the state can’t just say: “Because we felt like!” Unfortunately for the proponents of Prop 8, in a nutshell that really was their motivation, and they couldn’t come up with a post hoc rationalization that could survive any sort of serious scrutiny.
By the way, I have no idea if the opinion is going to survive the inevitable Supreme Court adjudication. But if nothing else, this trial and opinion have very carefully documented the lack of a non-question-begging rational basis for opposition to gay marriage, as well as the real motivations behind such opposition, at least in the case of Prop 8. So that is something.
August 4, 2010, 8:56 pmMadHatChemist says:
Older women who get pregnant are at a high likelihood of having a child with birth defects, potentially higher then a child created from two close relation, but I doubt that restricting a woman above a certain age from getting married would be allowable. The question of birth defects would also be a moot point if the relations were of the same sex or otherwise could not procreate. But then, who here would argue that preventing the possibility of a genetically undesirable baby trumps such a fundamental right as marriage?
“Psychological testimony of the unhealthiness of such relationships” is such a fungible and subjective term. If psychologists all decided that homosexual relationships were all of the then sudden “unhealthy,” then could same-sex marriages then be baned? Of course, one could argue that having both a mother and father is psychologically better then having no mother (thus two fathers), or no father (thus two mothers).
August 4, 2010, 8:56 pmbadlaw says:
I’m not aware of any heads spontaneously exploding in due to the lack of gay marriage, either. But I get you’re just being kind of obnoxious and hack-y.
August 4, 2010, 8:58 pmrobbie says:
What it is not is an individual right. Society through state legislatures gets to define it. Judges and courts get to mind their own business.
August 4, 2010, 9:00 pmMichael Ejercito says:
What was the rationale behind the legislation?
What was the rationale the Supreme Court used when the legislation was challenged?
That really is not an issue of constitutional law.
Why would this be relevant to the issue.
Under that reasoning, could a state define marriage to be between a man and a woman if they adopt these distinctions?
Fundamental rights are rights deeply rooted in our nation’s history and tradition, which same-sex “marriage” is not.
And yet, their case looked rock solid compared to the ruling.
August 4, 2010, 9:02 pmbadlaw says:
That doesn’t make much sense as a rationalization for his odd statement. Where does he argue that?
August 4, 2010, 9:06 pmjrose says:
Walker didn’t argue that what constitutes the core of marriage wasn’t a matter of controversy.
August 4, 2010, 9:09 pmBrianTH says:
On polygamy: as others have noted it is clearly distinguishable, if for no other reason than that it would require a much more complex set of rules, and I’m frankly not sure it could be done. That doesn’t mean group sexual/romantic relationships should be illegal, just that giving them a formalized default legal status similar to a civil union, domestic partnership, or marriage may be impossible, and it certainly wouldn’t be as easy as changing a few unnecessary terms in the existing laws.
I’d also note that this wasn’t such a problem back when marriage was basically a property relationship, with the man owning his wife: you can multiply such property relationships without much fuss (it is no more complex than a man owning multiple cars). But once you adopt the idea that marriages should be equal, symmetric, and generally consistent with all the participants being rational, autonomous beings (as of course you should), you can no longer simply add more partners without creating the need for new rules, which again may not even be possible, at least not in a way recognizable as closely related to marriage.
On marriage and fertility: today married couples who can’t or won’t have children aren’t an unfortunate exception we haven’t been able to figure out how to eliminate yet. We just don’t care whether or not they can or do have children–they are married either way. We do of course want to have good rules in place for when marriages intersect with parenthood, but it has long been the case that these are two different bodies of law (albeit ones which frequently interact).
August 4, 2010, 9:14 pmrobbie says:
9th protects unenumerated rights which nevertheless existed and were recognized at the time of the founding. It doesn’t grant courts the power to invent new rights out of whole cloth.
August 4, 2010, 9:14 pmGuy says:
Maybe my tone was excessively dismissive, but my point is that whatever rational bases might exist to justify a multiple marriage ban, that basis is unlikely to be relevant to a gay marriage ban, so saying “this legalizes polygamy!” isn’t an argument, unless you think banning polygamy has no rational basis, in which case it’s not clear why anyone would care.
August 4, 2010, 9:17 pmChris Travers says:
Ok, some thoughts about some of the maximalism issues with the opinion.
1) The closing arguments are really worth reading. If you can get through them without laughing that’s commendable, particularly if you aren’t laughing at Mr Cooper’s statements.
2) Mr Cooper’s defence of the initiative seemed to my untrained eye to be fairly laughable. 2 witnesses, both with somewhat equivocal testimony, some articles submitted as evidence, and a general assertion that procreation by same-sex couples is by definition responsible, or that the state doesn’t have to submit any evidence to prevail. While the latter doesn’t strike me as technically incorrect, it doesn’t strike me as working in practice.
3) Neither party disputed the idea that marriage was a fundamental right, so it’s not strictly necessary for the opinion to be read as finding this as a matter of law.
4) My prediction is that the appeals court will affirm the judgement on the basis that the minimal evidence submitted by the state cannot be said to establish a rational basis for the rule beyond the rebuttal of the plaintiffs. I believe the opinion will be upheld, but under very narrow grounds which will effectively limit it’s impact to California.
5) None of this would stop the legislature from re-imposing the ban complete with legislative findings to, you know, support it.
August 4, 2010, 9:19 pmChris Travers says:
I see you didn’t read the closing arguments.
August 4, 2010, 9:23 pmyankee says:
I think the idea is that polygamy bans have no rational basis, but we should ban it anyway because God says so, but if we reject “God says so” as a rationale for banning homosexuality, we also have to reject it as a rationale for banning polygamy.
I find the people who oppose polygamy and purport to believe in the Bible very confusing, but as the history of the U.S. Constitution tells us, people can come up with all sorts of creative interpretations of holy texts.
August 4, 2010, 9:25 pmGuy says:
The right to marry is almost unquestionably such a right, so the only question that remains is whether a couple’s right to marry can be denied on the basis of their respective genders. Admittedly the “traditional” answer is yes, but the traditional answer is inconsistent with the core principles of equal protection, including that a person’s rights should not ordinarily depend upon an ascribed status such as gender. In any event, the Equal Protection clause has always been interpreted to require a logical reason for treating people differently; that people used to think something was logical does not prove that it is, so tradition alone cannot suffice to prove the Constitutionality of a law.
If one were to look for the “rational basis” that the limitation to opposite sex couples had, one would find reasons that are no longer applicable, such as the fact that the rights and obligations of husbands differed from those of wives, so it’s unclear how to generalize to same-sex couples. Marriage is no longer structured that way, and so the rational bases that could have been put forward no longer exist.
August 4, 2010, 9:29 pmChris says:
The statement made by Dr. K implies that homosexuals are animals which beyond being incredibly offensive is simply ill-informed and ignorant; and if you believe that this ruling can be used to legitimatize marrying your couch or other inanimate objects (or animals, children etc) you truly are an idiot.
