Over at CoOp, Dave Hoffman has more on the relative importance of the facts in Perry:
[T]here are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive expression of love and commitment in the United States.”; “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”, etc. It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments. That’s just not how constitutional empiricism seems to work. Nor, in my view, should it work that way. Why would Judge Walker have any special expertise at figuring out these tough questions about the social consequences of legal change? And stepping back, the ordinary case for deference to factual findings is built around two intuitions: (1) that the trial judge can smell liars; and (2) that the appellate court doesn’t have the time to review everything, so it should focus on legal issues apparent on the cold record. The first intuition has always struck me as pretty weak, and the second obviously loses force in big cases.
I would add two points:
1) If the standard of review ends up being “rational basis,” the factual record is largely beside the point. Here’s how Justice Kennedy described the role of the factual record in conducting rational basis review in Heller v. Doe, 509 U.S. 312 (1993), with citations omitted and emphasis added:
A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, , and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.”
Given that the rational basis standard “is not subject to courtroom factfinding,” the Court isn’t likely to pay much attention to Judge Walker’s courtroom factfinding if the law is subject only to rational basis scrutiny. It’s a different story if some heightened scrutiny applies — at that point the factual record really matters.
2) Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” But real predictions have confidence levels. You might think you’re going to get an “A” on an exam next week, but that’s not a fact. It’s just a prediction, and there’s a hidden confidence level: Maybe there’s an 80% chance you’ll get that grade, or a 60% chance. Judge Walker’s prediction-facts have no confidence levels, however. He doesn’t say that there is an 87% chance that permitting same-sex marriage will not affect the stability of opposite-sex marriages. He says that it is now a fact — with 100% certainty — that that will happen.
Appellate judges will naturally discount, if not entirely ignore, efforts to create false certainty out of unknowns by stating that they are facts. To pick an extreme example, imagine Judge Walker made a factual finding that “the defendant’s position that Prop 8 is unconstitutional is incorrect.” If appellate courts have to defer to everything a District Judge labels a fact, then would that mean the appellate courts have to defer to this judgment? If so, that would make the constitutionality of same-sex marriage entirely up to the discretion of the District Court Judge. The judge could make his decision unreviewable — either way — by presenting his legal conclusion as a fact. And what if two District Court judges disagree on the factual findings? What is the Supreme Court supposed to do to reconcile opposite conclusions? For such reasons, the fact section of Judge Walker’s opinion is likely to matter a lot less than it would normally matter in appellate litigation.
Justin says:
I don’t think the either the 9th Circuit or the Supreme Court will rely on the factual findings in any significant way. But they will read them, and from a realist perspective that will influence their decision making. That’s really the point. It’s hard to read the facts and the trial record and not believe (at least from a policy perspective, though partially from a legal perspective) that the plaintiff’s position is correct.
And the noteworthy thing about the facts and the trial record is not the evidence presented by the plaintiffs, it’s the complete lack of evidence presented by the proponents — to the point where the only expert they put forward contradicted himself and basically proved the plaintiff’s central points.
While the plaintiff’s points and the judge’s conclusions on the facts are valuable ammo going forward, the fact that proponents did almost nothing to try to argue against those points is all the more harmful. Rational basis? Gays being a suspect class? The law being nothing more than a cover for discrimination? The law having a secular purpose? All of these things have at least some factual underpinings, and the proponents did nothing to help their case and in fact everything to harm their case in the way the trial went forward.
Granted, some would say that this is because the experts and facts don’t really help them on any of these issues, but still.
August 5, 2010, 12:43 pmNatan Press says:
The burden is on the Plaintiffs. The Plaintiffs satisfied their burden as seen in the facts. Where else are the Plaintiffs supposed to meet that burden? One assumes that when Plaintiffs try to meet a burden there must be some sort of rebuttal. If a rebuttal is not needed then what’s the point of putting a burden on P, or ever bringing the matter to court.
The facts matter a lot here if it’s simple Rational Basis. The term itself suggests that there is some reason for preventing same-sex marriage. Proponents failed to give ANY reason as shown in the facts.
Or are we saying that suggesting, for instance, that Jews (being a lifestyle of choice as explained by Marx in The Jewish Question) are greedy and slowly rot society because of their materialist “God” is enough of a justification to make a law calling for their illegality Constitutional? Not (necessarily) a suspect class after all (not if defined as Marx defines it). Totally secular interpretation. No scientific evidence needed. Just a rational belief.
That’s not enough. However exasperated one might be with Rational Basis review, it’s still a review.
Regardless, how is a court gonna squeeze out of earlier opinions that suggest that marriage, generally, is a fundamental right? Was all that just dicta?
August 5, 2010, 12:56 pmHerr Morgenholz says:
You know what would’ve been really great? California defending its own law in court. This was practically a default judgment.
With the exception of the Attorney General, who concedes that Proposition 8 is unconstitutional, Doc #39, the government defendants refused to take a position on the merits of plaintiffs’ claims and declined to defend Proposition 8.
This wasn’t a trial. It was political theater.
August 5, 2010, 12:58 pmCalderon says:
Orin Kerr said:
The judge could make his decision unreviewable — either way — by presenting his legal conclusion as a fact.
I think Orin is using a kind of shorthand here, but just so non-lawyers are clear, appellate courts can and do review factual findings by lower courts to determine if they are “clearly erroneous.” This is a more deferential standard of review than is used to review legal rulings, but still means that an appellate court can reverse factual findings. For example, if Judge Walker made a number of factual predictions in his ruling (as Orin says above), an appellate court can decide that those predictions are clearly erroneous because the evidence in front of Walker did not provide a sufficient basis for those predictions.
In short, factual findings are more difficult to review than legal ones, but are not unreviewable. And of course this assumes that judges actually pay attention to different standards of review; if they don’t, then there may be no difference in reviewability of legal conclusions and factual findings.
August 5, 2010, 12:58 pmyankee says:
Do you have any authority for the proposition that predictions cannot be findings of fact, or that a court making a finding of fact is required to provide a confidence level?
One finding of future fact that comes to mind is juries who are required to reduce a prevailaing plaintiff’s future damages to a single lump-sum. Courts are also required to make judgments about what would have happened in some hypothetical circumstance, which is the essence of but-for causation. We call those sorts of judgments “facts” as well. Predicting what would have happened based on the evidence presented seems in much the same vein as predicting what will happen based on the evidence presented.
In this case, the high degree of certainty Judge Walker’s rhetoric implies seems well-justified by the fact that the plaintiffs presented mountains of evidence that the defendants-intervenors failed to rebut.
August 5, 2010, 1:06 pmBlue Neponset says:
If “rational basis standard “is not subject to courtroom factfinding”” then it isn’t a standard at all. A legislature could pass any law it wanted as long as it attached a reason (no matter how ridiculous) to the law.
What am I missing?
August 5, 2010, 1:09 pmSuperSkeptic says:
I would go further and suggest that “facts” never mattered at any point in this case, and they will not on appeal either.
August 5, 2010, 1:14 pmOrin Kerr says:
Blue,
The only thing you’re missing is that the legislature doesn’t have to attach a reason, but that a court, in its review, has to identify some hypothetical debatable possible reason for the law. Yes, rational basis is extremely deferential: That is one of the common criticisms of the standard, but that’s the state of the law.
August 5, 2010, 1:17 pmMark Field says:
A number of commentators have criticized the standard for exactly this reason.
August 5, 2010, 1:19 pmBlue Neponset says:
Thanks for the response Prof. Kerr. I have no problem with an “extremely deferential” standard, but it seems like what you are describing is a completely deferential standard. Can you (or anyone else) give an example of a law that would not (or has not) passed the rational basis standard?
August 5, 2010, 1:27 pmPasha says:
Something I’ve been curious about: how does the rational basis standard work within the precedent structure? That is, since rational speculation absent proof can be used to pass the rational basis bar, could acquiring evidence refuting said speculation make the law unconstitutional, even though at the point of passing it was? Would bringing a suit too early be damaging to the cause by setting a precedent?
August 5, 2010, 1:31 pmRandy says:
“s. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” But real predictions have confidence levels.”
Perhaps it would have been cleaner if Walker has stated that same sex married couples have not affected the stability of opposite sex marriages. That can certainly be a true finding of fact that.
However, the fact that since SSM has been in effect for almost ten years in some places, and there is no evidence at all that stability has been affected, one can conclude that in the absence of such evidence, such potential instability isn’t proven.
There is a larger point, and that is whether the facts will matter once we get to SCOTUS. This is why if I were either the plaintiff or the judge, I would have subpeoned every major opponent and/or researcher of SSM and put them on the stand for cross examination. Have them present all their arguments, whatever they are, so that they can be examined in the rational view of the courtroom. So when they say that stability will be undermined, force them to substantiate it, or else lose credibility.
That probably would have been outside the scope of the trial, though, but really, it’s the only way to settle out the muck from the real stuff. And there is so much muck.
(It would have been great to have George Rekers talk about how gays make terrible parents.)
August 5, 2010, 1:31 pmSuperSkeptic says:
Indeed. Randy Barnett has a fairly good (tempering my confirmation bias, here) discussion of the practical irrebuttability of the rational basis “rule” in his Scrutiny Land paper.
http://www.michiganlawreview.org/assets/pdfs/106/8/barnett.pdf
August 5, 2010, 1:33 pmBlue Neponset says:
Just answered my own question. Romer v. Evans is some good reading.
August 5, 2010, 1:33 pmcubanbob says:
It is the role of a jury to be the trier of facts, not the judge. The only indisputable fact is that the amendment passed. The court should have either allowed this case to go to trial and leave the fact finding to the jury or it should have dismissed this at the summary. Marriage is a state matter not a federal question as the constitution presently stands.
The California AG ought to be impeached and removed from office for failing to defend this matter. Whether or not he personally agrees with the proposition is irrelevant, millions of qualified California voters expressed their support for this measure and voted for it. It is his job to defend state law and the state’s constitution in the courts his personal beliefs notwithstanding. As for the judge in this matter, he to should be impeached and removed for his highhandedness, as an example to the rest of the judiciary who fancy themselves as legislators.
I believe that gays ought to be able to get married, but this is a political process and should be done at the ballot box and not by highhanded judges who deem to know better than the voters and invent rights that are nowhere to be found in the constitution. Another approach would be to push for the ratification of the Equal Rights Amendment in the various state legislatures, a political process, and that amendment would incorporate the right to same sex marriage.
August 5, 2010, 1:35 pmDissenting Reason says:
Can you (or anyone else) give an example of a law that would not (or has not) passed the rational basis standard?
Romer.
Cleburne.
August 5, 2010, 1:36 pmDissenting Reason says:
Foolisher and foolisher… sure you want to continue going down that road? Might be hard to backtrack, once you realize the futility in the future
Isn’t that Cooper’s argument against rapid social change? Just wait-and-see?
August 5, 2010, 1:39 pmyankee says:
See, e.g. Plyler v. Doe, 457 U.S. 202 (1982) (law banning illegal alien children from public education unconstitutionally irrational); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (zoning ordinance banning group home for the mentally retarded unconstitutionally irrational). There are a bunch of other cases that fall under the “rational basis with bite” framework but they don’t come to mind off the top of my head.
August 5, 2010, 1:40 pmLior says:
Am I the only one that is bothered by the possibility that a SCOTUS decision on a polarizing national issue could depend on a factual record developed in one local trial?
It simply shouldn’t be the case that the ability (or lack thereof) of “Yes on 8″ to argue the social science behind applying the 14th amendment in a particular way would bind the Supreme Court when it comes to discuss these issues. In fact, I think the Supreme Court would view it the same way — I would be really surprised if any Justice would privately show any deference to the “factual record”. Of course the opinion on the pro-SSM side would claim that such deference is important, but that would be a rhetorical device.
August 5, 2010, 1:49 pmjsl says:
Orin, I think you’re skipping past the very simple fact that there ARE same sex marriages in California (18000 of them) and that they HAVE NOT destabilized opposite sex marriages. Judge Walker wasn’t making any kind of prediction; he was making an observation regarding existing facts.
August 5, 2010, 1:51 pmDissenting Reason says:
Personally, I am confident, Orin, that if “your side” has to argue the horrible scariness that permitting same-sex couples equal marital rights in society indeed endangers the homosexual SECURE HETEROSEXUAL couplings
No one has to argue that. The argument could be that social policy should be deliberated by the people and legislators, not by judges, and the social science on the subject is in flux and controversial. Gays and lesbians have just as much right to participate and influence our democratic deliberation about the proper way to subsidize the care of children in family life as anyone else.
August 5, 2010, 1:51 pmADF Alliance Alert » The Volokh Conspiracy: Legal Insights on Perry v. Schwarzenegger says:
[...] Kerr: “More on Whether the Facts Matter in Perry v. Schwarzenegger” (1) If the standard of review ends up being “rational basis,” the factual record [...]
August 5, 2010, 2:05 pmTammy Cravit says:
So, what if the voters passed an initiative that said “It should be legal for good Christian citizens to go door-to-door in California, raping, pillaging from and murdering any Jews (or Muslims, or Athiests, or whatever) found therein.” Set aside the question of whether you could get a majority of the citizenry to vote for that. Should the Attorney General be forced to defend that law, merely because the citizenry voted for it?
I think the truth is that there has to be some difference in the rules of statutory interpretation as applied to ballot initiatives versus how those rules are applied to acts of the legislature. Legislators are presumed to be aware of the existing body of law when they act, and the legislative history of enactments is presumed to at least attempt to harmonize the new enactments with those existing laws. How well these presumptions bear out in practice is a matter for debate, of course, but those are the presumptions.
With ballot initiatives, on the other hand, the voters are almost presumed to be ignorant of the existing state of the law. Really, you can’t even count on the voters having read both sides of the issue in the voter guides. And I would think, the number of those who voted for or against Prop 8 who spent much time thinking about how to harmonize its terms with the law and the Constitutions of California or the US, is vanishingly small. (For that matter, I rather doubt a majority of Americans have actually read the US Constitution and the Constitutions of their respective states in their entirety, though I admit to having no data on this point.)
Given that, how much deference should the law give to the whim of the voters? If the will of the majority should reign supreme, why have courts in the first place? If the voters can enact whatever they want, why have a Constitution? The oft-cited SCOTUS opinion in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638 stated that “the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” If this is so, why is the will of a bare majority — or even a super-majority — of the voters entitled to such deference?
And how can an Attorney General be expected to defend an enactment of the voters which s/he believes is both indefensible and unconstitutional? On what grounds would s/he defend it?
August 5, 2010, 2:09 pmTranx says:
Why? Defendants had ample time and opportunity to present a coherent case. They chose not to do so. That was their choice. If they were so concerned about protecting marriage, they would have mounted some kind of defense in court.
The truth is, they probably threw the trial in order to do what they are doing now: Claim that marriage is under attack from tyrannical judges, and would you please send us some money so that we can “defend” it (and so we can buy some more 5 million dollar mansions).
The people should pay attention to who they are getting in bed with…
August 5, 2010, 2:11 pmMoneyrunner says:
I have no idea why people are arguing the legality of this issue. The people of California voted and the judiciary told them, “thanks for your opinion, but shut up. This really is beyond your pay grade.”
Since we now have even more evidence of the supremacy of the judiciary, supporters of traditional heterosexual marriage will simply have to make sure that the judiciary is staffed by people who agree with them. Then they can simply declare all non-heterosexual marriage null and void. Perhaps as we become more accommodating to Sharia law we can go even further; but that’s a topic for another day.
Laws, voting, “will of the people” and social norms are simply no longer an issue.
I, for one, welcome our black robed overlords. I’m looking to get more on the bench who agree with me and then I, too, can do anything I want. The 14th amendment is infinitely malleable.
August 5, 2010, 2:13 pmRandy says:
Dissenting Reason: ” the social science on the subject is in flux and controversial.”
Actually, it isn’t. One could say that SSM causes a spike in breast cancer rates, but that doesn’t mean it’s so, nor does it show there is a some sort of controversy.
NOM had a perfect opportunity to present all the social science that it wanted to show the harmful effects of SSM, and they weren’t able to do so. Proponents of SSM, like me, have been asking and asking and asking the same question: It is now legal for almost ten years in many jurisdictions, both in the US and in several countries. If there is ANY evidence at all that it is harmful to marriage, divorce rates, raising children, public expenditures, marriage rates or anything at all, please come forward with it. So far, no one has been able to.
Now, you might argue that 10 years isn’t enough time. Fair enough (although one would think that if SSM is such an assault upon the institution, some cracks would start to appear after 10 years). But without any evidence, you are in the realm of pure speculation.
So didn’t NOM put on at least people who would speculate? They couldn’t find any. No one wants to get in to a court room and have their supposed expertise and learned conclusions be ripped apart under cross examination and exposed for what they are — just speculation and fear mongering. That would hurt their speaking fees.
And I think this will ultimately be one of the real outcomes of this case. Win or lose, the anti-SSM had a chance to put their best foot forward, and they couldn’t find any evidential support whatsoever for any of their contentions. This WILL make it into the public debate, and it shifts it enormously. It’s one thing to put on a commercial that gay marriage will lead to making all your kids gay, it’s quite another thing when people eventually realize you just made that stuff up.
August 5, 2010, 2:17 pmDissenting Reason says:
Actually, it isn’t.
Yes, it is. There is ample controversy about it and no final scientific conclusions have yet been rendered.
