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California Supreme Court unanimously denies stay in gay-marriage case:

The California Supreme Court has unanimously denied a request to stay its gay-marriage decision until after the November election. By the same 4-3 majority that approved gay marriage on May 15, it also denied a request for a rehearing in the case.

According to an earlier decision by state officials, gay couples can begin marrying in the state on June 17. It's unclear whether today's announcement will move up that date.

On Monday, state officials certified for the November ballot a proposed state constitutional amendment that would limit marriage to one man and one woman. It's now clear that the vote will occur after several thousand gay couples in California and around the country will have gotten married.

Related Posts (on one page):

  1. California Supreme Court unanimously denies stay in gay-marriage case:
  2. Other States Intervene in California Marriage Case:
  3. Gordian Knots, polyamory, polygamy, and tsunamis across the country:
Oren:
Was there any conclusion as to whether the amendment would annul extant gay marriages or only prohibit them going forward? I recall the question being raised but never getting a straight answer.
6.4.2008 2:47pm
J. Aldridge:
Judicial activism at its worst.
6.4.2008 3:21pm
jazzed (mail):
I know at least ten attorneys general were/are asking for a stay of enforcement, too, until after the referendum. It would have seemed that the justices might actually entertain their requests - the AGs were trying to minimize work that may become moot in light of the November results. While the justices have "honored" the law and have every right to allow their opinion and order and to take effect, the wheels of interstate cooperation would have been well-greased by Cali's cooperation. I can envision some obstructive retribution from these other states toward Cali now.
6.4.2008 3:29pm
Public_Defender (mail):
The AG's sent a letter. They didn't file a motion. The court was generous just to rule on it.
6.4.2008 3:42pm
Lonetown (mail):
Who will they blame when this mess hits the fan?
6.4.2008 3:53pm
jazzed (mail):
Irrespective, the court could have made a policy determination or taken judicial notice of a "chilling effect on interstate relations" or some other such mumbo-jumbo that would have allowed the CA citizens to reach a decision without a potentially needless expenditure of significant foreign-state resources on dealing with the aftermath of CA's judicial fiat. Such a course would seem courteous if nothing else.
6.4.2008 3:55pm
Parenthetical:

Was there any conclusion as to whether the amendment would annul extant gay marriages or only prohibit them going forward? I recall the question being raised but never getting a straight answer.

I can't imagine that the court will issue an opinion on that question until after the measure is adopted (or never, if the amendment fails at the ballot box).

The A.G. may have to address the question (or acknowledge some uncertainty) prior to the election. Whether that happens by virtue of the legislature requesting the opinion, or the court issuing a writ of mandate regarding the ballot summary (I don't believe such a challenge is before any court at this point) is difficult to say.
6.4.2008 3:58pm
Per Son:
Think about it, the California Constitution has been interpreted to mean X,Y, and Z. Other states' AG's asked the court to delay implementation. Hmmm. What the hell nerve does one state have to tell another state to keep in practice an unconstitutional law?

Big lawsuits always have a lot of fallout. That is why they are big in the first place.
6.4.2008 4:03pm
Per Son:
For those against the decision, can they explain why it was the wrong decision in light of California law?
6.4.2008 4:04pm
Kevin Murphy:
To many who actually support the idea of "gay marriage", the issue was whether a court discovery of a new right was the best way to secure said right. It hasn't worked so well in the past. And, in fact, the MA decision fostered a rash of preemptive amendments in many states.

So, opponents of gay marriages were putting the thing on the ballot again, in a climate where it's passage was debatable. Obviously a voter rejection of this BEFORE a court acted would have been a momentous event, and possibly signaled growing voter acceptance.

Instead, however, the court interfered in the election process, and by unanimously refusing to stay, has signaled a disdain for the political process. This will give the initiative's proponents (gay marriage opponents) a great boost, as folks are now not only voting on the issue, but also on the court's arrogance.