August 4, 2010, 9:31 pmConstantin says:
The federal government has just this year enacted laws that effectively govern the operations of the entire financial and health care industries in this nation.
But putting together some guidelines so consenting adults can be legally recognized as married, in groups of three or more, is metaphysically impossible?
To borrow a favorite phrase, if we can put a man on the moon . . .
August 4, 2010, 9:32 pmGuy says:
Marriage does not enable procreation – procreation is easy. Marriage enables raising children in a stable environment, which is something in which gay couples can and do engage.
August 4, 2010, 9:33 pmpaul says:
I think I understand the judges point about tradition not being a basis for denying the right. However, does the law allow one to interpret the words the way they were used when the law was written
A second observation – accelerating social change thru the judiciary tends to limit the actual discussion – and thus the real acceptance of the change. Just look at our history on abortion
August 4, 2010, 9:34 pmBonsage says:
This decision is a (very bad) joke and if this is what passes as legal reasoning in the gay judiciary…
August 4, 2010, 9:39 pmElliot says:
Regardless of the merits of SSM, I would be very interested in the historical basis of this statement.
I would ask the judge exactly what was the historical core of marriage, how he determined it, and why opposite genders are not part of that. What history?
August 4, 2010, 10:07 pmPerseus says:
Who needs the 14th Amendment when there’s the Commerce Clause to squish state laws like bugs (should the feds so choose)?
August 4, 2010, 10:11 pmGuy says:
Which is responsive to my post because… ?
August 4, 2010, 10:18 pmChristian K says:
When looking at the future of this decision I think it’s important to note that the “official” representatives in this matter, namely the Attorney General and the Governor, fully support this decision. The AG very strongly, as he summited a brief stating that he agreed with the Plantiffs. The Governor is another matter, it seems he supports it but doesn’t want to be politically “responsible” for SSM being law.
The California State Legislature has twice passed a SSM bill, which was vetoed by Schwarzenegger both times. In this veto statement he stated that it was a matter that should be handled by the courts. When asked about the issue he has been very supportive stating it’s a human rights issue and that freedom to marry is a human rights issue. During this trial he offered no evidence or opinion effectively pulling support from the “Yes on 8″ folks. Now that he can essentially step aside and blame the courts, he will do everything in his power to support this decision.
I expect “the state” to continue to offer no rational basis for sustaining Prop 8. They will continue to quietly frustrate the pro prop 8′s case.
August 4, 2010, 10:28 pmHarold says:
“As for the polygamy and bestiality arguments — look, we all know that’s stupid rhetorical screaming, not an argument.”
Except that courts in Canada are already using the existence of SSM as a basis for allowing polygamous marriages. It is not a slippery slope; it’s a cliff.
And then we have first cousin marriages. Some states allow them- others don’t. There -is- a rational basis for disallowing them. But some states choose not to. Which states are being irrational? Under his ruling, the first cousin statutes go bye-bye, from what I see. If 2 first cousins want to get married, why not? I favor the restrictions on first cousin marriage. But with specious legal reasoning, “the right to determine who your spouse will be” as the absolute judgement, the restrictions will not exist.
August 4, 2010, 10:34 pmJoe says:
Very few laws are overturned by animus. In order for a law to be revoked on that basis, it has to be shown that the reasons offered for it that “the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”
The ruling, however, says JUST THAT. It says there is no (legitimate) rational relationship.
As to Reynolds, we are going to rest things on that? Romer v. Evans et. al. already suggested cases of that stream (e.g., denying voting rights based on polygamy ideology) are suspect. And, it wasn’t just anti-Mormon animus. Polygamy is banned today and not just based on animus. There is a rational reason for the prohibition.
August 4, 2010, 10:41 pmrobbie says:
I don’t believe state licensed marriage to be a fundamental right. How could it be? The fundamental right is freedom of association.
What other fundamental right do people demand a license for?
Do people now free to attend church go to court demanding a churchgoer’s license?
I don’t want the police poking around the inside of my home. Should I demand the city issue me a “no search without warrant” license?
August 4, 2010, 10:42 pmOwen H. says:
So how do you tell the difference? I guess it’s just a matter of interpretation.
August 4, 2010, 10:53 pmOwen H. says:
Except when a legislature does actually so define it. Then it’s a matter for the people, right?
August 4, 2010, 10:56 pmBrianTH says:
I’m not entirely sure it is impossible, but having thought about it before, I’m certainly not sure it is possible either. One of those most basic problems is trying to accomodate the notion of marital equality. In most complex organizations, like business firms, government agencies, and so on, we are perfectly fine with internally-imposed order through hierarchical structures. And that is how group marriages have historically functioned as well: there would be a hierarchical structure (e.g., a man in charge of a bunch of wives). But once you are no longer willing to accept someone being the legally-recognized “boss” of the group, it becomes pretty tough to set out a lot of default rules. Of course you could imagine sexually-intimate groups being authorized to adopt charters and elect officers and such–but is that even recognizable as a variation of civil marriage anymore?
By the way, it is actually pretty hard to accomodate the notion of marital equality even with just two people, and lots of folks aren’t convinced we have gotten it right. Not that we should have preserved the legal assumption of unequal marriages, but I think it would be defensible to claim that maybe the very idea of a special legal status for marriages is no longer viable, and it should be taken over by some other more generic body of law (contracts, partnerships, or so on). Certainly a lot of people back in the day thought civil marriage couldn’t survive the transition to a legal relationship consistent with an assumption of equality, and you could argue that maybe our experiment to prove otherwise has failed.
August 4, 2010, 11:02 pmAnderson says:
Badlaw (indeed): Where’s the consensus on this point? “Infertile people can get married, etc” is a tossed-off statement you’re perhaps hoping we wont notice…because homosexual relationships are inherently infertile.
Not one state in the Union requires fertility or childbearing of heterosexual couples. The law is literally *indifferent* on this score insofar as the right to marry is concerned (tho of course there are tax breaks etc. to encourage having children).
So “inherently infertile” is just like saying “inherently gay,” which of course begs the question; we’re supposed to be deciding about gay marriage, not defining marriage to exclude gays.
Because the law effectively defines marriage as a husband and a wife, not this arbitrarily general definition you’ve come up with.
Again, begging the question. The law used to define marriage as a husband and wife of the same ethnicity, and then enough people asked, “what does matching skin color have to do with marriage?” Now people are asking “what does heterosexual preference have to do with marriage?”
Walker’s opinion is based in part on a factual presentation that marriage, insofar as the state is concerned, is no longer treated as having anything to do with sexual roles — EXCEPT for the single requirement of heterosexuality. This is pretty obviously correct; particular couples may choose to live traditional gender roles, but nothing in the law requires them to do so.
