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The (limited?) potential of the California marriage decision:

So the California Supreme Court did it. In an extraordinary, sophisticated, and far-reaching opinion (available here), the California Supreme Court held (1) that the fundamental right to marry protected by the state constitution includes the right of same-sex couples to marry, and (2) that exclusion of same-sex couples from marriage burdens their fundamental interest in marriage and amounts to sexual-orientation discrimination that cannot survive strict scrutiny under the state constitution's equal protection clause.

Both of these holdings depart in very significant ways from the same-sex marriage precedents so far, including the jurisprudentially questionable Massachusetts marriage decision in Goodridge from 2003. The California Supreme Court decision is by far the best and most well-reasoned opinion so far upholding same-sex marriage claims.

In this post I won't comprehensively analyze the court's opinion or all of its possible meanings. That has been done ably elsewhere, including by Eugene (see his informative and succinct initial post here) and by the invaluable Professor Arthur Leonard of New York Law School in several careful and detailed posts about the decision (see here, here, and here). The decision will have an impact in politics, culture, and law. In this post, I'll discuss the latter: the potential of the California decision to influence marriage litigation elsewhere.

The decision injects new life into the litigation strategy for obtaining same-sex marriage. It does so in the obvious way that litigants will be able to cite it as persuasive authority in other states for its ultimate holding that there is a constitutional mandate to allow gay couples to marry. But it does so additionally because the court that issued it is careful, cautious, and well-respected. More specifically, it could be influential in a case called Kerrigan v. Comm'r of Public Health pending before the state supreme court in Connecticut, which addresses the similar question whether the state may withhold the title of "marriage" to same-sex couples when the state has granted them all of the benefits of marriage under state law. Other states with civil unions -- New Hampshire, New Jersey, and Vermont -- can similarly expect renewed efforts to persuade their state courts to extend marriage itself to same-sex couples.

A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted all of the substantive rights of marriage to gay couples under the state's domestic partnership laws. The California court emphasized this point throughout the opinion, including in an unusual footnote in which it suggested in dicta that it might have returned the issue to the state legislature for initial consideration and resolution if the state hadn't previously enacted a comprehensive domestic partnership scheme for gay couples. Op. at 47 n. 27.

Having created nearly complete state recognition for gay couples, California was left to defend the notion that it was justified in withholding the word "marriage" from these families based solely on the traditional definition of marriage as the union of one man and one woman. None of the usual state interests in procreation and child-rearing that have been advanced in other cases were available to the state attorney general, since the state had already surrendered any such rationales through its comprehensive domestic partnership scheme. So the state lost. (As I've argued before, and as Eugene points out in his slippery slope post, the holding provides political ammunition to opponents of legal rights for gay families who will warn state legislatures against moving toward any recognition lest state courts require the state to slide all the way to full marriage.) The same will not be true in litigation in other states where public policy has not erased all substantive distinctions between gay and straight couples, and thus perhaps the influence of the California decision on other state courts will be very limited.

But I think this potential limitation on the impact of the California ruling has more bark than bite for two reasons.

First, the California court held that the fundamental right to marry includes the right of same-sex couples to marry, just as it concluded in 1948 that the right to marry includes the right of inter-racial couples to marry, not that there is a fundamental right to "inter-racial marriage." Op. at 51. The California court did not hold that there is a new and separate fundamental right to something called "same-sex marriage," a nuance some critics of the decision have missed. This holding is a first for a state high court in marriage litigation. Most of the courts so far have missed the distinction and have assumed that the claim at issue was for recognition of a new fundamental right to same-sex marriage and then, having under-theorized the issue, they've gone on to reject the "new" right. It's the same methodology the Supreme Court used in Bowers v. Hardwick, where it rejected a new fundamental right to "homosexual sodomy." The Supreme Court rejected that approach in Lawrence v. Texas by saying that the issue was whether the conduct was protected by the long-recognized fundamental right of adults to private intimacies. The California court's frank discussion of the level of generality at which fundamental rights are defined is the most sophisticated yet in a marriage case. See, for example, the discussion of Washington v. Glucksberg and other cases at pp. 70-72.

However one feels about this distinction between a narrow and broad characterization of the claimed right, the California court's conclusion about the inclusion of gay couples within the pre-existing fundamental right to marry does not itself depend on whether the state has previously created a status for them substantively approximating marriage. The decision depends instead on what the California court called the substantive interests in personal autonomy, dignity, happiness, and familial fulfillment protected by the right — interests that gay families fully share with heterosexual ones.

Nowhere in its discussion of the substantive importance of the right to marry does the California court rely on the creation of domestic partnerships. Gay couples, like straight couples, have these interests regardless of whether the state has acted to protect them in some way. Thus, says the court:

[O]ur reference to numerous statutes demonstrating California's current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment (ante, fns. 46, 47) does not suggest that an individual's entitlement to equal treatment under the law — regardless of his or her sexual orientation — is grounded upon the Legislature's recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity.

It would be surprising for a court to hold explicitly that the legislature expanded by statute the substantive scope of a fundamental constitutional right. The legal realist would observe that, whatever courts say they are doing, this is in fact what does happen. The interpreation of spacious provisions about "due process" and "equal protection" often rests on empirical learning, experience, and evolving understanding such that this broad constitutional language is applied to new contexts in ways that would have seemed strange at the time these provisions were enacted.

The California court concludes that the state's legislative domestic-partnership enactments have not created a new constitutional right but are a confirmation and official recognition of an underlying truth about the equal needs and capacities of gay couples and families. So even if California had not enacted the domestic partnership laws for same-sex couples, the California court would have concluded under its own logic that they were included within the fundamental right to marry. This holding should have some influence on courts in other states.

Second, the holding that excluding gay couples from marriage is sexual-orientation discrimination and that such discrimination cannot survive strict scrutiny also does not depend on whether the state previously enacted domestic partnership laws. If the substantive right of marriage, and the dignitary interest in having the relationship called "marriage" by the state, cannot be denied on the basis of sexual orientation it should not matter that the state has left gay families completely without legal protection or has seen fit to protect them in all substantive ways but withheld the title marriage. Indeed, if the state had refused to give gay couples any protection under state law, or had given them only very little protection, the affront to equal protection principles under the court's reasoning would be even greater. The equal protection holding, quite apart from the fundamental-right holding, has potential to influence sister state courts in future marriage litigation.

None of this means that courts in other states will follow the California decision. They are free to reject it. They can rely on the larger number of state high courts that have rejected claims for same-sex marriage. They can say that California is unusual in its legal development toward the recognition of gay families. They can distinguish their own precedents from the California precedents. As a practical matter, they may feel pressured to rule against same-sex marriage because they face elections. My prediction is that we will not see an avalanche of gay-marriage victories in states across the country. California was one of the last hopes of the gay-marriage litigants, who have lost in many states where the state judiciary was thought to be sympathetic. But, as an analytical matter, California's supreme court has set the bar higher than ever before.

There are many more facets of this long opinion that are worth consideration, including the California court's use of secondary authorities (which will thrill some of those authorities and dismay others), its analysis of the sex-discrimination argument for gay equality, its first-in-the-nation holding that sexual-orientation discrimination should be subjected to heightened scrutiny, its holding that the distinction in nomenclature between "marriage" and alternative statuses like "civil unions" or "domestic partnerships" is a constitutionally significant one, and its elaborate refutation of common policy arguments against gay marriage. There are fascinating and very complex political and legal questions raised by the proposed state constitutional amendment in California that would limit marriage to one man and one woman. Also, because California, unlike Massachusetts, has no residency requirement for marriage, there are legal issues that will be raised by gay couples living in other states who travel to California to get married. And of course there is the human side of this story, noted by Eugene, affecting the aspirations of thousands of gay families in the state of California. I hope to address some of these and other issues in future posts.

Paul Milligan (mail):
It dies at SCOTUS

http://www.capitolhillblue.com/cont/node/7413

Diane and Joanie, legally married in Massachusetts, are in say Utah when Diane is accused of murder. The prosecution believes that Diane has confessed to Joanie and they call Diane to testify. Diane refuses to testify, claiming her legal right not to be compelled to testify against her spouse.

Utah refuses to recognize the validity of the marriage and throws Diane in jail for contempt of court and she appeals, claiming that the Constitution of the United States requires that each state give full faith and credit to the laws of other states (Constitution, Article IV, Section 1) and therefore the State of Utah must allow Diane to refuse to testify against Joanie without penalty.

Put another way, suppose Dave and Rachel marry at the age of 15 in a state that allows such marriage. They then immediately move to a state which requires persons entering into marriage to be at least 18. Is the marriage void for the purposes of compelling testimony?
5.20.2008 12:06am
A B:
As always, it comes down to motivation. Someone who really wants Gay Marriage, despite all protestations to fairness and balance, will simply paper over the judicial tyranny involved. It really comes down to this, Dale:

1) Legally, the courts overturned the voters will because the voters tried to compromise with Domestic Partnerships. Appeasement works equally well with 'Equality Now' groups and Hezbullah.

2) There's strong reason to believe that there's a compelling state interest in privileging man-woman relationships over all others. The New York Court found it, yet the California Attorney refused to make the case. So the whole thing was a set-up and people will not forget this come November.
5.20.2008 12:08am
Dave Hardy (mail) (www):
Hmm... is there a fundamental right to unmarry, to get a divorce? If so, on what basis can it be burdened by fees, waiting periods, mandatory courses, etc.?

And as to marriage, on what basis can the state demand cash up front for a marriage license?
5.20.2008 12:11am
Sk (mail):
Gay marriage is obviously coming. It is obviously coming because legal elites want it to come (it is not, necessarily, coming because the citizenry wants it to come). This ruling, like all others on gay marriage, is a successful effort at giving rhetorical cover to those legal elites to simply tell the rest of us what to do.

Even this post, and its logical and legal analysis, is itself additional rhetorical cover to offer a veneer of legitimacy to what, ultimately, is the simple statement that "We the legal elites believe in gay marriage, we have the power to make the citizenry accept that view, and thus we will do so."

Sk
5.20.2008 12:18am
Lawer-Wearing-Yarmulka (www):
This of course discourages domestic partnership laws. If a state is going to create them, a court is just going to say that there's no rationale for not calling it marriage.
5.20.2008 12:41am
SIG357:
They can say that California is unusual in its legal development toward the recognition of gay families.

Or, in this case, its illegal development toward the recognition of gay families.
5.20.2008 12:46am
SIG357:
"We the legal elites believe in gay marriage, we have the power to make the citizenry accept that view, and thus we will do so."


Yes, I wish Mr. Carpenter could have been as succinct. The pretence that there is anything "legal" about what is going on here is a bit much. It's naked power at work.
5.20.2008 12:49am
Milhouse (www):
Paul Milligan.

1. The Full Faith and Credit clause does not require states to recognise interstate transactions that would have been invalid had they been attempted in that state. And just in case, DOMA guarantees that states don't have to recognise each other's same-sex marriages. So the Utah case won't come up.

2. That's up to the state. I'm not aware of any state that won't recognise such a marriage, but there's no constitutional barrier preventing a state from adopting such a policy.
5.20.2008 1:02am
Perseus (mail):
The California court did not hold that there is a new and separate fundamental right to something called "same-sex marriage," a nuance some critics of the decision have missed. ...Most of the courts so far have missed the distinction and have assumed that the claim at issue was for recognition of a new fundamental right to same-sex marriage and then, having under-theorized the issue, they've gone on to reject the "new" right.


Since the CA Supreme Court has recognized same-sex couples as being the only additional group of individuals capable "of loving and enduring relationships comparable to those entered into by heterosexuals," I maintain that the Court did indeed mint a shiny new right. However, should the Court follow its choplogic down the slippery slope, I would be willing to revise my view.
5.20.2008 1:18am
Thales (mail) (www):
"Or, in this case, its illegal development toward the recognition of gay families."

Have you now moved on from moral outrage to actually asserting that the California Supreme Court lacks the authority to interpret the California Constitution? That claim seems pretty baseless.
5.20.2008 1:19am
H Tuttle:
I think the folks at NRO have conducted a fair and thorough exegesis of this decision at http://bench.nationalreview.com/, but I must disagree with Mr. Carpenter's statement in passing "that litigants will be able to cite it as persuasive authority in other states for its ultimate holding that there is a constitutional mandate to allow gay couples to marry." With all due respect, I don't think many state high courts find CA's high courts, state or federal, very persuasive on very many issues. I fully expect this decision to be overturned by the ballot box later this year.
5.20.2008 1:23am
A. Zarkov (mail):
"A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted all of the substantive rights of marriage ..."

Exactly. That's why we should never have gone down that road. Creating "domestic partnerships" was the camels nose in the tent. That's why you have to stop these things in the early stages.
5.20.2008 1:29am
Thales (mail) (www):
"That's why you have to stop these things in the early stages."

Good to know. I will try to remember to always be vigilant enough to nip freedom in the bud.

I'm retiring from the VC's comments for a while. The invective has gotten to a ridiculous level, and I have been sucked into it myself by responding to things that are really a waste of everyone's time. Cheers.
5.20.2008 1:35am
Cornellian (mail):
As always, it comes down to motivation. Someone who really wants Gay Marriage, despite all protestations to fairness and balance, will simply paper over the judicial tyranny involved.

I hear ya. I'm still steamed over the Cal Sup Ct's tyranny in striking down the ban on interracial marriage in Perez v Sharp in 1948.
5.20.2008 1:38am
Cornellian (mail):
I don't think many state high courts find CA's high courts, state or federal, very persuasive on very many issues.

My recollection of law school (which wasn't that long ago) is that no state supreme court is all that persuasive to another state supreme court, but to the extent that any state supreme court is persuasive, California's would qualify overall, though I doubt any state supreme court decisions matters much on an issue like this outside the borders of that state.
5.20.2008 1:40am
Cornellian (mail):
They can say that California is unusual in its legal development toward the recognition of gay families.

Or, in this case, its illegal development toward the recognition of gay families.


Your view is that the California legislature didn't have the power to create domestic partnerships?
5.20.2008 1:46am
Cornellian (mail):
Diane and Joanie, legally married in Massachusetts, are in say Utah when Diane is accused of murder. The prosecution believes that Diane has confessed to Joanie and they call Diane to testify. Diane refuses to testify, claiming her legal right not to be compelled to testify against her spouse.

You can't be tried in Utah for a murder committed in Massachusetts. If you commit murder in Utah, then Utah privilege law applies, not Massachusetts privilege law. FF&C has nothing to do with that issue.
5.20.2008 1:49am
Cornellian (mail):
Put another way, suppose Dave and Rachel marry at the age of 15 in a state that allows such marriage. They then immediately move to a state which requires persons entering into marriage to be at least 18. Is the marriage void for the purposes of compelling testimony?

You could also use the example of first cousins, married in a state where that is legal, who then move to a state where it isn't legal. FF&C has never required all states to have the same marriage eligibility rules, either in terms of minimum age, degree of blood relationship or anything else.
5.20.2008 1:51am
Cornellian (mail):
Here's NRO quoting Fred Thompson criticizing the California decision.

The judge's job is simply to apply to the circumstances of the cases that are brought to their court the laws that have been written by lesser mortals. The job requires restraint, modesty, and reverence for the established rules of society. The judge is obliged to uphold the status quo until the people decide to change it. Where is the glory in that, for Pete's sake?

So I guess Kelo was right to "uphold the status quo" and presumably the court should "uphold the status quo" by sustaining the gun ban in Keller.
5.20.2008 1:55am
Randy R. (mail):
Man, it's a good thing that the 'elites' are all so pro-gay. If we can get hetero Republican judges on our side, then anything is possible.

I guess in the past they would have been called 'homo lovers' and would have been seen as a traitor to their gender.
5.20.2008 2:18am
jps:
"Since the CA Supreme Court has recognized same-sex couples as being the only additional group of individuals capable "of loving and enduring relationships comparable to those entered into by heterosexuals," I maintain that the Court did indeed mint a shiny new right. However, should the Court follow its choplogic down the slippery slope, I would be willing to revise my view."

Perseus- LGBT people aren't an "additional group of individuals"- they're California citizens. Moreover, since most would agree that the decision allows for marriage between a bisexual and a hetero or homosexual of the same gender, what other groups of individuals are there? Doesn't that cover the whole universe of individuals based on sexual orientation?
5.20.2008 2:20am
A. Zarkov (mail):
"Good to know. I will try to remember to always be vigilant enough to nip freedom in the bud."

My neighboor's freedom to play the trumpet at 3:00 am takes away my freedom to sleep undisturbed.
5.20.2008 2:22am
A B:
Oh yeah, Cornellian. Please, Please do continue to claim without analysis or thought that gay marriage is the same as interracial marriage. The lack of actual ability of people like you to actually grasp or wrestle with the issues involved is amazing-- doubly so, since you seem to be working with some law journals in front of you.
5.20.2008 2:23am
Cornellian (mail):
AB, I made no such claim. Did you read what I posted?
5.20.2008 2:25am
A B:
OK Cornellian, I could have been mistaken in taking this for snark:

I hear ya. I'm still steamed over the Cal Sup Ct's tyranny in striking down the ban on interracial marriage in Perez v Sharp in 1948.

If so, I apologize.
5.20.2008 2:56am
Splunge:
It's weird to see the California Supreme Court nattering on about whether the State can "withhold" the mere word "marriage" from a relationship. Uh..say what? I mean, who actually cares whether the Legislature "dignifies" your relationship with a particular label or not? I can call my relationship whatever I damn well please -- I can call it a "turnip" if I want, or a "marriage," or "Friends With Benefits" -- and I don't see how the opinion of a hundred-odd halfwit stripey-pants pontificators in Sacramento should affect my equanimity about the word choice in the slightest. Whether I find the word pleasing, whether my partner does, and whether my community does, has just about zip to do with the law.

So I think this decision, inasmuch as there is no actual practical distinction between homo and het legal partnerships in California, has no practical significance in California at all. At least, not for the citizens.

For the judges...that's another story. Folks don't like being told even how to speak by arrogant ivory-tower asses who think they're better. The hoi-polloi might just decide to get a stout length of (metaphorical) rope, pick out a good tree, and remind said asses just where the real power lies.
5.20.2008 3:08am
Perseus (mail):
LGBT people aren't an "additional group of individuals"- they're California citizens. Moreover, since most would agree that the decision allows for marriage between a bisexual and a hetero or homosexual of the same gender, what other groups of individuals are there? Doesn't that cover the whole universe of individuals based on sexual orientation?

I referred to same-sex couples, who may be homosexual, bisexual, or heterosexual. This is the addition to opposite-sex couples (who may also have various sexual orientations), who historically have been granted the exclusive privilege of marriage. What I was getting at was the CA Supreme Court's ostensible criterion for marriage eligibility, namely, the capacity "to enter into loving and enduring relationships." Why is that capacity restricted to couples (or adults or humans)? The Court's ritual invocation of "our nation's culture" and a "sound family environment" (pp. 79-80, n. 52) does not provide a very compelling answer because the Court is prepared to ignore our national culture (and CA voters) when it happens to contradict the Court's own view on the matter. But since the Court is not (yet) prepared to take its marriage eligibility criterion to its logical conclusion, I can only conclude that the Court did mint a new right.
5.20.2008 3:14am
Cornellian (mail):
It's weird to see the California Supreme Court nattering on about whether the State can "withhold" the mere word "marriage" from a relationship. Uh..say what? I mean, who actually cares whether the Legislature "dignifies" your relationship with a particular label or not?