August 5, 2010, 2:22 pmTranx says:
Why? What civil rights have ever been extedned by the political branches? NONE. Why this one?
Do you ACTUALLY believe in the basis for our country with it’s separation of powers?
August 5, 2010, 2:26 pmCareless says:
How could that possibly happen? Did the judge think that educating children is without cost?
August 5, 2010, 2:26 pmOrin Kerr says:
Lior writes: ” Am I the only one that is bothered by the possibility that a SCOTUS decision on a polarizing national issue could depend on a factual record developed in one local trial?”
Tranx responds: “Why? Defendants had ample time and opportunity to present a coherent case. They chose not to do so. That was their choice.”
I think Lior’s point is that it’s not clear that the course of U.S. constitutional law should hinge on that choice. To see why, flip the party: Imagine that the plaintiffs decided to bring the case but put on no evidence. Would it bother you if the resulting SCOTUS decision hinged on the total absence of a factual record by the plaintiffs? Perhaps it wouldn’t, and you would say, “Boies and Olson had their chance and messed up, so it’s fair that there is no same-sex marriage right for the country.” But I think a lot of people would be reasonably troubled by that.
August 5, 2010, 2:29 pmMoneyrunner says:
The issue of whether homosexual marriage is “harmful” is an interesting argument for sociologists; and possibly in another century we will have studies on its effects. But it’s also a red herring. Why should proponents of heterosexual marriage have to prove that homosexual marriage is harmful?
August 5, 2010, 2:32 pmyankee says:
Been a long time since I read the case, but SCOTUS rejected the argument that the desire to conserve money constituted a rational basis for refusing to educate illegal alien children. You can disagree, but that’s what they said.
August 5, 2010, 2:35 pmDissenting Reason says:
The Matthew Shepard Act of 2009.
The Lilly Ledbetter Fair Pay Act of 2009
The American With Disabilities Act of 1990.
The Fair Housing Law of 1968.
The Voting Rights Act of 1965.
The Civil Rights Act of 1964.
The Equal Pay Act of 1963.
National Labor Relations Act of 1935.
Depending on how broad your definition of civil rights is:
The Food Stamp Act of 1964.
August 5, 2010, 2:36 pmSuperSkeptic says:
If an Attorney General decides he/she cannot do such a thing for those reasons, perhaps she or he should resign. After all, it is his job. If one cannot do one’s job for conscientious reasons, the respectable thing to do is to quit the job. If one stays on the job, but remains derelict in one’s duties, I think it quite reasonable to contemplate the recall or firing of that person. (But I’m not a Californian, so I make no judgment on the matter at hand.)
August 5, 2010, 2:37 pmyankee says:
The burden of proof is on the plaintiffs, but they presented plenty of compelling evidence that gay marriage is not harmful (and is in fact beneficial). The defendants-intervenors failed to rebut the plaintiffs’ case.
August 5, 2010, 2:38 pmDissenting Reason says:
The burden of proof is on the plaintiffs, but they presented plenty of compelling evidence that gay marriage is not harmful (and is in fact beneficial)
Except that isn’t the standard. The standard is (loosely) “categorically eliminate any plausible rationale for the law.” I think the point is that there is a plausible rationale for the law, even if Olson and Boise laid the smack-down and Judge Walker could smell what they were cooking.
August 5, 2010, 2:42 pmTranx says:
I don’t see it that way at all. Anyone else has the ability to file another lawsuit. I could walk down to San Francisco City Hall later today, find some guy on the side of the road, apply for a “same sex marriage” license, get denied, and file a lawsuit tomorrow or sooner.
The state was given the opportunity to defend Proposition 8. It declined. The OFFICIAL PROPONENTS of Proposition 8 were therefore given a fair opportunity to present their case to a judge with the full knowledge that it would be appealed to higher courts. The people that supported Proposition 8 were given the opportunity to intervene as defendants. What about this process is unfair?
What your article boils down to to is: “Holy shit, these guys did a terrible job of defending this constitutional amendment and we want a do-over.”
August 5, 2010, 2:47 pmDissenting Reason says:
“Holy shit, these guys did a terrible job of defending this constitutional amendment and we want a do-over.”
I think it’s more of an explanation of why you shouldn’t get too attached to Judge Walker’s opinion.
August 5, 2010, 2:52 pmAF says:
I basically agree with Orin.
I would point out, however, that the fact that the Supreme Court is likely to ignore the trial record is in considerable tension with the fiction that the Court is like an “umpire” or, for that matter, like other lower courts. An umpire is not supposed to ignore the game that is actually being played because he doesn’t like the choices the managers have made or the outcome those choices lead to.
To be clear, I am not saying that the Court should be constrained by the lower court’s fact-finding. The Supreme Court has a unique role in that it focuses on cases (a) that involve unsettled law, and (b) whose impact extends far beyond the particular litigants in the case. For that reason, acting as an “umpire” is not only unrealistic, but frequently inappropriate. In many cases, it is desirable for the Court to take account of all the available arguments and evidence, not just those that happened to be introduced into evidence by the litigants.
But we should not kid ourselves that this is anything like being an “umpire.”
August 5, 2010, 2:54 pmMoneyrunner says:
Tranx, I assume you don’t have a day job.
August 5, 2010, 2:55 pmjiffy says:
You forgot (among others) the Bill of Rights and the Thirteenth, Fourteenth, and Ninteenth Amendments (from which all of those judicially-protected rights flow).
August 5, 2010, 2:55 pmDave N. says:
And let’s not forget the Civil Rights Act of 1875.
August 5, 2010, 2:59 pmLior says:
Tranx: what Orin said.
In nearly all court cases, each party only represents its own interests. The cost of any weakness in the argument then falls only on that party. But Constitutional cases are different — each party actually represents interests shared among many people, who aren’t directly represented in the litigation. “Yes on 8″ deserves to lose this particular litigation — but ought the constitutionality of SSM bans really depend on the fact that one particular advocate of the ban couldn’t make their case?
As far as I understand, matters of law are reviewed de novo, and high-profile cases of this type attract many amicus briefs. Further, the US Solicitor General might move to intervene on the side of DOMA. Both considerations will ensure that the anti-SSM legal point of view will be adequately presented to the higher courts no matter what.
Facts, however, are supposed to be treated differently — there will no opportunity for anti-SSM organizations to rebut the factual findings on a “de novo” standard. This isn’t to say there won’t be amicus briefs from social scientists trying to show that the findings were wrong, just that in theory the legal standard for overturning findings of fact is different.
To me this point spells a problem with the framework under which appellate review in conducted. A similar one is the “case or controversy” component to standing, which means that nearly all criminal constitutional law is made in cases where a vote for the defendant is a vote potentially setting a free a specific individual who is probably a very bad person. Are you comfortable with a judge contemplating everyone’s 4th amendment rights but knowing that voting for suppression means releasing someone who has clearly (as shown by the inadmissible evidence) committed murder / possessed child pornography / conspired to kidnap?
PS: I happen to like the outcome of the case (and had I been a US citizen and living in CA would have voted “No” in the referendum). I would be very happy to learn that the US Constitution contains a right to marriage equality. I should also be honest and say that I’m not so sure that it does.
August 5, 2010, 3:02 pmMark Field says:
This is just flat wrong. Judges serve as triers of fact every single day.
August 5, 2010, 3:05 pmMark Field says:
I think this depends on how broadly the issue is framed. If we take Judge Walker’s opinion as saying that all gay marriage bans are irrational, then your point is well-taken. But if the 9th C narrows the ruling such that only this particular ban is, then the considerations you and others have noted have much less force.
Speculating on what the Supremes will do in the absence of knowing the precise legal posture strikes me as jumping the gun.
August 5, 2010, 3:09 pmLior says:
@Tranx:
This is true while this remains a District Court ruling, which is not a binding precedent anywhere. But we are talking about review by the Circuit Court of Apples and the Supreme Court. Once the Supreme Court rules, it will be well-nigh impossible to file a case trying to get a different result. Certainly every lower court will be forced to summarily dismiss such cases. Similarly, once the 9th Circuit Court of Appeals rules, the ruling will be binding in the entire circuit.
So the question is: say that “Yes on 8″ continues doing shoddy legal work in front of the 9th like the did in front of Judge Walker. Would you really be comfortable with the fact that the right of Nevada to amend its Constitution to ban SSM could be eliminated because some group from California couldn’t muster its arguments?
August 5, 2010, 3:10 pmSuperSkeptic says:
Indeed. But really, we can stop playing this game because every civil right ever given is by virtue of the political process. It is inherent in the definition of a “civil right,” i.e., granted by civil government. Judges are products of the political process too, let us not forget (how could we while debating this decision?); so, they are all “political branches,” and every “civil right” comes from one by definition.
August 5, 2010, 3:11 pmTranx says:
Almost all of these have been preceded by court decisions. I might give you the Matthew Shepherd Act, But that would require I ignore all the state court decisions that preceded it and the fact that it was really just an extension of prior laws, that were preceded by court decisions.
As a prime example, the Civil Rights act of 1964 actually extends far less liberty than prior court decisions dating back to the 1950′s required at that time. That you would cite this as proof that it actually extended civil rights shows that you simply are ignorant. Congress passed the civil rights act because they wanted to save face after a string of stinging defeats in courtrooms across the country.
August 5, 2010, 3:12 pmOrin Kerr says:
Assuming Tranx is not a troll — and on that I am unsure — he is entirely missing the point. Boies and Olsonhave been clear from Day 1 that they are aiming for the Supreme Court, not the District Court. And Judge Walker’s opinion reveals the same interests: As Dahlia Lithwick explained, Walker wrote his facts as sort of brief for Justice Kennedy if/when the case gets to the Supreme Court. What we’re talking about is how the district court factual findings matter on appeal, and especially at the Supreme Court — that’s the stage that we’re discussing.
August 5, 2010, 3:14 pmOrin Kerr says:
Ah, I see Lior beat me to the point.
August 5, 2010, 3:15 pmDissenting Reason says:
Your standard is nonsense.
Congress passed it; the President signed it; it provided a civil right.
The political branches provide civil rights.
August 5, 2010, 3:17 pmTranx says:
I agree, you have your opportunity now though. It’s not my fault if you choose not to exercise it.
I believe that’s the way the system works. Is Nevada being denied the opportunity to file an amicus brief or petition to be joined to the lawsuit?
August 5, 2010, 3:21 pmTranx says:
No it didn’t. It reiterated existing civil rights that courts had already found were required under the constitution and couldn’t be taken away from citizens. The Civil Rights Act of 1964, in reality, did absolutely nothing.
August 5, 2010, 3:24 pmDissenting Reason says:
I believe that’s the way the system works. Is Nevada being denied the opportunity to file an amicus brief or petition to be joined to the lawsuit?
Actually, that is not how the system works, which is the point. The reason SCOTUS usually waits for a Circuit split is not just because that is a basis of jurisdiction, but also because it is imprudent to step in hastily and craft a uniform rule that creates winners and losers and perhaps polarizes politics. We are discussing prudence. Polarizing a contentious social policy debate involving controversial social science where no settled rules have emerged in a majority of jurisdictions by relying on one trial judge’s credibility findings of expert witnesses is not prudent.
August 5, 2010, 3:27 pmHerbert says:
Justices who favor reversing the trial court ruling will mostly ignore the actual trial record. Numerous amicus briefs will be filed by interest groups, citing studies, statistics, views of history, and other “facts” that are not part of the record.
Justices will cite such “facts” in their opinions as support for the desired result. No matter that these “facts” were never tested on cross-examination, and the parties were afforded no opportunity to refute them.
This has become standard operating procedure at the Supreme Court. It is an unfortunate practice, but there is no denying it occurs.
August 5, 2010, 3:28 pmCurt F. says:
But what if all the relevant state officials really did believe that Proposition 8 violated the US constitution? Defending the proposition in spite of their belief in its unconstitutionality would have violated their own oath of office, wouldn’t it?
It’s an oath that I believe nearly all California state employees are required to take.
August 5, 2010, 3:32 pmDissenting Reason says:
You claimed that the political branches had never provided ANY civil rights. (“NONE.”)
To disprove your categorical claim, I need only to provide one example.
I gave you a list of counter examples. You are now nitpicking at one of the items on the list.
Just like Olson and Boies, you have not met the applicable standard.
August 5, 2010, 3:32 pmSuperSkeptic says:
Interestingly, this point is also discussed in the article I’ve linked above, and it (how one characterizes the right or liberty interest at stake in any given litigation) is considered by the author to be “the dirty little secret of constitutional law.”
August 5, 2010, 3:32 pmTranx says:
I agree. I believe it would be prudent for the Supreme Court to refuse this case, regardless of the outcome. I don’t think this court will chose that route.
August 5, 2010, 3:35 pmDissenting Reason says:
Actually, you and I do not agree. The rest of my quote is as follows: “We are discussing prudence. Polarizing a contentious social policy debate involving controversial social science where no settled rules have emerged in a majority of jurisdictions by relying on one trial judge’s credibility findings of expert witnesses is not prudent.” That is every reason for the Ninth Circuit, which has to hear the appeal, to take a skeptical and critical view of Judge Walker’s factual findings. Is that, too, your position?
August 5, 2010, 3:41 pmt1 says:
I think I recall from the opinion that Walker based that empirical studies of MA after the legalization of same sex marriage. I guess you could argue that that just because opposite-sex marriages haven’t yet been damages in MA doesn’t mean that they won’t be in the future but that is purely speculative.
August 5, 2010, 3:42 pmGuest12345 says:
Does federal legislation trump state constitutions? Also, are state constitutions even subject to review – rational basis and the like?
August 5, 2010, 3:43 pmTranx says:
And you are taking the approach of the Prop 8 lawyers and throwing every conceivable option at me so that at least one sticks.
All the examples you gave have at least one court decision that preceded them. Most have a Supreme Court decision that preceded them.
I’ll task you again. Find me an example where civil rights have been extended to a group of people without the use of the courts.
Our system of government was set up such that the courts are tasked with protecting minority rights against the tyranny of the majority. The majority will rarely, if ever, put the rights of a minority above their own. Our forefathers knew this and created a separation of powers. To suggest that SSM has to go through a political process to convince the majority that gays and lesbians are worthy of the equal rights that they are guaranteed, disrespects our system of government.
August 5, 2010, 3:47 pmJustin says:
There are apparently two Justins out there. I agree with the first Justin, though.
August 5, 2010, 3:49 pmTranx says:
Did you pay attention to the trial?
Additionally, higher courts can still review the evidence and determine that any of Judge Walker’s findings of fact was erroneous. They just typically do not.
August 5, 2010, 3:53 pmt1 says:
It’s also interesting that Walker excluded the proponents’ experts’ testimony on Daubert grounds.
If he is reversed, the Court doing it will do so without any factual support in the record that I can see.
August 5, 2010, 4:02 pmDissenting Reason says:
I’ll task you again. Find me an example where civil rights have been extended to a group of people without the use of the courts.
This is a completely different standard (and a vague one).
The original standard was “What civil rights have ever been extedned by the political branches? NONE.”
August 5, 2010, 4:04 pmMark Field says:
Which is, of course, subject to review by the Court of Oranges.
I didn’t read the article you linked, but I certainly agree that this is true.
Generally speaking, yes.
Yes.
August 5, 2010, 4:12 pmDebauched_Sloth says:
Blue Neponset: Your intuition is correct. The rational basis test is not a test at all, but rather a jurisprudential fraud masquerading as a standard of review.
The list of “conceivable” justifications for Proposition 8 is essentially endless. The notion that every one of them could be identified — let alone falsified (which is what the rational basis test requires) — is not only absurd, but probably defies formal logic as well.
When the government loses rational basis cases, it is not by failing to advance technically rational justifications for the challenged law. Instead, it is by advancing technically rational justifications for the law that are so implausible, so obviously pretextual or ad hoc that a the reviewing judge/majority is simply unwilling to be complicit in the charade.
It all boils down to the question of how hard judges will work to pretend the government is acting for genuinely public-spirited reasons in the face of strong (often very strong) indications that it is not. If the constitutional values at stake are among those that courts still care about—such as free expression and preventing animus-based racial discrimination—then judges will tend to be fairly skeptical of dubious-sounding government justifications. But if the constitutional value at stake is one the courts no longer care about—such as private property ownership or enumerated federal powers—then courts will typically accept at face value pretty much anything a government lawyer can say with a straight face. Which is, in a nutshell, rational basis review.
August 5, 2010, 4:13 pmTranx says:
I’ll stand by the original statement, as I don’t see anyone actually giving me an example of a civil right that has been extended through the political process.
The courts have historically been the avenue to win civil rights. To claim otherwise, or that this shouldn’t be the case for SSM, is dishonest.
August 5, 2010, 4:32 pmDissenting Reason says:
’ll stand by the original statement, as I don’t see anyone actually giving me an example of a civil right that has been extended through the political process.
The Matthew Shepard Act of 2009.
August 5, 2010, 4:34 pmThe Lilly Ledbetter Fair Pay Act of 2009
The American With Disabilities Act of 1990.
The Fair Housing Law of 1968.
The Voting Rights Act of 1965.
The Civil Rights Act of 1964.
The Equal Pay Act of 1963.
National Labor Relations Act of 1935.
Depending on how broad your definition of civil rights is:
The Food Stamp Act of 1964.