Regardless of whether one thinks the law “evolves,” society obviously does, and, for better or worse, for quite a while now we have lived with marriage as legally neutral between the sexes. Gay marriage pretty much logically follows. The religious leaders who said that votes for women and no-fault divorce were going to wreak huge social changes and take us down the slippery slope were RIGHT. We just disagree about the value of the consequences.
August 4, 2010, 11:09 pmrobbie says:
Nope. You think about it for a minute and if you don’t know the answer you look it up. Example?
Were people free to consume alcoholic beverages before, during and after ratification of the Constitution and Bill of Rights and did a substantial percentage of the population do so? Yep. So if we want to outlaw booze we need to amend the Constitution? Yeah.
Were people free to enter into state licensed gay marriage before, during and after ratification of the Constitution and Bill of Rights?
Nope. So we need to amend the Constitution if we want that to be a protected right? Yeah, but 90+ years ago “progressives” actually had some integrity and some respect for the Constitution.
August 4, 2010, 11:13 pmR.C. says:
Foolishness.
Every gay man has the same right as every straight man: The right to marry a woman and attempt to father children, in order to perform the service and sacrificial vocation of producing and nurturing the next generation.
Every gay woman has the same right as every straight woman: The right to marry a man and attempt to be impregnated by him, in order to perform the service and sacrificial vocation of producing and nurturing the next generation.
That is Natural Law: Not based on special revelation, but merely observable from nature through reason. Nothing technological or scientific has occurred in the last thirty years to alter the facts in this regard, except that some — not most, but some — human beings are sufficiently disconnected from history and nature to be unable to perceive what sane and civilized persons understood intuitively for the last several thousand years.
Even this myopia would not be such a problem, were it not concentrated among the social and academic elites. It is concentrated there because it takes a very clever mind, together with a lot of peer pressure and intellectual inbreeding, before one can fool oneself into thinking something so boneheaded.
And I think perhaps it requires one other thing: The sort of arrested development, the sort of aversion to maturation and responsibility and duty, which characterizes the Baby Boomer generation. Perhaps that is why it happened now: A high tide of adult childishness coincided with a crest of academic delusion and a peak of temporal and cultural parochialism: A perfect storm of social silliness.
August 4, 2010, 11:21 pmWhitehall says:
Where did my vote disappear to? Some life-appointed judge stole it looks like, disregarding biology and millennia of cultural usage and tradition. I’ve been disenfranchised.
I really don’t give a rat’s a$$ what you lawyers yammer about. This is a pure power play by a judge who should have disqualified himself as member of a special interest group.
Time for a constitutional amendment for popular recall of federal judges.
August 4, 2010, 11:30 pmHarold says:
But they cannot raise children which genetically belong to both of them. Historically, and today, the vast majority of child abuse, physical, mental, or sexual, occurs from an adult member of a household to a child with which the adult has no genetic relationship. There are several cases of lesbian couples where this has already shown up. Based on the the small number of lesbian couples with children, this seems to be more frequent, percentagewise, not absolute, then abuse in similar “married” heterosexual households with stepchildren. I emphasize teh married for a reason. A nubile teenage girl living in a household with an unmarried adult male to which she had no genetic relationship with is the worst possible situation, statistically, to be in.
August 4, 2010, 11:39 pmrobbie says:
I agree with all you’ve said except it’s a great deal more than foolishness or silliness.
A single, appointed, federal judicial apparatchik has decided he has the power to ignore the majority of people living in a state of 38 million people, impose his will and redefine marriage by judicial fiat.
August 4, 2010, 11:42 pmBrianTH says:
Actual observation of nature indicates that: (a) sex serves many positive purposes for humans besides reproduction; and (b) that gay couples are perfectly capable of enjoying those other benefits of sex; and (c) that nature has given them no other option to receive those benefits.
Accordingly, a natural law that was actually based on observation and reason, and not received wisdom from people who lived centuries ago and didn’t actually understand the relevant facts about human nature, would treat gay couples, and indeed many other non-reproducing couples, as normal, natural, variations.
August 4, 2010, 11:58 pmCJS says:
Really? A burden for the state to track marriages to multiple people? Because it would be difficult to keep a file on an individual and track that individual for multiple relations? Why, that sounds so tough. I wonder how the state manages to handle people who work in multiple jobs? That surely would justify the burdening of a fundamental right…
August 5, 2010, 12:07 amFederal Farmer says:
I don’t think this argument is half as clever as you think it is. In fact, it displays an embarrassing ignorance that insults your own intelligence as much as it insults homosexuals.
August 5, 2010, 12:11 amMahles says:
Wow; nighttime really brings out the loonies… “natural law”? I feel like I’m @ RedState or something…
August 5, 2010, 12:11 amFederal Farmer says:
Might as well ban second marriages then. How’d that be for promoting stable families? The incidence of pederasty is no more significant in homosexuals than it is in heterosexuals.
August 5, 2010, 12:13 amAnderson says:
But they cannot raise children which genetically belong to both of them.
Congratulations, Harold, you’ve outlawed adoption. Oh, and stepparenting too.
As a stepfather, I find very little to say to you that would not get this comment deleted.
August 5, 2010, 12:16 amCJS says:
The issue with defining marriage as an individual Constitutional right is that you immediately require a higher standard to impinge on that right. The rational basis test in this opinion was interesting, given the analysis was setting up homosexuals as a suspect class – and that would be the way to differentiate… (which is sort of the same as your point, but the suspect class piece is why gender gets more scrutiny – again, funny that the judge couched this as a rational basis review…).
August 5, 2010, 12:27 amRoger the Shrubber says:
No, it isn’t. The traditional definition, in many parts of this country at least, was man and woman of the same race. That’s why the Supreme Court decided Loving.
August 5, 2010, 12:37 amRoger the Shrubber says:
Pretty sure it’s impossible to insult R.C.’s intelligence on this topic.
August 5, 2010, 12:38 amRoger the Shrubber says:
And what is that rational basis?
August 5, 2010, 12:46 amwrecktafire says:
Why the “quotes”? The reasoning of the judge’s opinion has the burden of proving only what it needs to prove AND to distinguish between things established and NOT established. Geez, what DO they teach in schools, nowadays?
Interesting to note that opponents of the Griswold and Lawrence decisions predicted this day. Viz, the “slippery slope” argument is perfectly valid.
August 5, 2010, 12:56 amrobbie says:
Same court which rejected Baker v. Nelson for “want of a substantial federal question”
That is the precedent judge Walker has chosen to ignore.
Loving was a 14th Amendment case. The 14th amendment was ratified to guarantee the rights of freedmen and their offspring, not gays who want to get married.