So back at the time Loving v. Virginia was decided, it would have been OK for the Virginia legislature to refuse to recognize interracial relationships as marriages, provided it created a parallel legal structure for them and called them "transracial unions?"
5.20.2008 3:56am
Cornellian (mail):
Folks don't like being told even how to speak by arrogant ivory-tower asses who think they're better.

And if the Supreme Court overturns the DC gun ban in Heller, will they also be "arrogant" and "think they know better?"
5.20.2008 4:16am
Cornellian (mail):
Hey I just read that Lt. Sulu (George Takei) is going to marry the guy he's been living with for 21 years. Since George is Asian and the other guy is White, they can bill it as a judicial tyranny twofer.
5.20.2008 4:26am
jab:
azarkov opined:

My neighboor's freedom to play the trumpet at 3:00 am takes away my freedom to sleep undisturbed.


And exactly what specific freedom of yours is taken away by Lt. Sulu (George Takei) and his partner of 21 years (thanks Cornellian!) being able to marry? Seriously? What freedom REAL freedom have you lost? And I'm not talking about to some abstract freedom... but I want specifics... how is your real, actual, day-to-day freedom infringed on in any way whatsoever?

Nothing like a good ole SSM marriage thread to reveal who the real libertarians are from the fake...
5.20.2008 5:51am
A.W. (mail):
I'm sorry, you lost me at the part where you said that the Cali SC was careful and well-respected.

Even at YLS, they are considered a wildly activist court and their rulings are considered very dubious authority in other jurisdictions.

And really, guys, let's be honest. You like these decisions because you like their outcomes. But at as matter of original intent, they are laughable. People read clauses written over a hundred years ago, and claim they allow for equal rights for gays. but let's be honest: if the founders in the 1700 or the 1800 had really believed anyone would be crazy enough to read these documents this way, they would have rewritten them to avoid that interpretation. And by the Supreme Court's well-reasoned analysis in Dartmouth College v. Woodward, which i consider to be persuasive authority on state constitutions, if you believe that about the founders, you cannot press that interpretation.

There is a right way and a wrong way to go about this social revolution. Trampling our sacred constitutions is the wrong way.
5.20.2008 11:00am
Skyler (mail) (www):
I guess "sophisticated" is another way of saying they created law out of thin air in defiance of the people.
5.20.2008 11:09am
Jeff Lebowski (mail):
"I don't get all the fuss about same-sex marriage. I've always been the same sex, and I've been married for years."

(George Carlin, When Will Jesus Bring the Pork Chops?).

Not a lawyer, so I hesistate to wade into the debate about the opinion itself. That, and I know much more about Indiana's Constitution than California's (the result of being born and raised here).

As a policy matter, it makes no difference to me whether gays &lesbians marry or not. Doesn't really affect me one way or the other. My wife, on the other hand, who's even farther to the right than I am, says, "Let them get married! Why shouldn't they be as miserable as the rest of us?"
5.20.2008 11:14am
Dan Hamilton:

And exactly what specific freedom of yours is taken away by Lt. Sulu (George Takei) and his partner of 21 years (thanks Cornellian!) being able to marry?


I do not give a damn about SSM. I care about the WAY it was MANDATED by the courts. Are you so stupid that you can't see that if the courts can do this they can do whatever they want? The courts become all powerfull. The constitution State or Federal becomes whatever the courts say they are.

Right now the courts are on YOUR SIDE. But what will you say when the courts are on another side. Say the courts decide that the Establishment clause of the First means ONLY that the Fed cannot establish a Federal Church but the States CAN establish a STATE CHURCH. The states did that. Then what will you say??? You would screem bloody murder but HOW is that different then what the courts are doing about SSM? There isn't any difference.

Keep on praising the courts for their SSM ruling and soon you will find out that your new MASTERS in Black Robes don't care about your freedoms as much as you think.

Once they decide something it is almost impossible to change it. When the California Supreme Court invalidates the new admentment after it passes in November. Then what recourse do the people have??? Tell me! NOTHING BUT VIOLENCE! They have NO legal recourse! They MAY eat it this time. But what happens when they can't take your MASTERS in Black Robes? NO LEGAL WAYS TO CHANGE THE COURT'S DECISIONS! ELIMINATE THE COURT and PUT IN A COURT THEY LIKE.

You should fear that day because what the Court givith the Court can take away!
5.20.2008 11:28am
Washington Alrson (mail):
And exactly what specific freedom of yours is taken away by Lt. Sulu (George Takei) and his partner of 21 years (thanks Cornellian!) being able to marry? Seriously? What freedom REAL freedom have you lost?

The freedom of the people to govern themselves.
The freedom to own my home without the local council stealing it and giving it to Walmart.
The freedom to criticize my congressman 30 days before an election.
The freedom to own a gun.
The freedom to educate my kids in my own way.

See, courts who are free to make up one law are free to make up any law.
5.20.2008 11:31am
MarkField (mail):

Even at YLS, they are considered a wildly activist court and their rulings are considered very dubious authority in other jurisdictions.


This is hilarious. The CA Supreme Court has, for 20 years, had a majority of Republican appointees. It's a moderate conservative court.


Say the courts decide that the Establishment clause of the First means ONLY that the Fed cannot establish a Federal Church but the States CAN establish a STATE CHURCH. The states did that. Then what will you say???


I think you have the sequence backwards here. The Court couldn't hold that unless and until a state actually established a church. In that case, it would be the legislature interfering with my rights. Just as it was in CA, where the legislature interfered with the right of gays to marry.

The opposition here is bordering self-parody. Where was all this outrage over Kelo? How loud will you shout when Heller comes down?
5.20.2008 11:47am
nutbump (mail):
I think it is clear, that California Supreme Court has taken away a right to become a husband or wife as well as mother or father.

Four judges had imposed their will on majority of californians forcing them from now on to enter so called gender-neutral agreement instead of marriage.

In my opinion there is no doubt that californians have lost thier right to get married.
5.20.2008 11:49am
pluribus:
A. Zarkov:


My neighboor's freedom to play the trumpet at 3:00 am takes away my freedom to sleep undisturbed.


It's not clear why you couldn't sleep undisturbed if a same sex couple got married. Do you have a problem we don't know about?
5.20.2008 11:51am
Cornellian (mail):
When the California Supreme Court invalidates the new admentment after it passes in November. Then what recourse do the people have??? Tell me! NOTHING BUT VIOLENCE! They have NO legal recourse!

Well there is this thing called "voting." You do know the California Supreme Court judges are elected don't you?
5.20.2008 11:57am
A.W. (mail):
> The CA Supreme Court has, for 20 years, had a majority of Republican appointees.

Right, and there is no such thing as republican liberal activists. /sarcasm

I mean take the Supreme Court of the US. Of the most liberal 4, two, souter and stevens are republican nominees. indeed, all but 2 of the current sitting justices are republicans.

But do you really think that in 1868, those evangelical christians who freed the slaves, thought, "let's make gay sex legal!" Really?

Give me a break. Love it or hate it, they didn't like gay people and they certainly never imagined they were doing anything on the subject of gay rights, pro or con.

And please, don't give me this living constitutionalism jazz, either. It is 40+ years of living constitutionalism that has reduced the Supreme Court's reputation to the point that it was impossible for them to settle Bush v. Gore without being accused of being political. This is why every confirmation is such a fight. Because too many people believe that a judge's role is to be political, and so to them this is a matter of making sure their politics goes the right way. The cheerleaders of activism are systematically destroying one of the most sacred institutions in this republic: rule of law. That is one of the things that keeps us from being China.

If you want to advance gay rights, there is a right way and a wrong way. This is the wrong way. Pass a law. Amend the constitution. But don't pretend for one minute that the constitution, unamended MANDATES your policy preferences. We are not fools.
5.20.2008 12:04pm
Cornellian (mail):

1) The freedom of the people to govern themselves.
2) The freedom to own my home without the local council stealing it and giving it to Walmart.
3) The freedom to criticize my congressman 30 days before an election.
4) The freedom to own a gun.
5) The freedom to educate my kids in my own way.


1) Applies to any constitutional freedom, so what?
2) Taken away by the elected branches, not the federal judiciary. You want the courts to defer to the elected branches and this is what you get. By the way, the Constitution doesn't explicitly say the government can't take your home and give it to Wal-Mart, that's an inference or, dare one say, a "penumbra."
3) See #2
4) See #2
5) Nothing in the Constitution says you have the right to educate your children as you see fit. That's another penumbra.

So out of your five examples, one applies to all constitutional rights and the other four are examples where you want courts to ignore the literal text of the Constitution, or the "will of the people" as expressed through their elected representatives or both. Got anything else?
5.20.2008 12:04pm
Dan Hamilton:

Where was all this outrage over Kelo? How loud will you shout when Heller comes down?


You must have not been listening. I and many thers were screeming bloody murder about Kelo. As for Heller if the Supreme Court is stupid enough to come out with a States Right Decision they will deserve whatever happens to them. It would set the stage for violence.

And if they can change the clear meaning of the 2ed they can change the clear meaning of anything. Freedom of Speach only means Speach. Not newspapers, TV or Radio. Those can be state controled. See how easy it would be for them. They just have to be narrow not actually change things as they would have in the 2ed.

Welcome to 1984. Welcome to the 2ed Civil War, The People against the Courts. The People would be supporting the Constitution against the Courts the domestic enemy of the Constitution. Wouldn't THAT be fun. But what other recourse would the People have?
5.20.2008 12:08pm
unwelcome guest:
The California Sup. Ct. has not taken away your right to express your disapproval. You personally don't have to call them married - you can call them fags or whatever. I know this from the old great aunts that still have snide remarks about mixed-race couples.

The State just can't do so. What exactly is the purpose of calling same-sex couples something different, other than to express a judgment that these couples are less than other couples. This is an expression of animus.
5.20.2008 12:12pm
pluribus:
Dan Hamilton:


As for Heller if the Supreme Court is stupid enough to come out with a States Right Decision they will deserve whatever happens to them. It would set the stage for violence.


Care to explain how the Supreme Court could come out with a States Right decision for the District of Columbia? Heller is a District case. I do hope you google these things before you go to the final stage of violence.
5.20.2008 12:17pm
Owen (mail):
Markfield,

The opposition here is bordering self-parody. Where was all this outrage over Kelo? How loud will you shout when Heller comes down?

The outrage over Kelo concerned the Court's disregard for the express public purporse requirement from the takings clause. Ergo, it was argued that the Court erred in refusing to follow the Constitution as written.

With Heller, conservatives and libertarians will be pleased (assuming a pro-gun rights decision) because the Court will finally do what it declined to do in Kelo -- acknowledge the plain text of the Constitution.

With this ruling from the California Supreme Court, conservatives are angry because the Court went well beyond the plain text coupled with how the relevant amendments were understood at the time of their ratification. In other words, the Court put its own spin on the text -- one that was clearly never intended -- in order to push its own social agenda.

So the conservative opposition is based on a preference for judicial restraint, from which we can glean a basic principle:

Where the text, as interpreted by original understanding, is clear, then go with the text. The Court didn't do that in Kelo, and conservatives were angered. Conservatives are arguing the same thing with the California gay marriage decision -- until the recent victories of the gay rights movement, nobody ever conceived that the California Constitution provided additional protections for gays or otherwise placed them within a generalized right to marry.

The idea is that the courts should show humility -- they shouldn't write things out or put them in based upon their personal views.
5.20.2008 12:23pm
Owen (mail):
unwelcome guest,

The State just can't do so. What exactly is the purpose of calling same-sex couples something different, other than to express a judgment that these couples are less than other couples. This is an expression of animus.

An expression of moral disapproval by society isn't the same as animus. Within constitutional boundaries, society should be able to place limitations on what is recognized as a marriage. Clearly, the state equal protection clause was seen as encompassing race, ethnicity, nationality, etc. What it wasn't seen as protecting was sexual orientation. The wisdom of that decision can be questioned, but should not be overturned, by the courts acting in the capacity of legislators.
5.20.2008 12:27pm
Owen (mail):
A.W.,

If you want to advance gay rights, there is a right way and a wrong way. This is the wrong way. Pass a law. Amend the constitution. But don't pretend for one minute that the constitution, unamended MANDATES your policy preferences. We are not fools.

Exactly. That's what I find frustrating about Dale's post -- it complements the decision and attempts to make it sound eminently reasonable, but in the end it asks that we accept the notion that it was reasonable to interpret the unamended California constitution as protecting the right of gays to marry (even if it did so in a roundabout, limited fashion). It wasn't. All the rhetorical gymnastics in the work can't make it a well-reasoned decision.
5.20.2008 12:30pm
Owen (mail):
complement = compliment
5.20.2008 12:35pm
pluribus:
A. W.


And please, don't give me this living constitutionalism jazz, either.


I'm trying to understand. If the constitution is not "living," it must be "dead." That is purely definitional. Perhaps you could explain how a "dead" document should guide our courts.
5.20.2008 12:44pm
A.W. (mail):
Owen:

Amen, especially on the intellectual gymnastics part... and actually i liked your post better with "complement."
5.20.2008 12:49pm
Randy R. (mail):
"I think it is clear, that California Supreme Court has taken away a right to become a husband or wife as well as mother or father.
In my opinion there is no doubt that californians have lost thier right to get married."

You know, it's idiotic comments like this that make young people, who don't have all the baggae older people have, shake their heads and wonder why gays don't have marriage rights already.

Owen: "An expression of moral disapproval by society isn't the same as animus."

Yes it is. How else can it be different? The effect is the same -- gays are bad and shouldn't be encouraged to come out.

Washington Alton: You were asked to name any specific rights you are denied now that SSM is legal in Ca. You were not able to come up with any. It is duly noted that you concede that none of your rights have been infringed. Yes, you still can educate your children as you wish.

I would even go further and ask what rights the citizens of Massachusetts or Canada have been infringed, since they also have SSM?
5.20.2008 12:51pm
Dan Hamilton:

I'm trying to understand. If the constitution is not "living," it must be "dead." That is purely definitional. Perhaps you could explain how a "dead" document should guide our courts.


Please.You know very well what he means. You are just trying to play with the definition.

Words have meanings. These meanings don'g change just because some small group wants them to. Down that road is the real 1984. Unlike Libs redefining a word anytime you want to is not acceptable to anybody else. What if the Government really gets into the act of redefining words whenever it sutes their purpose. How would you like that?
5.20.2008 1:00pm
Randy R. (mail):
As other commentators have noted previously, opposition to SSM is really all about anti-gay animous. What ever the courts have or would decide, if it's a victory for gays, it's a bad decision, no matter what. To them, gays should not have any rights, because society should not be 'promoting' gay rights.

And this is the heart of the bitterness on their part. They're thinking goes along the lines of: Gays are sexual perverts who choose that lifestyle of partying and sex. Gays are supposed to be closeted and out of the way. We must keep gays away from the kids or else the kids will turn gay.

Now, there are actual legislators and judges who see gays as human beings who are entitled to the same rights as everyone else due to our 'equal protection' clauses. What's worse, they frame these debates by saying that gays deserve dignity and respect.

And therein lies the bitterness. No one is going to tell these people that gays deserve respect. Marriage is for 'normal' people, not the 'perverts', and you want to keep it that way.

Let's make a deal then to prove me wrong: We'll concede that the CA Supreme Court over stepped it's bounds and the decision is poorly reasoned if you support SSM whenever it comes up for a vote in your community. This way, everyone is happy -- the citizens properly vote it in without the 'judicial tyranny' you complain about. Okay?
5.20.2008 1:02pm
nutbump (mail):

The California Sup. Ct. has not taken away your right to express your disapproval

What are you trying to say? How does it relate to our right to get married?
We have to remember that gays have never been prohibited from getting married, but they did not like definition of marriage. So Supreme Court of California has introduced gender neutral marriage, effectively eliminating marriage as gender-different union.
Before court decision - marriage did not make sense to homosexuals, i.e. there was no public recognition of gender-neutral union.
After court decision - marriage do not make sense to heterosexuals, since public recognition of marriage as a gender-opposite union has been taken away along with right to become a husband, wife, father and mother.

It is clear that majority of population in California is considered as second class citizens.
5.20.2008 1:11pm
A.W. (mail):
> If the constitution is not "living," it must be "dead."

False dichotomy. It could be, and indeed is, none of the above. Is a rock alive? No. So it is dead? No, its neither dead nor alive, it is just an inanimate object. A thing. Ditto with the constitution.

But dictionaries aside, what you are really saying is why should we live under the rules set down by dead men? You know, because being ruled by 8 old men and 1 old woman is much, much better.

The answer comes down to this: there is no other justification for judicial review. Go back to Marbury v. Madison and follow their logic for striking down statutes that violate the constitution, in refuting the notion that congressional statutes are inherently constitution, or should be enforced even if unconstitutional, Marshall said the following:

> This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

Just as the Constitution limits the power of Congress, the Constitution places limits on the power of the courts. Thus we can say that the doctrine of Supreme Court supremacy over the constitution itself, would suffer from the same fatal flaws. We can literally, then, rewrite the opinion as thus:

> This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Supreme Court shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Supreme Court a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

If you say that the written words of the constitution and the meaning it held for the people who wrote it is of no importance, then you declare that there is nothing the Supreme Court cannot do. You unchain it from all limits. Even the most avid judicial activists don't dare declare such a bold statement, which is why even activists pretend on the outside that they are merely interpreting the constitution. But their unwillingness to take it to that bold limit is a confession that they know the entire project is illegal. Their disguised motives is their silent confession that their motives is arrogance and a disdain for democracy and the rule of law.
5.20.2008 1:11pm
MarkField (mail):

I and many thers were screeming bloody murder about Kelo.


And that's exactly the hypocrisy here. You complain that the CA court took away something the people had voted for, but then you denounce the SCOTUS for refusing to take away something the people had voted for. Next, you'll praise the SCOTUS in Heller for taking away something the people had voted for.

Owen at least tries to avoid this particular hypocrisy by shifting the ground of the objection (though he continues to try to have it both ways). According to Owen, it's ok for conservatives to take these different positions not because the people voted, but because the Constitution is textually clear. The trouble is, of course, that "clear" is, quite literally, in the eye of the beholder. I think it's clear that there is an equal protection violation which the CA Court corrected; you don't. I think it's clear there's no individual right to own a gun; you do. Owen's argument amounts to nothing more than ipse dixit.

Then there's the argument made by Owen and AW that the CA Court departed from the original understanding of the clause. That also isn't an argument. The CA Court has never held that originalism is the proper way to interpret the CA Constitution. Now, you may think it should be, but that's not the law in CA.
5.20.2008 1:14pm
Ben Kennedy:

So back at the time Loving v. Virginia was decided, it would have been OK for the Virginia legislature to refuse to recognize interracial relationships as marriages, provided it created a parallel legal structure for them and called them "transracial unions?"