Guest12345 says:
I know I’m off topic with this whole line of questions… but this is to say then that the federal government can override Alabama’s Constitution Section 21:
And empower the governor of Alabama to suspend the laws of the state?
August 5, 2010, 4:47 pmTranx says:
Ledbetter v. Goodyear 2007. This wasn’t even a civil right. Congress merely amended a law to clarify when legal challenges can be filed. I guess if you consider your right to sue an employer after 180 days a civil right, we can really stretch things. Do you really want me to go on, because it could just get embarrassing for you…
August 5, 2010, 4:49 pmMartinned says:
Sure, if they have a basis in the Federal Constitution for doing so.
August 5, 2010, 4:56 pmRodger Lodger says:
This whole question is a nothing-burger. When deciding what the law is, e.g., what the Constitution means, a court can use any source it wants for facts. This is so under the law of judicial notice (when doing law, not the facts of the transaction or accident), and was established in the Supreme Court by the use of Brandeis briefs. It follows that it doesn’t matter what conclusions the trial judge reached from the evidence….this is a legal issue.
August 5, 2010, 4:59 pmWhaddona More says:
I’m trying to square Kennedy’s view from Heller with his vote on Romer. This is why I hated Con Law as a 1L.
August 5, 2010, 5:02 pmDissenting Reason says:
Let’s check what The Leadership Conference, “the nation’s premier civil and human rights organization” thinks. Their website is “www.civilrights.org.”
August 5, 2010, 5:17 pmDissenting Reason says:
The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership of more than 200 national organizations to promote and protect the civil and human rights of all persons in the United States. Through advocacy and outreach to targeted constituencies, The Leadership Conference works toward the goal of a more open and just society – an America as good as its ideals.
The Leadership Conference is a 501(c)(4) organization that engages in legislative advocacy. It was founded in 1950 and has coordinated national lobbying efforts on behalf of every major civil rights law since 1957.
August 5, 2010, 5:20 pmCareless says:
And I thought I had a low opinion of Supreme Court Justices before.
August 5, 2010, 5:32 pmJoe Blow says:
Rule by judicial fiat continues!
The rule of law is dead! Long live supremacy of the judge over the law.
Judges are moralists. The law used to represent the morals of society, now it represents the lack of morality of the judge. By discounting morality as the basis of law, Tauro and Walker have sawed the branch on which they are sitting.
Can they argue with a straight face that a ban on say, polyandry, is not rational?
But then, if morality is out the window, nothing would be impossible! For now, just kick the can down the road, Judge Walker!
August 5, 2010, 5:39 pmTranx says:
Because I’m sure that they have NO INTEREST in tooting their own horn.
The Lilly Ledbetter Act clarified that you had 180 days to sue your employer for pay discrimination and that the clock re-set every time there was an instance of pay inequality. Sorry, I don’t consider this “extending a civil right” through the political process.”
Furthermore, the original argument was that SSM marriage proponents should use the political process, and not the courts, to get get access to the civil right of marriage. In the case of Lilly Ledbetter, there was a series of court cases that led to Congress passing the Lilly Ledbetter Act. You simply can not make the claim that this “right” would have been extended had Lilly Ledbetter chosen to petition Congress as part of the political process in order to attain this right. She sued in court to get this right.
August 5, 2010, 6:01 pmjrose says:
While I agree with Orin’s legal analysis, I note that if the standard is even slightly above rational-basis review (e.g., Romer?), these facts are very persuasive. They aren’t to the level of 2+2=4, but based on the evidence, they are far more compelling than the alternatives.
August 5, 2010, 6:05 pmDissenting Reason says:
You simply can not make the claim that this “right” would have been extended had Lilly Ledbetter chosen to petition Congress as part of the political process in order to attain this right.
No, I can make the argument that workplace protections in the ADA and ADEA and Title VII preexist her court case and that workplace protections are civil rights.
Sorry, I don’t consider this “extending a civil right” through the political process.”
I don’t consider you to be anything but a troll!
August 5, 2010, 6:11 pmJohn says:
Tranx,
The 13, and 14th amendments granted civil rights through the political process. What court cases prior to these amendments granted these civil rights?
August 5, 2010, 6:14 pmChris Travers says:
Heller v. Doe’s an interesting case. However, I have to ask: In a previous VC post, there was a discussion about a rational basis challenge to Denver’s pit bull ban allowed to go ahead by the 10th Circuit (reversing the grant of a motion to dismiss) on the basis that the matter could not be decided without a developed record of evidence. Does this mean that case is clearly in error? I would have doubted it and so I went and looked at Heller v. Doe. This is a larger excerpt of what the court said immediately proceeding the part that Orin quotes:
So I went looking for the origin of the “reasonably conceivable state of facts” standard. I found the earliest version I could find in McGowan v. Maryland (upholding via rational basis review a set of restrictions on what could be sold on Sundays):
I don’t read this as saying that courtroom fact-finding is irrelevant at all. Rather I see it as a restriction on what the subject of that fact-finding is. Merely because the legislature is factually mistaken, acting in an unwise manner, made a bad legislative choice, or haven’t submitted evidence doesn’t make the law Unconstitutional. Rather what I think the court is just saying is that the burden of proof is given to those challenging the law, and that it is a fairly high one, namely that the division must be shown to be arbitrary or the means sufficiently disproportionate. Some laws are struck down under rational basis review on a factual record. For example, the Supreme Court struck down near-total prohibitions against inmates getting married. The court held that the state could require prior license by the warden, but that the prison with such a policy had to stop short of a near-total ban and had to address this on a case-by-case basis (see Turner v. Safley, 1987). Am I reading Turner wrong and it is not actually rational basis review that’s applied?
It’s certainly imaginable that the state was right, and that one could conceive of a set of facts whereby love triangles would cause problems as the state alleged. One could also imagine other circumstances where this could be a problem if one tried, and one could imagine cases where maybe lots of prisoners got married to people they could manipulate in order for help obtaining contraband. In short there was certainly a conceivable state of facts to support the law, but nonetheless, what doomed was the way that the Supreme Court looked at the factual record in that case.
To be honest after reading more and more of these opinions, it looks like rational basis review is all over the place when it comes to the role of the factual record. Sometimes the Supreme Court (even in the same year!) seems to take a greater interest in the facts than other times. So I’m deeply confused.
August 5, 2010, 6:16 pmTranx says:
Well, there were a slew of relevant court cases preceding the 13th and 14th amendments. Do you really want me to list them all?
I go back to the other person’s original post which indicated that it was improper for SSM advocates to use the courts to progress their fight for equal rights. That’s simply not the case.
August 5, 2010, 6:25 pmNobody Really says:
The first 10 amendments. The 14th amendment. The 19th amendment.
Typically, adding newly protected categories of minorities is in fact done not only with a political process, but one that requires large super-majorities.
August 5, 2010, 6:26 pmNobody Really says:
You just are missing the underlying reality: All of these machinations are rationalizations, not actual reasons for deciding the case. If you want a certain outcome and the facts support it, you reference the facts. If they don’t, you don’t.
August 5, 2010, 6:31 pmNobody Really says:
The supreme court gutted the 14th amendment shortly after it was passed.
August 5, 2010, 6:32 pmMark Field says:
Yes. It’s a little hard to imagine that there actually is such a basis, though.
August 5, 2010, 6:35 pmChris Green says:
I agree with Orin’s analysis. The question of weather a law will provide benefit (or harm) is an entirely different question then weather a law is unconstitutional.
When a judge basis a decision, not on law or constitution, but on what will be the most beneficial, he has combined two branches of government (legislative and judicial) into one person. For those who think this isn’t a problem, consider that the genius of the US constitution was not the formulation of a democracy or a representative republic (already invented by the Greeks and Romans) but the brilliant method of checks and balances by which a large nation can avoid eventual tyranny by one government group or another.
August 5, 2010, 6:44 pmJohn says:
Could you give me one or two perhaps. Cases where the court established the rights later granted by the legislature please.
August 5, 2010, 6:45 pmDissenting Reason says:
No one wrote that. What I wrote was:
In other words, such an argument would constitute a rational-basis and a reasonable voter or legislator could hold such a view. I did not state that was my view.
August 5, 2010, 6:47 pmTranx says:
Sorry, the 1-10th amendments don’t add any minorities to the constitution. Neither does the 14th. They all relate to everyone.
I think the only one that could conceivably be constructed as adding a minority protection to the constitution is the 19th, and I think women are a majority, so that one doesn’t hold water either.
Perhaps you would like to try again?
August 5, 2010, 6:50 pmClayton E. Cramer says:
Tranx needs to actually read some history books. The 14th Amendment was adopted for a very specific reason: to protect the rights of blacks from abuse by state and local governments. As it was written, it was a bit broader than that, and the courts have taken the equal protection and due process clauses and run with them, but pretending that the 14th Amendment was intended to protect “everyone” is pretty ignorant.
I’m still waiting to see Tranx’s list of court decisions that abolished slavery and recognized equal protection of blacks under the law that Tranx claims predate the 13th and 14th Amendments. Hint: there’s a reason that Congress felt the need to pass these amendments to the Constitution. In the case of the 14th, it was at least in part to overturn one of the previous court decisions: the Dredd Scott case.
Tranx needs to read some history before mouthing off.
August 5, 2010, 7:07 pmChris Travers says:
Might not be the kind of right you are talking about but what about fair use of copyrighted material?
August 5, 2010, 7:22 pmTranx says:
Sorry, that’s not actually the case as evidenced by the language that indicated it would apply to all people when it was passed in Congress. Furthermore, if the amendment had been intended only to protect the rights of the negro people when it was written, I’m pretty certain that it would have stated such in the actual text. Also, the 14th amendment included quite a bit more than the [Negro] Equal Protection Clause that you claim.
Maybe you should read a history or a law book.
August 5, 2010, 7:22 pmChris Travers says:
That’s what it looks like from the outside, but I have a lot of trouble with the idea that every justice goes back and forth on that. Either every justice is a results-driven activist or I am missing something, and it’s far more likely to be the latter.
It would be interesting to take all these cases and look at the records of facts developed that was handed up to the court. It may be that there are significant differences in those the record of the case that eschew factual analysis an those which focus on it.
August 5, 2010, 7:26 pmTina S says:
It is really not clear that “Sexual orientation is a fundamental characteristic of a human being”. This suggests that it is ‘in the genes’. But it is not in the genes. We know this because reputable studies of twins (who have identical genes) show that where one twin is homosexual, there is only a 50% chance of the other twin being homosexual. This suggests that sexual orientation is something developed in childhood. But in this case, is it really a fundamental characteristic of a human being? It really is not understood.
Furthermore, no serious study is done on whether sexual orientation can be changed, because it is thought too politically incorrect to take the question seriously. I do not say it can be – but we just don’t know. Other characteristics learnt in childhood – like selfishness, criminality, aggressiveness, jealousy – can be changed in some people, those who are sufficiently reflective and have sufficient self understanding. Perhaps homosexuality too. We just do not know. We do not understand the psychological mechanism which makes someone homosexual, nor whether it can be changed. This suggests that the law should not be changed until more evidence is in.
As for “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”. Well this is not necessarily true. If the meaning of marriage changes – currently most people think of it as between a man and a woman, and as the institution within which people should have children – then this may affect people’s attitudes towards marriage and whether they choose to marry.
August 5, 2010, 7:30 pmLaura(southernxyl) says:
You think educating the children of illegals is expensive? Think about having an uneducated, unemployable permanent underclass growing up in our midst. Wow.
August 5, 2010, 7:33 pmCareless says:
Not the children of illegals, illegal children. And yes, we already have one of those. But the reason for my contempt here is that not only are they making crap up, they’re not even pretending to try to find a legal reason for it. They just used one that plainly makes no sense. If they had, say, made up some new right or not used a rational basis test, that could at least be coherent. This appears to be both results based and stupid, which is the unusual sin for Justices.
“It’s irrational for the government to care about a significant expense” requires either exceptional stupidity, or exceptional disregard for truth and consequences.
August 5, 2010, 7:40 pmChris Travers says:
My own personal theory is that for most people it is. There have been societies in the past where most upper-class men engaged in sexual relationships with other men. We also know from Kinsey’s studies that sexual orientation can change at least somewhat over time, particularly for women.
I suggest that bisexuality is a lot more normal than we think and that a large portion of “straights” would be bisexual if the society was generally supportive. I wonder if many people don’t get knocked a notch or two down the Kinsey scale due to social conditioning. In this view we may perceive sexual orientation (particularly if we are straight) as something unchanging, but that may be in large part because we are trained to think of it as unchanging and our society still makes gay sex taboo. In fact, it’s quite possible that we are divided into a small number of real gays, an equally small number of real straights, and the rest of would, for example, if we were upper class citizens of Sparta, be quite capable of real bisexuality.
I say this as a somewhat amateur historian. I think history shows us a lot about the human condition and how far society shapes us. The spirit of our times shapes us too. How far does it do so? Who knows?
August 5, 2010, 7:57 pmNobody At All says:
Let’s flip the party, again, back to the actual state of the matter: In this case, the plaintiffs argue that a discriminatory state law is depriving individuals of federal constitutional rights. Why should it not bother us if the judiciary could uphold a government’s allegedly discriminatory law, without requiring an iota of evidence that the law is non-arbitrary? I mean, isn’t the judiciary confined by the “case and controversy” requirement? At some point, your interpretation of rational basis review requires the judiciary to produce an advisory opinion.
So, let’s think about this. Under rational basis review, the government (or, here, the proponents) have to identify some hypothetical, non-arbitrary reason for the law. We want to protect legislative policy judgments from judicial second-guessing. Fine; I’m with you on that.
But why would this reason require the plaintiffs to *guess* at the government’s defense, and lose on appeal if they failed to guess at a theory that, post-trial, some blog thought up?
Likewise, why should a plaintiff lose because, although he put on strong evidence that a law was arbitrary, he failed to *guess* some evidence – not presented at trial – that the law was not arbitrary?
Rational basis review is deferential, but its purpose is allow legislatures to make policy choices, not to allow lawyers to game the justice system. Hiding your cards until trial is complete, not allowing the plaintiff to know what theory you might advance or why it might be non-arbitrary, is not the purpose, nor the theory, of rational basis review.
If there is any room for the court in rational basis review it should *at least* be this: “Government, please tell us your theory of the law, and give us a reason that it is not arbitrary.”
In this case, the court cites 4 theories relied on by the defendants (page 8 of the decision), and reviews evidence relevant to the arbitrariness of those theories. While an appellate court is not bound to fact-finding in the sense of whether a trial court determines the advisability of a policy, it is unclear why this sentence should be construed to eliminate the factual record regarding the arbitrariness of the law.
August 5, 2010, 8:08 pmSuperSkeptic says:
Well said at 7:57 Chris.
August 5, 2010, 8:44 pmJohn says:
Tranx,
Would you accept that the 13th and 26th amendments were passed through a political process that granted new rights. Would you also accept neither of these were preceded by court decision that granted those rights? If you would disagree with either of these, please provide some type of evidence to the contrary.
August 5, 2010, 8:53 pmRandy says:
Tina S: “Furthermore, no serious study is done on whether sexual orientation can be changed, because it is thought too politically incorrect to take the question seriously.”
Hardly. The issue has been extensively studied. Most of them state that they know that sexual orientation is set by at least the age of 7 or so. Once set, it doesn’t change. (It may be set earlier, but it is difficult to gauge a person’s orientation earlier than that. Nonetheless, other studies have shown that it is set much earlier, perhaps at birth, and there are ways to devise that.)
Furthermore, there is a great body of evidence dealing with attempts to change one’s sexual orientation, and the results are quite clear. You can’t, and there is no evidence that you can. Even Exodus, which is the leading ‘ex-gay’ organization, says that most people can’t change their orientation, and for the few that do, it’s a ‘lifelong challenge.’ Exodus says that for most, success is getting you from begin gay to being asexual. In other words, you just refrain from having sex with anyone.
There are people who claim to change, but most likely, they were bisexual to begin with. There are a lot more bisexuals out there than we care to admit, certainly. And you can, with effort, repress one side of your being and proclaim yourself ‘cured.’ But that isn’t true, of course — it’s mere repressions. Those attractions remain and stay with you your entire life.
“Other characteristics learnt in childhood – like selfishness, criminality, aggressiveness, jealousy – can be changed in some people, those who are sufficiently reflective and have sufficient self understanding.”
Homosexuality isn’t a learned experience. No one teaches anyone to be gay.
“This suggests that the law should not be changed until more evidence is in.”
Why? Why not just accept the fact that a certain percentage of the population will always be gay? Or are you suggesting that we shouldn’t have laws to allow equality for gays if they can change? It’s like saying we shouldn’t bother with religious freedom, since everyone has the capacity to change to Catholicism.
Homosexuality isn’t something new. It’s been a part of human history in every age, and in every society. Time to deal with it.
August 5, 2010, 9:02 pmRandy says:
Chris: ” In fact, it’s quite possible that we are divided into a small number of real gays, an equally small number of real straights, and the rest of would, for example, if we were upper class citizens of Sparta, be quite capable of real bisexuality.”
My feeling too. When you spend a large chuck of your youth deep deep deep in the closet, as I have, you see the same things in other men. You are attracted to men, but you can’t act on it, and you certainly can’t let others guess you are attracted to men, and so you develop certain ways of looking and acting to try to hide that. (This is why gay men have such good gaydar). And of course, it becomes quite easy to see that in other men, and yes, I see that in many men, many who otherwise appear totally straight to others.