August 5, 2010, 1:02 amGLCampbell says:
Should a sympathetic federal judge, following a minority chorus in modern academia, someday deem orangutans or other higher primates to possess a measure of rationality similar in kind to that of humans, grant that they are capable of some measure of consensual capacity, and thus afford them rights similar to those of humans, what then? It seems we have a plague of old arguments and less reason than we hoped. Redefining terms in rejection of transcendent moral principles may appear to be rational, but without a firm grip on ultimate truths, and a corresponding commitment to them, any culture across the ages can and will simply settle for doing what it feels to be right by redefining the terms to suit a preferential perspective. Of course, the question is begged, and remains for another discussion, “Quid est veritas?” It would be interesting to hear Judge Walker’s answer. But, then again, we may already have it in this opinion.
August 5, 2010, 1:07 amJohn Herbison says:
What are the chances that Gibson, Dunn & Crutcher and David Boies’ law firm would unite to advocate ornagutan rights? Some hypotheticals are just downright silly.
August 5, 2010, 1:18 amR.K. says:
Waste93 said: “As it stands now. Would not this reasoning also allow multiple marriages?”
To which rueffles replied: “The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.”
So what! The right to marry has also been “historically” the right to choose a spouse of the opposite sex. If Walker’s ruling teaches us anything, it’s that “historically” means NOTHING anymore. People who plead “it’s historically meant….” in order to discredit the idea that polygamy….or sibling marriage…could be justified next are using the same kind of reasoning that Walker and other gay marriage activists reject.
What’s more, if all members of a polygamous union consent to each member being in it the “no mutual consent” argument collapses.
August 5, 2010, 1:32 amrobbie says:
Prop 8 didn’t overturn an act passed by the legislature and signed by the Governor, it amended the California Constitution in response to a decision by the California Supreme Court.
August 5, 2010, 1:34 amR.K. says:
Yes, excellent question, Roger. Particularly, what will be the rational basis once genetic testing renders the birth defects argument moot, that is, when cousins, or even siblings, can be tested and some find they are NOT at risk for passing on serious defects? And once same-sex marriage is legal, what will be the rational basis for denying licenses to two first cousins, or siblings, of the same gender?
August 5, 2010, 1:43 amanonymous says:
I have a feeling – just a feeling – that Scalia is already drafting a response. And it will be a doozy. There are so many ways to slap this down we could turn it into a parlour game guessing how he will do it.
August 5, 2010, 1:56 amChris Travers says:
No. You can’t even get to the point of arguing that it doesn’t meet rational basis because polygamous marriages aren’t similarly situated to a large number of rights and responsibilities of marriage.
That means there is no claim.
August 5, 2010, 1:59 amChris Travers says:
Not the judge’s fault. Please read through the closing arguments carefully (you can find transcripts linked to on the Wikipedia page). The section for the defendants (Mr Cooper) is worth a laugh.
Please remember he argued to the court with a straight face:
He also said that the state didn’t even need to submit evidence when the judge asked him for evidence to support his theories. And at trial, he only brought in 2 witnesses, and neither one gave strong testimony.
August 5, 2010, 2:07 amR.K. says:
Pleases note, when discussing sibling, first-cousin, uncle-niece/aunt-nephew, or polygamous marriage, we are talking about such unions when all members consent, so let’s not minimize the relevance by talking about those where all do not consent.
The non-consent wall is the only wall I can see ultimately left standing after Walker’s ruling becomes precedent, which is why I don’t use animal marriage or underage marriage in my arguments here.
August 5, 2010, 2:09 amChris Travers says:
Not that it matters, but California allows them.
August 5, 2010, 2:12 amGideon says:
What bearing do our conceptions of the cause of homosexuality have on its legal standing?
Whatever it’s precise aetiology, it seems quite clearly to be something gone awry, something gone wrong. is this a rational basis for differential treatment?
What if it was caused by an infection?:
http://gc.homeunix.net/home/post/42
http://www.theatlantic.com/past/docs/issues/99feb/germs.htm
http://www.edge.org/3rd_culture/sapolsky09/sapolsky09_index.html
August 5, 2010, 2:33 amAlessandra says:
By far one of the most lunatic statements in the entire decision, if not the lunatic Oscar-winning one.
August 5, 2010, 6:22 amLymis says:
It’s absurd to throw the need to justify whether or not to allow polygamy at the feet of same-sex marriage.
The question usually takes the form of something like “if we allow same-sex marriage how can we justify banning polygamy?”
But before people go there, I think they have a strong obligation to do two other things first – justify allowing opposite sex marriage without allowing polygamy.
Other than pure (“because we’ve always done it that way”) tradition, and letting the majority vote on fundamental rights, please explain why a two-person opposite sex marriage is justified and polygamy is not. Because all of the reasons used to condemn same sex marriage actually support polygamy.
Religious tradition, Biblical authority, common human practice throughout history, giving children a stable, constant adult presence, procreation, and so on, can all be used to support polygamy.
Ignore “tradition” and come up with a justification for banning polygamy. I doubt you’ll have any sticks left to beat same-sex marriage with (other than homophobia.)
August 5, 2010, 7:15 amjohndburger says:
So you consider Ronald Reagan (who appointed Judge Walker) to be a liberal?
August 5, 2010, 7:50 amJohnny In Georgia says:
Gosh, not so sure why I even bother to read the comments here — the substantial majority reflect quite clearly the animus, hostility and bigotry that underlie the arguments (!? — if you can call them that) of the proponents of Prop. 8. And the constitutional analysis by these folks, well, it doesn’t even rise to the level of “amateur” — every comment is warped by their inherent prejudice and tunnel-vision view of the world and their understanding of the Constitution is in a word, pathetic. As the world changes around them, and societaly we reach a greater understanding of equality for all citizens, they will be left behind, with no outlet other than to vent their tired, sad opinions in comment sections such as this.
But I chose this particular comment to excerpt– just to call out the pervasive evil, lack of compassion, deficit of understanding and morally bankrupt nature of the proponents of Prop. 8 and opponents of granting full marriage equality to same sex partners.
SSM exists now — in the U.S., it did in CA for 18 mos., and in numerous countries around the world now. And the demonstrable harm occurring to “traditional” marriages? NOTHING. Nada. Zip.
Conversely the harm done to same-sex partners who are unable to avail themselves of the attendant rights and benefits of civil marriage are numerous and manifest. From tax benefits to social security, transfers of property and living wills, etc. And in those families, it’s estimated more than 1.4 million children are being raised — those children suffer from a lack of protections afforded children of state-sanctioned marriages.
No “heads exploded” — but daily, direct and measurable harm is inflicted on same-sex families by the state. That is what you support. That blood, that evil is on all your hands. And it’s a reality that apparently you all are unable to deal with and derisively dismiss with snarky, illogical and contemptuous arguments and hate-filled posts that are obsessed with sex, bestiality, polygamy and the kitchen sink.
Yep, y’all got a lot to be proud of there.
August 5, 2010, 8:37 amRicardo says:
There are over 100 species of birds and many more species of other kinds of animals so far identified where some specimens in the wild engage in homosexual sex on a routine basis. The simple fact is that biology has progressed quite a bit since Aristotle and Aquinas. It’s about time “natural law” theorists caught up with the actual facts of nature.