The issue would be why they create such a distinction - there is nothing inherent in marriage that requires the partners be of any particular race, so such distinctions are suspect.

With regard to marriage, like it or not, there is a traditional one man/one woman definition. SSM advocates, and documents such as the California opinion, claim that gender is utterly irrelevant to the purposes of marriage. This is quite wrong - in fact, much of our "marriage culture" is built upon traditions around the role of the bride and the role of the groom. Many religious traditions have a lot to say about the roles of men and women in a marriage. You can't just air-drop a man into the role held by woman and say, "It's the same!". It isn't the same, and we shouldn't have to pretend that it is. It has some characteristics that certainly are similar, but in many ways it is profoundly different.

That being said, as a good libertarian I may support the ability to let people of any sex enter into any private contract they choose. People who support "Civil Unions" and "Domestic Partnerships" are generally trying to uphold the rights of gay people - there is no animus motivating them, in fact quite the reverse. It is a legitimate way to respect the traditions of a huge segment of the population without trampling on the rights of others. This was put nicely by Barack Obama:


I will tell you that I don't believe in gay marriage, but I do think that people who are gay and lesbian should be treated with dignity and respect and that the state should not discriminate against them. So, I believe in civil unions that allow a same-sex couple to visit each other in a hospital or transfer property to each other. I don't think it should be called marriage, but I think that it is a legal right that they should have that is recognized by the state.
5.20.2008 1:24pm
AngelSong (mail):

After court decision - marriage do not make sense to heterosexuals, since public recognition of marriage as a gender-opposite union has been taken away along with right to become a husband, wife, father and mother.

It is clear that majority of population in California is considered as second class citizens.

You're kidding right? One of the more idiotic comments that has been posted in reference to this decision, and that's saying a lot.
5.20.2008 1:25pm
John Howard (eggandsperm.org) (mail) (www):
The court reached its conclusions in light of same-sex couples having the same rights as both-sex couples according to CA law and Federal law.

But they did not say that same-sex couples necessarily Constitutionally should have all the same rights. At least I couldn't find where they said that, and if they did, they clearly are just ignorant:

Same-sex couples should not have the right to conceive children together, using the couple's own genes. All marriages should have that right, including "infertile" marriages. But people should only have a right to conceive with their unmodified actual representative gametes, and same-sex conception requires modifying the gametes of one partner so that they are no longer representative of that person. This would usher in a right to use modified gametes in general, opening the door to a brave new world of government regulated mandated eugenetic engineering of people.

Nothing in this opinion says that we have to allow same-sex conception. It would be completely different if it were decided in light of people only having a right to conceive with someone of the other sex. To allow SSM in a context where same-sex conception was prohibited would strip procreation rights from all marriages, making it possible for the state to forbid individuals from conceiving with their own gametes.

Dale, how do you think this case would be decided if people were only allowed to conceive with someone of the other sex? Do you think we can prohibit use of modified gametes, or does this case imply that same-sex conception is a right?
5.20.2008 1:32pm
A.W. (mail):
Mark

> And that's exactly the hypocrisy here. You complain that the CA court took away something the people had voted for, but then you denounce the SCOTUS for refusing to take away something the people had voted for.

You are being disingenuous. You cannot plausibly claim that the CA Constitution mandates this outcome. But Kelo? The constitution has an explicit limit on the power of a state to take your land away from you, and Kelo declared it null and void.

Indeed, the fact that the courts will go to any length to enforced unwritten rights while treating as a redheaded stepchild the rights that are actually written is more infuriating and indeed more terrifying. But here, let's have judge Kozinski of the 9th circuit explain it to you. From his dissent in the Silviera case:

> Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet... and that "persons, houses, papers, and effects" also means public telephone booths.... When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text... But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

> It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.

We have see the courts tell us that the constitutional contains a script that cops must recite when arresting people, that the shadows of about 7 amendments contain a right to contraception, abortion (complete with a specific trimester approach) and gay sex, and that a right to hire your own attorney and have him or her present, is a right to a free attorney. And we have seen them simultaneously tell us that Congress can ban election-related speech by certain persons within 60 days before an election, striking at the core of the first amendment and indeed representative democracy. Or in Kelo they tell us that the term "public use" in the takings clause has no meaning. And so on. It is indeed the unwillingness of the courts to enforce the rights that are actually written into it, that offends me the most.

John Howard:

You remind me of the man in "The Life of Brian" complaining that the romans have taken away his right to an abortion.
5.20.2008 1:42pm
pluribus:
I said:


If the constitution is not "living," it must be "dead." This is purely definitional.



A.W. responded:


But dictionaries aside, what you are really saying is why should we live under the rules set down by dead men?


I'm saying nothing of the kind. If by "rules" you mean the Constitution, I'm saying we should live under "rules" set down by dead men and interpreted by living men and women. (Yes, nowadays we include women in the equtation. Those old dead men hadn't yet come up with the innovation.) I think you should think of some derogatory label other than "living constitutionalism" to dismiss the interpretations you disagree with. "Dead onstitutionalism" doesn't sound that great. Or better yet, you could address each decision on its merits. That would be a novelty, wouldn't it?
5.20.2008 1:45pm
sdao (mail):
I hope this does not impact domestic partnerships.

I am straight and have been with my partner for over 10 years and we registered as domestic partners because in San Francisco, it allows us to get on her employer's health insurance. We've contracted most of the other parts of "marriage" between ourselves.

If, heaven forbid, things go south all we have to do is have one of us send in a letter to dissolve the domestic partnership.

We have most of the benefits of marriage and none of the drawbacks.
5.20.2008 1:47pm
nutbump (mail):

You're kidding right? One of the more idiotic comments that has been posted in reference to this decision, and that's saying a lot.


Yes, you are right, there is absolutely no way to deny this fact that gender-opposite union in California cease to exist. Yes in the absence of arguments you can call it idiotic.
5.20.2008 1:53pm
Randy R. (mail):
Actually, nutbump, it's the absence of any evidence or argument from you that we find idiotic.

Unless, of course, you can point to one case instance where a opposite sex union has been dissolved since last week as a result of that decision. Or at any time in the past in Massachusetts.
5.20.2008 1:59pm
pluribus:

If you say that the written words of the constitution and the meaning it held for the people who wrote it is of no importance, then you declare that there is nothing the Supreme Court cannot do. You unchain it from all limits.


I say nothing of the kind. I say the Constitutional has actual meaning—all parts of it, not just some parts I happen to favor. I say the second amendment actually has meaning, as does the equal protection clause, and the due process clause. As do the California constitutional provisions interpreted by the California Supreme Court. If a court interprets those provisions incorrectly, the people have remedies. The constitutions can be amended. In California, the judges can be voted out of office. On the federal level, new judges will in time be appointed. The courts can themselves correct their own errors by overruling erroneous decisions. They have done so in the past and will do so again in the future. Labeling opinions you disagree with as "living constitutionalism jazz" is nothing more than an effort to silence disagreement.
5.20.2008 1:59pm
MarkField (mail):

You are being disingenuous. You cannot plausibly claim that the CA Constitution mandates this outcome.


No I'm not and yes I can.

See how persuasive it is to argue by ipse dixit?
5.20.2008 1:59pm
AngelSong (mail):

So, I believe in civil unions that allow a same-sex couple to visit each other in a hospital or transfer property to each other. I don't think it should be called marriage, but I think that it is a legal right that they should have that is recognized by the state.

Speaking as a gay person (who is contemplating a move to California in the near future for that matter), if a "civil union" or whatever you want to call it really did offer ALL the same benefits as marriage, I think the majority of us would probably be okay with that. I'm not necessarily convinced that separate = unequal, but it is easier to make things unequal if they are separate.

My question is, would the opponents of "same sex marriage" support a "civil union" that truly gives EVERY right of marriage to the members of the union? And if not, specifically what rights/responsibilities/privileges do you think should be given to Brittney but denied to Ellen and why?
5.20.2008 2:04pm
nutbump (mail):

Unless, of course, you can point to one case instance where a opposite sex union has been dissolved since last week as a result of that decision.

If you live in California there is no way to get into gender-opposite union recognized by state. From now on the state only recognizes gender-neutral union which does not make sense for heterosexuals.

Obviosly, this is plain and simple discrimination against heterosexuals.
5.20.2008 2:08pm
Owen (mail):
MarkField,

According to Owen, it's ok for conservatives to take these different positions not because the people voted, but because the Constitution is textually clear. The trouble is, of course, that "clear" is, quite literally, in the eye of the beholder. I think it's clear that there is an equal protection violation which the CA Court corrected; you don't. I think it's clear there's no individual right to own a gun; you do. Owen's argument amounts to nothing more than ipse dixit.

Anybody can read something that has a plain meaning, and due to their own personal prejudices, declare that it doesn't mean what it says. That doesn't mean that the text wasn't clear and unambiguous; it only means that you can always find people whose personal prejudices are more important to them than acknowledging the truth.

It is virtually indisputable that the equal protection clause, when it was passed in California, was neither understood nor intended to be a vehicle for requiring the state to recognize gay marriages. Moreover, there is no logical reason why the amendment would necessarily require the recognition of gays as a class entitled to special protection. Accordingly, the amendment is clear in that regard.

As for the individual right to bear arms, what is so difficult to understand about "the right of the people to keep and bear arms shall not be infringed?" The prefatory clause does not, textually, modify the second clause, and even if it did, it would not restrict the scope of the right. Again, perfect clarity. That you're in denial doesn't change the facts.
5.20.2008 2:08pm
Owen (mail):
MarkField,

In other words, simply because you stubbornly deny facts doesn't mean that the facts aren't proven. I've seen people argue that way before, and it isn't the least bit convincing (irritating perhaps, but not convincing). If a person doesn't want to concede a point, they don't have to. I could argue with you all day that the earth is flat; it wouldn't make it so.
5.20.2008 2:11pm
AngelSong (mail):
Interesting how that so-called "plain meaning" seems to dovetail so nicely with your own personal view of the issue isn't it?

You think it's "clear" that "there is no logical reason why the amendment would necessarily require the recognition of gays as a class entitled to special protection". Others would say that it's clear that the amendment forbids the recognition of gays as a class entitled to special persecution.

You think it's "clear" that "the prefatory clause does not, textually, modify the second clause, and even if it did, it would not restrict the scope of the right". Others would say that it's clear that the amendment has two important clauses and that the first is more than just a rhetorical "throat-clearing" or "belch".

Funny how the usage of words like "clarity" and "denial" so often seems to favor your own argument isn't it?
5.20.2008 2:18pm
Owen (mail):
pluribus,

If a court interprets those provisions incorrectly, the people have remedies. The constitutions can be amended. In California, the judges can be voted out of office. On the federal level, new judges will in time be appointed. The courts can themselves correct their own errors by overruling erroneous decisions. They have done so in the past and will do so again in the future. Labeling opinions you disagree with as "living constitutionalism jazz" is nothing more than an effort to silence disagreement.

There are remedies, true, but the incorrect decisions still overstep the democratic process. It causes harm. And at the federal level, with the lifetime appointment of judges, the remedies are very limited and, consequently, incorrect decisions will often stand for decades. Oftentimes certain decisions, like Miranda, will be affirmed by judges who don't believe in them because they fear the consequences over overturning long-standing precedent, no matter how incorrect. This isn't a minor problem -- it has far reaching ramifications.

And there is nothing wrong with pointing out incorrect decisions where judges are attempting to amend a particular statute or constitution through an expanded interpretation. The idea that judges should be a wellspring of new constitutional provisions is wrong and should be challenged.
5.20.2008 2:19pm
Owen (mail):
Angelsong,

Interesting how that so-called "plain meaning" seems to dovetail so nicely with your own personal view of the issue isn't it?

No, it doesn't. My personal view is that gay marriages should not be recognized by the state. I don't view the California constitution as prohibiting gay marriage. It doesn't say anything about it.

You think it's "clear" that "there is no logical reason why the amendment would necessarily require the recognition of gays as a class entitled to special protection". Others would say that it's clear that the amendment forbids the recognition of gays as a class entitled to special persecution.

It doesn't "forbid" such recognition, it just doesn't provide for it. If other people would say otherwise, they're grafting words onto the clause that simply aren't there to begin with.

You think it's "clear" that "the prefatory clause does not, textually, modify the second clause, and even if it did, it would not restrict the scope of the right". Others would say that it's clear that the amendment has two important clauses and that the first is more than just a rhetorical "throat-clearing" or "belch".

It wasn't just a rhetorical throat-clearing, and it may influence interpretation. However, there is no possible way to read the Second Amendment to where it does not guarantee an individual right to bear arms. Anybody who says otherwise is simply being obtuse; if the founders had wanted to guarantee less than an individual right, they would have constructed the first clause to where it actually modified the second.

Funny how the usage of words like "clarity" and "denial" so often seems to favor your own argument isn't it?

They often don't. I'm not the one saying that the Constitution enforces all of my policy preferences. It doesn't prohibit gay marriage. It doesn't mandate concealed carry. It doesn't keep the income tax low, it doesn't keep abortion illegal, it doesn't do a great many things that I'd prefer it did. The difference is that I don't expect it to -- the plaintiffs in the California marriage case had markedly different expectations.
5.20.2008 2:25pm
Randy R. (mail):
nutbump: "If you live in California there is no way to get into gender-opposite union recognized by state."

And that is the result of last week's decision? Or was that always the case? Someone posted here or in another thread that he is living with his girlfriend in SF, and they have domestic partnerships. So either they are wrong, or you

As far I as know, a man and a women can still enter into a marriage, which is a 'gender-opposite union recognized by the state.' Please cite if this has changed.

"From now on the state only recognizes gender-neutral union which does not make sense for heterosexuals. "

Why not? You mean no one is going to get married any longer in CA? I would think it does make sense to get married -- there are a whole host of rights that come with it. What happened in Massachusetts, Canada, Spain, The Netherlands and Belgium, which also allow SSM? Are they too not gender-neutral?
5.20.2008 2:33pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 05/20/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
5.20.2008 2:41pm
John Howard (eggandsperm.org) (mail) (www):
My question is, would the opponents of "same sex marriage" support a "civil union" that truly gives EVERY right of marriage to the members of the union? And if not, specifically what rights/responsibilities/privileges do you think should be given to Brittney but denied to Ellen and why?

AngelSong, the only right missing from CU's should be the right to conceive children using the couple's own genes. That way we could pass the needed law to preserve natural conception and stop eugenic engineering. Otherwise, we couldn't pass a law to stop the use of modified gametes without stripping marriage of its protection of conception rights. The difference between CU's and Marriage should match the difference in the rights of same-sex and both-sex couples. If I choose a woman, I should be allowed to attempt to conceive children with her, but if I choose a man, I should not be allowed to conceive children with him.

And AW, get with the times, google "female sperm" or "same-sex procreation" - this isn't a omedy routine anymore, people are actually demanding a right to conceive with someone of the same sex.
5.20.2008 2:41pm
Oren:
Actually, you do have the right to educate your children as you see fit. See Meyer v. Nebraska and Pierce v. Society of Sisters -- in both cases, the SCOTUS found an implicit right to educate your own children and struck down state laws that interfered with that right.

Conservatives have no problem with implied right when it serves their purposes. Ironically enough, while the Court in Meyer refused precisely delineate the bounds of the 14A's guarantee of liberty, it did include marriage among them.
The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment:

'No state ... shall deprive any person of life, liberty or property without due process of law.'

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
5.20.2008 2:42pm
Dan Hamilton:

Speaking as a gay person (who is contemplating a move to California in the near future for that matter), if a "civil union" or whatever you want to call it really did offer ALL the same benefits as marriage, I think the majority of us would probably be okay with that. I'm not necessarily convinced that separate = unequal, but it is easier to make things unequal if they are separate


If the Gays were not so caught up in forcing everyone to call their Civil Unions Marrage so they can rub their noses in it. The Gays would realize that Marrage is a SUBSET OF CIVIL UNIONS. Marrage is a Civil Union between people of different sexes. All they have to do is wait a little while and they will get ALL that they want. But NOOOOO... they have to force it down peoples throats. First the Gays said that they wanted tolerance. Then they said they wanted acceptance. Now they say they want APPROVAL.

Listen you (&)*&(*&(*&#@^)($ I have been for Civil Unions forever. With Marrage as a subset. Plural Civil Unions of any number of people. Non sexual Civil Unions, Term limited Civil Unions. Anything your warped little mind can think up. BUT done by the Legislature NOT BY THE COURTS.

The California Leg twice passed SSM. It was only a matter of time before it was passed and a Governor signed it. Could the Gays wait, No they had to do a end run through the courts. Which means that the Leg will not do anything. And what the courts give they can take away.

So, what are you going to do in a few years when the Courts reverse this decision? It will be just as valid. What will you do when the Courts start goring YOUR ox?
5.20.2008 2:42pm
Oren:
John -- if the medical technology could create a fetus with whatever DNA was wanted, what right do you have to tell people not to make us of it?

Of course, if the technology isn't there, merely demanding that it exist won't do much of anything.
5.20.2008 2:44pm
A.W. (mail):
Pluribus

> Yes, nowadays we include women in the equation. Those old dead men hadn't yet come up with the innovation.

Um, the actual writers of the constitution weren't always old. For instance, in 1789 James Madison was 38. That is younger than Barack Obama, and I believe all 9 of the justices on the Supreme Court.

And please don't try to imply anything sexist in my approach. When you take away the decision from the electorate and give it to the judicial branch, the number of women having a say on the issue drops precipitously. If you want to pick the maximally "feminist" approach, you would be a follower of Frankfurter.

> I think you should think of some derogatory label other than "living constitutionalism" to dismiss the interpretations you disagree with. "Dead Constitutionalism" doesn't sound that great.

By that you think that by calling one side living constitutionalism I am implying that the other believes in dead constitutionalism. But no, that is exactly what makes the very term "living constitutionalism" so perfect, because the very idea of a constitution being living or dead is absurd. By contrast original intent is not absurd in its terms. And, by the way, I didn't create that label. It was embraced by a large number of liberal justices seeking to find some way to hide what they were really doing—usurping power that belonged in the hands of the people.

> Or better yet, you could address each decision on its merits. That would be a novelty, wouldn't it?

You mean that there is an individual case where suddenly it's okay for a judge to say "forget what the constitution says, I just don't feel like doing it!"

Because here is a true tautological statement for you. Either you are true to the constitution, or you are not. There is no in between. And if you are going to overrule the people, you damn well better be doing it based on the constitution, instead of your sense of superiority.

See, that is the problem with all those living constitutionalists. They do a great job deriding the concept of original intent, arguing that we shouldn't be limited by the pronouncements of the dead hand of the founders and so on. But then they can't explain why if we don't obey the founders, we should instead be ruled by the geriatric nine.

And don't pretend I am just ignoring the merits in this individual case. The merits of this case is what the intent behind the constitution is. The constitution of California cannot be plausibly construed to mandate the outcome in this case, and in the absence of a controlling provision of the constitution, the law passed directly by the people controls. Love it or hate it as a matter of policy, that is the only ruling that respects the rule of law. On the merits of this case.