And that would explain a lot of anxiety about gays. They are mostly straight, or maybe only a little, but they know they have experienced attractions to other men, and that scares them. Hence the fears that if homosexuality becomes normalized, then we will ‘recruit’ men. What they really fear is that their attractions might get the best of them, and then they will be gay.
Classic examples are Ted Haggard, Larry Craig and George Rekers. If you yell the loudest anti-gay slogans, no one will suspect that you really are attracted to men, right? They are working out their conflicts publically, and in ways that are harmful to other gays, but they don’t care. Its’ classic cognitive dissonance.
And yeah, the ones who are the most anti-gay are often the gay themselves. And yes, Tina, that HAS been researched.
August 5, 2010, 9:13 pmq says:
Not really. My weight is a fundamental characteristic, but that’s not entirely based on genetics.
Wow, 50% is quite high relative to the baseline of 3% or so. If those numbers are true, that would actually be very strong evidence that it is mostly a genetic thing.
August 5, 2010, 9:47 pmHerbert says:
Your argument seems illogical. Say the odds that any randomly selected child will grow up to be gay is two percent, or five percent, or whatever number you like. However, fifty percent of the time, if one twin is gay the other is too. This strongly indicates that genes are by far the single most important factor determining whether a child will grow up to be gay.
Common sense lends confirmation. Why would people voluntarily choose a lifestyle exposing them to ridicule, shunning, banishment, or in some instances lynching or execution, and voluntarily deny themselves basic rights heterosexuals take for granted. What is the great advantage, whether evolutionary or by any other measure, that would induce so many people to “choose” a homosexual lifestyle?
August 5, 2010, 10:02 pmSteveW says:
Is a constitutional amendment adopted at the ballot box the same as a “legislative choice”? I would think a legislative choice is a decision of the legislature, which should be due greater deference than a ballot measure.
August 5, 2010, 10:20 pmChris Travers says:
I agree. Which is why I think the appropriate response is to strike down the law on the grounds that the state didn’t meet it’s burden, but leave open the possibility of a further voter initiative, etc. which could be better defended.
August 6, 2010, 12:11 amCareless says:
I just can’t get over it: the Supreme Court ruled that budgets are irrational.
August 6, 2010, 12:16 amChris Travers says:
Prof Kerr:
Do you think that municipal pit bull bans would ever fail rational basis review?
If not, was the 10th Circuit in error when it reversed a dismissal on the grounds that the allegation demanded the development of a record of evidence?
August 6, 2010, 12:16 amChris Travers says:
In case anyone doesn’t see what I’m getting at here, I don’t think default judgements should be binding on third parties…..
August 6, 2010, 12:17 amAlan K. Henderson says:
Somebody answer this question: what’s so wrong with alternatives to SSM that would simply create contracts for nonmarried couples to qualify for privileges normally associated with marriage?
August 6, 2010, 12:21 amCareless says:
Legally or practically?
August 6, 2010, 12:39 amOrin Kerr says:
Tranx, Dissenting Reason:I had to delete some of your posts because they were outrageously uncivil. If you cannot be civil, I will ban you.
August 6, 2010, 1:29 amGoggins says:
.
The Civil Rights Act of 1964 made discrimination on the basis of race by private parties unlawful. Courts construing the Equal Protection Clause couldn’t have done that, because the clause requires state action.
August 6, 2010, 1:37 amORID says:
I know this issue is full of emotions which I don’t understand. I have attempted to edit out statements of mine that are offending. I want to make it clear that I approach this as a member of the camp who thought he was voting for a Proposition that saved the term “marriage” to between man and a woman. Not someone who wanted to deny rights and privileges from same-sex couples in the state of California. I want to bring up some points. (and I want to add its impossible to have a coherent discussion with the stream of Prop 8 posts coming).
I find the facts of harm to be speculative and derivative. I don’t know where I read the case, but there was a woman whose husband died in the 9/11 attacks and she committed suicide (it may have been random PACER browsing of Central District California?) Her family attempted to collect money from the 9/11 funds, but the judge ruled that the harm was derivative and not allowed.
Before waging into the controversial issues, the fact that cities and municipalities are “harmed” because they can’t collect fees to perform ceremonies is ridiculous. It’s simply a risk of becoming part of a state. When you choose to become part of the state, there is a risk that you may be harmed by acts of the voters or legislature, and democratic process which you as a city may not like.
I see this case as trying to balance between not depriving same-sex couples the rights and privileges of “marriage” and allowing folks like myself who have a strong religious belief that “marriage” is only between a man and a woman. I don’t have any interest in ensuring that same-sex couples are treated inferior to hetero-sexual couples; that’s not why I voted for the act.
I voted for the Proposition for the sole fact that I want to save the term “marriage” as between a man and a woman. If voters aren’t allowed to say “we want ‘marriage’ to refer to male-female relationship” than I don’t know what the hell voters can do that won’t get overturned.
“Marriage” needed a savings clause, and Prop 8 was it. Nothing more. Arnold needs to get off his butt and say that the state is now going to stop issuing “marriage” licenses and will now issue “civil unions” to everyone. It’s the only solutions that can make people like myself who think “marriage” is a term reserving for man-woman relationship and same-sex couples who shouldn’t be denied rights and privileges of “marriage”.
Note that I take a different viewpoint than the “Yes on 8″ people who clearly want a state-sanctioned protection of something called “marriage”, which to me is laughable. I can’t stop laughing when I read paragraph 35 which outlines the state’s interest in “marriage”. What’s the rational basis for organizing family units? I don’t understand what the “realm of marriage for intimacy and free decision making is.”… oh and “stable households”? Laughable. Laughable because of the government’s utter failure. Marriage as an institution in society has been dead for awhile, can’t we recognize that?
It may be true that the Federal Government channels benefits through marriage through states; but how is that California’s fault? How is that traceable to the state of California, when California, by pre-emption cannot regulate immigration. Oh, now we get to paragraph 49 where it talks about California encouraging gays and lesbians to adopt children. Yes, yes, yes, because California doesn’t discriminate against gays and lesbians! The harm comes from some other source. How does having “marriage” in California remedy all these wrongs?! The only way it could is if this Court ruling held to every other state in the union. Are SSM proponents going to file lawsuits in every state asking for the same recognition?
The harm simply comes from not having the term “marriage” defined on the relationship by society? Why shouldn’t this case be thrown out on causation and remedy grounds? It’s California’s fault that other states and the Federal Government don’t recognize our domestic partnerships? It’s California’s fault that the feelings of the general public are that “same-sex marriage is inferior” may be causing some hurt feelings? File lawsuits against the Federal Government and those states then. File lawsuits when people hurt you. File lawsuits in “as-applied” cases.
Okay, I see some harm in the differences between the civil code. I guess my point is the remedy should be to allow Prop 8 to stand, and strike “marriage” with some other term in the California civil code. Of course that remedy still could occur. If it is true as this case has found that the California civil code is going to be distinct between marriage and domestic partnerships, than I think the civil code should change so that “marriage” is not a term used.
Wait a minute, the ruling said that First Amendment rights won’t be affected, it then goes on to say that “Religious Beliefs are harmful to homosexuals.” Where does it say that religions advocate harming homosexuals? Can I sue because the state won’t let me marry “friends”! But, but, but, the state is saying friendships are inferior to marriages!
August 6, 2010, 2:33 ammythago says:
What would be really great is if people commenting on the trial and the opinion actually followed the trial and the opinion, instead of apparently commenting on sound bites from their preferred media source.
This was ‘practically a default judgment’ because the Yes on 8 team could not put on a case. The idea that the State deliberately lost the case is fantasy. It’s like listening to a sports team that spent the whole practice season drinking and partying instead of training get beat and then complain about how the umpire was totally biased.
August 6, 2010, 2:56 amORID says:
Gender is not relevant to marriage? That’s his opinion.
No one is withholding “marriage”, ie. the fundamental relationship between same-sex couples.
We are withholding “marriage”, ie. the term used to denote a certain relationship between male and females.
How is it a fundamental right to have a specific term classified in some way? This opinion is wholly written to inflame Christians (or other religious groups who believe in the traditional definition of marriage). I’m still trying to see how California is treating the relationships differently (okay, the civil code is different, but the judge didn’t provide any distinctions). “Choice of maritial partner” is a right?
I fail to see the judge develop how California is causing any of this harm. It really does seem like the argument is about the term “marriage”. Holy cow, I was hoping my perception was wrong. This is crazy. How can there be such a big fight over the term “marriage”, but there it is.
Please someone show me the particular, and traceable harm being caused by California distinguishing between relationships, in an equal and parallel manner. There was no argument that states shape social understanding, so how does California not being able to distinguish remedy the harm? The state can’t force people to have certain religious beliefs. Does the 1st amendment freedom to religion violate someone else’s individual right to not have their feelings hurt because I don’t think their relationship should be called “marriage”?
To be honest I really have been serious about having this fight over the term “marriage” but I’m not so sure now. If there really was some rights or privilege or some really “separate not equal” thing about “marriage” in California other than the public recognition that was caused by California, I would be willing to concede the argument. But the judge didn’t articulate that. He clearly stated that they are parallel institutes which offer the same protection.
Now I’m not so sure I want to have the fight. I admit that I’m part of an irrational group of people that want to see the term “marriage” defined this way. I thought I had the right to tell my state so. Now, I think there are equally irrational people who feel that they are being harmed by this denial in some way (even if I really think it is derivative and speculative, I can’t really ignore that this is inflicting emotional damage).
“Marriage” is a term worth removing from public debate. I again call for Arnold to say that California will stop calling it “marriage” and recognize the relationships all as “civil unions”. I know this may piss off some SSM people who think “he’s just taking his ball and going home.” Yes, I think there’s a good reason to take my ball and go home, I’m not so certain its worth having this fight. It’s going to be damaging and acrimonious, and the only true conflict is the term. It’s already been damaging and acrimonious.
The only people who benefit are the professional politicals who can pander to the base. I’m not kidding when I say that Arnold needs to show real leadership here and preserve marriage. I’m not certain though that it will satisfy SSM proponents however, since they won’t feel the validation of acceptance.
August 6, 2010, 3:14 amtomemos says:
“Somebody answer this question: what’s so wrong with alternatives to SSM that would simply create contracts for nonmarried couples to qualify for privileges normally associated with marriage?”
Gladly. What’s wrong with it is that, if the “alternatives” exist solely to provide gays with the benefits of marriage without calling it “marriage,” then those alternatives amount to a gratuitous denial of the term “marriage” with no reason except the desire to discriminate. This was a finding of Judge Walker’s opinion. The more that domestic partnerships are claimed to be exactly like marriage, the more ridiculous it becomes to claim that a ban on same sex marriage isn’t discriminatory. If there’s no practical difference in benefits, then the different word exists solely as a gratuitous insult.
Judge Walker also found, I think convincingly, that there are significant practical differences between the two categories—”partner” is a much more ambiguous word in our language than “spouse,” for instance. There is a cultural significance to “marriage” that does not exist for “domestic partnership,” and that significance is a huge part of why people get married.
August 6, 2010, 3:45 amDissenting Reason says:
There is a cultural significance to “marriage” that does not exist for “domestic partnership,” and that significance is a huge part of why people get married.
Yes, but that cultural significance arises out of the biological reality that a man and woman can procreate and this should be taken seriously, given how it could happen by accident.
August 6, 2010, 3:52 amtomemos says:
“Gender is not relevant to marriage? That’s his opinion. ”
It’s not relevant to marriage under the law, anymore, not since we stopped subsuming women’s property rights into their husbands’, among other changes. Maybe you can share with us a way in which gender is now legally significant when it comes to marriage, apart from the bans on same-sex marriage.
Orid, I think a problem here is that you’re using terms like “That’s his opinion” because you see this all as a question of what the ideal form of marriage is, like Walker is saying that you have to believe that same sex marriage is okay. You don’t at all. For instance, you write, “This opinion is wholly written to inflame Christians (or other religious groups who believe in the traditional definition of marriage).” But how is letting gays marry intentionally insulting to Christians any more than, say, letting two Orthodox Jews get married by a rabbi in a synagogue? Maybe your branch of Christianity requires its members only to marry other Christians, and not Jews or Muslims or atheists. Are you offended that the law allows a Catholic to marry a Muslim, even if their marriage isn’t sanctioned by a priest or imam?
What if I start a religion that includes gay marriage as a sacrament? Isn’t it then insulting to my religion if you ban it? Do you see how it’s best to make the government responsible only for civil marriage, and leave the questions of the ideal marriage to religious, not secular, law?
August 6, 2010, 3:53 amtomemos says:
“Yes, but that cultural significance arises out of the biological reality that a man and woman can procreate and this should be taken seriously, given how it could happen by accident.”
1) There’s just no evidence that that’s where the cultural significance arises from, and in fact plenty of evidence that it isn’t. To start with a trivial anecdote, I’ve attended some ten weddings in the last four years (all heterosexual), and only two of them have produced children since then (and in one of those the bride was already pregnant). Those marriages are not treated as more or less significant based on the possibility of childbirth. Plus, as I suspect someone has already pointed out to you, people who are too old or otherwise unable to have children, or who have no plans to have children, get married every day (or at least, every weekend). There is no evidence that their marriages are not seen or treated as significant, and there have been zero attempts to deny them the right to get married.
2) Even if it were true that the cultural significance of the term “marriage” comes from procreation, that would not be a sufficient reason to deny marriage to gay couples. There is no evidence of any harm to heterosexual marriage or childrearing caused by gay marriage. If extending the benefits of domestic partnerships to gay couples is harmful, there is no evidence of that either. If it is not harmful, then “marriage” only exists as a term distinguishing gay couples from straight couples, which the state has no basis doing without a rational reason.
3) As has also, I’m sure, been pointed out to you, gay couples have children too, and the evidence shows that the benefits from marriage to the children of married gay couples are the same as those that accrue to the children of married straight couples.
August 6, 2010, 4:05 amAlan K. Henderson says:
So the government must arbitrarily change the definition of marriage to suit the beliefs of a special interest group.
Where do either the Federal or state governments derive the authority to declare that a word that has always meant X also means Y? Does the government own the language? Is the Commerce Clause involved somehow?
August 6, 2010, 4:38 amtomemos says:
Alan, your sarcastic non-sequiturs tell me that you not only didn’t read Judge Walker’s opinion (fair enough, it’s 90 pages or so, though there are summaries and excerpts available), you didn’t even read what I wrote, in any real sense. It also tells me that when you said “Someone answer this question,” you were not being sincere. Why did you ask the question—and bother reading and “responding” to my answer—if you weren’t interested in the rationale? That’s genuinely annoying.
I’m nearly sure that nothing I read in these discussions is going to change my mind about gay marriage, but I wouldn’t be taking part if I didn’t want to converse with people in good faith, and learn the legal and philosophical rationales behind their views. If you’re not interested in that, fine, but please don’t make a habit of wasting people’s time.
August 6, 2010, 5:03 amPaul Stanley says:
Orid,
Isn’t this the crux of the question? Why did marriage “need” a savings clause?
If the fundamental relationship between same sex couples is the same as the fundamental relationship between opposite-sex couples, why should the terms be different?
If it doesn’t matter, why insist that only one of two substantially identical situations enjoy the benefit of the “specific term”? If it does matter, how can you say that withholding the term makes no difference?
In the last analysis you must think that the term is important. That it adds something — something worth amending the State constitution for. And if that is so, then surely it needs a reason.
The implicit reason seems to be that heterosexual partners suffer “harm” if they are “lumped together” with homosexual partners. You want marriage as a badge of heterosexuality, as the gold star which differentiates between (and privileges) relationships between heterosexual couples which are, by your own analysis, in every other way identical to the relationships of homosexual partners.
Ultimately you are making a sort of “separate but equal” argument. Gays get their pink bus “domestic partnership”; straights get their white bus “marriage”. Since it’s the same make and model of bus, and only the name and paint colour change, what’s the problem, you ask? But if it’s the same bus, why insist on different paint-jobs, apart from a desire to keep the straight bus a no-gay zone?
August 6, 2010, 5:06 amAlessandra says:
You are wrong that NO serious study is done on whether sexual orientation can be changed (see Spitzer, Nicolosi, or Diamond, for example). Serious studies and therapeutic practices exist, although they are routinely attacked by homosexuality zealots, whose main purpose in life is to destroy any piece of knowledge that contradicts their ignorant dogmas on human sexuality. Sexual orientation change studies exist concerning all kinds of sexual orientations, homosexuality, bisexuality, pedophilia, ephebophilia, and a variety of other paraphilias.
Secondly, several therapists have also researched the various factors that contribute to the development of a homosexual psychology in people. Although far from complete, there is plenty of knowledge available. Just as a tiny excerpt, which by far doesn’t even begin to delve into the subject:
Nicolosi, who has had more than 1000 therapy clients with homosexuality issues, discusses several personal history profiles that are found in men exhibiting same-sex attraction. One such profile is that of homosexual men “who have great difficulty recalling childhood father-son activities that were fun, exciting and enjoyable, and included success for the son. They rarely have positive memories of their father’s teaching, coaching or encouraging them to gain a new accomplishment that involves bodily activity or strength. Indeed, many clients specifically lament this deprivation.” And “so much of what lies behind adult same-sex attraction is a deep, lingering, unsatisfied desire for physical closeness with a male. When there has been a healthy, childhood internalization of the father’s masculinity, there will be no need to sexualize another man.”