August 5, 2010, 8:41 amCurmudgeon says:
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage.
I’ve often wondered why the relevant comparison is to married couples, and not other single adults? Is there a rational basis for discriminating against the single lifestyle in favor of the gay lifestyle?
Admittedly, the case for discriminating against the single + gay lifestyles in favor of the married lifestyle (high birth rate) is iffy nowadays, but it was historically sound.
August 5, 2010, 8:54 amCalderon says:
I always come a day late and a dollar short to these threads, but I want to echo what some other commenters have said from a different perspective. Given the idea that “moral disapproval” alone cannot be a rational basis (I think that statement is incoherent, but let’s go with it for now), why shouldn’t polygamous marriages, adult incest marriages, and even bestiality be allowed? What is the logically valid distinction for saying that marriage ought to be expanded to include gay people but not these other groups?
To be clear, I support putting straight and gay people on equal footing, but I don’t see a distinction or stopping point between the reasoning supporting it and other kinds of marriage. If a group of people, or brother and sister, want to get married, why should the state prevent that? For that matter, if someone wants to have relations with their dog or other animal companion, why is this an issue for the state to intervene or disapprove?
August 5, 2010, 8:58 amBuzz says:
It’s also observed in nature that some species eat their young, or force the runt out of the litter to starve to death, or kill their mate after mating … etc., ad nauseam.
Since when do human beings take their cues on moral behavior from the animal kingdom?
August 5, 2010, 9:50 amguest1 says:
I’ve always thought Hitchens was right in saying that conservatives should not oppose gay marriage because marriage is a fundamentally conservative institution. Conservatives should be more troubled if gays did not want to marry. Marriage — particularly coupled with children — enforces fundamentally conservative values. I can not agree with how the judge has decided this case (typical overreaching progressive arrogance), but I can support the idea of gay marriage, and not only that, the idea that gay married couples should be encouraged to adopt children or conceive children through surrogates.
August 5, 2010, 9:55 amEponymous Coward says:
Ricardo’s argument was not that the conduct was moral. It was that the conduct was not unnatural. How can you blockquote someone and still not read what they said?
August 5, 2010, 10:01 amBuzz says:
“The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples” –from Judge Walker’s decision.
The evidence also shows that all sorts of laws are based solely on moral or religious views: laws relating to humane treatment of animals, for example. What is the rational basis to require, for example, certain methods of slaughtering cattle over others? Rationally, a cruel method might be more efficient and cost-effective. So, based on Walker’s reasoning, we can change the law. (Indeed, define “cruel” without resort to moral reasoning.)
As Scalia so presciently noted in his Lawrence dissent, all laws based on moral considerations are now suspect. The floodgates are opened.
August 5, 2010, 10:05 amJay says:
I heard this judge is openly gay.
If so, why did he not recuse himself?
Certainly he has a personal interest in the outcome, not to mention bias for the plaintiffs.
August 5, 2010, 10:26 amgary47 says:
I assume you mean polygamy/polyandry, and not divorce/remarriage.
I don’t see how the Perry case would allow one person to have multiple spouses at the same time. There are plenty of rational, secular bases for banning plural marriage, none for marriage of same sex couples.
I’m not saying these are insoluble but am skeptical. Until the legal problems are solved for plural marriage, ain’t gonna happen.
Polygamy is about power differences between the 1 spouse in the center and the others on the periphery (historically, this means 1 powerful man and multiple powerless women, but I suppose Meg Whitman might want two husbands.)
What this reality means is: plural marriage is lots of men who have multiple wives, almost no women with multiple husbands. In other words: it will create a serious gender imbalance in the marriage pool. Do you really want the social hazards of lots of poor, unmarriagable men who will be mostly young and horny?
The arithmetic of the marriage contract is very different for plural marriage, versus letting same sex couple marry.
Who is next of kin? Who speaks for a disable spouse if #2 and #3 disagree on treatment? Who is father of a child if you have 1 woman / 2 man marriage?
What is the legal relationship between wife 2 and wife 3 in the most likely polygamous situation of 1 man / 2 woman?
We are under a legal system that values the individual. Historically (and based on the recnet Fundy LDS scandals, I think it is inherent to polygamy) polygamy is abusive to women, so not defensible.
Finally, there is every reason to think the
August 5, 2010, 10:53 amNone of these problems arise from 2 man or 2 woman marriages.
Prison Mike says:
Can you show me one case whose constitutionality was decided by a popular vote? Judges supercede the will of the people all the time. That’s the very reason they’re unelected. To provide a check on the political branches of government.
August 5, 2010, 11:04 amBleh says:
Hmmmmm… I didn’t write that… Looks like I need a more original name…
August 5, 2010, 11:21 amDan says:
Why are conservatives so obsessed with whether they can marry an animal?
August 5, 2010, 11:26 amElliot says:
Your vote hasn’t been taken. You still have it. You are free to join with like minded people to work for the enactment of an amendment to the US Constitution. The legislators who vote on this are elected. You can vote for those who support your position. Biology and culture have nothing to do with it. It’s politics, which is often driven by public opinion.
August 5, 2010, 11:28 amJustin the Part Time Lawyer says:
No way. I see 5-4 with Kennedy writing the opinion. There are only a few opinions where the Justice is permanently attached to the decision, and usually because the decision is fatally flawed or highly controversial.
Like Blackmun with Roe.
August 5, 2010, 11:39 amTaney with Dred Scott.
I am guessing that is why Bush v. Gore was PC.
NOBODY wanted to have their name associated with that POS.
R.K. says:
Again, “historically” means nothing in light of the Walker decision, and talk about what polygamy has “historically” been does not address the issue of whether it should be legal when all members consent to all, whether this is only a minority of the cases of polygamy seen or not.
But according to Walker, it is that individual’s right to marry anyone they choose. Why not two other people, if they choose? If there is a fundamental right for people to marry who they want, and a person chooses to enter into a marriage with two others, and the other two consent, to deny them this right merely based on legal complexity does not wash. The law can find a way.
blockquote cite=”comment-897428″>
gary47: Historically (and based on the recnet Fundy LDS scandals, I think it is inherent to polygamy) polygamy is abusive to women, so not defensible.
Again, “historically” means NOTHING anymore.
August 5, 2010, 11:50 amTranx says:
Why would it have been better if a Catholic man that believed gays are immoral had heard the case about whether it is permissible to exclude gays from a fundamental right? Judges have to hear cases and be impartial everyday. Get over it.
August 5, 2010, 12:43 pmJohn Herbison says:
Judge Walker’s orientation is his business, and perhaps that of any spouse or partner he may have. However, if the defense of Proposition Hate was that marriage between gay spouses would somehow harm marriage between heterosexual spouses, would that pose a conflict of interest for a heterosexual judge?