> If a court interprets those provisions incorrectly, the people have remedies.

So in other words... you want every confirmation hearing to be a knock-down drag out fight. You think it's a good thing to see what has happened since Bork. You think it is a good thing that we have been robbed of the belief in a neutral referee in our system who can decide cases like, say, Bush v. Gore without it being taken as a given by large swaths of the people that they voted the way they did in order to bring about a certain electoral result. This is good for us, right?

Let me say that to all the "living constitutionalists" out there. If you believe in that, then you forfeit your right to ever complain about Bush v. Gore as a "politically motivated" decision. You live by the sword, you die by it, too.

Anyway, the fact that there are ways to correct illegal behavior doesn't justify illegal behavior. I suppose next you will say there was nothing wrong with Nixon's behavior because Congress could remedy it by impeachment. Or it was okay for Dahmer to eat people because he could be sent to prison for it. The answer is yes it can be remedied, but no, it shouldn't happen in the first place. Sheesh.

Mark

> No I'm not and yes I can.

Right, the founders of California were all big on gay rights. Way back in 1850. Genius!

Who exactly do you think you are fooling?
5.20.2008 2:45pm
AngelSong (mail):
I have never seen anything or anyone (before you) suggest that the so-called "right to conceive children using the couple's own genes" is one of the rights of marriage. While I am somewhat sympathetic to your argument about the dangers of "designer procreation", I'm not sure that the arena of same-sex marriage is really the place to argue it. With all due respect to Google, it really seems to me to be more of a solution seeking a problem.
5.20.2008 2:47pm
AngelSong (mail):
Wow... you raise some good points, I'd be interested in discussing them further once you take your medication... good grief!
5.20.2008 2:51pm
pluribus:
Owen:


There are remedies, true, but the incorrect decisions still overstep the democratic process.


Court decisions are not part of the democratic process--at least not in a direct way. They are not voted on by the people or the people's elected representatives. It is true, of course, that the selection and retention of judges is part of the democratic process, but the decisions themselves are not made democratically. Yes, some decisions are incorrect, but some democratic decisions are also incorrect. Some acts of Congress, some presidential decisions, have viciously trampled on constitutional rights. Our system of separation of powers and checks and balances is some protection against incorrect decisions by the legislative, executive, or judicial branches. It is wrong for anybody to suggest that it is only the courts that oversteps their bounds, and that when they do so there are no remedies built into the system.
5.20.2008 2:52pm
Dan Hamilton:

Actually, you do have the right to educate your children as you see fit. See Meyer v. Nebraska and Pierce v. Society of Sisters -- in both cases, the SCOTUS found an implicit right to educate your own children and struck down state laws that interfered with that right.


I believe the Current cases in Texas and the FLDS proves that the above is wishfull thinking. You have the right to educate your children as long as CPS approves of what you are teaching them!! They don't directly say that but if you believe that any of those parents are getting their kids back without proof that the children will be educated the way CPS wants them to be, you are living in a dream world.

CPS is all powerfull. You might get your child back if they made a mistake, might. But they NEVER admit they made a mistake.
5.20.2008 2:52pm
Oren:
The California Leg twice passed SSM. It was only a matter of time before it was passed and a Governor signed it. Could the Gays wait, No they had to do a end run through the courts. Which means that the Leg will not do anything. And what the courts give they can take away.
Uh, you know that "the Gays" are not a monolithic block that acts in unison, right? It's not like they have big meetings and decide on whether to try for the courts or wait will Arnie is no longer the governor . . .
5.20.2008 2:55pm
Owen (mail):
pluribus,

It is wrong for anybody to suggest that it is only the courts that oversteps their bounds, and that when they do so there are no remedies built into the system.

The courts are supposed to be restrained by the law itself, but that doesn't work if judges become drunk on their own authority and begin making unreasonable "interpretations" to push an agenda. The only other restraints on the federal courts are the threat of impeachment and the gradual retirement of judges. Those aren't substantial remedies.
5.20.2008 2:59pm
Dan Hamilton:

Uh, you know that "the Gays" are not a monolithic block that acts in unison, right? It's not like they have big meetings and decide on whether to try for the courts or wait will Arnie is no longer the governor .


No they are like Moslems. They never speak out against the terrorist because then the terrorists would target them. The Gays never speak out against the activist because the activist would then attack and ostraze them.

And no it is not a perfect analogy but it is close.
5.20.2008 3:01pm
pluribus:
A.W.:

You really should stop putting words in my mouth. It's not a good debating technique. Not honest either.

I never said "the actual writers of the constitution were always old." I never said there was anything "sexist" in your approach. I never said I want to "pick the maximally feminist approach." I never said you invented the term "living constitutionalism." I never said it's "okay for a judge to forget what the constitution says." I never said I wanted to "overrule the people." I never said democratic decisions should be overruled based on my "sense of superiority." I never said we shouldn't be bound by the "dead hands of the founders." I never said I want "every confirmation hearing to be a knock-down drag-out fight." I do not think "it is a good thing that we have been robbed of the belief in a neutral referee in our system." (Actually, I don't think we have been robbed. To the contrary, I think that the California Supreme Court acted as a neutral referee on this question, as they should.)

If you want to argue with me, argue with what I said instead of what you wish I might have said, so you could so easily knock it down.
5.20.2008 3:13pm
Chimaxx (mail):
Dan Hamilton:

If you think activists get any sort of respect in the gay community, you've never read the letters section of a gay newspaper. The only activists who get a sort of saintly treatment are the ones who were active in previous decades and have recently died. Editorials and letters reverently call them pioneers and then complain about the hacks who have taken their place.

Just last year, the war of words over the attempt to pass a version of ENDA without protections for transgendered people made the most virulent discussions on Volokh look like a Kumbaya fest.

And socially, activists aren't cool. They're not likely to get invited to the cool clubs and parties because they ALWAYS yammer on about whatever cause they're fighting and try to get the other guests to sign things and take action, and who wants that?
5.20.2008 3:16pm
John Howard (eggandsperm.org) (mail) (www):
John -- if the medical technology could create a fetus with whatever DNA was wanted, what right do you have to tell people not to make us of it? Of course, if the technology isn't there, merely demanding that it exist won't do much of anything.

Oren, the public has an obligation to look out for the best interest of children and future people, people who cannot stand up for their own interests. Parents don't have the right to do whatever they want to their children. And the public has a right to choose public policy in order to form the society we want to live in in the future. We also have an ability to predict the effects of various technologies on the future. If we decide that everyone's natural conception rights should be protected, and there should not be a giant government regulated DNA industry making everyone's babies, and that people should not be creating babies however they want to, then that's what we decide.

It does come down to this question. All SSM supporters invariably will have to insist that there is some sort of right to create babies however anyone should happen to want to do it, creating the DNA in whatever way they want, and that the government cannot ban the use of modified gametes. But one doesn't have to be an SSM supporter forever you know, it is possible to learn something new and then change your mind. It is tragic that so many people are letting their SSM stand force their view on genetic engineering.

The smart thing for people to do is consider CU's in the new light, of there being an actual rational and prudent difference in rights, and then see how much better things can be without genetic engineering weighing down so much progress in so many other areas. Let's move to that post-transhuman future now.
5.20.2008 3:19pm
pluribus:
Owen:


The only other restraints on the federal courts are the threat of impeachment and the gradual retirement of judges. Those aren't substantial remedies.


Patently false. Amendment of the Constitution and the overruling of decisions by subsequent courts are very substantial restraints. If the courts don't, can't, or won't overrule "incorrect" decisions, why do Bush, McCain, and other politicians constantly pledge to support "judges like Scalia and Thomas?" Precisely because those are judges who would overrule Roe.
5.20.2008 3:19pm
Owen (mail):
pluribus,

Patently false. Amendment of the Constitution and the overruling of decisions by subsequent courts are very substantial restraints.

I disagree. Amendment is too involved and takes too much agreement among all levels of government to be a meaningful restraint. Furthermore, overruling is difficult due to lifetime appointments and the reluctance to overturn incorrect precendent even among some conservative judges. These are minimal restraints on what is otherwise unbridled authority.
5.20.2008 3:37pm
Splunge:
So back at the time Loving v. Virginia was decided, it would have been OK for the Virginia legislature to refuse to recognize interracial relationships as marriages, provided it created a parallel legal structure for them and called them "transracial unions?"

Nope. This is a commonly-used but utterly false analogy. As someone already pointed out, there's no part of the traditional definition of "marriage" that says anything about the race of the people involved. Everyone has always recognized, back to the mists of time, that an interracial marriage is a "marriage." So if you don't want people marrying outside their race, you've got to pass laws (or set up social mores, whatever) that forbid it. Loving struck down those laws forbidding access to what everyone already agreed was a marriage.

This has zero relation to the present debate, which is certainly not about striking down laws forbidding gay people from contracting marriages. There aren't any. A gay man is just as free to marry a woman as a straight man.

The debate is about whether the gay man can enter into a relationship with another man which bears some superficial resemblance to a marriage between a man and a woman and then force all the rest of us to call this a "marriage." That's a whole different story indeed. And people very reasonably resent it. They evidentally have no quarrel with gay men setting up house together, and contracting mutual obligations together, making each other their heirs, and so forth and so on.

But where they draw the line is being told that they must, as a matter of law, call the sex partner of one gay man the "husband" of another. I don't think anyone objects if they call each other "husband" -- or "sweetie pie" or "Grand Turnip" or whatever -- or if their friends and family do. But when they demand that others do so, too, under pain of law, well, that just goes too far.

In essence: do what you damn well please. But if you try to force your language on us, get ready for the hurricane.

And if the Supreme Court overturns the DC gun ban in Heller, will they also be "arrogant" and "think they know better?"

Again with the false analogy. You need a better mode of argument. In this case, if you can find me one explicit word in the Constitution (US or California) on the subject of marriage or homosexuality, I'll reconsider. Whereas there is no doubt whatsoever that the Constitution explicitly addresses the issue of gun ownership. The Court is specifically chartered to address the question of what, precisely, the Constitution means when it says "The right of the citizens to keep and bear arms etc."

However the Court is not chartered to address questions which are not addressed at all in the Constitution. The Court should no more inject its opinion about the "fairness" of defining marriage to be man + woman that it should opine about the existence of God. Neither are questions that fall within its purview.

Any honest historian will tell you that we have no idea what the Founders would have written into the Constitution had they imagined the notion of "gay marriage" would someday arise, and be imagined to bear some relationship to individual civil liberties. Some of us have one opinion, some of us have another. But the fact is that the Constitution is silent on the issue. So there is no role for the Court here. There is no text to interpret. The only role here is for the ultimate sovereigns, We The People, to determine what should be the ultimate law of the land.

Well, they did, in California at least. Alas, they foolishly did so as a matter of statute, forgetting that by doing so they created a law unmoored in the Constitution, which is silent on the subject. That was a mistake. It will probably be remedied this fall, and I doubt very much it will make folks who like gay marriage happy. For most of them (who don't thrive on being public martyrs, but want to just get on with their lives), it may well be a case of it would have been better to let sleeping dogs lie. Angered citizens may well pass a constitutional amendment which rolls back domestic partnerships into second-class status, which would be sad.

This is the real danger of judicial overreach. Not that it will lead us into judicial tyranny -- that's silly; the courts dispose of no troops to ultimately enforce their decisions -- but rather that an angry citizenry will overreact and eviscerate judicial power (as a historical rule they replace it with executive power), and unbalance the government in other directions of tyranny.
5.20.2008 3:38pm
pluribus:
Dan Hamilton:


No they are like Moslems. They never speak out against the terrorist because then the terrorists would target them.


It's underhanded to suggest that gays are the equivalent of terrorists. I have never heard of gay suicide bombers or gay improvised incendiary devices. The only gays I heard of on 9/11 were the gays who died in the World Trade Center and Mark Bingham, the gay man how celebrated as a hero because he helped overcome the hijackers who were piloting a plane toward the White House. Thanks in part to Bingham, the plane crashed in a Pennsylvania field. Bingham died in the crash. Cool it.
5.20.2008 3:42pm
A.W. (mail):
Pluribus

> I never said "the actual writers of the constitution were always old."

You referred to them all as old, with no exceptions. If you didn't mean that, then it is your own fault for failing to say what you actually meant.

> I never said I want to "pick the maximally feminist approach."

Oh, please, don't pretend you weren't intentionally hitting on the "laws of dead white men" routine, or trying in your condescending way to imply I was opposed to gender equality.

> I never said you invented the term "living constitutionalism."

You sure as hell acted like I did; and more importantly, you acted like it was a label I applied to them, instead of a label they proudly attach to themselves.

> I never said it's "okay for a judge to forget what the constitution says." I never said I wanted to "overrule the people." I never said democratic decisions should be overruled based on my "sense of superiority." I never said we shouldn't be bound by the "dead hands of the founders."

Actually, when you support living constitutionalism, that is exactly what you are saying. You may not want to admit that, but that is what you are advocating. Although I will grant you one nuance. In truth you want us to bow to the superiority of the judiciary, which might not include you.

> I never said I want "every confirmation hearing to be a knock-down drag-out fight." I do not think "it is a good thing that we have been robbed of the belief in a neutral referee in our system."

No, but when you embrace living constitutionalism, that is exactly what you get. One flows from the other as directly as the expulsion of a bullet follows from the pull of a trigger. These consequences are the foreseeable, obvious and almost inevitable costs of your philosophy of judicial interpretation.

> Actually, I don't think we have been robbed. To the contrary, I think that the California Supreme Court acted as a neutral referee on this question, as they should.

Right! finding a right to gay equality and gay marriage in provisions written in 1850. Again, who do you think you are fooling?

But instead merely of attacking what I say, why don't you make the positive case? Why don't you explain to me how you justify judicial review without simultaneously precluding the possibility of living constitutionalism?

I say it can't be done. And I say that if it could be done, then courts wouldn't pretend they were following the constitution even as they shred it.

By the way, another problem in your argument is your claim that any abuse of judicial power can be remedied. But if the courts are allowed to overrule the constitution at will, then what is to stop them from overruling the remedies? For instance, suppose the people California overrule the California Supreme Court (CSC) in this case. If the CSC has final say on how to interpret the California constitution, then all they have to say is that the people didn't follow the correct procedure, or just that the words don't mean what they actually say, and bam, even the remedy is nullified. If the CSC has the final say on the subject, then they can hold that even the clauses related to impeachment has no force upon them, however clearly it does. And happy lemmings like you would go along with it.

Implicit in your argument that there are remedies is that there are limits to the power of the courts. But when you subscribe to "living constitutionalism" you are simultaneously saying there are no limits that cannot be abolished by those same courts. You cannot have it both ways. You cannot say the courts can rewrite the constitution at will, and then say that the courts have limited power because it is in the constitution.
5.20.2008 3:46pm
pluribus:
Splunge:


As someone already pointed out, there's no part of the traditional definition of "marriage" that says anything about the race of the people involved.


You folks have got to stop making things up. In Virginia (get it, as in "Virginia v. Loving") the statutory definition of marriage said quite a lot of "about the race of the people involved." Actually, it said that it was against the law (i.e., a crime) for people of different races to marry each other. It said you could be locked up in jail if you tried it. That had been the law of Virginia and other American states for hundreds of years. Is that enough "tradition" for you?
5.20.2008 3:49pm
A.W. (mail):
Pluribus

> In Virginia (get it, as in "Virginia v. Loving") the statutory definition of marriage said quite a lot of "about the race of the people involved."

I know this might be too complicated for you to understand, but in Loving v. Virginia, they were interpreting part of the constitution that actually designed to address the issue at hand: racial discrimination.

(Not that i subscribe to the "race only" theory of the EPC, but everyone agrees that the race was the primary issue on their minds when they passed it.)

So, it doesn't matter if Virginia defined marriage in terms of race, because it was overruled by the constitution. Not 9 old men, but by the constitution.

Indeed, it was living constitutionalism that kept the equal protection clause from being interpreted the way it was supposed to. Plessy v. Fergusson was an activist decision every bit as much as Roe v. Wade and Lawrence v. Texas. Again, live by the sword, die by it.
5.20.2008 4:02pm
AngelSong (mail):

The debate is about whether the gay man can enter into a relationship with another man which bears some superficial resemblance to a marriage between a man and a woman and then force all the rest of us to call this a "marriage." That's a whole different story indeed. And people very reasonably resent it. They evidentally have no quarrel with gay men setting up house together, and contracting mutual obligations together, making each other their heirs, and so forth and so on.

Wrong, there are a lot of people who have a quarrel with the issues that you raise. The problem is that a large majority of the marital rights can NOT be gained by contractual obligation.


But where they draw the line is being told that they must, as a matter of law, call the sex partner of one gay man the "husband" of another. I don't think anyone objects if they call each other "husband" -- or "sweetie pie" or "Grand Turnip" or whatever -- or if their friends and family do. But when they demand that others do so, too, under pain of law, well, that just goes too far.

In essence: do what you damn well please. But if you try to force your language on us, get ready for the hurricane.

This is just preposterous. There is no obligation for you as a private citizen to refer to my partner as my husband, partner, lover, bed-buddy, or any other particular term, just as there is no law that prevents me from referring to your wife as your old lady, b!tch, or anything else. I can call your marriage a "rutabaga" and my own partnership a "divine consecration" if I want to and neither this nor any other law would constrain me from doing so. (Now if your objection is rather that a government official might have to recognize a certain relationship within the scope of his or her employment duties, that might be a different issue...)
5.20.2008 4:06pm
pluribus:
A.W.:

Do you just like to argue for the sake of argument, or are you really trying to make a point? What difference does it make whether the Founders were young or old, or some were young and some were old? They were Founders. OK. We both agree they are now dead. Still they are our Founders. And no, absolutely no, we should not disregard them. Nor should we disregard what they wrote when they wrote the Constitution.

Ditto, ditto, ditto, to all the rest of your quibbles.

I think it's more important to determine what the Founders "said" when they wrote the Constitution, rather than what they "meant" or what they "intended" to say. Start with the text. That, after all, is what was adopted, what was ratified. If the text isn't clear enough, then maybe we will have to figure out what it meant or what the Founders intended to say. And if we can't figure that out, then the courts will eventually have to help us out.

I don't use the term "living constitution" when I am discussing constitutional law, though you obviously do. That's not my approach, however much you might wish it were, for purposes of keeping up this argument. I think folks like you probably should think up a better label to use when you try to knock down decisions you don't like. The antonym of "living" is still "dead" in my dictionary, and "dead constitution" still sounds pretty stupid to me.
5.20.2008 4:12pm
Randy R. (mail):
"think it's more important to determine what the Founders "said" when they wrote the Constitution, rather than what they "meant" or what they "intended" to say."

So I guess blacks should remain 3/5s of a person for purposes of representation? That's pretty clear in the constitution.

The entire bill of rights (except for the 2nd amendment perhaps) have been found to have exceptions. There are plenty of exceptions to the 4th amendment's prohibition on searches and seizures, yet I presume you have no problems with those court rulings.
5.20.2008 4:22pm
pluribus:
A.W.:


I know this might be too complicated for you to understand. . .