“One 19 year-old man succinctly explained his ‘ultimate fantasy’: ‘I want to sit in the lap of a big man, and never wake up.”
Interesting, isn’t it?
Furthermore, given certain behavior problems exhibited by homosexuals, we observe a considerable number of cases with substance abuse and sexual promiscuity. “Substance abuse and sexual promiscuity offer temporary relief from emotional emptiness, personal inadequacy and chronic depression. All these serve to distract the person from his fundamental inability to establish authentic emotional attachments.”
“Sexual promiscuity, specially with anonymous partners, also satisfy the drive for grandiosity and omnipotence. ”
SSM zealots are incapable of addressing any of these and other issues, because the latter have nothing to do with genes, but with society, family, and psychology. The more ignorant one is about the latter, the more fanatical one will be to explain complex psycho-social phenomena through simplistic sound-bytes (“anyone who feels something was BORN to feel that way” or “anyone who feels something was PREDETERMINED to feel that way–because of their genes”).
August 6, 2010, 5:35 amAlessandra says:
Or it could be possible that this whole premise that a baby is already born with an adult mind regarding sexuality is the most preposterous, absurd, ignorant idea ever! Therefore, since we are a heterosexual species, either we are born with a heterosexual psycho-sexual core and develop a corresponding healthy adult heterosexual psychology, or this heterosexual core gets deformed in any direction possible, whether towards minors, animals, same-sex, violence, fetishes, etc. There is nothing the human mind cannot come to sexualize, as a result of a complex set of experiences. It does not mean that people were born to sexualize something other than heterosexuality if they happen to do it later on in life.
August 6, 2010, 5:45 amPerseus says:
I really hate to jeopardize my standing as a member of the vast right-wing conspiracy, but you have fallen into the error of concluding that if the cause is not genetics (and I agree with others who say that 50% is quite significant), then the alternative is childhood development. However, another distinct possibility is that of hormonal (chemical) influences during prenatal (and perhaps early postnatal) development. For example, see here.
August 6, 2010, 5:59 amAlessandra says:
What a load of crap. Let’s hope that you don’t have any contact with a seven-year-old, because you have no idea what is in their minds. A seven-year-old does not desire to go to a homo sauna, not do they have anything comparable to an adult’s psychology on sexuality.
“Once set, it doesn’t change.”
Another load of crap. However, the issue here is that if a person has deep psychological problems from childhood (which may later contribute to the development of an adult homosexual psychology), the consequences of these problems are going to manifest themselves in some ways during childhood.
“Furthermore, there is a great body of evidence dealing with attempts to change one’s sexual orientation, and the results are quite clear.You can’t, and there is no evidence that you can.”
Complete BS ignoring all the evidence that exists.
“Even Exodus, which is the leading ‘ex-gay’ organization, says that most people can’t change their orientation, and for the few that do,…”
I don’t know if Exodus is the leading “ex-gay” organization (leading in what exactly?), but they certainly are not the leading researchers in the subject. They aren’t even researchers!
Exodus: Exodus International is not a clinical facility and does not conduct clinical treatment of any kind. Our goal is to provide resources, spiritual mentorship and support to those wanting to reconcile their faith-based beliefs with their sexual behavior. Reparative therapy has been beneficial to many within our network. Exodus provides referrals to independent professionals who provide this resource.
” There are a lot more bisexuals out there than we care to admit, certainly.And you can, with effort, repress one side of your being and proclaim yourself ‘cured.’But that isn’t true, of course — it’s mere repressions. Those attractions remain and stay with you your entire life. ”
I agree that there are a lot more bisexuals that lie about what they are. Because homosexuals and bisexuals are the greatest liars in society. Why do they lie so much?
”Homosexuality isn’t a learned experience.No one teaches anyone to be gay.”
It depends. Human sexuality is very much profoundly conditioned by environment and culture. So we can say that from very profound to very superficial levels there is a lot of what is in a person’s mind that is either learned or a result of years of conditioning that forms that person’s sexual psychology and culture.
To suggest that Greeks had a gene mutation from antiquity to now, where before a great number of them were born to be pederasts, and now they have mutated to heterosexuals, because of genes, is utterly ridiculous. To suggest that desire (of any kind really) is not impacted by culture and life experience is the same as to suggest that the sun goes around the Earth and not the other way round.
A homosexual psychology, like a pedophilic one, or like a homosexual pedophilic one, is a development of a complex series of experiences, which comprise different kinds of learning, but are not constituted simply by learning.
August 6, 2010, 6:12 amThrobert McGee says:
Proof of harm you want? Allow me to quote from Walker’s voluminous “factual findings”:
I HAVE A DREAM that one day, GBLTQetc. Americans shall at last be freed from the soul-crushing ignominy of momentary awkwardness!
August 6, 2010, 6:22 amPaul Stanley says:
No, it’s silly. One thing that anyone with an internet connection can do very easily is find out a bit about gay men’s “ultimate fantasies”. I don’t think that you will that going to sleep on a big man’s lap and never waking up features very prominently among them.
On a more serious note (and back on topic), this sort of comment shows the value of the findings of fact. If the proponents wanted to produce evidence that homosexual orientation was significantly and generally malleable or chosen, whether by reference to these soi-disant experts or to any other material, they had their opportunity to do so, in a process of fact-finding which is rigorous and transparent. They didn’t.
The real value of the factual part of the judgment, it seems to me, is not necessarily that it is legally decisive; it is that it makes the proponents look absurd.
August 6, 2010, 6:25 amAlessandra says:
Randy: “There are people who claim to change, but most likely, they were bisexual to begin with. ”
Circular thinking.
You are applying your dogma to discount their recounting of their experience. Given that most of these people had no problems admitting some kind of homosexuality, why would they ALL be incapable of admitting an alleged bisexual psychology? The researchers do investigate this point, you know.
August 6, 2010, 6:30 amAlessandra says:
Nothing silly about this guy’s fantasy, especially in the entire context of his life experience, and mainly regarding his (damaging) interactions with his father. This is an issue that homosexuality zealots don’t like to investigate, isn’t it?
“I don’t think that you will that going to sleep on a big man’s lap and never waking up features very prominently among them.”
But why should we find the same fantasy everywhere if people are not clones? If it is exactly culture, family interaction, and experience from formative years which have a profound impact on a person’s development of their sexual psychology, and each individual will have a unique set of experiences, while we can find shared fantasies, we will never find an individual which has exactly the same fantasies as another. Unless you are so stupid to think that there is an nonexistent gene that determines every single fantasy in a person’s mind.
‘anyone with an internet connection can do very easily is find out a bit about gay men’s “ultimate fantasies”’
For stupid liberals that might suffice. But what you cannot find easily on the internet is the entire personal history and social conditioning, including significant childhood experiences, for each of these homosexual men, whatever their fantasies may be.
August 6, 2010, 6:41 amAlessandra says:
Randy: “And yeah, the ones who are the most anti-gay are often the gay themselves.
Like the people who are most anti-pedophile are often pedophile themselves…
Randy: And yes, Tina, that HAS been researched.”
And more BS about research “proving” this.
August 6, 2010, 6:45 amPaul Stanley says:
And supposing that that this stupid liberal is gay because of my relationship with my father. (Something that my very loving and wonderful father would find as unlikely as I do.) So what?
I no more care why I am gay than I care why I am right-handed. But I’m equally clear that I no more “choose” (or “chose”) to be gay than I choose to be right-handed. Would restricting marriage to the right-handed be OK? If not, why not?
August 6, 2010, 6:56 amAlessandra says:
Have you asked the same question about pedophiles? Have you asked the same question about any other psychological or moral dysfunction?
There are components to our minds and behaviors which are chosen, others which are not. Sexuality intersects both spheres.
August 6, 2010, 7:07 amAlessandra says:
First of all, you may not care, and you may like to be completely ignorant and stupid about human psychology, but that is not the attitude for a lot of other people. Certainly not for me.
Second of all, because of underhanded PC political maneuverings, we are currently having the persecution of people who do not adhere to ignorant homosexual dogma in society. This needs to be overturned.
Third, as I have often mentioned, one of my most fundamental concerns about normalizing homosexuality is that there is nothing good about it, neither homosexuality, nor its normalization. It’s a lie. And a part of this normalization lie, which is perhaps the most grievous, is that it enforces a systematic denial and silence of all issues involving homosexuals and bisexuals as perpetrators of violence.
This is why we never see any homosexuality zealot in these Internet discussions (and similar ones outside the Internet) take the initiative to inform anyone about any problem concerning homosexuals or bisexuals as perpetrators of aggression or violence. Either the homosexuality zealots outright lie, or they lie by omission, or they trivialize any related issues or data. And specially if the question involves heterosexuals or minors as victims, then the propaganda machine goes into full gear.
Thus they do form a profoundly irresponsible and damaging force in society, because as everybody knows, silence and denial about aggression and violence only further severely damage the victims, ensure the harmful dynamics continue unaddressed, and they give a green light to further violence by the perpetrators.
In particular, on the narrower subject of SSM (and not just any other behavior concerning homosexuals), I have never seen any proponent of SSM take the initiative to inform people that homosexuals shun marriage like the plague in countries where SSM has been legalized. It is another way homosexuality zealots lie by omission concerning problems with homosexuals, thus showing their dishonesty. Since the reasons for this marriage shunning involve dysfunctional attitudes found in a good number of homosexuals, the propaganda is put into to place to conceal reality.
There is a good amount of qualitative data on why homosexuals shun marriage. If taken to heart, marriage is incompatible with promiscuity, and non-committed or perverse and exploitative attitudes in personal relationships and sexuality. And that is incompatible with the psychological make-up of a great number of people with a homosexual problem. (Certainly not only a problem concerning homosexuals, but surely a major problem with this population).
Thus what I observe is a highly ridiculous situation. While we have a society full of homosexuals with damaging views and behaviors concerning relationships/marriages and sexuality, all of this is largely ignored or lied about, and endless energy and time is spent on the question of legalizing or not SSM. Not that the latter is a trivial question or one without profound consequences. However in light of all the cowardice to deal with exploitation and violence issues involving non-heterosexuals as perpetrators, it does reflect a larger dishonesty dynamics in the current panorama of American culture, which is in itself part of a larger denial problem to deal with such issues involving heterosexual perpetrators.
Homosexual propaganda fits like a glove in any highly violent and irresponsible society like the US that has endemic and epidemic sexuality and personal relationship issues.
August 6, 2010, 7:17 amThrobert McGee says:
So… the idea that a baby can have a “heterosexual psycho-sexual core” from birth makes total sense to you, but the possibility that a small minority of babies are born with a “homosexual psycho-sexual core” is, simultaneously, too absurd to consider?
August 6, 2010, 7:26 amAlessandra says:
You know the other thing that just occurred to me, and this is really on a tangent, but then again, maybe not. It’s the question of the elision of the bisexual category in popular liberal discourse on sexuality and the way that SSM gets framed.
Firstly, to call homosexual marriage “same-sex” is already on its face a propaganda trick. Because it’s not about just any two same-sex people joining in a union, the participants must have a homosexual psychology. Interestingly enough, in the very label “same-sex,” the homosexual component gets erased in a stark way.
Secondly, we can divide popular liberal discourse on sexuality into two groups concerning the issue of bisexuality. The loudest ones, who do practice almost to the extreme this elision of the bisexual category, and the second group, much less influential, but certainly not quite invisible, and which I believe is growing, which does include the bisexuality category as often as any other.
So, in popular discourse, first we have the label “same-sex” marriage, already noted as being a sanitized, incorrect label. Then we also see a lot of “gay marriage,” but never “homosexual marriage.” Does homosexuality need to be called some repackaged name to make it more acceptable? If anyone followed the recent survey study on this, yes, it does. Call it what it is and somehow it doesn’t seem that nice. Maybe the neurons start functioning?
Going back to “same-sex marriage” though, this type of “marriage” would also mean that bisexuals could get married to a same-sex person, so could transgenders. So, really, same-sex marriage would more appropriately be called “at least partially homosexual marriage.”
August 6, 2010, 7:46 amAlessandra says:
Yes, it is. Why? Because we are a heteroSEXual species. If men had ovaries in their rectums, you could argue that the species is both heterosexual and homosexual, and designed from birth that way. As you may eventually find out one day, that’s not biologically true for the human species.
Why do you have a problem facing how much experience and culture impact each individual’s mind? Is it only concerning sexuality that you are blind to this fact? Or, in your view, is everything in an adult’s mind a result of their pre-determined state at birth?
August 6, 2010, 7:56 amORID says:
Re: Paul Stanley
Ultimately you are making a sort of “separate but equal” argument. Gays get their pink bus “domestic partnership”; straights get their white bus “marriage”. Since it’s the same make and model of bus, and only the name and paint colour change, what’s the problem, you ask? But if it’s the same bus, why insist on different paint-jobs, apart from a desire to keep the straight bus a no-gay zone?
I’m challenging you to show me where the “separate but equal” argument is in this case. Are there bathrooms and other places that are denied to gay couples? I can put the same question back to you. I didn’t read anything in the opinion that said they aren’t the same bus.
We’re going to go in circles if we go that route.
August 6, 2010, 8:22 amPaul Stanley says:
Orid,
Perhaps I misunderstood you. I thought that you were accepting that gay relationships are (in every substantial sense) no different from straight relationships. That was, I thought, why you said that “No one is withholding ‘marriage’, ie. the fundamental relationship between same-sex couples.”
To wrench this back on topic — that is one of the points that the findings of fact help to establish. I agree with you about it, and it is fair-minded of you to point it out.
And you recognise the implications of this. It would be unfair (it was, in the past unfair) to say that gay people could have (emotionally and sexually, i.e. in human and social terms) that sort of relationship and not have any recognition for it from the state. Which is why you agree that it’s right to have domestic partnership laws.
On the other hand, you say, you don’t think that these gay relationships should be called marriage. That is a term which should be reserved for the straights. And this was the compromise that you proposed.
You don’t think (to your credit) that it would be fair to say that gays can’t ride the bus at all. You don’t think that they should be the subject of substantial discrimination. That may have happened in the past, but now there is a special gay bus (“domestic partnership”) which the gays are allowed to ride.
However, we’re not to be allowed on the straight (“marriage”) bus. And that’s OK, in your view, because the gay bus is just as good as the straight bus — it simply has a different name.
Which brings us to what I see as the problem. If the name is truly unimportant, then why not let everyone on the same bus? But if the name does matter — if there is something “special” about the straight bus, what is it about gay relationships which makes it right to keep them off the straight bus?
August 6, 2010, 8:40 amJon Rowe says:
Hmmm. If it’s a 30 year old guy with a 10 year old girl it’s “heterosexual.” If the 30 year old does a female goat, it’s heterosexual. If the 30 year old fantasizes about violence against women, it’s heterosexual. Ditto with fantasizing about women’s shoes. You “other than heterosexuality” phrase in this context is meaningless.
The reason why I bolded the “either” and “or” is often when folks use those terms when making an argument they make the logical error of false dicotomy, which you did here.
August 6, 2010, 8:55 amhope says:
I read the “facts” and the trial record and came to a different conclusion. Because the Trial judge dismissed the defendants “fact” as argument then substituted the “fact” for his own arguments.
August 6, 2010, 11:02 amThe defense raised one legal argument that was an undeniable fact. “Procreation can only happen between a man and a woman either by accident or as planned.”Any reasonable person, judge, laymen or scientist would conclude the statement to be True and Factual.
It is also true that if you accept this truth then prop 8 is constitutional. As a society has the right to create a limited law to achieve a purpose that is not subject to the equal protection or due process claims. It is therefore reasonable to conclude that the voters limited proposition 8 to a man and a woman so that procreation would occur within the confines of marriage to achieve the goal of growing the society. The 10th amendment conveyed the power to the people to address the issue.
Everyone on this board also misses the point, that in allot of SCOTUS decisions regarding marriage the words “man and women, husband and wife” appears in dicta and in decisions. As SCOTUS is oft reminding us “words have meaning “ I think those that chose to ignore the words may be missing the relevance.
yankee says:
Well, except that Proposition 8 is completely irrelevant to that goal. Banning gays and lesbians from marrying does nothing to cause married heterosexual couples to procreate, nor does it prevent unmarried heterosexuals from doing so. The only thing it does is stigmatize same-sex relationships as inferior.
August 6, 2010, 11:25 amyankee says:
This is Marketing 101, Alessandra: you describe your product in terms people respond positively to rather than using language that means the same thing but is perceived more negatively. Hence “pro-life” rather than “anti-abortion,” “school choice” rather than “school privatization,” “BP” rather than “British Petroleum,” and so on.
“Homosexual” and “gay” mean the same thing, but “homosexual” sounds clinical and has more of a negative connotation, so it’s hardly a surprise that the gay-rights movement chooses one and the so-called “pro-family” movement uses the other.
I am baffled, however, by your apparent belief that “homosexual” is somehow more accurate than “gay.” They’re synonyms!
August 6, 2010, 11:38 amChris Travers says:
Adult mind? No. The question has more to do with physiological responses to stimuli after puberty and to what extent the fully formed adult mind suppresses some of them.