In the end, when the initiative passes and the Court's decision rendered moot, not only will the cause of gay marriage be set back by years (again), but many people will have the existence of their marriage subject to litigation.

The worst of all possible outcomes, brought to you by people with good intentions but no common sense. Why anyone would want a right established on such shaky ground is beyond understanding. How's Roe doing 35 years on?
6.4.2008 4:32pm
NI:

The worst of all possible outcomes, brought to you by people with good intentions but no common sense. Why anyone would want a right established on such shaky ground is beyond understanding. How's Roe doing 35 years on?


Roe is doing fine, thank you very much; despite 35 years of hostility its opponents have never actually managed to get it overturned. Not only that, 35 years later there's a national consensus that flat bans on abortion are a bad thing. That's the advantage of judicial review if it can be made to stick.

I don't think it's at all certain that California voters will overturn this decision, particularly if they've had four months of actual experience with gay marriage. Hostility within Massachusetts pretty much evaporated after people there saw that the sky wasn't going to fall even after gay couples began to marry. Even if they do, I don't see how gay marriages that have happened in the interim can be nullified.

This is basically the strategy the anti-death penalty folks have adopted. While they would have preferred to have SCOTUS declare it unconstitutional outright, they couldn't get that, so they had to content themselves with litigating every nitpicky point they could think of. And it's an effective strategy; we have a death row of 5000 or so and only a couple dozen actual executions every year. If you can't do something outright, nibble at it bit by bit.

I think at some point SCOTUS will find a constitutional right for gays to marry, especially if Obama gets to make one or more appointments to the court first, but even if it doesn't, that just means it goes to Plan B: Find a hundred petty little things to litigate and go for them like crazy. Gay marriage is coming, the only real question is whether it's coming all at once or in a thousand pieces.
6.4.2008 4:41pm
Per son:
Mr. Murphy:

All I can say is wow. You equated a court enforcing its decision, despite people without any standing seeking a stay was a "disdain of the political process." Wow, that is pretty radical.

As for "discovering a new right," how is their decision wrong? I have not read it personally, and I know that different states have different interpretive rules for reading their own constitutions and statutes.

Also, are you suggesting that gay rights advocates should just sit mum and wait, because pushing for equality can get ugly?

Oh, and so you know, polls forecast the initiative failing.
6.4.2008 4:45pm
MR (mail) (www):
It is quite telling that the decision not to stay was 7-0. Even those who disagreed with the ruling agreed that once it was made, that's then end of the question.
6.4.2008 4:56pm
Brett:
While they would have preferred to have SCOTUS declare it unconstitutional outright, they couldn't get that, so they had to content themselves with litigating every nitpicky point they could think of. And it's an effective strategy; we have a death row of 5000 or so and only a couple dozen actual executions every year. If you can't do something outright, nibble at it bit by bit.


Hooray for self-righteous disregard of political processes and for trying to effect social agendas through litigation!

NI's post is a perfect example of why, for all that I support gay marriage, I find many of its proponents utterly contemptible.
6.4.2008 5:05pm
Oren:
Roe is doing fine
Actually, economic research indicates that Roe has reduced the total cost of abortions by at least a factor of 4, if not 10 in some areas (cite: Graber, M.A. (1996). Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics, Princeton, NJ: Princeton University Press.). Furthermore, legalization has "thickened" the market so now millions of women now have access to abortion that would not have otherwise even if cost were not an issue.

All told, I think we can count Roe as a resounding success in the practical sense of increasing the availability of abortion.
6.4.2008 5:12pm
Oren:
NI, I wouldn't count on the US SCOTUS doing anything of the sort. Despite my support for gay marriage, I would not support such a ruling (at least for the time being).

The issuance of marriage licenses is traditionally a State issue and I think it will remain so. The question of FF&C, however, might become quite interesting if the Dems repeal the DOMA but that's a different ball of snakes entirely.
6.4.2008 5:15pm
PhanTom:

the court interfered in the election process, and by unanimously refusing to stay, has signaled a disdain for the political process.