Does it make you feel good to condescend? OK. Whatever turns you on.

Splunge wrote "there's no part of the traditional definition of 'marriage' that says anything about the race of the people involved."

Loving v. Virginia and the hundreds of years of law that preceded it showed just the opposite. The "traditional definition of marriage" explicitly excluded interracial marriage.
5.20.2008 4:23pm
A.W. (mail):
Pluribus

> What difference does it make whether the Founders were young or old, or some were young and some were old?

You brought up their age. I just met you on those grounds.

> I think it's more important to determine what the Founders "said" when they wrote the Constitution, rather than what they "meant" or what they "intended" to say.

Good. Let's apply that to this case. Where in the California constitution does it say that gay and straight must be treated exactly equally? Or that gay marriage is a fundamental right?

Trust me. Scalia-styled textualism won't get you where you want to go.

But I am on to you. You don't want to call it living constitutionalism, because the term has fallen into disrepute, and so you instead would like to "reframe the issue" which means to "lie and pretend you are talking about something else."

> I don't use the term "living constitution" when I am discussing constitutional law, though you obviously do. That's not my approach, however much you might wish it were

And however much you have defended it.

> The antonym of "living" is still "dead" in my dictionary, and "dead constitution" still sounds pretty stupid to me.

See my above response to your repeated remark.
5.20.2008 4:24pm
pluribus:
Randy R.:


So I guess blacks should remain 3/5s of a person for purposes of representation? That's pretty clear in the constitution.


Please, Randy, read what I said. I have repeatedly said here that constitutional provisions are subjet to amendment. As originally adopted, the three-fifths clause referred to "all other persons," and explicitly said that they were persons other than "free persons" and "Indians not taxed." In other words, they were slaves. When the thirteenth amendment was ratified December 6, 1865, abolishing slavery, those "other persons" ceased to exist. The three-fiths clause is no longer operable.

I'm kind of disappointed in your post, since I have consistently supported the California Supreme Court decision in question. If I understand correctly, you do too.
5.20.2008 4:31pm
A.W. (mail):
Randy R.

> So I guess blacks should remain 3/5s of a person for purposes of representation? That's pretty clear in the constitution.

Actually, that's not what the constitution says at all. It says that unfree people shall be counted as 3/5s of a person, without reference to color. In other words slaves.

Of course all slaves were black, but not all black people were slaves. Freed black people were counted as whole persons.

And the constitution today doesn't say that, or more percisely that provision has been rendered moot by the 13th, 14th and 15th amendments. it was amendments that changed that, not judicial fiat. indeed, it was judicial fiat that helped hold back racial progress with "living constitution" decisions like Plessy v. Fergusson. score one for original intent.
5.20.2008 4:32pm
Randy R. (mail):
Sorry, AW. With all these posts going on, it's very difficult to remember who exactly argued what, or whose position is on various topics. Plus, I am trying to get a report out!

My apologies for misharacterizing your argument.
5.20.2008 4:36pm
Randy R. (mail):
UGH! I meant Pluribus. See how difficult this is?!
5.20.2008 4:37pm
MarkField (mail):

Right, the founders of California were all big on gay rights. Way back in 1850. Genius!

Who exactly do you think you are fooling?


As I said before, originalism is NOT doctrine in CA. Your continuing reliance on it simply disqualifies you from opining on the merits of the CA decision.


Anybody can read something that has a plain meaning, and due to their own personal prejudices, declare that it doesn't mean what it says. That doesn't mean that the text wasn't clear and unambiguous; it only means that you can always find people whose personal prejudices are more important to them than acknowledging the truth.

It is virtually indisputable that the equal protection clause, when it was passed in California, was neither understood nor intended to be a vehicle for requiring the state to recognize gay marriages. Moreover, there is no logical reason why the amendment would necessarily require the recognition of gays as a class entitled to special protection. Accordingly, the amendment is clear in that regard.

As for the individual right to bear arms, what is so difficult to understand about "the right of the people to keep and bear arms shall not be infringed?" The prefatory clause does not, textually, modify the second clause, and even if it did, it would not restrict the scope of the right. Again, perfect clarity. That you're in denial doesn't change the facts.


You might want to re-read your own words. Your first and second paragraphs are simply inconsistent with each other.

The plain meaning of the text is separate and distinct from originalist interpretation. If the text is really and truly plain in its meaning, we don't need originalism to tell us what it means. If it's not really and truly plain, then you can rely on originalism, but can't accuse people of letting their personal prejudices blind them to the plain and unambiguous meaning.

As I have pointed out before, your reliance on originalism is misplaced. CA courts do not use that doctrine. You may think that's wrong, but that doesn't affect the merits of the decision taken on its own terms.

Finally, your third paragraph simply assumes your own conclusion. "It's obvious" is not an argument (except to you).
5.20.2008 4:39pm
pluribus:
A.W.:
Pluribus


You brought up their age. I just met you on those grounds.


OK, I thought you had a point to make. I repeat--what difference does their age make?


Trust me.


Why should I? Up to now you haven't given me any reason to.


But I am on to you.


More condescension.


And however much you have defended it.


Now you have added mendacity. Never defended it, don't propose to.


Where in the California constitution does it say that gay and straight must be treated exactly equally? Or that gay marriage is a fundamental right?


Why don't you read the opinion. You might just find the answer there.
5.20.2008 4:41pm
pluribus:
Randy, it's cool.
5.20.2008 4:44pm
nutbump (mail):

Randy R.:

And that is the result of last week's decision? Or was that always the case? Someone posted here or in another thread that he is living with his girlfriend in SF, and they have domestic partnerships. So either they are wrong, or you

That example is irrelevant, domestic-partnership has nothing to do with marriage.
Marriage as opposite sex union that has certain attributes, those attributes have been removed by the court. Marriage was replaced with gender neutral union, that does not make sense for the majority of heterosexuals.
Gays always wanted that states recognize their relationship as a marriage, right? That is cool, but now court has to recognize a right to be a husband for heterosexual man and right to be a wife for heterosexual woman when they get married. Under current condition it is not possible, because gaymarriage and traditional marriage should be equal.



As far I as know, a man and a women can still enter into a marriage, which is a 'gender-opposite union recognized by the state.' Please cite if this has changed.


No, state does not recoginze gender-opposite union because it has declared a gender-neutral union - a marriage. Technically it is not possible to have two different unions called with the same name, so court have chosen to please homsexual couples depriving heterosexuals couple a right to become a husband and wife.


Why not? You mean no one is going to get married any longer in CA? I would think it does make sense to get married -- there are a whole host of rights that come with it. What happened in Massachusetts, Canada, Spain, The Netherlands and Belgium, which also allow SSM? Are they too not gender-neutral?

Right, there are lot of benefits that couples get when signing up for state recognized gender-neutral union, but it is not the marriage, because from now on state cannot recoginze any man as a(groom)husband and woman as (bride)wife.
So, again this a severe discrimination against heterosexual couples.
5.20.2008 4:45pm
John Howard (eggandsperm.org) (mail) (www):
Actually, it said that it was against the law (i.e., a crime) for people of different races to marry each other. It said you could be locked up in jail if you tried it.

And what it was trying to prevent was miscegenation - mixing genes - ie, creating people that were interracial. That's why the court cited Skinner, because it was about procreation rights, which were found exclusively in marriage. If there had been no fornication laws prohibiting unmarried sex, then there would have been no connection to Skinner and hence no right to marriage. The right to marry is the right to procreate together.

And just as people could be thrown in jail for trying it 50 years ago, so should people be thrown in jail for trying to mix the genes of two people of the same sex today. We should not allow labs to attempt to reverse the genetic imprinting of a person's genome to produce sperm from a woman or eggs from a man to enable same-sex procreation. Attempting that should be met with multi-million dollar fines, stripping of medical licenses, and long jail sentences. Not just for the lead doctor, but for the would-be parents and support staff at the clinic as well. There is no right to be Dr. Frankenstein and create people with modified genes. People only should have a right to coneive by combining their unmodified genes with their spouse (ideally, but at least with someone who consents to reproducing with that person and supplies their own unmodified genes too).
5.20.2008 4:54pm
pluribus:
nutbump:


[T]his a severe discrimination against heterosexual couples.


I like your name. You do seem to be living up to it.
5.20.2008 4:57pm
A.W. (mail):
Mark

> As I said before, originalism is NOT doctrine in CA.

Oh, so there is a provision in the California constitution that says "who cares what we wrote here, courts. Just do whatever feels good!"?

Who knew?

Sorry, there is no part of the Marshall argument I made about 5 posts above that don't apply equally to the California constitution. The very act of setting up a written constitution. The California Supreme Court can say what it wants but the only rightful basis of interpretation of any constitution with similar features is original intent.

Pluribus:

> I repeat--what difference does their age make?

I repeat, you brought it up. Don't you know why you brought it up?

> Why should I?

Taking me completely out of context. Nice.

> Never defended it, don't propose to.

Nah, you intend to prove that the framers of the California constitution intended to require gay marriage.

> Why don't you read the opinion.

Already did. It was "living constitutionalism" dreck.
5.20.2008 5:01pm
AngelSong (mail):
It occurs to me in perusing so many of the comments that the term "bitter old queen" is beginning to develop a certain irony ...
5.20.2008 5:04pm
MarkField (mail):

The California Supreme Court can say what it wants but the only rightful basis of interpretation of any constitution with similar features is original intent.


Gotta love the devotion to federalism conservatives are so fond of spouting.
5.20.2008 5:31pm
Tracer Bullet (mail):
I have to wonder how such a learned and informing blog can have such a cesspool of a comments sections.
5.20.2008 5:31pm
Randy R. (mail):
nut: "Because from now on state cannot recoginze any man as a(groom)husband and woman as (bride)wife."

So you are actually saying that no heterosexual marriages currently occur in Massachusetts? Or in California? Or Canada? Only gays are getting married there? Geez. What a disaster for thee wedding industry!

"It occurs to me in perusing so many of the comments that the term "bitter old queen" is beginning to develop a certain irony ...

Better than the the 'shallow young twink!"
5.20.2008 5:36pm
Patrick Meighan (mail):
"Unlike Libs redefining a word anytime you want to is not acceptable to anybody else. What if the Government really gets into the act of redefining words whenever it sutes their purpose. How would you like that?"

You mean like if the government redefined the word "torture"? 'Cause that already happened, and that appears to be acceptable to a lot of people who aren't "Libs."

Patrick Meighan
Culver City, CA
5.20.2008 5:40pm
pluribus:
Tracer Bullet:


I have to wonder how such a learned and informing blog can have such a cesspool of a comments sections.

Did you come here to make a point? Or are you just satisfied drop by and poison the well? A plausible argument might be made that the comments weren't so bad until you showed up.
5.20.2008 5:48pm
Patrick Meighan (mail):
"there is nothing inherent in marriage that requires the partners be of any particular race, so such distinctions are suspect."

It is *your opinion* that there is nothing inherent in marriage that requires the partners be of any particular race.

However, the majority of the voters in the State of Virginia had a different opinion in 1967 (and earlier): that one of the inherent qualities of marriage is the production of offspring who will perpetuate the distinctness of the races. The marriage of Mildred Jeter and Richard Loving was considered, by Virginia law, a violation of that inherent purpose of marriage.

Fortunately, nine unelected tyrants in black robes flouted the express will of the Virginia citizenry in 1967 and declared that Virginia law violated the Equal Protection Clause of the 14th Amendment (a constitutional provision dating back to 1868, that was almost certainly not imagined, when passed, to be tantamount to a constitutional defense of interracial marriage).

"With regard to marriage, like it or not, there is a traditional one man/one woman definition."

And traditions evolve. Witness, again, that, with regard to marriage, there used to be a traditional white/white, black/black definition. That tradition has gone by the wayside. And that's good. Right?

Patrick Meighan
Culver City, CA
5.20.2008 5:55pm
AngelSong (mail):

Better than the the 'shallow young twink!"

LOL, touche, and another reminder of the dangers of internet-based communication! The irony that I was noting was that the ones who seem particularly "bitter" about this ruling are quite the antithesis of what we could call a "queen"!

But then again, considering the length of time between today and the last time the words "young" and/or "twink" were sent my way, I think I'll just gracefully accept the compliment ;)
5.20.2008 5:59pm
Owen (mail):
Here's a quote I've always liked:


"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."

--- Justice Curtis, Dissenting in Dredd Scott v. Sandford


Judges have often strayed from the basic rules of interpretation, but they do exist. In interpreting a constitutional provision, judges are supposed to look to evidence of how it was understood by those who ratified it, and yes, even in California they look to legislative intent, public speeches, and so forth in interpreting their laws.

What the California Supreme Court did here, however, was place their personal views on gay rights above their obligation to interpret the state constitution in light of these basic principles of interpretation -- just as Chief Justice Taney put his desire to solve "the great question" above his fidelity to the text of the federal constitution. Even if you like the outcome, it's difficult to defend the method.
5.20.2008 6:02pm
Patrick Meighan (mail):
"If you live in California there is no way to get into gender-opposite union recognized by state. From now on the state only recognizes gender-neutral union which does not make sense for heterosexuals."

I live in California, I'm a heterosexual man in a marriage with a heterosexual woman, and I find absolutely nothing nonsensical about my marriage being considered gender neutral by the state (assuming, ad arguendo, the truth of your assertion that California no longer offers gender-opposite marriages).

I didn't marry my wife because the state calls her a woman and me a man and keeps the distinction straight.

I married my wife because I love her and I want to spend my life with her. And I want California to grant us the same rights, privileges and responsibilities that it would grant any other married couple (straight or gay). That's all.

If California now calls us married partners instead of married man/wife, that's fine with me, and does not damage my marriage an ounce.

Patrick Meighan
Culver City, CA
5.20.2008 6:07pm
Patrick Meighan (mail):
"It is virtually indisputable that the equal protection clause, when it was passed in California, was neither understood nor intended to be a vehicle for requiring the state to recognize gay marriages."

It is equally indisputable that the equal protection clause, when it was ratified into the federal constitution in 1868, was neither understood nor intended to be a vehicle for requiring the state to recognize interracial marriages (as cited in 1967)

Does that 1967 ruling's departure from the original 1868 intent mean that the unanimous Loving v. Virginia ruling was in error?

Patrick Meighan
Culver City, CA
5.20.2008 6:11pm
Owen (mail):
Patrick,

Fortunately, nine unelected tyrants in black robes flouted the express will of the Virginia citizenry in 1967 and declared that Virginia law violated the Equal Protection Clause of the 14th Amendment (a constitutional provision dating back to 1868, that was almost certainly not imagined, when passed, to be tantamount to a constitutional defense of interracial marriage).

The court in Loving expressly rejected that notion, writing:


"The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[at] best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished...."


Now, perhaps this was a load of nonsense. However, the Court was at least resting on the fact that the equal protection clause was intended to cover race, and played off of the fact that many of the radical Republicans did desire absolute equality between the races. So even if they were wrong from a purely originalist perspective, they at least had more to rest their proverbial hat on than the California Supreme Court.
5.20.2008 6:18pm
Patrick Meighan (mail):
"I know this might be too complicated for you to understand, but in Loving v. Virginia, they were interpreting part of the constitution that actually designed to address the issue at hand: racial discrimination. (Not that i subscribe to the "race only" theory of the EPC, but everyone agrees that the race was the primary issue on their minds when they passed it.)"

Though race was the subject of the EPC, *interracial marriage* (and the constitutional guarantee of same) was, in no way, considered to be the cause and purpose of the drafters of the 14th amendment in 1868. In fact, most of the people who drafted and ratified the 14th Amendment would've been aghast at the very suggestion that they were codifying an inalienable, constitutional right to miscegenation. That goes double for the drafters of the 5th Amendment (circa 1791), the other constitutional clause cited in the unanimous Loving ruling (circa 1967). According to the logic utilized repeatedly in this comment thread, the fact that the 1967 U.S. Supreme Court cited constitutional principles to reach a result that would've scandalized the 18th century and 19th century framers of those specific constitutional principles, the unanimous Loving ruling was a miscarriage of justice, and the citizens of the State of Virginia had their right to ensure continued racial purity violated by an unelected cadre of elite, arrogant tyrants in black robes.

Patrick Meighan
Culver City, CA
5.20.2008 6:27pm
Oren:
John, your attempt to turn back the course of science is admirable but I highly doubt that the US is going to start jailing scientists if we want to stay ahead in the world economy. Talk about biting the hand that feeds.

Most of the neat biotechnology goes on in Korea where the money is plentiful and the ethics boards non-existent. If you want to be part of continuing that trend, be my guest.
5.20.2008 6:28pm
Oren:
There is no right to be Dr. Frankenstein and create people with modified genes.
Funny, it's already happened and no one is in jail! Oh well, keep trying!
5.20.2008 6:30pm
Zombie Richard Feynman (mail) (www):
Not sure there would be any genetic manipulation in making an egg into a sperm.

Also, is it just me, or does that nut guy sound like the Nature's 4 Day Time Cube guy?
5.20.2008 6:37pm
Patrick Meighan (mail):
Owen,

My eye is drawn to this part of your cite:

"While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment."

In other words, "despite the fact that the framers and ratifiers of the 14th Amendment expressed specific opposition to miscegenation in various official fora, and despite the fact that a constitutional right to miscegenation is not specifically codified in the 14th Amendment, we, the court, are within our rights and responsibilities to cite the 14th Amendment today according to our best contemporary interpretation of the Amendment's broader, organic purpose, and do not consider ourselves required to hew to the social mores clearly expressed by the framers when the Amendment was ratified."

In the above, replace "14th Amendment" with "state constitution's equal protection clause," and replace "miscegenation" with "marriage rights for all Californians," and you'd have a pretty decent digest of the ruling issued on 5/15/08.

Patrick Meighan
Culver City, CA
5.20.2008 6:53pm
John Howard (eggandsperm.org) (mail) (www):
Yes, there is genetic manipulation to make a viable opposite-sex gamete: the epigenetic imprinting must be reversed. Merely transferring the chromosomes into the other type of cell without changing the imprinting does not work, the genes have to be manipulated, so that they represent a person that does not exist: an opposite-sex version of that person. Every person would have different genes if they were the other sex, and it takes manipulation to get them to be that way.

Oren, no human being has been created with modified gametes yet. So far, every person's genes are the result of fertilization of a woman's egg by a man's sperm. (I suppose you might be thinking of the use of nuclear transfered eggs, where a different woman supplies the egg (including the mitochondrial DNA) and the nucleus, because some women have problems with their mitochondrial DNA. Yes, this has happened, and no one went to jail. I'm not sure where I stand on this. It isn't the sort of genetic manipulation that I am trying to stop, but it is definitely a modified gamete and so would be banned by the law I'm promoting. But that's OK, there is no right to do nuclear transfer and swap mitochondrial DNA, I'd rather ban this rare procedure than have it mess up a workable ban on use of modified gametes.
5.20.2008 6:59pm
John Howard (eggandsperm.org) (mail) (www):
Oren, most countries have banned germline genetic engineering, and the UN is strongly opposed to it. The US is one of only a ew countries thumbing its nose at world opinion and going ahead with eugenics. This is surely causing us to be seen as The Great Satan, too, driving people to kill us and our soldiers. I don't need us to be a "world leader" on creating a genetic engineering industry, making me a target of jihadists, not when we are facing dwindling resources and causing global warming. There are other things we can work on that are better for the economy, all GE is is a big sink that siphons resources from other places and makes us turn to China for our basic goods.