Our closest relatives from the animal world, Bonobo Chimpanzees, engage in both homosexual and heterosexual behavior rather frequently, as well as a wide range of sexual practices otherwise restricted to humans. Many other primates also show at least some sort of homosexual activity. Against this background, I don’t think one can argue based on evidence that homosexual activity is biologically abnormal for the species. I guess if you look to barn animals (horses, cows, sheep, goats), you could make that argument, but there’s no basis other than a religious one for assuming that human sexuality follows the models of sheep or goats.
Instead I think it’s worth asking what other societies have done in the past. As far as I can tell, there have been three strategies:
1) Treat homosexual activity as abnormal and taboo
2) Treat homosexual activity as outside the bounds of society and to be segregated (I.e. taboo, but breaking the taboo marks one as “special” or “superhuman” in some way)
3) Treat homosexual activity as normal, but parallel to heterosexual activity (Sparta, Rome, etc)
The Norse in some cases fell into category 1 and in other cases category 2 here, for example.
The Burkean sceptic in me says “I can’t think of a society which has both treated homosexual activity as normal and as a pure substitute for heterosexual activity,” so I think we are already in uncharted territory. This leads me to wonder if the long-term viability of SSM as homologous to marriage depends on the taboo against gay sex being in place. I don’t know.
August 6, 2010, 11:46 amChris Travers says:
Certainly the homosexual community didn’t gaily respond to the passage Prop 8 ;-)
I assume Alessandra wants to reclaim the word “gay” for it’s older meanings.
August 6, 2010, 11:54 amyankee says:
She’s going to have an uphill battle on that one.
August 6, 2010, 12:05 pmMartinned says:
Thank you for explaining in such a murky way what it is a trial judge is actually supposed to do: find the truth among the competing narratives of plaintiff and defendant.
Which is a) not a legal argument, and b) not relevant to anything.
That’s law, not fact. For the time being, you’re wrong as a matter of law. Once the dust settles, we’ll see.
Huh? Last I checked, there is no government action that is protected from equal protection and due process claims, unless there’s a secret exception in the 14th amendment somewhere that’s I’ve overlooked.
This one I don’t even get as a matter of language. Could you try again in coherent English? Randomly stringing words together doesn’t get you there.
The 10th amendment “conveyed” no power to anyone. It denied power to the federal government. However, to the extent that the 10th is relevant here, I’d like to point out that the 14th amendment was enacted later, and thus trumps the 10th.
Indeed. These days, it is only ever used by people who make it sound like some kind of disease, something that might be fixed with antibiotics.
August 6, 2010, 12:54 pmhope says:
You jumped to the same conclusion as the judge instead of considering the argument?
August 6, 2010, 1:18 pmThink about it carefully, the defense raised the argument.
“Procreation can only happen between a man and a woman either by accident or as planned.“
Therefore when the people voted they created a law that has an effect of promoting growth of the population to achieve self sustainment.
If you consider the argument and reach the conclusion on… “whether the facts matter?” .You may decide that this is in fact true and a fact that was overlooked on the record.
Then the question turns on whether the people have a right to enact the law.
The 10th gives them the right reserved to the “States and to the People”
So then the question turns on can the law withstand a strict scrutiny standard ?
Compelling governmental interest? Yes the government is sustained by a populace.
Narrowly tailored to achieve that goal or interest? Yes by limiting it to only those that can procreate it is limited to those that can “procreate” which is the goal.
Least restrictive means for achieving that interest? You can argue banning gays and lesbians here … but the law or will of the people should be upheld even if there are other means found .
My argument is that if the Judge had a considered the argument and come to the fact that “only men and woman can procreate” then the rest would be moot. The law would stand a strict scrutiny challenge.
Reading the beginning of the ruling the defense raised the argument. It didn’t appear to be considered …If the 9th circuit considers it and finds it to be a fact, the rest is Moot.
ORID says:
Paul Stanley,
I think that my religious beliefs (and those of many others) make this so twisted of an issue.
Can’t I turn around the argument back to you?
If we all agree the buses are equal, why do you want to call homosexual relationships “marriage”?
This is the type of thing that will enflame both “sides” of this argument.
I really don’t believe that rights and privileges are being withheld.
Only the name.
Why can’t the voters decide what “marriage” is? Can’t this forbid the state from having people on the “marriage” bus and forcing everyone into the “domestic partnership” bus? I think that is what the voters want. That would make me happy, but I don’t think it will make same-sex couples happy, and it won’t remedy the harm they feel (even if I think the harm is speculative and derivative).
I have really been twisted on this, but every time it feels like I a choice between “God’s way” and “man’s way”.
If it didn’t feel like such an invasion and attack on Christianity… although I have to turn around and say Christians have been horrible towards gays, of all the sinners out there “gays” are treated and thought of the lowest, even lower than heterosexuals who are serial cheaters.
Quite frankly I can’t understand why I don’t like seafood and I like pizza, it feels like an immutable trait. Society doesn’t have such stigma on whether someone likes or dislikes seafood over pizza.
I think its better for the country to not have the debate but even to say that one side has to “back down”. Do I think either side is going to?
(I apologize I can’t engage in more threads, even tying to find truce is not possible since the sides are so far, fundamentally apart. Are we debating a word and the harm using one term over an other causes? It seems like we are. If we agree there are two equal buses, who is going to say “let’s blow up this bus” or “let’s blow up that bus”). I’d rather blow up the state-recognition of “marriage” bus and call my “marriage” a domestic partnership and think of it as a “Marriage” ie. institution from God.
Of course fundamentally we are talking about the *secular* definition, but it’s so hard to back out of the intertwining of such a fundamental religious belief into the government.
August 6, 2010, 1:36 pmScott says:
If the state’s interest is in encouraging procreation, then it should be possible to demonstrate some way in which limiting marriage to heterosexual couples achieves that goal. The Proposition 8 proponents failed to do this. If gays and lesbians are not allowed to marry, no evidence suggests that they will consequently decide to become straight, marry a straight person, and have procreative sex. Nor is there any evidence to suggest that permitting gays and lesbians to marry reduces the likelihood that straight couples will get married and have procreative sex, or have procreative sex outside of marriage (which, if the state’s interest is in procreation, should be just as good).
August 6, 2010, 1:53 pmScott says:
ORID: if we determine that gays and lesbians are denied the rights and privileges of marriage without any rational basis, then rationally there are three possible remedies: allow gays and lesbians to marry; create a parallel contract of equal legal status (“domestic partnership”); or convert all civil marriages to civil domestic partnerships. If we presume that the best Constitutional remedy is the least intrusive, then the first option seems the best. Creating a parallel classification, even if it is truly equal, creates an additional burden on the state to maintain two systems, which would not be created by the other remedies. Conversion of all civil marriages to domestic partnerships might theoretically be an equally desirable legal option, but I think there’s a valid question about whether you would then need to substantially amend state and federal statutes to replace language referring to “marriage” or “spouse” with domestic-partner-appropriate language.
August 6, 2010, 2:01 pmAlan K. Henderson says:
I’m trying to get an honest opinion on why people are lobbying for SSM in the first place, and where people think the government gets the power to change the language. You said the historic definition of marriage is insulting to gays, and therefore support changing the legal definition of marriage to a context that you believe will not insult gays. I see no non sequitur in my reaction.
(The Commerce Clause snark should have been footnoted thus :-) However, after that exchange between Senator Coburn and Elena Kagan, I’m not so sure that neither judges nor lawmakers will inject a Commerce Clause angle into any kind of marriage-related issue.)
The top Google searches on “judge walker summary” and “perry v. schwarzenegger summary” don’t answer my first question – why the civil-union alternative places an undue legal hardship on gays – or the followup – where the government derives the power to redefine language – so I’m starting here. If my questions are answered elsewhere, then point the way.
August 6, 2010, 2:17 pmChris Travers says:
I guess the question to me is whether the law has a secular purpose in the context of the rest of California family law. Marriage has traditionally been about procreation and this is a secular purpose. But is that purpose irretrievably damaged by offering the same benefits to same-sex couples under a different name? If that different name poses conflict-of-law problems for other states, then what? I’d argue that allowing this sort of different naming can cause absurd results. Consider two couples, Joe and Josh, and Amy and Wendy, both of which have domestic partnerships in California.
Joe receives a job in Boston where he moves with his domestic partner. Massachusetts law then recognizes their domestic partnership as a marriage. Five years after that, both couples move to Nebraska. Both seek married status from the state. Amy and Wendy argue that domestic partnership is close enough to marriage that they need to be treated as such and that this is a substantially vested right.
But Joe and Josh have a different case. Not only were they licensed to enter into a domestic partnership, but they can argue that the State of Massachusetts recognized them as married and that they therefore have a substantially vested right to marriage.
Does the fact that Joe and Josh had spent some time living in Massachusetts affect the decision? Why or why not?
August 6, 2010, 2:34 pmJohn D says:
First, let me deal with the language issue.
Language changes. It has happened. It is happening. It will happen again. Definitions of words are not stable over time, since words are themselves cultural artifacts. There is no platonic absolute of “marriage.” There is no ultimate signifier.
Or as Lewis Carroll put it:
Marriage then means whatever we choose it to mean.
Typically in these arguments those against same-sex couples marrying come up with a definition of marriage which does not describe how it is practiced by opposite-sex couples. Then they make exceptions. But once you make exceptions…
My understanding is that dictionary definitions are typically written by people with Masters in English, Ph.D candidates, and perhaps some Ph.Ds. These are the masters of language to whom we are submitting questions of meaning. They do it by looking at how all of us use the word. Dictionaries are descriptive, not prescriptive.
Onward to why gay people are fighting for marriage:
We want the benefits.
So why aren’t we happy with civil unions? Civil unions have provided most of the benefits. I have seen many comments on here complaining that gay people just can’t be satisfied. They get nearly all the benefits, but that’s not good enough.
Yup. That’s not good enough. It has to be all. Transferrable across state lines. Valid with the Federal government. The whole thing.
I would be content with a separate-but-wholly-equal status, even though that puts an administrative burden on governments. No one has offered that. Instead we get these questions why something that isn’t marriage might suffice.
So I ask you, what part of marriage do you not think same-sex couples ought to have. Please don’t say “the word,” since that really goes back to our MA in English working at Merriam-Webster.
What right, obligation, or benefit of marriage would you withhold from same-sex couples and why?
If you can’t name any, you really don’t have an objection to same-sex marriage.
August 6, 2010, 3:05 pmMartinned says:
If you look at the first chapter of the first title of the US Code, you see a whole bunch of “rules of construction”. The rest of the US Code, all 50 Titles of it, is chock full of definitions. You kinda need them to make the statutes do what they’re supposed to. So I don’t really see your problem.
Here’s 1 USC 1, just to give you an impression:
So, quite contrary to ordinary usage, he also means they, they also means she, he can mean her, etc.
(In case you want to look at it while you still can, the definition part of DOMA, which was invalidated by the Massachusetts District Court recently, is in 1 USC 7.
August 6, 2010, 3:12 pmhope says:
Scott,
August 6, 2010, 3:41 pmAs I read the decision, “Proponents argued that Proposition 8 should be evaluated
Solely by considering its language and its consistency with the
“central purpose of marriage, in California and everywhere else,
* * * to promote naturally procreative sexual relationships and to
Channel them into stable, enduring unions for the sake of producing and raising the next generation.”
What they were arguing is only a male and a female can procreate and therefore the law should withstand a strict scrutiny challenge.
While the Judge in this case ruled against them in another venue the argument could succeed.
And while the papers and Bloggers are all stating as fact that the Lawyers on the Prop 8 side really did a poor job. It’s generally a bad idea to underestimate an opponent. Or as we say in the south “even a Blind Squirrel can find a nut “.
Allowing gays and lesbians to marry was the other side of the argument.
Looking at the plaintiff’s case they did an excellent job and won the case…except I question why so many arguments were needed as it produced a decision that has way too many points. Lose on one point on the other side and you lose all the arguments and the points.
In a court system that changes players over time..Might have been better to argue one or two and save some for another bite at the apple.
John Hamilton says:
.
August 6, 2010, 3:48 pmI don’t know Chris. I don’t know what the remedy is, but something strikes me wrong about the idea that California’s executive branch of can by abandoning its duty, leave the clear will of the people expressed by a vote of millions in potentially incompetent hands based on the personal opinions of executive branch officials.
Martinned says:
What about their duty under the Federal Constitution?
(link)
August 6, 2010, 4:04 pmJohn Hamilton says:
John D quoted Lewis Carroll to show that we shouldn’t limit the use of words to their dictionary definiton:
Or as Lewis Carroll put it:
“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
Marriage then means whatever we choose it to mean. End of John D’s quote.
August 6, 2010, 4:09 pm.
John, poor example. Carroll was showing the ridiculousness of Humpty’s extreme malleability with regards to the meaning of words. Humpty is not exactly the guy/egg with whom you want to side because your argument will fall of the wall and get scrambled.
Scott says:
On the other hand, if you required California officials to defend the constitutionality of a law that they clearly thought was unconstitutional, they could conceivably do an even worse job than a third party with a sincere belief in the constitutionality of said law. I agree that the options are not great on either side, but forced to choose, I lean towards allowing for sincere defenders of the law, even if they’re not state officials.
August 6, 2010, 4:11 pmAlessandra says:
You are wrong there. Homosexual activity was considered far superior than heterosexuality in certain Greek cultures
Please read the sentence in full next time: and develop a corresponding HEALTHY ADULT HETEROSEXUAL psychology
I don’t consider sex with a female goat equivalent to “healthy adult heterosexuality” for men, etc etc.
August 6, 2010, 4:21 pmJohn Hamilton says:
CA Attorney General Jerry Brown would not have violated his oath to the Federal Constitution by defending Prop 8.
August 6, 2010, 4:21 pm.
Fighting on behalf of California law would not in any way violate his duty to the U.S. Constitution so long as there is a reasonable good-faith belief that the law is Constitutional. The good-faith belief where the attorney has a duty to represent the state, as here, is the good-faith belief of the client. BROWN’S PERSONAL opinions both on his view of ssm and his OPINION that the law may be found Unconstitutional is completely IRRELEVANT.
.
By way of contrast, if California passed an amendment instituting slavery, Brown would have no duty to defend it because there is no way the client could have a good-faith belief that such a law would be Constitutional, and Brown’s belief that the law is Unconstitutional would be an established fact rather than an opinion.
John Hamilton says:
I think there’s another option. Brown could have assigned a member of his office who was in favor of Prop 8 to defend it.
August 6, 2010, 4:23 pmJohn D says:
Writing under his real name, Dodgson wrote that if a writer announced at the beginning that he would be using the word “black” to describe what we generally call “white,” he would be in his rights.
Dodgson’s argument really is that words don’t get their own reality.
Do you wish to argue that dictionaries are anything other than descriptive? If you wish to argue that dictionaries are prescriptive, do be aware that many of them have adopted definitions for marriage that encompass marriages of same-sex couples.
Before typing this, I somehow passed over Martinned’s comment that under the law “he also means they, they also means she, he can mean her.”
We really do have to lay out our definitions.
August 6, 2010, 4:30 pmJohn Hamilton says:
.
August 6, 2010, 4:34 pmI’m not interested in getting into a whole debate about the meaning of the word marriage or the validity of dictionaries.
.
Merely pointing out that I think you could chose better allies than Humpty Dumpty.
Alessandra says:
Chris: “Our closest relatives from the animal world, Bonobo Chimpanzees, engage in both homosexual and heterosexual behavior rather frequently, as well as a wide range of sexual practices otherwise restricted to humans. Many other primates also show at least some sort of homosexual activity. Against this background, I don’t think one can argue based on evidence that homosexual activity is biologically abnormal for the species. I guess if you look to barn animals (horses, cows, sheep, goats), you could make that argument, but there’s no basis other than a religious one for assuming that human sexuality follows the models of sheep or goats.”
And now are you claiming that humans FOLLOW bonobos concerning life and behavior?
Secondly, there is no evidence (do you have any?) that bonobos have a homosexual psychology.
On bonobos:
The sexual activity happens within the immediate family as well as outside it. Bonobos do not form permanent relationships with individual partners. They also do not seem to discriminate in their sexual behavior by sex or age, with the possible exception of abstaining from sexual intercourse between mothers and their adult sons. Very young animals also have sex with one another.
=================
By the way, if you are going to legitimize human homosexuality through bonobos, you can’t, by the same logic, not legitimize incest and child sexual abuse. Furthemore, don’t even think about marriage, much less monogamy, or long-term committed relationships. I think your logic fails enormously. Furthermore, bonobos and humans aren’t the same species, nor are they the only chimps around. There are a lot of issues with the equating of the two species, and there are plenty of problematic behavior with all kinds of chimps (along with good ones too).
I’m not an expert on bonobos, but it seems to me that their hyper nondiscriminatory sexual behavior cannot be translated into human categories, nor can their sexual psychology and experience be equated to the human one, which seems profoundly more complex. No offense to bonobos! It’s apples and oranges.
August 6, 2010, 4:54 pmAlessandra says:
There is no hardship whatsoever. Furthermore, in a number of the most prominent countries where homosexual marriage was legalized, homos shunned marriage like the plague. After crying endlessly what discrimination it was to be barred from marriage, only about 1% of all homos got married until today in these various countries. In the US, for example, and I’m going to quote from memory, so I could be way off, please correct, you have 50% of heterosexuals that are married.