Do these AGs have any standing to ask for a stay? Is their request even a justiciable issue?

My question for the lawyers here is whether the court should stay its opinion recognizing a right pending an uncertain electoral outcome?

Should courts, finding statutes unconstitutional, issue opinions and then stay action on them until the political branches move? What if they find a statute unconstitutional, but during the pendancy of the appeal, the legislature changes the statute?

The issue isn't about what the law may be in 5 months, it's about what the law in California today is.

--PtM
6.4.2008 5:18pm
Roger Schlafly (www):
It is quite telling that the decision not to stay was 7-0. Even those who disagreed with the ruling agreed that once it was made, that's then end of the question.
It only tells us that all seven believe in judicial supremacy.
Was there any conclusion as to whether the amendment would annul extant gay marriages or only prohibit them going forward? I recall the question being raised but never getting a straight answer.
Why will it even matter? All the same-sex couples are now on notice that their marriage may not last past November, so if they are serious about it they will register a domestic partnership first. Then they will still have the rights and responsibilities of marriage in California.
6.4.2008 5:21pm
Moneyrunner43 (www):
Pre son asks:

For those against the decision, can they explain why it was the wrong decision in light of California law?


Not being a lawyer, simply an innocent bystander I would like the legal minds here to tell me if that part of the California constitution that requires gay marriage at the same time forbids other marriage arrangements.
6.4.2008 5:35pm
Bob Van Burkleo (mail):
Well, its not a 'new right' it is 'the right to marry' same right as all citizens have. What the court found was limiting it to just some of the populace was unconstitutional.

It will be interesting to see what happens with the initiative. If the pollings are correct it has little likelihood of passing, particularly now that Obama is the Democratic candidate and his campaign has mobilized the age groups most likely to be against the amendment.

Even if it passes it will be challenged because the AG description is now incorrect, AND there are those that say it will only prevent further same gender marriages, not nullify ones already issued.

It will be interesting to see how many potholes the road to equality ends up having but look at the stats - now or 10 years from now its going to happen.
6.4.2008 5:40pm
Per son:
Moneyrunner43:

If I could answer your question, I would. I have not read the decision. My only interest here is that many people talk about judicial supremacy and all that mumbu jumbo, but they can only toss out catch phrases for why the court is wrong. It is the conservative version of Bush v. Gore where plenty of people said it was wrong that never read the thing.

Oh, and I believe the California Supreme court is Supreme to out of state AG's who have no standing to interfere with internal California matters. Moreover, I thought Conservatives liked states rights, not the feds or other states interfering.
6.4.2008 5:52pm
A.W. (mail):
Mmm, gotta love the Cali Supreme Court. I guess their attitude is having overruled the will of the people in an act of naked power, why should they give the people to respond before they impose their will on them?

Its truly FUBAR over there.
6.4.2008 6:15pm
KeithK (mail):

Oh, and I believe the California Supreme court is Supreme to out of state AG's who have no standing to interfere with internal California matters. Moreover, I thought Conservatives liked states rights, not the feds or other states interfering.


No one is claiming that other states have the power to force the court to issue a stay. Making a request regarding an issue that could affect other jurisdictions is hardly interference of a sort that is contrary to federalism. The CA court had the power to decline (or to ignore the letter).
6.4.2008 6:25pm
KeithK (mail):

Well, its not a 'new right' it is 'the right to marry' same right as all citizens have. What the court found was limiting it to just some of the populace was unconstitutional.


But the right to marry (or right to have your marriage recognized by the state) was never limited to some of the populace. All competent adults had the right to marry following the traditional definition of the term. The court's ruling changes the definition of marriage to include same-sex couples. That's the new right being created.

According to traditional understanding, which I subscribe to, same sex marriage is an oxymoron.
6.4.2008 6:29pm
Lucius Cornelius:
Maybe the California court should now issue a ruling that two-sex marriage is unconstitutional and annul all marriages between men and women in California...for a generation or two. That way, same-sex marriage will have a time to gain legitimacy.