I think all countries that are working on genetic research would be happy to prohibit creating people that way, they all are facing similar shortfalls of their resources and woudl love to know that the US is pushing forward a eugenic arms race.
5.20.2008 7:07pm
Oren:
Oren, no human being has been created with modified gametes yet.
Nope.

I don't need us to be a "world leader" on creating a genetic engineering industry, making me a target of jihadists
Seriously? You are going to let some nutcase Jihadists exercise a veto over our domestic scientists?

all GE is is a big sink that siphons resources from other places and makes us turn to China for our basic goods.
GE is the source of a huge amount of US revenue and has improved our crop production at least two-fold. Better genetic testing of livestock has greatly improved meat production too (although the benefits are going to be a little way off). There would be no reason that for-profit businesses like Monsanto would invest billions in GE if it wasn't helping their bottom line.

At any rate, I don't think it particularly matters -- the science will get done one way or another, your squeamishness non-withstanding.
5.20.2008 7:22pm
John Howard (eggandsperm.org) (mail) (www):
oren, I'm only talking about banning creation of people from GE. That hasn't been done yet, and even the scientists in that story you link to don't want to do that, they say "none of us want to do that".

The issue here is whether we should allow companies to try to create people with modified genes. I say no. I say it would be better to reach world peace and do useful good things rather than feel GE must be allowed. Why insist on it? Just to stick it the fundies? Bring it on, you say, we're gonna do GE even though we don't want to, just to piss the fundies off? thanks.
5.20.2008 7:53pm
A.W. (mail):
Mark

> Gotta love the devotion to federalism conservatives are so fond of spouting.

We didn't say California couldn't adopt a different approach. only that it didn't.

Patrick

> However, the majority of the voters in the State of Virginia had a different opinion in 1967 (and earlier): that one of the inherent qualities of marriage is the production of offspring who will perpetuate the distinctness of the races.

Yes, and that offended a specific part of the constitution that was explicitly designed to cover that issue (racial discrimination). You can't say the same in California, with the issue of gay rights or gay marriage.

Owen

And the majority didn't want to be bound by the dead hand of the founders.

And as for the original intent of the Fourteenth Amendment, let me add this. Its not like the issue was not on the table. Over and over the democrats screamed that white women would be forced to marry black men. The response? No one would be forced to do anything of the sort. They could have said "and for that matter, this amendment won't interfere with miscegenation laws." But they didn't. And its worth noting that the Father of the Fourteenth Amendment, Thaddeus Stevens, who was white, almost certainly had a long term and loving relationship with a black woman named Lydia Smith.

By comparison, I think it never even crossed the minds of the founders of the Fourteenth Amendment that they were making gay sex legal. The fact no one figured that out for over a hundred years after its passage only solidifies that assumption. I won't go as far as to say there is nothing new under the constitutional sun, but when someone talks of innovation in terms of the constitution, you should be skeptical.

I always thought that in Dartmouth College v. Woodward, they came up with a very rational method of figuring out what is included and excluded from constitutional protection, when analyzing whether the contracts clause applies to a school charter:

> It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous or repugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an exception.

The case of interracial marriage passes this test. You cannot be certain that the founders of the amendment opposed it. In the case of gay marriage, you can almost certainly say that if they ever believed such an interpretation was possible, they would have changed the constitution to exclude it. That is the difference to me.

But I will also say that the Loving opinion itself is not an originalist opinion. You can concur with it on the basis of original intent, but that was bluntly not the basis of the opinion.
5.20.2008 7:57pm
nutbump (mail):

Patrick Meighan:
I live in California, I'm a heterosexual man in a marriage with a heterosexual woman, and I find absolutely nothing nonsensical about my marriage being considered gender neutral by the state (assuming, ad arguendo, the truth of your assertion that California no longer offers gender-opposite marriages).



If you don't find nothing nonsensical, it does not mean there is no discrimination against heterosexuals.
I know for the fact that some black people love antimiscegenation laws, as well as many gay people against gay-marriage.

So, it is good that you have got my point. In case of gay-marriage you can't give a right to one type of couple without stripping of right for other couple. Gay couples are gaining and nongay couples are loosing.
We are not equal as far as marriage concern.
5.20.2008 8:16pm
Mark Field (mail):

We didn't say California couldn't adopt a different approach. only that it didn't.


You very much said explicitly that CA couldn't adopt a different standard. You asserted that the only legitimate way to interpret any constitution is by originalism. CA chooses not to do that. That's its right under basic federalism.
5.20.2008 8:23pm
Patrick Meighan (mail):
"If you don't find nothing nonsensical, it does not mean there is no discrimination against heterosexuals."

I think we're talking past each other. What you originally said (and what I responded to, was: "From now on (California) only recognizes gender-neutral union which does not make sense for heterosexuals."

What I'm telling you, as a California heterosexual male who is married to a California heterosexual female, is that marriage that is processed by our state as a "gender-neutral" marriage (assuming that's how the State of California chooses to process legally-recognized marriages going forward) makes neither more nor less sense to me and the woman I call my wife than does marriage that is processed by my state as a gender-specific marriage. In either event, it is marriage: a legally-recognized union of two consenting California adults who love each other and choose to be joined in perpetuity, with all the attendant legal rights, privileges and responsibilities that come with the execution of that choice.

"In case of gay-marriage you can't give a right to one type of couple without stripping of right for other couple. Gay couples are gaining and nongay couples are loosing."

I have lost none of my rights. Not one single one.

Patrick Meighan
Culver City, CA
5.20.2008 9:24pm
Owen (mail):
Patrick,

In other words, "despite the fact that the framers and ratifiers of the 14th Amendment expressed specific opposition to miscegenation in various official fora, and despite the fact that a constitutional right to miscegenation is not specifically codified in the 14th Amendment, we, the court, are within our rights and responsibilities to cite the 14th Amendment today according to our best contemporary interpretation of the Amendment's broader, organic purpose, and do not consider ourselves required to hew to the social mores clearly expressed by the framers when the Amendment was ratified."

Fair enough -- you believe their reasoning was wrong. I tend to think the lion's share of the evidence was against them as well. On the other hand, they were simply parlaying weak evidence to make an originalist argument. That's different from what the California Supreme Court did, which was ignore originalism entirely and push its own social agenda without pretense.

Furthermore, Loving is clearly distinct from The Marriage Cases for one simple reason -- in Loving, there was an amendment that was clearly designed to apply to race. The California Supreme Court, without an amendment intended to protect gay rights, decided to afford sexual orientation a special status. It's one thing to over-expand an existing right; it's quite another to create a brand new one.

In any event, it doesn't really get your argument anywhere. I can understand why some people who feel passionately about gay marriage would welcome this decision on policy grounds, even to the point where they would overlook the fact that its reasoning is flawed and it impermissibly overstepped democratic means for reform. It also might be that Loving v. Virginia can be viewed in the same light (although still distinguished for the reasons cited above). However, that doesn't make either decision proper. You can obtain good results through illegitimate methods (or bad results, i.e. Dredd Scott). I just don't see what you think you're proving.
5.20.2008 9:34pm
John D (mail):
Nutbump,

You wrote,

In case of gay-marriage you can't give a right to one type of couple without stripping of right for other couple. Gay couples are gaining and nongay couples are loosing. We are not equal as far as marriage concern.


And just what is it that opposite-sex couples are losing? I saw nothing in the decision that would suggest that the State of California might withhold marriage licenses from opposite-sex couples.

You may "think it clear that California Supreme Court has taken away a right to become a husband or wife as well as mother or father," but such beliefs have no basis in reality.

For the all the screams about "redefining" marriage, the words "husband" and "wife" keep their current definitions. A "husband" is a married man. A "wife" is a married woman. That's pretty easy.

Since people keep advancing the (weak) definitions argument, I should note (as I have in the past) that a "husband" is literally "one who dwells in a house." Since definitions never, ever change, we have to forbid marriage to all men who rent or still live with their parents.

Buy your own house, mister, then you can marry.

Meanings often change over time. Language is like that.

Men can still become husbands, even when some become husband to each other. Women can still become wives, even when some become wives to each other.

There are enough marriage licenses to go around though it is entirely possible that some offices in California will run out of forms on June 16th. I'd happily chip in to pay for the photocopy bill.
5.20.2008 9:35pm
Owen (mail):
Patrick,

I have lost none of my rights. Not one single one.

Well, you lost your right, as a citizen, to have a particular say in the scope of marriages to be recognized by the state. There's always that give and take and it's not something to be ignored.
5.20.2008 9:37pm
Owen (mail):
A.W.,

The case of interracial marriage passes this test. You cannot be certain that the founders of the amendment opposed it. In the case of gay marriage, you can almost certainly say that if they ever believed such an interpretation was possible, they would have changed the constitution to exclude it. That is the difference to me.

It does make a difference, true. I'd be willing to bet that a fair share of radical Republicans opposed anti-miscegenation laws, including many of the people involved in the drafting of the 14th Amendment. I'd bet anybody who did a bit of external research could verify that.

On the other hand, to my knowledge Patrick is correct that most people did not understand the 14th Amendment as voiding anti-miscegenation laws. My point would be that this simply doesn't matter -- if Loving was reached through bad legal reasoning, it was still the incorrect decision even though it managed to speed up good policy. Judges just aren't fit to decide these issues for society by virtue of their will alone. Accordingly, any appeal to Loving is nothing more than a cheap rhetorical trick. I shouldn't have to renounce Loving anymore than Patrick should have to embrace Dredd Scott.
5.20.2008 9:49pm
John D (mail):
Owen,


Well, you lost your right, as a citizen, to have a particular say in the scope of marriages to be recognized by the state. There's always that give and take and it's not something to be ignored.


I wasn't aware I had this right. Why have they not been consulting me on who should get married? You see, all this time, I felt it was a fundamental human right, limited only with a compelling state interest. Now I find that each marriage ought to be preceded by a referendum.

Perhaps I'm not comfortable with people in certain groups, despite that they are members of protected classes, obtaining the right of marriage. No one is consulting me on this. (Oh, that's right. You don't want gay men deciding who might get married.)

The idea that people have lost rights due to the California Supreme Court stating that same-sex couples have a right to access the marriage laws would seem to go right past animus all the way to malice.
5.20.2008 10:00pm
nutbump (mail):

John D: And just what is it that opposite-sex couples are losing? I saw nothing in the decision that would suggest that the State of California might withhold marriage licenses from opposite-sex couples.


Are you kidding me. They are losing everything the whole system of marriage, i.e. husband + wife or groom + bride.
Those are important components of marriage. Yes there are some people that don't care, but majority do.

Why gays are fighting for the gay-marriage, if difference in between civil union and marriage only how you name it.

So if we are playing the name games, than husband and wife are important names for heterosexuals. And those names are not recoginzed by the state of Califorina. You will not be able to use word husband and wife in public institutions, like schools or city hall. That is clearly discrimination against heterosexuals.
Heterosexual people of California have lost thier right for recognition of traditional marriage. At the same time state recognizes gender-neutral marriage, that does not make sense for majority of population of California.
I think it is quite obvious.
5.20.2008 10:01pm
Randy R. (mail):
"Well, you lost your right, as a citizen, to have a particular say in the scope of marriages to be recognized by the state. There's always that give and take and it's not something to be ignored."

Well, if THAT's the standard, then we have lost a heck of a lot more important rights than just marriage. There are plenty of things that we are not consulted on, like fishing license fees, when the trash gets picked up, whether I can be stopped for routine traffic checks, and so on.

nut: "I think it is quite obvious."

Considering you are the only one making these arguments, and not a single person has agreed with you, I'd say it's rather obvious your contention that heterosexual marriage no longer exists is wrong, aside from being totally bizarre. We've all asked you for specific examples of what rights have been lost to heteros, and you keep saying the same thing without elaboration.
5.20.2008 10:17pm
Owen (mail):
John D,

I wasn't aware I had this right.

It's part and parcel of the right to vote. Anything that isn't off-limits by virtue of the Constitution is fair game for the normal legislative process. You have the right to vote for representatives who decide those issues.

The idea that people have lost rights due to the California Supreme Court stating that same-sex couples have a right to access the marriage laws would seem to go right past animus all the way to malice.

Well, that's just ridiculous. Just because I feel our right to representative government is diminished by judicial overreach means that I'm exhibiting "malice" towards gays. Nothing could be further from the truth.
5.20.2008 10:19pm
Owen (mail):
Randy R.,

Well, if THAT's the standard, then we have lost a heck of a lot more important rights than just marriage. There are plenty of things that we are not consulted on, like fishing license fees, when the trash gets picked up, whether I can be stopped for routine traffic checks, and so on.

Um... I'm pretty sure that our democratically-elected legislators decide those issues.
5.20.2008 10:20pm
Pazdispenser (mail):
Owen,

Um...Im pretty sure our democratically-elected legislators DID decide this issue, and not once either....
5.20.2008 10:28pm
Owen (mail):
Pazdispenser,

That's a tad disingenuous. If the democratic process had been followed, the issue would have been mooted prior to the Supreme Court's ruling. This issue was decided by judges, period.
5.20.2008 10:31pm
John D (mail):

husband and wife are important names for heterosexuals


There we have it folks. Nutbump and other presumptive heterosexuals lose that people will expect that they are heterosexual because they are married.

Given Jim McGreevey's example (and some others), I think it would be a good thing if marriage stopped being a badge of heterosexuality.

Women still get to be brides. Women still get to marry men if they so decide.

Nobody loses anything.

And as for Owen, I do believe that the Chief Justice said that the California Constitution put the rights of gay people beyond the normal legislative process. I do realize you disagree with this, however, it's clearly not obvious that you're right on this issue.

A perfectly reasonable argument can be made that you never had the right to vote on this issue.

However, since you do cite the normal legislative process, perhaps the legislature will put a bill on the Governator's desk. Now he no longer can cite Prop 22 as an objection to signing it (and rightly, according to the Court).

I suspect that he would use his earlier reason for veto: if the statutes are constitutional, then the bill is not, if the statutes are not, then the bill is unnecessary.
5.20.2008 10:35pm
John D (mail):
Owen,

That's a tad disingenuous. If the democratic process had been followed, the issue would have been mooted prior to the Supreme Court's ruling. This issue was decided by judges, period.


Specifically, how? Please give examples.

The most recent activity before the hearing was the Assembly passing a bill to the Governor which would have given marriage rights to same-sex couples.

You seem to be working from a premise here that judges may never strike down laws because they conflict with a constitution. I'm not sure in that scheme what a constitution is for. Bathroom reading?

The marriage laws preventing same-sex couples from marrying conflicted with the equal protection guaranteed in the California Constitution. Therefore, the judges did their duty and struck down those laws.

There is a long tradition in the United States of judges striking unconstitutional laws. Generally the response is to initially claim that they were going against the will of the people and it would seem that eventually passions cool and people claim that they really were in favor of the ruling all along.

But seriously: please provide us with a list of events that should have happened. But please don't tell us that the California Supreme Court should ever say, "lots of people voted for this measure, therefore we decline to consider whether it is constitutional or not."
5.20.2008 10:49pm
nutbump (mail):

John D: Women still get to be brides. Women still get to marry men if they so decide.

They do, but without state recognition. You seems to be try to omit that important detail.
Gay marriage is granted to homosexuals.
Traditional marriage is taken away.

Before - we have domestic partnership and marriage.
After - domestic partnership is converted to marriage.
Traditional marriage has gone.

So court has redefined marriage, in favor of homosexuals at the expense of heterosexuals.
5.20.2008 11:02pm
Owen (mail):
John D,

Specifically, how? Please give examples.

They did it when they struck down the existing California marriage law and mandated that gay marriages be recognized by the state.

You seem to be working from a premise here that judges may never strike down laws because they conflict with a constitution.

This line makes it clear that you'd prefer to argue against a strawman, so if it's all the same to you, I'm not going to argue with you.
5.20.2008 11:05pm
nutbump (mail):

Considering you are the only one making these arguments, and not a single person has agreed with you

Not a single person has presented viable argument, except saying that I am wrong.
5.20.2008 11:09pm
A.W. (mail):
Owen:

I meant to say this before:

> And the majority [IN DREDD SCOTT] didn't want to be bound by the dead hand of the founders.

No biggie, but that's what I get for trying to write as I run out the door to see Narnia II. :-)

As for the rest of your response, I say the framers of the Fourteenth Amendment were really that radical. You disagree. But we agree on the most important thing: original intent has to rule.

Mark

> You asserted that the only legitimate way to interpret any constitution is by originalism. CA chooses not to do that.

Wow, how arrogant. The Supreme Court of California does something and you pretend it is the entire state. Give me a break.

Or have you found that "the Supreme Court can do whatever the f--- they please" clause in the CA Const?

John D

> The idea that people have lost rights due to the California Supreme Court stating that same-sex couples have a right to access the marriage laws would seem to go right past animus all the way to malice.

How about the right to run your government? Yes, that right is limited, but not to this extent.

And by the way, it has diminished marriage. Don't pretend that this damage is meaningless, because the entire case was about the prestige of marriage. The California Supreme Court said that the domestic partnership law was equivalent to marriage in every way except in name. So what the gay couples won in that case was the right to the name and that prestige.

And in gaining the prestige associated with heterosexual marriage, they denigrated that prestige. As though marriage hasn't taken enough of a beating.

> I do believe that the Chief Justice said that the California Constitution put the rights of gay people beyond the normal legislative process.

Yeah, and if I sleep with your wife but claim I was giving her only a massage, you will take that at face value, right?

The fact that the Chief Justice won't admit what they were really doing—rewriting the document they claimed to interpret—is their silent confession that what they are doing is wrong.

> You seem to be working from a premise here that judges may never strike down laws because they conflict with a constitution.

Saying you don't want the constitution to be interpreted in wild variance with its original intent is not the same as saying that the constitution shouldn't be used to strike down any laws that are actually unconstitutional.

This ruling is only slightly less ridiculous than the one in Massachusetts. Who knew the Puritans were so open minded on gay marriage?

We are not fools. No constitution mandates this outcome; they generally only allow it to occur by the democratic process.
5.21.2008 12:16am
John Howard (eggandsperm.org) (mail) (www):
I have lost none of my rights. Not one single one.