Is there any indication that Judge Walker, who is 65 years old, had anyone in the wings waiting to marry him, if only Prop Hate were invalidated? If not, where is any personal interest in the outcome?
August 5, 2010, 12:49 pmJustin the Part Time Lawyer says:
I view marriage and fidelity as concepts that are foreign to our genetic makeup, but understand one of the rationales for polygamy.
Societies that were in constant strife with neighboring groups, the gender balance was impacted because of the disproportionate death of young healthy males in combat.
Polyandry is beneficial for a different reason.
August 5, 2010, 12:59 pmGenetic diversity is enhanced if a woman has children with multiple partners.
Calderon says:
Gary47 said:
Polygamy is about power differences between the 1 spouse in the center and the others on the periphery (historically, this means 1 powerful man and multiple powerless women, but I suppose Meg Whitman might want two husbands.)
What this reality means is: plural marriage is lots of men who have multiple wives, almost no women with multiple husbands. In other words: it will create a serious gender imbalance in the marriage pool. Do you really want the social hazards of lots of poor, unmarriagable men who will be mostly young and horny?
There’s no evidence for these assertions, particularly that polygamy has “power differences” that are different from marriage. Guess what? Marriage between two people, of whatever gender, often will have “power differences,” yet we don’t see that as a reason to ban straight or gay marriage. Likewise, if polygamous marriages are legal, there’s no particular reason to believe that it will be one man and multiple women any more than vice versa or multiple men and women. The NYT had a recent articles on an Asian society where marriage was between one woman and multiple men.
But let’s assume that allowing polygamy would cause marriages with one man and multiple women. So what? How does banning those marriages affect anything? Presumably those relationships of one man with multiple women exist today, they just aren’t married. Having polygamous marriages be illegal is not going to cause those people to become monogamous any more than outlawing gay marriage will cause gay people to marry the opposite gender.
Also, on gender imbalance, let’s suppose that lesbian marriages are more common than gay male ones. Would you then be for outlawing or limiting all gay marriage, or at least lesbian marriage? After all, it would be creating a gender imbalance with lots of poor and umarriagable men.
The arithmetic of the marriage contract is very different for plural marriage, versus letting same sex couple marry.
Who is next of kin? Who speaks for a disable spouse if #2 and #3 disagree on treatment? Who is father of a child if you have 1 woman / 2 man marriage?
What is the legal relationship between wife 2 and wife 3 in the most likely polygamous situation of 1 man / 2 woman?
Why is there any reasons to believe these are difficult questions? The members of the polygamous marriage can decide among themselves who has decisions on treatment, just like a single person with no living relatives can sign a power of attorney. What difference does it make who the factor of a child is, or the legal relationship between wife 2 and wife 3?
We are under a legal system that values the individual. Historically (and based on the recnet Fundy LDS scandals, I think it is inherent to polygamy) polygamy is abusive to women, so not defensible.
If our legal system values the individual, why shouldn’t the individual be allowed to decide what kind of marriage to have? Moreover, the entire concept of marriage, even between only two people, concerns binding those two people together and (in some sense) a loss of individuality.
Traditionally, marriage has been abusive to women. There’s no reason to believe that polygamy will be any worse to women than monogamous marriage. Moreover, the fact that currently illegal polygamous marriages are abusive says nothing about whether legal polygmaous marriages would be more abusive than normal; that would be like saying we’d have the same amount of drug crime and violence if we legalized drugs.
Moreover, suppose we legalize gay marriage, and a study comes out 10 years later finding that lesbian and gay men in marriages are more likely to abuse each other than in straight marriages. Would any supporters of gay marriage believe that’s a reason for outlawing gay marriage? If not, then it can’t be a reason against polygamous marriage either.
Finally, there is every reason to think the
None of these problems arise from 2 man or 2 woman marriages.
Your main claim is that polygamous marriage involve a power differential and can be abusive, but that is just as true as straight or gay marriages. The problems are the same. Likewise, gender imbalances can arise if one sex turns out to be more likely to have gay marriages than another. If there aren’t reason for denying gay marriages, they’re not reasons for denying polygamous ones either.
August 5, 2010, 1:25 pmMichael Ejercito says:
I see you did not read the ruling, a ruling that quoted an opinion that undermined the ruling itself. A ruling that neglected to mention Baker v. Nelson, even though the judge asked about the applicability of Baker in the closing arguments.
The polygamy bans in the territories were motivated by animus and religious discrimination against Mormons.
The Supreme Court declined to use those reasons to uphold the anti-bigamy laws against legal challenges in Reynolds v. United States and Davis v. Beason.
And what were the actual rational reasons used by the Supreme Court.
None of those cases upheld denying voting rights on the basis of having an ideology of polygamy. In fact, in Murphy v. Ramsey, the Court pointed out that
Fortunately, bigamy fails the Glucksberg test, a test that Judge Walker misapplied.
Would marrying someone who has a living ex-spouse, or someone with a living ex-spouse marrying someone, pass the Glucksberg test to qualify as a fundamental right?
Because under High Tech Gays v. Defense Industrial Security Clearance Office (a Ninth Circuit precedent), that is the standard of review for equal protection claims on the basis of sexual orientation.
Because that was the law, under FCC v. Beach Communications. As Justice Thomas explained:
And in fact, the Supreme Court did just that in Davis v. Beason, decided 103 years before:
No evidence was introduced in Davis that polygamy tended to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. And yet, the Court found it fit to make these bare assertions anyway.
True, but then evidence is not needed to pass muster with a rational basis review. See Beach Communications.
August 5, 2010, 2:25 pmMichael Ejercito says:
And that could be a reason to deny same-sex “marriage” to women, but not to men.
August 5, 2010, 3:15 pmDilan Esper says:
And that could be a reason to deny same-sex “marriage” to women, but not to men.
Just a note to the anti-SSM crowd:
You are never going to convince anyone that you aren’t homophobic bigots until you stop demeaning the marriages of gay and lesbian citizens by placing their marriages within scare quotes.
August 5, 2010, 4:35 pmAlessandra says:
http://www.nationalreview.com/bench-memos/230960/judge-walker-s-anti-prop-8-sham-trial/ed-whelan
Well, it turns out that there’s yet another reported fact that bears on the already overwhelming case for Walker’s recusal. According to a Los Angeles Times article from three weeks ago, Walker’s colleagues say that Walker “attends bar functions with a companion, a physician.” The apparent implication is that Walker has a regular male partner and may be in a long-term relationship. If that’s so, then the question arises whether Walker himself has any interest in entering into a same-sex marriage in California. If he does, then the provisions of federal law requiring that a judge recuse himself when he knows that he has “any other interest [other than financial, that is] that could be substantially affected by the outcome of the proceeding” (28 U.S.C. § 455(b)(4)) or when “his impartiality might reasonably be questioned” (28 U.S.C. § 455(a)) may well have been triggered.