Seriously, I prefer if change like this comes through legislation or through popular referendum. I am uncomfortable with the courts dictating important changes. It might very well set back the cause of gay rights.
6.4.2008 6:31pm
fishbane (mail):
All competent adults had the right to marry following the traditional definition of the term.

Why, of course. Just like the law that bans sleeping under a bridge applies to the rich and poor alike.
6.4.2008 6:48pm
JustMe:

Well, its not a 'new right' it is 'the right to marry' same right as all citizens have. What the court found was limiting it to just some of the populace was unconstitutional.


I don't recall seeing the right to marry spelled out in the constitution, please provide a reference. Most of the text concerning marriage is in the tax law, and nothing I can find says boo about who can practice it, let alone defining it as a right.

If there is indeed a constitutional right to marry, then I can't understand how any laws against incestuous or polygamous marriages could pass muster while striking down those against SSM.
6.4.2008 6:52pm
AngelSong (mail):

Mmm, gotta love the Cali Supreme Court. I guess their attitude is having overruled the will of the people in an act of naked power, why should they give the people to respond before they impose their will on them?


Mmm, gotta love the rhetoric. I fail to see how the process of judicial review is an "act of naked power". The Supreme Court held that an act of the people was unconstitutional. Isn't one of the responsibilities of the Court to determine the constitutionality of legislation? Whether you agree with or disagree with the ruling, in this instance the Court did what the Court always does - it made a ruling about the constitutionality of a piece of legislation.

As to this idea of "giving the people [a chance] to respond", there seems to be this idea that such a "response" would somehow overrule the Court. Once again, this rhetoric exaggerates and distorts the judicial process at work here. The Court has held that certain legislation and state actions are unconstitutional. The Court has denied reconsideration of its ruling. Since this is the highest judicial body, there is no longer any venue for appeal.

Interesting thought/question for those who know. Others have discussed the difference between an amendment and a revision. My understanding of legislative process would suggest that there is no such legislative process by which the legislature/people might "clarify" the existing law for the Court. Leaving aside for a moment the highly charged issue here if possible, how common is legislation following a court ruling that would place some kind of limiting effect on the ruling? Under a system of checks and balances, how is it understood when a previous order is thus limited? Is the order / precedent / holding overruled by the new legislation? Or is it superceded?
6.4.2008 6:57pm
A.W. (mail):
Angelsong

> I fail to see how the process of judicial review is an "act of naked power". The Supreme Court held that an act of the people was unconstitutional. Isn't one of the responsibilities of the Court to determine the constitutionality of legislation?

As I said about 3 threads ago, we are not fools. They were not following the constitution. It was a naked act of judicial fiat.

> As to this idea of "giving the people [a chance] to respond", there seems to be this idea that such a "response" would somehow overrule the Court.

Actually, given that we are talking about a constitutional amendment, that would overturn the California Supreme Court ruling. One outstanding question is whether the new amendment would be seen as merely overturning the decision, or effectively declaring that this case was wrongly decided. There is federal precedent for that notion—that was how the founders saw the Fourteenth Amendment, as declaring Dredd Scott to have been wrongly decided. The proof they saw it that way was when they seated Hiriam Revels in the Senate in 1870. Being black, under Dredd Scott, Mr. Revels was not a citizen and if the Fourteenth Amendment's citizenship clause merely changed the law, then he would have been only a citizen for 2 years by 1870, with the Fourteenth Amendment having been ratified about two years before, and thus Mr. Revels hadn't been a citizen long enough to be a Senator. But the Republicans in Congress, composed of mainly the same people who wrote the Fourteenth Amendment, said that what the Fourteenth Amendment's citizenship clause really did was say that Dredd Scott was wrongly decided and therefore, Mr. Revels was considered to be a citizen at birth, and quite eligible for the senate.

As a bonus, they gave him the same seat Jefferson Davis had occupied before secession.