Legalizing homosexual marriage is not about marriage. The underlying and real crux of the issue is to completely normalize homosexuality and equate it to heterosexuality. As an immediate and obvious consequence, anyone who does not agree to this dogma is labeled a criminal of any multiple sorts, denied employment, education, and freedom (which certainly includes freedom of conscience, speech, and religion).
August 6, 2010, 5:05 pmJon Rowe says:
It’s not “other than heterosexuality” in a way that homosexuality is. The fact that a man having sex with a female goat is heterosexual in nature demonstrates that there is NO connection whatsoever of bestiality with homosexuality.
It’s not your “heterosexual core” as you put it that gets “deformed” when a man desires sex with a little girl or female goat. Those acts are still “heterosexual.”
August 6, 2010, 5:14 pmAlessandra says:
What negative connotation is that? And what do you mean by “clinical?” Do you mean a term that ignorant people don’t use, generally speaking?
“This is Marketing 101,”
I would say it’s Propaganda 101.
August 6, 2010, 5:23 pmAlessandra says:
But they are not HEALTHY ADULT Heterosexuality, so, yes, they got deformed.
“that there is NO connection whatsoever of bestiality with homosexuality.”
August 6, 2010, 5:26 pmMartinned says:
Same difference. Propaganda is marketing in politics.
August 6, 2010, 5:30 pmyankee says:
I say “clinical” in that “homosexual” sound more like the name of a person suffering from a disease than “gay” does.
And what on earth do you think the difference between marketing and propaganda is? It seems to me that mostly we call things “propaganda” when we don’t like the message they’re promoting. That certainly seems to be how you’re using it here, since “homosexual” and “gay” are synonyms.
August 6, 2010, 5:37 pmptt says:
Human children play doctor. Bonobo youngsters play vet.
August 6, 2010, 6:09 pmMichael Ejercito says:
How so?
August 6, 2010, 6:34 pmChris Travers says:
That’s not a rational basis for avoiding it. The state’s role is not to tell us what normal sexuality is. Consequently if that’s your objection it’s not a legitimate goal of the state.
August 6, 2010, 7:53 pmChris Travers says:
What I’m saying is that homosexual activity is not uncommon in the primate world and consequently one cannot say that it is biologically abnormal.
I don’t know what you mean by “homosexual psychology,” particularly when trying to compare human and animal psychology. Nor do I know if a toy poodle has a homosexual, heterosexual, or interspecies sexual psychology when he tries to hump my leg.
As for incest, these barriers are quite cultural, as are the exact places where age of consent is placed.
August 6, 2010, 7:57 pmRicardo says:
That is not the argument, though. The argument is about the bogus “natural law” argument that you implicitly invoke: that since animals are not “designed” to engage in homosexual sex, homosexual sex is unnatural. And since it is unnatural, it is wrong in humans.
One quarter of all black swans engage in homosexual pairings — usually as a long-term pairing. A male swan having sex with another male swan clearly does not result in reproduction. So this demonstrates that one cannot determine what is “unnatural” behavior simply by looking at the details of anatomy.
Of course, the real truth is that there really is no “design” in nature in the first place but that’s a separate argument.
August 7, 2010, 12:12 amPaul says:
Ok, let’s break this one down a bit.
There is proven hardship put on same sex couples by denying them marriage. A few examples: inheritance taxes, inability to collect survivor social security benefits, hospital visitation rights, etc. This list is quite extensive and in black and white for all to see. That you chose not to doesn’t make it so.
Marriage by same sex partners in other countries has not been avoided like the plague. However, if we were to assume that this is true, many reasons for this is because in most if not all countries where ssm is legal, common law marriage or civil unions grant the exact and equal rights and benefits that marriage does, thus one major incentive to get married is no longer an issue. The fact remains that even if only one couple were to take advantage of ssm, there is no state interest in denying this couple all the rights and privileges that are enjoyed by opposite sex couples.
As far as ssm being about the ‘normalization of homosexuality’, this is pure rubbish. The reason the gay community is seeking marriage rights for the same reasons that their straight peers do. The state has no reason to withhold marriage rights to one group of people simply because another group is not comfortable with the very existence of same sex couples.
Lastly, no one to my knowledge has ever been incarcerated, denied employment, denied freedom…of speech, religion or otherwise due to legal same sex marriage, whether they agreed with it or not. Legal same sex marriage is intended to provide equal civil marriage rights and responsibilities to same sex couples if they so wish. No more, no less. Should such an occurrence that you cite occur, there are legal remedies in employment law, speech and religious freedom constitutional protections, etc.
It is obvious that you feel victimized by gay persons obtaining same sex marriage rights. There simply is no victimization for straight or gay people alike written into this law. By denying same sex couples the right to marry the opposite is true.
August 7, 2010, 5:38 amAlan K. Henderson says:
Perhaps a little context is needed here. (No, I was not thinking about anyone named Sherrod or Breitbart when I typed that.)
Language is more than just words; language also encompasses the concepts they symbolize. Think of the three basic database commands: add, modify, delete. New words are added when new concepts or new verbal fashions (i.e. slang) arise. Old ones are “deleted” when they fall out of use. One word can be used to identify more than one concept; used properly, the listener knows which of these concepts is being communicated. One concept can go by many names.
The problem with SSM is that proponents are trying to replace one concept with another. They are trying to fashion the language to convince people that the SSM concept is the same as the historic marriage concept.
The US Code does not change existing concepts. It contains a dictionary of terms; many of these the government uses in the same context as the general population does, some are coined to define specific concepts. “Discovery” in the legal sense is in no way confused with any other concepts we call by that name.
(Unfortunately, the Founders didn’t see fit to accompany the Constitution with a dictionary of terms. But I digress.)
Most language changes occur through the grassroots. Some occur through the sort of government example I cited. These are compatible with civilized society. Language change through private- or public-sector bullying is not.
If the State can redefine one concept, it can redefine others. What happens when it redefines concepts explicitly stated in the Constitution? What if Congress or the courts adds a new context to “religion” or (ahem) “commerce” that didn’t exist before?
Uh, Humpty’s a verbal con artist – he uses words for self-puffery, not for communication. Dave Boies wouldn’t welcome his em>amicus.
August 7, 2010, 6:05 amAlessandra says:
Calling a bonobo who has sexual activities with members of their immediate family PLUS extended family PLUS adult males PLUS adult females PLUS youngsters of both sexes a HOMOSEXUAL is a complete lie. You are taking a human MODERN concept (which is NOT universal for humans) and applying it to animals whose sexual and social behavior has nothing to do with the greatest majority of humans, Caligula maybe being an exception here. And what a perverse, grotesque sexuality monster he was (as well as with everything else), a consequence of the very obvious reasons that other spheres of the mind impact a person’s sexuality in adulthood.
“Nor do I know if a toy poodle has a homosexual, heterosexual, or interspecies sexual psychology when he tries to hump my leg.”
Exactly, so what you are doing with bonobos is called a false projection without any substantive data.
“As for incest, these barriers are quite cultural, as are the exact places where age of consent is placed”
And the modern, current reasons for cultural barriers concerning incest and sexual child abuse is to prevent real damage and torture of minors, and all the other problems with incestuous relations.
August 7, 2010, 6:11 amAlessandra says:
Lying is not counter-arguing. Official numbers clearly demonstrate the ridiculously small number of homosexual marriages where it has been legalized.
“However, if we were to assume that this is true, many reasons for this is because in most if not all countries where ssm is legal, common law marriage or civil unions grant the exact and equal rights and benefits that marriage does, thus one major incentive to get married is no longer an issue.
“The fact remains that even if only one couple were to take advantage of ssm, there is no state interest in denying this couple all the rights and privileges that are enjoyed by opposite sex couples.”
There is because it is based on a lie.
First and foremost it concerns the normalization of homosexuality, and the dogma that having a homosexuality problem equals having a healthy, heterosexual psychology. First point of fundamental disagreement.
Secondly, if the same equal rights and benefits are already legalized for people with a homosexual problem through civil unions, you can’t claim, simultaneously, that they are not being given the same by the state. Even if I don’t agree with the basis for it in the first place, the rights are not being denied. So if marriage is a fundamental right, why is it a right and why is it fundamental? If the same benefits are given through other procedures, it must not be that fundamental, neither could anyone claim it’s a fundamental right for people with a homosexual psychology who are granted the very same rights and benefits.
Furthermore, in all countries where they have legalized homosexual marriages and civil unions, there are more same-sex homosexual unions than marriages. So what fundamental part do homosexuals dislike so much in marriage? If homosexual “marriage” is such a civil rights issue (and what a complete slap in the face of blacks that is), why do all these homosexuals throw homosexual marriage in the garbage can when it’s offered to them?
The other many reasons for the shunning of marriage is how many homosexuals have an ideological and psychological frame of mind that is profoundly incompatible with the ideals and tenets of marriage. Maybe in 50 years time, we’ll have liberals start to acknowledge this, but for now, all we get is lies.
“As far as ssm being about the ‘normalization of homosexuality’, this is pure rubbish. ”
I’ll wait for your reasons/answers to the questions above, before replying to this, since it’s quite related.
August 7, 2010, 6:58 amJake says:
Monozygotic twins are exact genetic copies of each other. If your hypothesis is that genetics is the sole decider of sexual orientation, that means if one twin’s orientation is straight and one is gay, then one would have to conclude that it wasn’t only based on genetics. It doesn’t make any difference what the percentages are. A hypothesis could be made that certain genes are “switched off/on” due to environmental factors and that the “gay gene” could be present at birth but was never genetically “activated”. Of course there’s a big problem with that: The Human Genome has been mapped and there is no “gay gene” nor any other gene involving human behavior. That’s because human behavior is based on environment, which brings me to…
Your second argument is fallacious because you are creating a false dichotomy. The sociological question of nature vs. nurture is not necessarily bound by a conscious “choice”. The question is whether environment molds that behavior. If a boy is molested by his uncle from the ages of 7-11 and he begins to identify as a homosexual at 18, it is ludicrous to discount his rape as having no effect on his sexual orientation. The boy’s orientation was shaped by environmental factors. You don’t necessarily have to write a letter of declaration to engage in certain behavior.
August 7, 2010, 6:59 amMorat20 says:
I would suggest — sincerely and without sarcasm — that you not repeat that “reasoning” until you’ve educated yourself a bit in genetics, and in particular on the Human Genome Project.
If you DO go and read up on both, then come back and read what you just posted, you’ll wince at it and fervently hope no one whose opinion you respect ever saw it. EVER.
But since you won’t, just the high points: Genes aren’t always (or even mostly) the straight on/off Dominant/recessive of Mendel. That’s just the simple case, taught to high schoolers. Most genetic traits are a result of multiple genes, which may or may not activate for a variety of reasons — some understood, some not. A rough term would be ‘penetrance’ – the gene exists, but how often it expresses is variable.
Secondly, and probably most embarassingly for you, the Human Genome Project mapped the human genome, but did NOT — not even remotely — label what genes did. It’s more like someone worked out the shape of the United States, handed it to explorers, and told them “Now that you have a copy, you can wander around and jot down what you see on it. Go have fun”.
Secondly, every bit of reputable bit of investigation on the origins of sexual orientation show that sexual orientation is fixed by a very young age, possibly even prior to birth. The evidence points to a complex skein of factors, including genetics and neonatal environment. Given that homosexuality cheerfully exists in quite a number of mammalian species, and even some avian ones, and that structural differences in brain architecture (among a few other physical differences) are noted in homosexuals, well…your understanding of both genetics and the origins of sexual orientation are…. uninformed.
It’s probably not the reality you WANT to exist, but it’s the one that does. Sexual orientation isn’t a choice. Gays will come from perfect familes, from perfect Christian wombs. No matter what you do. In fact, given the birth order effect, those cute Quiverfull couples out to be popping out a nice percentage of closeted gays.
You no more chose your sexual orientation — straight, gay, or bisexual — than you chose your eye color. (Eye color, of course, being a MUCH simpler genetic expression, due to the behavior only a handful of genes).
August 7, 2010, 10:57 amJon Rowe says:
Alessandra, what you are doing is constructing a narrow box and throwing homosexuality outside the box with other things you don’t like. You could just as easily do it with other things like interracial sex.
“But they are not HEALTHY ADULT Heterosexuality desiring members outside their family and of the same race, so, yes, they got deformed.”
See I just did the same thing you are doing.
August 7, 2010, 12:11 pmPaul says:
There are many reasons for gay and lesbians not wanting to take advantage of a new opportunity to do so. First as I stated before, in all these countries that offer ssm, common law marriage, civil unions and other non marriage partnerships are given the same rights and responsibilities of civil marriage. Thus the incentive to get married is far less. This has had a profound effect on the marriage rates of heterosexuals as well. In the Nordic countries where this is the case, the majority of heterosexual unions are not marriages at all. What these countries have effectively done is by creating new classes of legal partnerships they have stripped away the importance of marriage to the legal standing of their relationships. The point here is that in these countries, the rates of marriage have dropped across the board, not just with the gays.
The second reason why many gays do not avail themselves to marriage is that because it is a new legal right and many may not be comfortable with the idea or don’t see the need to avail themselves to a once heterosexual institution.
Whatever the reason for not jumping on the bandwagon of marriage, there is ample evidence that there are thousands of gays and lesbians who DO want to get married as evidenced by over 18,000 same sex marriages that took place in California in the few months when it was legal in 2008. There is also no legitimate state reason to withhold marriage rights based on the projected numbers of those who may or not participate.
The SCOTUS has determined multiple times that marriage is a fundamental right. This does not change just because other similar legal relationships are available.
As far as same sex marriage being a slap in the face to blacks I am not sure I follow other than the once victim often becomes the perpetrator. The black community is all too familiar with societal attempts to marginalize and to dehumanize them. As slaves, blacks also did not have the right to civil marriage. Up until the late 60′s and the Loving case, blacks did not also have the right to marry persons of another race. If a black person does not like same sex marriage that is their own business. It is not in the states interest to deny civil rights to any class of persons, blacks and gays included.
Your assertion that gays and lesbians are not capable of loving and long lasting relationships is simply not a fact. In addition I would also add that the gay and lesbian community has done quite well in this department, especially with no legal supports to their relationships that have been the norm for heterosexuals. We also know that the rates of divorce of gays and lesbians in many countries where same sex marriage is legal, divorce rates of gays and lesbians approximate the same rates as heterosexuals. In Massachusetts, same sex marriage divorce rates were actually lower than their heterosexual peers but I suspect that this too will even out over time. So the evidence available about the capability of gays and lesbians to have long lasting committed relationships clearly exists. Your assertion otherwise is a false one.
You also seem to have a problem with allowing gays and lesbians to have equal civil rights as heterosexuals or thus normalizing them into society.
Stigmatization and marginalization through legal means of an entire group of people is not a justifiable or reasoned state interest. It may be in the best interest of other groups so that they may falsely believe that they are superior to gays and lesbians, but again, this is not a state interest.
August 7, 2010, 1:47 pmDoug says:
I gather that this ruling will allow me to marry my sister or adult daughter. Or both at once! Don’t we three have the right to have our relationship recognized by the state as “marriage”?
Better, I think, to abolish marriage as a matter of government entirely than have it as a prize awarded to those with political power and denied to the rest.
August 7, 2010, 2:41 pmChris Travers says:
I never did call a bonobo a “homosexual.” I said that their sexuality and those of other primates was evidence that homosexual activity was biologically normal in our species. You were the one who said we were biologically heterosexual as a species, and if what you mean by that is in conflict with my narrow statement, you are wrong. There’s a big difference in that what I said is purely descriptive in terms of activity and does not rely at all on modern concepts.
The fact is that sexual taboos in general are strongly cultural. The taboo against homosexual sexual activity is one of those in our culture. It has no strict biological basis but has to do with the interaction of other cultural elements. Indeed, I have wondered on various threads if the long-term viability of same-sex marriage depends on this taboo remaining intact.
Please read my statements carefully and narrowly and avoid projecting into them whatever you think you want to argue against.
August 7, 2010, 3:19 pmChris Travers says:
I’d further note that I agree that homosexuality is to a large extent a modern concept. The problem is that this fundamentally makes heterosexuality date to the same period. Language is a system of differences and the terms are mutually defining.
August 7, 2010, 4:29 pmMichael Ejercito says:
Which goes back to the decision.
Is the equal protection clause so broad to mandate the use of a particular language?
August 7, 2010, 4:43 pmMichael Ejercito says:
Okay then.
Whom did Britain stigmatize or marginalize when it offered civil partnerships?
August 7, 2010, 5:09 pmPaul says:
The state has a vested interest in you not marrying your sister or daughter based upon scientific evidence that offspring resulting from such close relationships have increased chances of offspring being affected by recessive or deleterious traits. I believe that this was first observed in modern man among the royal families of Europe.
August 7, 2010, 5:09 pmPaul says:
They stigmatized the gays and lesbians with a legal relationship form that is sub-par to marriage in the UK as well as in most other parts of the world. Civil Unions are not recognized as having the same legal standing as civil marriage does. This is exactly why the current Conservative Government in the UK is working to bring about same sex marriage rights as we speak.