Well, your right to conceive has been jeopardized, made equal to your right to conceive with someone of the same sex. And most people say that should only be allowed "if safe", so if it is equal to your right to conceive with someone of the other sex, then that is only allowed "is safe" too. It used to be a protected right of every marriage, and no one was regulating it and making sure it was safe. Now it is as dubious as the right to same-sex conception. Either that is a guaranteed right (which would be totally freakin stupid and something no one has claimed they were asking for) or you've lost the right to conceive.
5.21.2008 12:48am
John Howard (eggandsperm.org) (mail) (www):
So if we are playing the name games, than husband and wife are important names for heterosexuals. And those names are not recoginzed by the state of Califorina. You will not be able to use word husband and wife in public institutions, like schools or city hall. That is clearly discrimination against heterosexuals.

good point, nutbump. Yes, if the whole thing was to make sure the prestige of the name was available to same-sex couples, they forgot that a man and a woman would have to give up the prestige of husband and wife, which don't mean as much when a husband might not be the only husband or a wife might not be the only wife. That is definitely a loss.
5.21.2008 12:53am
MarkField (mail):

Wow, how arrogant. The Supreme Court of California does something and you pretend it is the entire state. Give me a break.


This is downright silly. No CA Court has ever adopted originalism as a required form of interpretation. That includes the past 20 years of Republican domination (and 60 years prior to 1960 or so of Republican dominance). What's arrogant is for you, an outsider, to tell CA courts how they should run themselves.


Or have you found that "the Supreme Court can do whatever the f--- they please" clause in the CA Const?


If you fancy yourself a textualist/originalist, then it's you who should be able to point to the relevant clause. If you can't find such a clause, then surely you'd agree that the Court shouldn't create one.
5.21.2008 1:05am
Randy R. (mail):
AW: "And in gaining the prestige associated with heterosexual marriage, they denigrated that prestige. As though marriage hasn't taken enough of a beating. "

Or, to look at it another, the prestige of marriage has now been enhanced, because it now admits gays to it. And marriage had been strengthened.

Unless, of course, you are willing to argue exactly HOW hetero marriage is denigrated?
5.21.2008 1:22am
Oren:
Why insist on it? Just to stick it the fundies? Bring it on, you say, we're gonna do GE even though we don't want to, just to piss the fundies off? thanks.
No, I have no desire to piss anyone off. I just have a strong desire to maintain that no one has any right to tell me what to do with my lab anymore than I have a right to go into your house and tell you what to do with your guns. It's a basic matter of freedom (note that you can attach whatever strings you want to gov't funding).

While you are right that no one wants to make modified humans just yet, I'm still in the favor of the ironclad principle that no one has the right to impede another's scientific work unless it will cause concrete and particularized harm to that person.
5.21.2008 1:29am
John D (mail):
Nutbump,


Gay marriage is granted to homosexuals.
Traditional marriage is taken away.

Before - we have domestic partnership and marriage.
After - domestic partnership is converted to marriage.
Traditional marriage has gone.

So court has redefined marriage, in favor of homosexuals at the expense of heterosexuals.


You have this quite wrong. Opposite-sex marriage is still available in California and should remain so.

You are making the circular argument that opposite-sex marriage should remain the only form, otherwise it won't be the only form.

True, but unpersuasive. The marriages of same-sex couples do not prevent opposite sex couples from marrying.


Oren,

Me: You seem to be working from a premise here that judges may never strike down laws because they conflict with a constitution.

You: This line makes it clear that you'd prefer to argue against a strawman, so if it's all the same to you, I'm not going to argue with you.


Then I have misunderstood you.

How should have the issue been mooted prior to the Supreme Court? Can you be specific, since I honestly cannot see how things would have gone differently prior to the Supreme Court's decision. Certainly, they might have decided the case differently, I'm wondering what chain of events would have lead to the case being moot.

Please explain rather simply asserting.
5.21.2008 3:33am
nutbump (mail):


John D: You have this quite wrong. Opposite-sex marriage is still available in California and should remain so.

May be, but officially it is called gender-neutral marriage, so there is no more pubilc recogintion of opposite-sex marriage. This is outright discrimination based on heterosexual orientation.



You are making the circular argument that opposite-sex marriage should remain the only form, otherwise it won't be the only form

I have never said that. As a society we can have as many form of marriage as we want, gay-marriage, traditional marriage, serial-marriage, asexual-marriage, telecommute-marriage etc. All kind of marriages we can imagine. I have completley support every possible permutation of human relationships.
What I don't support is discrimination, and I believe there is discrimination against heterosexual people.



True, but unpersuasive. The marriages of same-sex couples do not prevent opposite sex couples from marrying.

Yep, and U.S. laws have never prevented gays-couples from marrying as long as one of them a woman and another is a man.
5.21.2008 12:20pm
John D (mail):
Nutbump,

Okay, one last time feeding the troll.


officially it is called gender-neutral marriage


No, officially, it's just called "marriage."


As a society we can have as many form of marriage as we want, gay-marriage, traditional marriage, serial-marriage, asexual-marriage, telecommute-marriage etc. All kind of marriages we can imagine. I have completley support every possible permutation of human relationships.
What I don't support is discrimination, and I believe there is discrimination against heterosexual people.


If you say we can have "gay-marriage," what is your beef? I suppose we could say that when a same-sex couple marries, they have a "gay marriage" and when an opposite-sex couple marries, they have a "straight marriage" (pace the McGreeveys), although the term "marriage" really serves for both.

I'm still not certain how there is discrimination against opposite-sex couples. To get married, they do will continue to do the same things they did before and obtain the same benefits.

There are many people who comment here by making unfounded assertions. When asked to back up these assertions, they simply repeat themselves. You're not alone in this.

Please, specify in what ways opposite-sex couples are victims of discrimination. Saying that their marriage is "gender neutral" won't cut it, since California (and other states) have rejected the concept of sex roles in marriage (for example, a wife is no longer financially subservient to her husband).

If your complaint is with that, it has nothing to do with gay people, and everything to do with women's rights (which have been quite appropriately applied).

If asked, I could list specific harms gay people face due to a lack of access to the marriage laws. Not one of them would reference "dignity" or "acceptance." Can you please list the harms that straight people face due to gay people being able to marry a same-sex partner?

And by the way,

U.S. laws have never prevented gays-couples from marrying as long as one of them a woman and another is a man.


Gay couples do not actually consist of opposite-sex pairs. A gay couple will either be two men or two women. The whole point of same-sex marriage is that gay people don't fall in love with members of the opposite sex. Yes, there is no law that prevents people from marrying for reasons other than love, but most people in the United States do marry for love.

It is insufficient to say that equality is addressed in that men and marry women and women can marry men, without regard to sexual orientation. It is a snarky, useless response. That just comes back to the long discarded definitional argument.
5.21.2008 12:40pm
Oren:
John, don't feed the trolls. 40 years ago, nutbump would argue that allowing interracial marriage was discrimination against same-race marriages because it didn't afford them a distinct name/class.
5.21.2008 12:53pm
John Howard (eggandsperm.org) (mail) (www):
I just have a strong desire to maintain that no one has any right to tell me what to do with my lab anymore than I have a right to go into your house and tell you what to do with your guns.

Even Dr. Frankenstein? There is no right to create something that will be a human being with full rights by any means other than the equal way every other human being was created, by the union of two other human beings coming together in consensual marriage. There is no right to create someone by rape, no right to create someone by cloning, no right to create someone from a dead person's frozen gametes, no right to create someone from GE'd genes.

We have an obligation to preserve the equal creation of every person that can't speak for themselves yet, and preserve the rights of every person to have their own offspring with the person of their choice, without anyone saying they have to modify their genes.

Just because you have the power in your lab to create a GE'd person does not mean you have the right to. Its a person you are creating, not a mountain of mashed potatoes. You don't even have a right to create a GE'd chipmunk, for that matter. I agree with PETA that animals should not be grist for artists or scientists to do whatever they want with, including creating them.
5.21.2008 1:10pm
SIG357:
And exactly what specific freedom of yours is taken away by Lt. Sulu (George Takei) and his partner of 21 years (thanks Cornellian!) being able to marry?


Our freedom to enter into contracts of our own choosing. Marrige is NOT a contact between two people. It's a contract between two people and the rest of society. (As are all contacts which the state decides to honor and enforce.)
5.21.2008 1:44pm
SIG357:
Have you now moved on from moral outrage to actually asserting that the California Supreme Court lacks the authority to interpret the California Constitution?

I have not "moved" from anything. And my "moral outrage" is directed at the Courts making up new law under the flimsy guise of "interpeting" the Constitution. I'm pretty sure even Carpenter would admit that's what they did. He just thinks it's good that they did it.

Which speaks volumes about the way in which lawyers look at the law. Not as something they serve, but as something which serves them.
5.21.2008 1:47pm
SIG357:
I'm saying we should live under "rules" set down by dead men and interpreted by living men and women

By "interpeted", I'm pretty sure you mean "the words mean whatever we want them to mean".

In which case, all political power rests in the hands of the people doing the "interpeting".
5.21.2008 1:54pm
Oren:
Even Dr. Frankenstein? There is no right to create something that will be a human being with full rights by any means other than the equal way every other human being was created, by the union of two other human beings coming together in consensual marriage.
Of course there is. Why wouldn't there be? Last I checked, we were a system of limited government in the sense that, unless it is forbidden, it is allowed.

There is no right to create someone by rape
No, there is no right to have sex with someone absent their consent. Rape that does not lead to pregnancy is the moral equivalent of rape that does -- they are both crimes against the person being raped, not some hypothetical human that may or may not come into being consequently.

no right to create someone by cloning
I have every right.
no right to create someone from a dead person's frozen gametes
No more than I have the right to harvest your liver when you die. Of course, with consent, there is no problem.
no right to create someone from GE'd genes.
Every right.

We have an obligation to preserve the equal creation of every person that can't speak for themselves yet,
I don't know what this means. Creation is never equal.
preserve the rights of every person to have their own offspring with the person of their choice, without anyone saying they have to modify their genes.

Aha! Now we get to the crux of the matter -- you think that adoption of GE will be compulsory. As a freedom-loving individual, I have absolutely no right to tell anyone else how, why, when and where to have their offspring. If they want to do it au naturale that is as much their right if they want to do it au Frankenstein.

Just because you have the power in your lab to create a GE'd person does not mean you have the right to. Its a person you are creating, not a mountain of mashed potatoes.
That person has a manifest and undeniable interest in being free from preventable hereditary diseases. If you had the power to remove the gene that predisposes for breast cancer from your child and you refused, I would consider that very much against the interest of the child (although, see my above post about freedom -- I wouldn't coerce you into changing your mind).

You don't even have a right to create a GE'd chipmunk, for that matter. I agree with PETA that animals should not be grist for artists or scientists to do whatever they want with, including creating them.
Animals do not have rights. Full Stop.

Note: I'm in favor of laws banning animal cruelty because I believe that, as a society, we ought to refrain from cruelty as a matter of respect. I buy cruelty-free free-range meat. Nevertheless, I don't do that because animals have the right to be free from cruelty, I do that because I chose to abide by a higher standard. This is off topic anyway.
5.21.2008 2:08pm
John D (mail):
Earlier I misdirected a comment.


Me: You seem to be working from a premise here that judges may never strike down laws because they conflict with a constitution.

You: This line makes it clear that you'd prefer to argue against a strawman, so if it's all the same to you, I'm not going to argue with you.


Then I have misunderstood you.

How should have the issue been mooted prior to the Supreme Court? Can you be specific, since I honestly cannot see how things would have gone differently prior to the Supreme Court's decision. Certainly, they might have decided the case differently, I'm wondering what chain of events would have lead to the case being moot.

Please explain rather simply asserting.


This should have been directed toward Owen not Oren. One letter difference, but such a big difference.

Owen has still not told us what should have happened to make the case moot before it reached the California Supreme Court.
5.21.2008 2:31pm
A.W. (mail):
Mark

> No CA Court has ever adopted originalism as a required form of interpretation.

Ah, so if the violation goes on long enough, its okay.

And really? You checked the case reports all the way back to 1850? It was 1851, and the California Supreme Court says, "sure, yeah, the constitution says X, and the ink is literally still wet, but we don't have to follow that." Really, do you think we are fools?

The very concept of a living constitution wasn't invented until around the 1960's.

> What's arrogant is for you, an outsider, to tell CA courts how they should run themselves.

First, how do you know I am an outsider? And indeed, how do you define an outsider? What if I was born there? Or have lived there? Am I still an outsider? Or do I have to be present there right this second, even if I was born there, and just left it for the first time last month?

Or do you mean I am an outsider relative to the California judicial system.

Second, its nice to see you stop pretending it is the people of California or something silly like that who mandated this ridiculous approach.

> If you fancy yourself a textualist/originalist, then it's you who should be able to point to the relevant clause.

Except you are the one asserting a power, so you have to find constitutional justification for it. But let me say this. Look at Art. 18, which deals with amendments. Do you see a provision for judicial fiat as a method of amendment?

As pointed out in the Marshall argument above, it is presumed by the very act of writing a constitution down and setting down certain methods of amendment, that it cannot be changed by any other means—because what is the point of setting up an amendment process, if the constitution can be ignored at will? Now the ball is in your court to explain why California's constitution should not follow the same presumption. The fact that the Supreme Court of California pretended it was obeying the actual constitution and not their whims is evidence that it can't be done.

Let me illustrate that Marshall argument a little more concretely. Art. 18 Sec. 4 states that if two constitutional amendments are on the ballot on the same subject and they conflict, the one that is put into force is the one that wins the most votes. The implication is that by voting for a specific provision, even for one among several proposals on the subject, the people are exercising direct control over how their constitution is to be interpreted—which is nullified if the California Supreme Court can just ignore the actual words of the constitution at will.

So let's imagine a factual scenario. Suppose next November two constitutional amendments are ratified. One says "no gay marriage, no domestic partnership." The other says "no gay marriage, but domestic partnership is okay." The first gets the most votes. So that controls. But then the next day the California Supreme Court says "under this newly passed provision (the first of the two amendments), gay marriage is banned, but domestic partnership is allowed." If THAT is within the Court's power, then what is the point of asking for the people's opinion at all? Your theory of constitutionalism turns a constitutional amendment from a command to a mere suggestion. A request.

But if, on the other hand, you concede that such a "no gay marriage, no domestic partnership" amendment must be heeded, then I ask why the rest of the constitution doesn't deserve the same level of respect?

Living constitutionalism is untenable as a theory of proper interpretation.

Randy R.

> Unless, of course, you are willing to argue exactly HOW hetero marriage is denigrated?

You know, I don't have to. The people of California made that decision that it degrades marriage and that should have been respected.
5.21.2008 2:51pm
nutbump (mail):

John D:
Okay, one last time feeding the troll.


Well, I will try one more time to point out that your logic is flawed.
You conviniently forget about my main argument. It is all about Public Recoginition. Once gay-marriage (or gender-neutral) is enforced terms husband and wife become illegal for public institutions.
By doing so state withdraw the concept of procreation in the marriage, that is exceptionally harsh punishment for heterosexuals.
Because heterosexuals unlike homosexuals get married not only for sex and compassion but also for procreation.



No, officially, it's just called "marriage."

Gender-neutrality is inalienable component of gay-marriage so it is very official.






I'm still not certain how there is discrimination against opposite-sex couples. To get married, they do will continue to do the same things they did before and obtain the same benefits.

Except Public recognition of intent of their relationship.


There are many people who comment here by making unfounded assertions. When asked to back up these assertions, they simply repeat themselves. You're not alone in this.


I have to repeat because you divert discussion in wrong direction.



Please, specify in what ways opposite-sex couples are victims of discrimination.

Their relationship are not pubilcly recoginzed that is a main harm. By eliminating terms husband and wife marriage does not make sense for heterosexuals, because procreation is out of scope.


If asked, I could list specific harms gay people face due to a lack of access to the marriage laws. Not one of them would reference "dignity" or "acceptance."

It is not true, they want acceptance, they want their relationship to be called marriage, otherwise what is complain? They got everything with domestic partnership.
5.21.2008 3:00pm
John Howard (eggandsperm.org) (mail) (www):
Why wouldn't there be? Last I checked, we were a system of limited government in the sense that, unless it is forbidden, it is allowed.

We are talking about something that has never existed before, which explains why it has never been forbidden before. But we can look at other areas of law and infer that society has always had an interest in assuring ethical circumstances of conception and prohibited certain ways of creating people, even if the parents desire it. It has never been the sole discretion of the people creating the child, it has always been about the state balancing the rights of future people and the right of every person to conceive. The state can have "supportable basis" to prohibit certain relations from marrying and procreating, even as it has to respect the basic civil right of everyone to marry and procreate and cannot use insupportable basis to prohibit marriage.

they are both crimes against the person being raped, not some hypothetical human that may or may not come into being consequently.

Rape is also a crime against the hypothetical human, as well as the victim's family and indeed could even be said to be a hate crime against the victim's whole gender, and all of society, too. Many more people pay the price of rape than just the victim. And though it has expanded to include other forms of sexual assault lately, at the core of rape is the seizing of another person's reproductive choice, forcing them to submit to possible reproduction against their will. I think it needs to be expanded to include all attempts of non-consensual reproduction, even those that do not involve physical presence, let alone physical force, such as creating sperm cells from a lock of hair that Eddy Vedder auctions off for charity or something.

I contend that you don't "have every right" to create someone by cloning. I agree that it isn't prohibited in this country, and you probably wouldn't go to jail, but it can be prohibited. Scotus will not overturn a federal ban on cloning, they will not find a right to create people in the constitution by any means other than in marriage. Not even Eisenstadt said that single people had a right to conceive while single, only that they had a right to decide to bear or beget children. Just like an unlicensed driver has a right to make a decision about whether to drive or not. If they'd wanted to say there was a right to actually bear and beget children, they would have. They aren't paid by the word, that "make a decision" phrase is legally meaningful.

A dead person cannot give consent, and consent to conceive can only rightfully be given at the moment of conception. I think we can leave instructions for how to dispose of our bodies and property, but that isn't consent, consent is present tense (though contracts are contracts and can override wihdrawl of consent). Just as marriages end at death, so too should consent to conceive and the right to conceive, which marriage establishes.

We are all created equal, it is our creed, our basis of rights. And how are we all created? By the union of our father and mother's genes. Changing that would change the basis on which our liberties rest.

You aren't thinking about what is likely to happen if we allow GE. You can see there is a contradiction in that we would have an obligation to use GE to remove any genetic defect, with our right to use our own genes. This is a huge collision, with flames and tires flying off. Think about this, think about what it will mean for our rights to use our own genes. The only way to avoid the collision is to not allow GE to be developed, so that no one is morally obligated to use it and no one complains that they have "bad genes".

And I didn't say animals have rights, I said you don't have a right to do whatever you want to them.
5.21.2008 3:39pm
John D (mail):
A.W. is more articulate than Nutbump, but they really are using the same argument, that there is some form of harm that accrues to opposite-sex couples if same-sex couples are allowed to marry.

Neither is too specific about this. A.W. when asked by Randy to specify, said:

Randy: Unless, of course, you are willing to argue exactly HOW hetero marriage is denigrated?

A.W. You know, I don't have to. The people of California made that decision that it degrades marriage and that should have been respected.


A.W., you do have to. The people of California may have banned same-sex marriage in 1977 and 2000, but at no point did either statute state it was to avoid the denigration of opposite-sex marriage. These were simply statements of public policy which has been found to lack a compelling state interest.