August 5, 2010, 6:29 pmLaura(southernxyl) says:
You don’t even have to go that far. Nothing prevents two people who are, for instance, carriers of sickle cell anemia, from marrying and having children. One could possibly argue that something should, but nothing does.
August 5, 2010, 7:57 pmJohn Herbison says:
Another federal statute, 28 United States Code § 144, allows a party to a proceeding to seek recusal merely by filing an affidavit setting forth facts and reasons for belief that a judge has a personal bias or prejudice either against the party or in favor of the adverse party, accompanied by a certificate of counsel that the filing is made in good faith.
The Defendant-Intervenors who advocated the validity of Proposition Hate were represented by able counsel. If Judge Walker’s alleged orientation, which the San Francisco Chronicle characterized as “an open secret”, was of concern to the litigants regarding his impartiality, why did no party avail itself of § 144?
Could it be that the Proposition Hate defenders would rather have the “issue” unresolved than to meet it squarely and straightforwardly?
August 5, 2010, 7:58 pmGLCampbell says:
And 200 years ago, who would have fathomed that one day a bevy of law firms would take the case to redefine marriage in such a manner. An appeal to current litigation heavyweights doesn’t address the point of possibilities inherent in incremental policy-making via judicial fiat.
August 5, 2010, 9:26 pmBarb says:
And that is MERELY his opinion. To the majority in the state and the nation, two women or two men having sex is not marriage –it’s a poor imitation of marriage, a substitute for the real thing. “Words MEAN things.”
To children, that time has not passed. Take Rosie O’Donnel’s young son who said, “Why can’t I have a Daddy?” Watch the transgenders children weep on tv saying they miss their father as a Dad now that he has become a mother. We are experimenting to say that the gender of parents does not matter. Boys need a father and a mother. Girls need both, also. We are messing with the heads of youth –and partly because too many adults are messed up between the ears already themselves.
August 5, 2010, 11:21 pmBarb says:
Sounds like they could have been more diligent in their case defense.
It’s hateful to say Proposition 8 is about hate. I say it’s about love for people and wanting what’s best for them, especially the children. Liberals like to say, “Who can say what is best for children and adults and the nation? Who can say what is moral or not?
Common sense tells us -observation tells us–life experience tells us –that we do not want our children to think it’s ok to be gay and get involved in those socially, emotionally, physically unhealthy, sex activities/proclivities. Those who do want this for their children will probably get what they ask for. Too bad for the kids.
August 5, 2010, 11:29 pmBarb says:
Why should children be brought into such households, denied of one parent or the other, when there are heteros willing to give them mother and father? The next thing will be asking national health care to pay for their surrogacy since they are handicapped and cannot have babies on their own. Chronic victims on the public dole. This is not an inevitable or genetic condition –if they want to be parents, they should straighten up! literally.
August 5, 2010, 11:41 pmDesiderius says:
Amderson,
“The social understanding of marriage has evolved to where it has no necessary connection to sexual reproduction or to anything else that heterosexuals can do but homosexuals can’t”
See, I think this premise might be the chink. For the Me Generation step-parents, who brought us the Sexual
ReDevolution, that all sounds dandy. Not sure how it plays long-run with the generation of step-kids tying to pick up the pieces.The third generation have now learned their no necessary connection catechism. Let’s see how long they keep it.
August 6, 2010, 12:15 amJohn Hamilton says:
.
August 6, 2010, 12:17 amAre you really suggesting that homosexuals should become more like a line that takes the shortest route between Point A and Point B, or was that just another misuse of the word “literally”?
Alessandra says:
I have no idea. I don’t know neither the plaintiffs, nor the judge, nor did I see any other comments about this.
So what happens when a judge should have recused himself from a case and didn’t?
August 6, 2010, 2:46 amJohnny In Georgia says:
Amazing — the sheer ignorance and hate that is spewed on here by anti-SSM folks just does not stop, its the gift that keeps on giving. LOL
The substantial majority on here seem utterly incapable of discussing the conclusions/rationale of Walker’s opinion without falling back on stereotypes, strawmen, cliches, red-herrings, imposition of religious beliefs and lies.
Crawl back under your rocks, the view from there fits you much better. Kudos to those who have the energy to rebut the stupidity, I don’t.
August 6, 2010, 7:14 amAlessandra says:
In case its news to you, your mud-slinging is a sign of great stupidity and lack of knowledge. Maybe if someday you’d like to crawl out from under that ugly mental rock of yours, you’ll be able to show the world just how enlightened you are. Until then we can quite understand that a small, hateful, air-tight mind like yours just can’t, can’t argue anything coherently.
August 6, 2010, 9:04 amJohnny In Georgia says:
Ooooo, yeah . . . . I can see you’re sooooo smart. I’m just pointing out that most of what’s on here is posted by morons and it’s not worth engaging in a debate, because reason and analysis is foreign to the largest part of posters on this board. LOL Res ipsa loquitur
It’s quite rich indeed that you would call me “small, hateful, air-tight” — the mirror does show a harsh reflection when you look into it, n’est ce pas?
August 6, 2010, 9:11 amJoseph Slater says:
As to Barb and Alessandra, I’ll co-sign what Johnny in Georgia said. And I do that for myself, for my wonderful sister in Boston, and for her terrific and legal spouse.
August 6, 2010, 10:40 amDesiderius says:
Slater,
It’s not about how wonderful your sister is (or my cousin or my brother). There is a rational argument to be made that:
(a) they would be even more wonderful as parents benefiting from a biological tie
(b) societies that better encourage children to be brought into the world with the benefit of that tie (instead of fighting against it) do better, for all, but especially for those children, than societies which don’t
Dale makes a good case that trading off (a) and (b) for greater liberty and (self-perceived) equality on the part of gays is worth it. To deny the tradeoff altogether, as Walker does, is to get into the realm of dehumanizing those whose experiences and reasoning led them to find (a) and (b) compelling.
August 6, 2010, 10:49 amDesiderius says:
And there are those for whom said dehumanization is a feature, not a bug.
August 6, 2010, 10:51 amJoseph Slater says:
Desiderius:
I’m willing to discuss, civilly, those points with folks. I’m less willing to be civil to people whose opposition to SSM is explicitly based on bigotry against gays, which is the case with Barb and Allesandra. It’s like debating Title VII: I can civilly disagree with folks who argue that property rights should trump civil rights; I see no reason to be civil with folks who think that blacks are a damaged and/or inferior race. And you should look seriously at who is doing the “dehumanizing” in this thread. Certainly not all SSM opponents, but some.
As to your points, my sister and her spouse are not parents, but more generally the response is this. If you’re concerned that children should be raised in homes with their biological parents, there are a bunch of things that would affect that more than denying gays the right to marry: look to rules on divorce and adoption first, most obviously. Yet I don’t see the right wing moving for constitutional amendments banning divorce.