August 7, 2010, 5:13 pmDoug says:
Outlawing the marriage of siblings does not effectively serve these interests. On one hand, the offspring of incestuous relationships can be created without state-recognized marriage. On the other hand, the state applies no parenting tests to ensure that a married heterosexual couple, each carrying a dangerous recessive trait, don’t couple to produce damaged offspring. Still, if I were required to have a vasectomy before marrying my sister, or if she were post-menopausal, would that eliminate the concern of the state? No, because sibling marriage is really banned because the majority finds it morally offensive.
The ruling shoots down the notion of marriage as an institution designed to promote procreation. It supports the notion of marriage as an institution that can provide for the raising of (possibly adoptive) children, whatever the gender of the parents. I don’t see how the logic of the ruling could apply to gay couples and not to siblings.
I’d expect the logic of the ruling to apply to polygamy as well. I expect someone will argue that the state has an interest in stopping that too. I’ll respond when that argument comes.
August 7, 2010, 7:00 pmMichael Ejercito says:
So they are working about to bring about same sex marriage rights because of stigma, and not because of differences in substantive legal privileges?
The Supreme Court had done that already.
- Reynolds v. United States
- Davis v. Beason
- Murphy v. Ramsey, quoted in Davis
August 7, 2010, 7:18 pmJohn Herbison says:
I hesitate to opine on whether sexual orientation is innate, although I do believe it to be. I know from my own experience, for what that is worth, that I did not “choose” my heterosexual orientation. I do not understand why some men would associate anal insertions with sexual pleasure–my only basis for comparison is undergoing a prostate examination by my physician–but I do not doubt that some men genuinely derive pleasure from sexual conduct with other men. (I also believe, however, that it is counterintuitive to suppose that a genetic tendency toward non-reproductive sex would pass itself along from one generation to the next, but I realize that I am not qualified to say.)
That having been said, I do not regard whether orientation is innate as being germane to whether exclusion of gays and lesbians from the benefits of marriage is any of the government’s business. Government is a blunt instrument, and fretting about what willing adult sticks what into another willing adult, whether within the marital context or otherwise, is none of Caesar’s damned business.
I have a few questions, though, for each of those heteros commenting here, who contend that sexual orientation is a choice:
I can intuit that someone who experiences sexual attraction to both men and women would need to compare his or her options–bisexuality being one of those options. Absent that dual attraction, though, why and how would anyone experience the need to “choose” between heterosexual and homosexual orientation?
August 7, 2010, 8:52 pmJake says:
Wow, I feel like I just read a white paper from GLAAD.
Your first paragraph does nothing to refute the twin studies that I mentioned regarding sexual orientation. Thank you for stating what is already assumed about genetics regarding whether traits are determined by one or more genes, which I had already mentioned. When you say most genetic traits are the result of multiple genes, you conveniently leave out the necessary qualifier, physical traits. Unfortunately for you and the point you were trying to make, we are talking about human behavior, which you inexplicably compare to eye color, hair color, etc, later in your post. Which is surprising since it is genetically impossible for monozygotic twins to have different eye colors. You seem to imply that homosexual orientation, as a similarly ironclad biologically determined trait gets a genetic “get out of jail free card”.
You again state more obvious knowledge about the Human Genome. The point I was trying to make, is that to date, based on the mapping of the Genome, there is no gay gene or collection of gay genes that influence sexual orientation. The mapping of the Human Genome has allowed for discovering exactly what these genes do. Of course there is a feverish attempt by homosexual activist groups to find that collection of genes. It is possible that there may be in the future, but alas, none have been found.
Which brings me to fundamental academic difference between our posts, you are asserting evidence which hasn’t been found yet. You are also claiming a consensus between biologists, geneticists, and psychologists that homosexuality is determined by genetic pre-disposition. That implication is at best, wishful thinking, and at worst propaganda.
Biological and Genetic determinism is nowhere near at consensus level in their respective fields. Richard Lewontin and Stephen Jay Gould both of Harvard are/were two of the most famous skeptics. Lewontin would scoff at your comparison between homosexual relationships between humans and other animals as textbook genetic determinism. The human mind and human behavior is infinitely more complex than a few bird species with homosexual “relationships”.
Not only are your assertions ridiculous from a biological perspective, but also from a psychological perspective. Again you avoid my argument on child abuse as a modifier in sexual orientation and claim that it is only based on “neo-natal” factors. That’s an extremely interesting theory of human psychology, which very few share. Again you repeat the “chose” misnomer and avoid the arguments of environmental effects, either conscious or unconscious.
By claiming false inter-disciplinary consensus and failing to address 120 years worth of modern psychology’s understanding of the human mind, your argument becomes a grasping of straws. But the line that gave me the best smirk was your comment about me wanting all of my arguments being true. This is what Robert Bly would have called “projection”. As far as me being afraid of bringing up my arguments to anyone, the only people I might think twice about would be gay activists. Arguing with a mob is not productive.
August 7, 2010, 9:04 pmDoug says:
Sure, but those argue against gay marriage too, and so they’ve been overridden.
My point, since I haven’t made it clearly enough, is that there’s no reasonable interpretation of this ruling that would have it allow gay marriage and not also allow polygamy, and other things. I’m not arguing for or against the ruling, only against the distinctions drawn by those who want their rights enhanced by the ruling while still excluding those in a less politically popular class.
August 7, 2010, 9:55 pmMichael Ejercito says:
When were those Supreme Court decision overruled?
The Utah Supreme Court cited Reynolds in State v. Holm.
August 7, 2010, 11:18 pmChris Travers says:
I think that when this has substantive impacts it has in terms of the representation that California is making to everyone else, then there is at least a reasonable EPC claim.
This has to do when California is telling other states or the federal government that these are not marriages.
August 7, 2010, 11:48 pmDoug says:
Overridden, for the purpose of this argument, in Perry v. Schwarzenegger. If the Supreme Court upholds the decision here, that California has a constitutional obligation to provide marriages on an equal basis, then whatever in those rulings says that marriage is between a man and a woman will be null and void.
I presume that you object to the ruling in Perry V. Schwarzenegger, and would argue that it contradicts established law. Fine. Whatever. I’m trying to understand the consequences of Perry v. Schwarzenegger becoming the law of the land. Can you tell me that in that case the rulings you cite will remain in effect? That gay marriage will be legal but at the same time it will be only the union of one man and one woman? I expect not. So then these cases are not relevant in a post PvS future.
August 7, 2010, 11:57 pmJohn Herbison says:
Suppose that, in 1966, the Commonwealth of Virginia and her fellow southern sates had offered a “separate but equal” status for interracial husbands and wives that was termed “miscegiage”? Putting aside the Due Process aspects of Loving v. Virginia, would the verbiage have mattered to Richard and Mildred Loving’s Equal Protection claim?
August 8, 2010, 12:02 amMichael says:
I really don’t have standing to say it, but this post is an elegant, mathematical proof of your theorem. In Romer v. Texas, it was said that ‘moral disapproval can not be a basis for law.’ Judge Scalia objected to the decision saying that you had to uphold the sodomy law or accept homosexual marriage. It seems to me our logic should be able to be more subtle. ‘Moral disapproval’ encompasses more than one element, and these might be sought. After all, the implication in the statement imputed to Romer is that the ‘law’ is more ‘moral’ than ‘moral disapproval.’ One view of the underlying dispute is that homosexuality is likely more a narcissistic object choice than may be achieved in current marriage. While that may be the best choice for an individual and even applauded in part for honesty, it still doesn’t represent as much psychological development as might occur in a marriage which is the ‘rational basis’ for keeping the law as it is.
August 8, 2010, 1:58 amReaderY says:
Surely you’re not suggesting that allowing white people to operate segregated lunch counters in peace could have any affect on the dining opportunities of colored people?
According to Judge Walker, a law based on such thinking would be irrational.
August 8, 2010, 3:42 amcecil kirksey says:
Okay here is a stab at providing the missing rational basis for defining marriage as a legal binding contract between one man and one woman. The state controls adoption of children. The state controls child support whether the child is born legitimately or not. I am not sure if CA controls artifical insemination or not but it may. The state recognizes that only one man and one woman can conceive a child. The state has a complying interest in the welfare of children. The state then endorses the relationship that it defines as marriage: the legal contract between one man and one woman.
This is not to say that other relationships cannot produce children but the state chooses to endorse this particular relationship. Can it provide special benefits to the participates in this relationship? Yes it does it now. Married couples are much more likely to be able to adopt than say an unmarried couple. Here in Florida gays can not adopt. Surely a state can deny the “right” of unmarried couples from adopting a child. But if SSM is held to be a fundemental right by the SCOTUS then all of this will certainly change.
Just as an aside. Homosexuality has apparently been around for sometime. But this particular characteristic if not surpressed would naturally die out in the species if it was genetic. I happen to believe that homosexuality is genetic but the gene has been carried through generations because the homosexual tendencies have been surpressed by society and the homosexuals actually practiced bisexually relationships that allowed the gene to continue to be propogated through generations. But I am open minded and am waiting for the gene(s) to be isolated.
August 8, 2010, 12:26 pmMichael Ejercito says:
There is actually another court case that had declared that a state constitutional amendment defining marriage to be between one man and one woman violates the equal protection clause of the 14th Amendment. In In the Matter of the Marriage of J.B. and H.B., a Texas district court ruled that the Texas DOMA was unconstitutional, and as such the courts have a duty to hear a divorce suit involving a same-sex couple. A Texas appeals court recently heard arguments. There are four potential rulings
- The lower court ruling is affirmed in full.
- The lower court ruling is partially affirmed. Texas has the authority to grant a divorce, and thus the couple is entitled to a divorce proceeding. The Texas DOMA does not prevent the state from granting a divorce, so the ruling that the Texas DOMA is unconstitutional is vacated as the constitutionality of the Texas DOMA is not germane to the case.
- The lower court ruling is overturned. Texas state law does not give the state the power to grant a divorce, and so the lower court is enjoined from continuing divorce proceeding. The Texas DOMA does not prevent the state from granting a divorce, so the ruling that the Texas DOMA is unconstitutional is vacated as the constitutionality of the Texas DOMA is not germane to the case.
- The lower court ruling is partially overturned. The Texas DOMA is held to be constitutional, and as such the lower court is enjoined from continuing with the divorce proceeding.
A Texas appellate court ruling either declaring the Texas DOMA to be constitutional or unconstitutional will preserve the issue. The Supreme Court may even grant cert, possibly consolidating it with the California case once it clears the Ninth Circuit. Similarly, the issue is likely to be preserved if the court denies the divorce even if the ruling on the unconstitutionality of the Texas DOMA is merely vacated, not overturned, as the losers of that case will almost certainly claim that the Texas DOMA is unconstitutional on appeal.
A partial affirmation (allowing the divorce, but vacating the ruling on the unconstitutionality of the Texas DOMA) may not preserve the issue.
I do not know.
My California driver’s license has SEX: M written on it, and others have driver’s licenses with SEX: F due to their sex. While California state law itself does not define SEX: M and SEX: F licenses, the Department of Motor Vehicles is clearly marking driver’s licenses with SEX: M and SEX: F on the basis of gender. That is gender discrimination.
However, gender discrimination is not held to the same level of scrutiny as racial discrimination. And I should note that California driver’s licenses do not have RACE: BLACK or RACE: WHITE.
That is true.
But those rulings will most likely be used in the appeal briefs to the Supreme Court, as they imply that limiting the definition marriage as between one man and one woman is a legitimate, or even important state interest. “[N]o legislation can be supposed more wholesome and necessary…” (Murphy, quoted in Davis) In Davis, the Supreme Court listed all the harms that come from legal recognition of polygamy, without citing findings of fact or court cases.
If the Supreme Court decides that those are not important or even legitimate state interests, it has better explain why those were not legitimate or important state interests under the original public understanding of the 14th Amendment. And it had better explain how Baker v. Nelson can not be reasonably reconciled with the original public understanding of the 14th Amendment.
A Supreme Court ruling that upholding the rulings in Perry and In the Matter of the Marriage of J.B. and H.B., or upholds a ruling fully in favor of the plaintiffs in Bonilla v. Hurst, would indeed invalidate the reasoning in the anti-polygamy cases. The constitutionality of bans on polygamy would be in doubt.
The actual injury that was found was a deprivation of “social meaning”. How would one quantify social meaning.
Other Supreme Court cases on constitutional violations involved substantive harm or threat of substantive harm, like criminal or juvenile convictions (Reynolds v. United States, Davis v. Beason, Loving v. Virginia, Michael M. v. Superior Court, Lawrence v. Texas, Melendez-Diaz v. Massachusetts), threat of criminal prosecution (District of Columbia v. Heller, McDonald v. Chicago), threat of school disciplinary action (West Virginia State Board of Education v. Barnette), and threat of execution (Louisiana v. Kennedy, Coker v. Georgia) The two other cases I mentioned dealing with the constitutionality of defining marriage even demonstrate substantive harm, like the inability to get a divorce (In the Matter of the Marriage of J.B. and H.B.) or the inability to obtain substantive benefits that go with officially recognized family relationships (Bonilla)
Can private citizens actually be civilly liable for denying social meaning? If denying social meaning is a substantial injury, then it would fall under a tort, or damages can be awarded in civil cases because of denial of social meaning?
August 8, 2010, 12:52 pmMichael Ejercito says:
There is an actual physical separation that can be measured.
Linguistic separation is a lot more subjective.
In Israel, the analogue of marriage is נישואים. (note that Hebrew reads from right to left) While we would call them marriages, remember that translations between languages are not precise due to cultural factors.
If an Israeli couple in a נישואים immigrates to California, are they diminished, denied social meaning, if people calls them married instead of נישואים? Are they diminished or denied social meaning if people call them נישואים instead of married? Or does it not matter as long as they are treated like couples in marriages and domestic partnerships?
August 8, 2010, 1:04 pmAlessandra says:
Thus it is a complete lie and a contradiction to state that *marriage* is fundamental, that it is a *right*, and that it is a *fundamental right,* such as you are doing.
What exactly was California offering? What exactly do *homosexual marriage* zealots claim they were not getting in California?
August 9, 2010, 6:35 amAlessandra says:
Oh I did read your statements, better than you think. The fact that you never explicitly stated that bonobos were homosexual is a disengenuous excuse because this is not a thread about monkeys.
We are exactly debating homosexual psychologies and behaviors in humans. So to say that a certain animal species engages in homosexual behavior, while those very same chimps engage in heterosexual and bisexual behavior is clearly misleading, in the context of the discussion. Your point is to legitimize homosexuality in the human context, and that’s the reason for you bringing up the bisexual behavior of bonobos, which you called homosexual, because obviously bisexual includes hetero and homosexual. You’re just throwing the label “homosexual” out of context concerning bonobos to try to make a false claim in the human context about the (false) normality and legitimacy of homosexuality.
Have you encountered anyone claiming that homosexual bonobos exist? I haven’t.
Chris: I never did call a bonobo a “homosexual.” I said that their sexuality and those of other primates was evidence that homosexual activity was biologically normal in our species. You were the one who said we were biologically heterosexual as a species, and if what you mean by that is in conflict with my narrow statement, you are wrong.
Chris, are you even aware that we are not of the same species as bonobos? We are NOT even of the same genus as bonobos. So bonobos are incapable of monogamy, adult-only sexual behavior, and heterosexual behavior. And you are proving what exactly, that all of this (incest, exclusive promiscuity, exclusive bisexuality) is NORMAL and LEGITIMATE for humans because bonobos do it?
Completely lunatic.
August 9, 2010, 6:55 amAlessandra says:
As long as you must repeatedly lie about the reasons why people with a homosexual problem do not get married or shun homosexual marriage, including all their dysfunctional attitudes and behaviors to relationships and sexuality, that is a problem on a level of a state interest.
“there are thousands of gays and lesbians who DO want to get married”
compared to all the hundreds of thousands who DO NOT want to…
compared to all the thousands and thousands of homosexuals who sexually harass, batter, and encourage harmful attitudes and behaviors about sexuality that you never address…
August 9, 2010, 7:06 amAlessandra says:
You have. Unfortunately, such people are now obstinate to use such distorted, shoddy circular unscientific thinking to deny others employment and education, stifle freedom of speech and research, when not pursuing legal persecution to deny them fundamental rights.
I hope that someday we will also have more research showing that it’s not only the experiences of being sexually victimized that may profoundly contribute to the development a homosexual psychology, but also those experiences that deform the human mind as abusers of others.
The more some people view others as sexual objects in a perverse way, the more they will get their thrills through victimizing others, and certainly for many, there is a heightened appeal to sexually victimize those of the same sex. Much like pedophiles who project onto to their child victims their own perverse thoughts about sexuality, so do a number of bisexual and homosexuals when they victimize heterosexuals (and others).
Obviously, the state has a much greater instance in dealing with sexual harassment and violence than with homosexual “marriage,” but given the unconsciousness and glaring insensitivity from privileged professionals, the debate centers highly around homosexual “marriage” and not homo and bisexual harmful attitudes and behaviors towards others.
August 9, 2010, 7:20 amzuch says:
Huh? There is a non-zero heritability of homosexuality. No one said it was 100% or said that a specific “gay gene” or cluster of such were 100% responsible.
To paraphrase Pauli, “this is not even wrong….”
Cheers,
August 10, 2010, 2:03 pmMichael Ejercito says:
Social meaning.
August 10, 2010, 2:07 pmAlessandra says:
instanceinterest
August 10, 2010, 4:56 pm