And Nutbump says things like this:

[the] terms husband and wife become illegal for public institutions.


To a degree that's already true, but it has nothing to do with same-sex marriage and everything to do with sexual equality. A law that permitted something specifically to husbands but forbade it for wives would be struck down as unjust. And it would be.


It is all about Public Recoginition.


To a degree that's true. The state can't treat same-sex couples as legal strangers if they are married.

Their relationship are not pubilcly recoginzed that is a main harm. By eliminating terms husband and wife marriage does not make sense for heterosexuals, because procreation is out of scope.


No one will cease the public recognition of opposite-sex marriages. No one is stopping anyone from using the useful terms "husband" and "wife." No one insists that any couple, opposite-sex included, procreate to have their marriage considered valid.

What are the quantifiable harms that happen when same-sex couples marry? I have never heard a harm seriously advanced.

I've been reading on this issue for about fifteen years. I have read reams on the topic from both perspectives. I still have yet to find one actual problem that would be caused by same-sex marriage.

The supposed harms always sum up to; we can no longer so conveniently discriminate against gay people.

But make your case. No claims of denigrating marriage. No claims that people won't get to be husbands and wives. None of those are true. (If deeply religious people elect to "live in sin" as a protest against same-sex marriage, that is their choice; any harm is self-inflicted, and not by other couples or the state.)

Give it your best shot. I'll start off with five harms to same-sex couples. All are true for any unmarried couple. However, in 48 states, opposite-sex couples can obtain these through marriage.

* Property transfer (wills and gifts) is treated as if to an unrelated individual.

* Health benefits for partners (if offered) are taxed.

* Non-married partners can be compelled to testify.

* Shut out of next-of kin decisions.

* No access to the divorce court to solve end-of-relationship issues (admittedly in California domestic partners ending their relationship in some circumstances must visit Family Court).

I've named five (and there are lots more). Let's hear 'em.
5.21.2008 4:05pm
John Howard (eggandsperm.org) (mail) (www):
that there is some form of harm that accrues to opposite-sex couples if same-sex couples are allowed to marry.

Yeah, their conception rights are equated with the conception rights of same-sex couples. They shouldn't be, a person should have a guaranteed right to (marry and) procreate, but only with someone of the other sex.

As to those five harms to same-sex couples: Civil Unions that are defined as exactly like marriage except not granting the couple the right to conceive children together. The only thing missing from them would be the right to attempt to conceive children together. They could be passed in all 50 states, because they are not stepping stones to marriage and preserve marriage. They'd even be constitutional in California without the amendment.
5.21.2008 4:19pm
John D (mail):
John Howard,

Your answer was, at least, consistent with past comments.

How does having ones rights equated with someone else's rights do harm?

I mean it's clear that you don't think people should be allowed to procreate outside of a heterosexual union. This is not the case. People legally procreate outside of marriage.

None of this is really relevant to same-sex marriage, though.

What is worse: if a gay man and his same-sex partner raise a clone or a straight man and his opposite-sex partner do so? I just don't see the relevance to same-sex marriage.

Individuals have conception rights. Not couples.

Nor was my question about a way to address harms to gay people outside of marriage. That's another question.

The question (which you're not interested in answering) is what harms happen to people in opposite-sex marriages due to same-sex marriages.

That someone else gets the same rights that you do is not a harm to you.

But I'm really hoping the A.W. will answer this.
5.21.2008 4:41pm
nutbump (mail):

I've named five (and there are lots more). Let's hear 'em.

All problems are resolved after domestic partnership laws have been established. We are talking about California, so there is no harm in California. Harm that is caused by Federal Government is out of equation.

As we can see the harm is only the name, homosexual people are treated as a first class citizens, because marriage is modified according their need.
E.g. http://www.citizenlink.org/CLNews/A000004501.cfm pretty soon kids will not be able to pronounce words father and mother in their school
5.21.2008 4:56pm
John D (mail):

pretty soon kids will not be able to pronounce words father and mother in their school


Even kindergarden students can manage to do that.

So, Nutbumb, you seem to be conceding that there is no harm, since it's clear that the terms "father" and "mother' won't go out of use.

This is just anti-gay alarmism. But it's nice that you linked to a news item that cited problems for people with a "Biblical view." Yes, people who want the state to enshrine their reading of the Bible into the law will no longer get their way.

I don't see that as a harm to them. Even if it were, it has to be balanced against the harm done to people who do not share that view.
5.21.2008 5:06pm
A.W. (mail):
John D.

Forget all that tit for tat for now. Let me point out something to you. Your harm analysis doesn't quite do the work you think it does when we turn our eyes to other categories of exclusions.

Try this: who is harmed, for instance, when Johnny marries 5 other women? A few analysis above say that Billy, who now can't get any is harmed. But if reducing the pool of eligible bachelorettes is a harm that allows for the regulation of marriage, then we can ban lesbian marriage, right?

What about incest? Who is harmed when a brother and sister want to get married? Well, the classic response is the children, because they have 6 toes on each foot, and maybe society because they are likely to be a burden on us. But we don't normally try to regulate genetic purity. Indeed, I seem to remember Hitler tried to do that, and it didn't turn out so good... And besides there is no exception for sterile couples. The man could literally have no genitalia at all--he could be like a Ken doll--and he still can't marry his sister. How does that fit into your "harm theory?"

And I guess under this new ruling you have to wonder, what would happen if, say, Uncle Bob wanted to marry his niece Jane. After all, the California statute on incestuous marriage applies to all uncles and aunts seeking to marry to all of their nieces or nephews. Suppose, for instance, that Jane was related to Uncle Bob by marriage only. Then what is the harm? It's one thing to say you can't marry your mother's sister, but what about your mother's, brother's wife? How is anyone harmed by that pairing? Or hell, imagine that Jane wanted to marry her Aunt Leslie, who is married to Jane's mother's sister? Who is harmed?

For that matter, what if Bob and Bill, two brothers, want to get married. Who is harmed?

Yet if you read the opinion the California Supreme Court clearly says that they are not going to overturn the ban on incestuous relationships.

And other states take it even further. In many states, for instance, relation by adoption is considered equal to relation by blood. So a brother can't marry his sister, even if they are not really blood. And again, what is the harm?

The answer is that "harm analysis" is not all of what it is about. It is about the belief that certain relationships are just unhealthy. Which begs the question: why can't the people of a state declare that just as same-family relationships are creepy, so are same-sex relationships? Yes, yes, I know you will come back and try to claim that being gay is really not unhealthy at all, and you are entitled to your opinion, but so are the people of California. So who gets the right to say same-family relationships are unhealthy, but same sex relationships are healthy? And why shouldn't it be up to the people?

Either that, or if you believe the California constitution has somehow taken on your libertarian ideal that you can only ban what harms third parties, then I guess two brothers have to be allowed to get married, right?

And of course then you have to define harm narrowly, because after all the state of California has no trouble intervening to protect the loss of historical structures and other questionable dominions of the state over the individual, when the only harm at issue is emotional. Otherwise its hard to explain why we should stop a person from bulldozing a historical landmark on their property, just because we like to see it stand, but we can't ban gay marriage because we don't like to see two dudes kissing. In fact, really, I find it pretty lame that suddenly the CA Supreme Court is pretending that California is a libertarian state, given how statist the place is in virtually every other respect. If they were serious about this libertarian ideal, they would tear through the state's entire administrative branch. Don't hold your breath waiting for that to happen. The California Supreme Court are only libertarians of convenience, and when two brothers ask to get married, you'll see the limits of their libertarianism pretty quickly.

But one tit-for-tat to end with. The California Supreme Court took as read that domestic partnerships were identical in every way to marriage but name. So that is the facts, not imagining a long list of difference that might exist in other states.
5.21.2008 5:21pm
John Howard (eggandsperm.org) (mail) (www):
How does having ones rights equated with someone else's rights do harm?

My rights with a woman are being equated to my rights with a man, which lowers my rights with a woman to the dubious and uncertain right to conceive I have with a man, it makes them both subject to the state deciding whether or not we should be allowed to conceive. Either you have to green light same-sex conception and declare it a right, or you have to say that conception is not a marriage's right.

Individuals have conception rights. Not couples.

Individuals have a right not to be sterilized and a right to marry, and the marriage has (is) the conception rights. Because it is the marriage that is reproducing, not either of the individuals.

I mean it's clear that you don't think people should be allowed to procreate outside of a heterosexual union. This is not the case. People legally procreate outside of marriage.

OK, people do it without punishment and in most states its not a crime, but it isn't a right, not just in terms of my opinion but in terms of there being no court opinions saying so. But nevermind that, we are talking about the prospect of prohibiting couples from procreating, and the need to protect a couple's right to not be prohibited. I don't think you have agreed that same-sex couples should be prohibited from procreating, but do you acknowledge that it's an issue, a possibility, and marriages should not be subject to that possibility?

None of this is really relevant to same-sex marriage, though.

Feel free to answer about conception rights independent of marriage. It a difference in the rights of couples based on their sex make-up.
What is worse: if a gay man and his same-sex partner raise a clone or a straight man and his opposite-sex partner do so? I just don't see the relevance to same-sex marriage.

Using modified gametes should be banned for all couples. But this would not affect the conception rights of hetero couples, who would retain the right to conceive with their own genes. Only gay couples would be publicly prohibited from conceiving together by that law, because they publicly require use of modified gametes to conceive.

Nor was my question about a way to address harms to gay people outside of marriage. That's another question.

So lets just stick to discussing conception rights then, since all the other things can be met with CU's.

The question (which you're not interested in answering) is what harms happen to people in opposite-sex marriages due to same-sex marriages.

their conception rights are equated with those of a same-sex couple, which is to say, they are stripped away and offered only if they are safe.

That someone else gets the same rights that you do is not a harm to you.

Everyone gets the same rights. I should have a right with a woman that I shouldn't have with a man.
5.21.2008 5:57pm
John D (mail):
A.W.,

If I thought that same-sex relationships were harmful, then, not only would I not be advocating that they receive marriage rights, I wouldn't be in one.

That's one of two inoperative arguments against same-sex couples. The other one is "homosexual sodomy is illegal." Well, not any more.

One of the reasons homosexual sodomy (and other forms too) is no longer legal is that mental health world has the presumption, backed up by research, that same-sex relationships are not harmful to their members (or, for that matter, children raised by same-sex couples).

The incest/polygamy/bestiality slippery slope argument fails because, as Justice George pointed out in his opinion, the state can continue to forbid these because the evidence shows that these are harmful relationships.

To take one of your examples, if brothers Bill and Bob are having sex, one of them is likely being harmed. Maybe both. That's the mental health professionals say. That's what the evidence points to.

Might there be a healthy incestuous relationship out there? Maybe, but it'd go against type.

But if you want to argue that same-sex couples ought not be able to marry because their relationships are harmful, you're too late. It's a discredited theory. You might as well just quote Leviticus and get it over with.

My question wasn't about supposed (i.e. fictional) harm done to people by virtue of their being in a same-sex relationship. (And let me digress here, I don't see how the harm would be increased by state recognition of the relationships. Gay people are going to pair up, even absent marriage licenses.) Your supposed concern for the well-being of gay people is misapplied.

The question I asked was for you to expand on your claim that there would be harms to opposite-sex couples. You have avoided addressing that issue. Okay, so some people don't like to see two dudes kissing. To that I say, "who cares." I'm sure there are people who hate to see a woman in her 40s kissing a man in his 20s, but we'll leave Bruce Willis out of this.

What specific harms are done to opposite-sex married couples by the licensing of same-sex marriages?
5.21.2008 6:05pm
John D (mail):
John Howard,
So lets just stick to discussing conception rights then, since all the other things can be met with CU's.



It's not a post on conception rights. It's a post on same-sex marriage. Please see my earlier comment on global warming.

Final thought (for you): there is no reason for gay people to accept limited rights.
5.21.2008 6:28pm
A.W. (mail):
John D.

> If I thought that same-sex relationships were harmful, then, not only would I not be advocating that they receive marriage rights, I wouldn't be in one.

Well, your personal belief might be conclusive to you, but the fact is: 1) legally we can ban relations that are seen as unhealthy, and 2) there is no good reason to override the people's determination on that question.

> The other one is "homosexual sodomy is illegal." Well, not any more.

By judicial fiat, yes.

> One of the reasons homosexual sodomy (and other forms too) is no longer [il]legal is that mental health world has the presumption, backed up by research...

Oh give me a break. That is not science, just mass opinion. I mean, seriously, how do you scientifically measure "healthy" anyway?

The truth is we ban incestual sex but not gay sex because we feel differently about one pairing v. the other, and if you pretend it is "scientific" you are only fooling yourself. Ditto for polygamy.

> That's the mental health professionals say.

Well, last chance I checked, this was a government of the people, not of the shrinks.

> (And let me digress here, I don't see how the harm would be increased by state recognition of the relationships. Gay people are going to pair up, even absent marriage licenses.)

And incest will go on regardless, too. As will polygamy. Your point?

> The question I asked was for you to expand on your claim that there would be harms to opposite-sex couples.

And I pointed out that the entire harm analysis was misplaced anyway.

But okay what is the harm? Because two men being married is no more normal than a man marrying a horse, and it makes a mockery of the very concept of marriage.

But I guess we are supposed to pretend that morality has nothing to do with the law, right? Well, that's not the truth. The truth is you cannot even argue against murder in a manner that is completely logical, without a leap of faith or leap of logic. Indeed, even your claim that we have to prove a third party harm is not truly based on logic. It only has the veneer of logic.

And don't pretend that kind of non-material damage is irrelevant. The whole point of this case was to say that even if gay people are not materially harmed by the discrimination, it was still illegal. As I said before, the court found that domestic partnership was materially equal to marriage in every way under California law, so the only issue is the non-material damages. You can't only count the non-material damages against gay people. Don't pretend prestige is not the issue: it is the ONLY issue in this case.
5.21.2008 6:39pm
John D (mail):
A.W.

So you make no claim of harm, after all. I was asking you to support your claim of harm, not rebut mine.

Since you will not support your earlier claims with specifics, it makes it very easy to discount your earlier statements that we ought to forbid same-sex marriage because it will harm opposite-sex couples.

Where is the harm? If the entire harm analysis is misplaced, then why did you bring it up in the first place?

Finally, you think homosexuality is immoral. Okay. Fine. You have every right to hold that opinion. You just don't have a right to see it enshrined into law.

There is no particular reason to choose your views of morality over mine in determining what should be legal. There's probably something out there that you approve of, and I disapprove of, and it's legal because neither of us get to be the Grand Arbiter.

I do not agree with you that two men marrying is anything like a man marrying a horse, but does show at what level of argumentation you wish to engage. It's only been said more than a few times that horses (or other such animals) can't consent. If Mr. Ed says, "I want to marry Wilburrrrr," I might have to concede the point.

But since horses don't talk, it's the kind of example that suggests for the person making the argument, same-sex couples are just animals who should be accorded no rights.

Thank you for making things clear.

Like many others on this site, your argument is one of animus toward gay people. There will be no rational argument that will convince you. And your arguments really aren't rational.
5.21.2008 7:16pm
John Howard (eggandsperm.org) (mail) (www):
It's not a post on conception rights. It's a post on same-sex marriage.

The question was what right do hetero couples lose because of SSM. They lose conception rights. Conception rights are the right of marriage that shoudl not be given to same-sex couples, all the other rights should be given with CU's so that marriage continues to guarantee a right to conceive children with the couple's own genes.

Final thought (for you): there is no reason for gay people to accept limited rights.

Well, first of all gay people wouldn't be accepting limited rights, everyone would have the same rights. But the reasons everyone should accept that they should not have a right to attempt same-sex conception are because it would force us to accept genetic engineering and threaten everyone's natural conception rights (including gay people's). It would cost tons of money and waste skilled resources that could be helping sick people. It would aggravate the rest of the world that wants to ban germline genetic engineering, ensuring 100 years of war. The reasons to accept that same-sex couples shouldn't have the conception rights of male-female couples are that it would provide a distinction by which to enact federal recognition of civil unions and civil unions just like marriage in all 50 states, so that thousands of actual same-sex couples across the country can get equal protections. It would end this ivisive debate and allow people to turn to other issues that are way more important.

John D there is no good reason to insist on equal conception rights. Just bad bad reasons, like pride and spite and hatred. Rid yourself of those and open your mind to what I am saying.
5.21.2008 7:46pm
A.W. (mail):
John D.

> So you make no claim of harm, after all.

No, I said the harm done to heterosexuals is PRECISELY the same harm homosexuals claimed in this case. A harm to prestige. If that doesn't count, then the California Supreme Court came out the wrong way.

> If the entire harm analysis is misplaced, then why did you bring it up in the first place?

Because you asked. And to be exact, I didn't say harm was irrelevant, but the aim of the law is not solely or indeed chiefly about protecting third parties from harm.

> You just don't have a right to see [your morality] enshrined into law.

What exactly do you think our laws is based on?

Science? Logic? Here let's try that with murder. How do you justify a statute against murder?

You say: "because it harms others."

Now watch this. I reply: "And why should we care about that?"

Now maybe you come up with an answer. A typical one is "Well, otherwise society will fall into anarchy and violence."

So I respond: "And why should we care about that?"

And I keep saying until finally you either say one of two things: 1) "because God" (or insert your favorite deity or deities) "said so;" or 2) "because it is!" I mean, the actual words might change, but that is all it is. It is the veneer of logic and rationality, but down in its core, its anything but logical or rational. Indeed, look at your own reasoning. "I'm gay, and I'm fine and therefore being gay and married is fine." Now how could I ever logically refute that? there is no logic too it. And that's okay, but don't pretend that we are reasoning from a logical base. There is always a leap underneath it all—a leap of faith or logic.

> There is no particular reason to choose your views of morality over mine in determining what should be legal. There's probably something out there that you approve of, and I disapprove of, and it's legal because neither of us get to be the Grand Arbiter.

No, but the people are and should be. Maybe 51% of the people can be wrong, but they are right more often than wrong. And, well, do you have a better idea?

> same-sex couples are just animals who should be accorded no rights.

Don't put words in my mouth. I didn't call them animals. I said it was an equally absurd pairing.

> There will be no rational argument that will convince you. And your arguments really aren't rational.

And at the bottom of it, neither are yours. The difference is I understand and accept that. But you will forever live in the delusion there can be any such thing as a fully rational system of law.

Go back and reread the Declaration Of Independence. "We hold these truths to be self-evident..." Self-evidency is NOT a rational argument; it's a leap of logic, and in fact it was not "self-evident" to many monarchs and dictators living before and after those words were penned. "[T]hat all men are created equal, that they are endowed by their creator with certain inalienable rights…" A belief that God gave us the right to life, liberty and the pursuit of happiness, is not strictly rational. And all the good that flowed from that, was built on that foundation requiring that spark of irrationality. You live today in a country that even as it disdains what you do with your boyfriend, we won't pull down a wall on top of you to kill you, like the law says in certain countries. Rather than complain that we have a little God behind our laws, maybe you should just say thank you.
5.21.2008 9:20pm