August 6, 2010, 11:15 amAJ says:
Several things bother me about this ruling. First, doesn’t Baker v Nelson establish that the 14th amendment does not apply to same-sex marriages? How can Judge Walker simply dismiss precedent? Second, it seems that a moral judgment, whether traditional marriage is better than an expanded definition, is no longer in the purview of the voting public (since there is no mention of a right to gay marriage in the Constitution and the 10th amendment seems to say that the states or people can decide the boundaries). The classic example of this is if I purchased puppy dogs, tortured and killed them in my basement, then dumped or buried them without anyone knowing. Should your moral outrage of knowing that this was going on be sufficient to deny me the right to do what I want to my possessions in my home. The answer clearly is yes. The same seemed to be true before Lawrence distorted Bowers about sodomy. It is not really the job of the Supreme Court to evaluate “wise” laws.
August 6, 2010, 3:55 pmMichael Ejercito says:
Divorce had been accepted even as polygamy was rejected on the basis that it tended to “destroy the purity of the marriage relation.”
Have you read B. Daniel Blatt’s analysis ? He made an interesting observation.
August 6, 2010, 3:59 pmDesiderius says:
Slater,
“I can civilly disagree with folks who argue that property rights should trump civil rights”
That makes one of us.
But here, the anti-SSM side is not forced to make any argument so noxious, while you, if you follow Walker, are led down a path that ends with you claiming no connection between gender and sex (in any of its functions) and no rational basis for any argument that SSM could involve any trade-offs whatsoever, and thus the utter irrationality of majorities of the population, among other absurdities.
Of course we’re told over and over which way the tides are turning, but if the future were so easily charted, it would be the past, and there are no shortage of those drowned by past tides who were as confident as you are of your high ground.
Follow Hegel if you must, but I think I’ll stick to something more humble.
And if you’re really concerned about making SSM the law of the land, follow Dale Carpenter, not Walker.
August 6, 2010, 4:02 pmMichael Ejercito says:
There is one thing I should add.
There will almost certainly be similar litigation in other states on this matter, and in fact there is another case, Bonilla v. Hurst, going through the courts now. The plaintiffs allege that Lousiana’s ban on same-sex “marriage” violates the fourteenth amendment. One important difference between Louisiana and California is that Louisiana does not offer same-sex couples the privilege of entering into an officially recognized family relationship.
There are a few ways the judge in Bonilla can rule.
- summary dismissal with no comment.
- a ruling in favor of the defendants, citing Baker v. Nelson and Davis v. Beason as the reasons Louisiana can deny same sex couples an officially recognized relationship.
- a ruling partially in favor of the plaintiffs, in that while Baker settled the issue of whether or not states can deny marriage licenses on the basis of the gender of the partners, the Fourteenth Amendment protects the right of same-sex couples to enter into an officially recognized and committed family relationship with the benefits, privileges, duties, and qualifications that marriages have, as Baker does not apply to that issue.
- a ruling fully in favor of the plaintiffs, with the court explaining why Baker conflicts with the original public understanding of the 14th Amendment, and how relevant case law prohibits the state from defining marriage as between one man and one woman.
Unless the suit is withdrawn, or Louisiana amends its laws to permit same-sex “marriage”, this case will go to the Fifth Circuit.
See for example, the Equal Rights Amendment . (Which, ironically, was seven states away from ratification, and would have provided a stronger basis for a ruling that strikes down marriage laws based on gender, unless an amendment had been later ratified reserving to the states the power to define marriage as between man and woman.)
August 6, 2010, 5:01 pmAlessandra says:
Until you can argue something instead of just mud-slinging, the description of “small, hateful, and air-tight” is perfectly apt in your case. There is no reason nor analysis in any of your ranting or mud-slinging–but that just goes right over your head, doesn’t it?
Furthermore, a moron is someone who can neither present nor argue their viewpoints. “The mirror does show a harsh bla bla…” n’est-ce pas?
August 7, 2010, 5:29 amAlessandra says:
A “bigotry” that I have for ignorance, mud-slinging, unethical practices, violence, propaganda, propaganda about violence, all practiced by the likes of people like you.
Keep your Father Shanley, Ernst Rohm, and (Animal Farm) Napoleon pig claims to a right to exercising violence against people you disgree with to yourself.
It just shows what a grotesque attitude you have, much more generally speaking, than simply in respect to the issue of homosexuality.
August 7, 2010, 5:36 amHarold says:
Deliberate misunderstanding is always fun. Which is what you did. BTW, in the past, most adoptions have been among family. Parents die, aunts/uncles/second cousins, whatever, take the orphans in. Some genetic tie in existed. The phenonema of taking in complete strangers in on a wholesale basis is relatively recent. And pretty much practiced mostly in the United States. You don’t see a lot of Chinese/African/Russian, or wherever else the current baby crops are coming from going to the enlightened countries in Europe. It seems to be a strictly U.S. thing.
Saying that statistically, being a minor in a non-genetic relationship with an adult is worse than being in a genetic relationship is truth. That doesn’t mean that all such relationships are bad, but closer looks should be taken ayt them.
August 7, 2010, 7:41 amKops says:
one commentor stated these types of judges are what we get when we elect liberals. however, the first bush appointed this judge. someone else also said the judge ruled the will of the california people irrational, however i believe more importantly he ruled their will unconstitutional.
August 10, 2010, 11:36 amBarb says:
It’s neither ignorance or hatred that cares about children’s greater benefit of both parents when possible to give them both. To call this opinion bigotry is, in itself, a form of bigotry and ignorance. Social scientists are always trying to prove that blended families, single parents, and divorced singles provide the same benefits for their children as when children have the same mom and dad for life –one of each sex. But the facts speak for themselves when unwed moms produce daughters who become unwed teen moms like them –when the divorced produce children with over 90 percent chance of divorce, when the functional family with a mom and dad who stay happily married give their kids, on average, the most financial and emotional security and optimal chance for overall well-being than any other combination of parents. Why, then, endorse the equalization of a parental unit that has deprivation of one parent built in??? whose kids are very likely to follow after them in non-procreative, untraditional sex relationships. We do need children for lots of reasons.
August 10, 2010, 11:47 pmFerdinand says:
Gay men and lesbians are hardly contaminating or threatening children–somehow giving them a less than suitable home. Do you think only straight people work in daycare centers, schools and daycamps? I find it laughable that you all are so concerned over a possible lack of ONE parent, when I know people who raised themselves or were raised by relatives–no help from parents at all. Children most of all need love and care. As for this false distinction between “gays” and “the family” — there are gay young people out there who have nowhere to turn. They need role models, and most everyone has someone in the family who is gay/lesbian. Why shouldn’t they know a married openly gay couple? This is 2010, not the 1950s, so get over yourselves.
August 13, 2010, 1:33 amMichael Ejercito says:
Why we should allow gay couples to have substantive legal protections and benefits is a different issue than what to call gay couples.
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August 31, 2010, 3:09 am