In this case, i would say that since the people of california already expressed their understanding of the constitution by passing a law, if they further ratify an amendment in line with that interpretation, then it would be saying to the Cali Supreme Court, "that case was wrongly decided."

Now, think of the sheer distruption in the legal system and in the lives of the gay couples if that happens. The gay couples should go in with open eyes that the marriage might find itself annulled by the end of the year. And for the sake of our justice system, the California Supreme court should have waited to see whether the people would declare that they had decided the case wrongly or not. Efficiency alone should have persuaded them of that course.

But the arrogant court is plowing full steam ahead. Wonderful.
6.4.2008 7:25pm
Parenthetical:

Others have discussed the difference between an amendment and a revision.

I've seen that discussed quite a bit (amendments may be made by initiative, but revisions [more far reaching] must be passed by the legislature and subsequent adoption by the electorate).

The response to the Calif. Supreme Court decision (1972?) that the death penalty was invalid under the state constitution was overturned (although "superseded" may be a more apt term) later that year by initiative. Despite some challenges based on the amendment-vs-revision distinction, the court allowed the initiative amendment to stand.

That's a pretty close analogy to what's happening here. I suspect that court would rule similarly if it ever reached that question about SSM.
6.4.2008 7:27pm
Steve in CA (mail):

They were not following the constitution. It was a naked act of judicial fiat.


Do you have any, you know, evidence of that? Any sort of argument, based on the California Constitution and CA Supreme Court precedent? I can't claim to have read the entire decision, but I gave it a quick read, and it seems ver well-supported to me.
6.4.2008 7:41pm
AngelSong (mail):

As I said about 3 threads ago, we are not fools. They were not following the constitution. It was a naked act of judicial fiat.

Pure semantics. Funny how it's a "naked act of judicial fiat" when you disagree with the ruling. It might be different if the Court had simply in a brief paragraph said "We know better and we hereby revoke the legislation in question". This ruling has way too many pages to be "naked". Again, whether or not you agree with the way the Court interpreted and applied the law, it is clear that the Court did in fact interpret and apply the law.

The Dred Scott issue you raise is very interesting and why I asked for further input on the matter. I'm curious if a ruling that something (denying citizenship) IS NOT unconstitutional being superseded/overturned by an amendment might be distinguishable from the same thing happening to a ruling that something (denying marriage) IS unconstitutional?

It may go back to the issue of amendment/revision as well. Perhaps there would be a greater burden placed upon those who would "correct" a decision of the Court than upon those who would supersede it?
6.4.2008 7:51pm
Cruising Troll:
First, the decision striking down the prior referendum limiting marriage was, in fact, a matter of judicial overreach simply because it arrogated to the judiciary the power to redefine words. "marriage" has a traditional definition, just as words like "slavery" and "press" and "religion" have traditional definitions. Constitutions are written with these definitions in mind, and they must be interpreted with them in mind as well. Unlike expanding the definition of the "press" to include new media forms based on unknown technologies, the argument that there's something "new" about gay relationships doesn't hold any water. Homosexual relationships have been known for thousands of years. Additionally, Constitutions are written to address matters that the writers think will potentially be contentious in the future, not matters that they consider to be settled.

This quality of silence on matters we take up today is important, because it places the burden upon those seeking to change a "traditional" understanding to prove that the "traditional" understanding is wrong based on information contemporaneous to the writing of the clause(s) of the Cosntitution that are used to justify the course of action. As an example, to prove that the California Constitution silently endorses gay marriage, you would have to bring forth substantial historical support for gay marriage from other sources, whether they be law, custom, historical data, etc of the time. Needless to say, such support doesn't exist, quite the opposite in fact.

In response to the other question, what about the legal marriages entered into during a hypothetical brief window before the electorate has their say? Simple. They are no longer recognized in California, period. Just like when various states outlawed slavery, and when the Federal Constitution outlawed it, the legal arrangement simply ceases to be. Ellen and Portia's marriage will no longer have any more validity than the second, third or fourth "marriage" of a polygamist, even if that polygamist and his "wives" immigrated from overseas and are now citizens. Ellen and Portia can continue to act like they're married as long as they want (something they can do now, btw), but nobody else will be required to endorse/accept/acknowledge their status.

And that, folks, is what this is about. It isn't about letting Ellen and Portia play wife and wife, its about forcing the rest of us to agree with them.
6.4.2008 7:53pm
Kendall:
It only tells us that all seven believe in judicial supremacy.


As opposed to non-judicial supremacy? We're talking about something that is completely within the purview of the Court. They have the discretion to stay rulings or not. They didn't feel it was appropriate. That's the system in this country, if you want to give someone else the power to stay court rulings then amend the constitution, either at a state or federal level.
6.4.2008 7:58pm
KeithK (mail):

Mmm, gotta love the rhetoric. I fail to see how the process of judicial review is an "act of naked power". The Supreme Court held that an act of the people was unconstitutional. Isn't one of the responsibilities of the Court to determine the constitutionality of legislation?


The answer depends on whether you believe that the court's decision is consistent with the constitution or at least plausibly so. When a decision is issued that appears to some to be blatantly wrong it is hard for those to see it as simply the constitutional exercise of judicial review.

I know some folks honestly believe that equal protection requires this result. I'd like to think that the CA justices were acting in good faith and not simply choosing their desired result. I'm not convinced one way or another.
6.4.2008 8:00pm
Bob Van Burkleo (mail):

But the right to marry (or right to have your marriage recognized by the state) was never limited to some of the populace. All competent adults had the right to marry following the traditional definition of the term. The court's ruling changes the definition of marriage to include same-sex couples. That's the new right being created.

Guess it depends on if you think marriage is merely a legal construct - precedence would indicate that marriage is recognized to come from beyond government and the state is merely recognized by the state, 'common law' being the easiest and most obvious example of the state discovering already married couples. So:

- Each individual has an innate right marry that the state merely recognizes.
- Adult men and women are acknowledged appropriate partners in a marriage.
- Some citizens marry someone of the same gender demonstrated by even cursory examination of the population.

Why should some citizens marriages be ignored by the state and others not? What quality differentiates them on an individual citizen level, the level at which our rights exist?

Ability to procreate? Not a required criteria for any license of marriage and as has been pointed out some people aren't allowed to license unless they can't procreate with their partner.

Different biological mechanism in play? No indication this is true - the urge to marry derives from the same sources regardless of the resultant gender combination.

Mere tradition? As far as I'm concerned just another word for 'stagnation'. You do what's right, not what's wrong just because its what's been done before.

Can you explain what the underlying difference between someone married to someone of the same gender vs those to an opposite gender is? I understand your reluctance to use the term 'marriage' but what is the difference other than unconstitutional tradition?
6.4.2008 8:14pm
NI:

Hooray for self-righteous disregard of political processes and for trying to effect social agendas through litigation!

NI's post is a perfect example of why, for all that I support gay marriage, I find many of its proponents utterly contemptible.


Brett, I'm not usually this blunt, but for you I'm going to make an exception: Voters as a group are complete imbeciles who should not be allowed within a country mile of the decision making process. We are talking about people who gave us Prohibition, passed Jim Crow in the South, and actually think the War on Drugs is a good thing. The Founding Fathers rightly understood that direct elections more often than not produce the passion of the mob, which is why they diluted the political power of the people to the greatest extent they could.

Your basic complaint is that whichever minority is being dumped on this week isn't sitting quietly and taking it while politely asking the majority to stop kicking them, pretty please with sugar on top. Why should Black children have had to wait for integrated schools until the white majority in Little Rock deigned to grant it to them? And why should gay couples, in competition with the megachurches on every corner, have no protection for their relationships until such time as they can persuade a majority to be nice? Sorry, but if the majority is determined to make me a second class citizen, I'm marching straight up to first class by any means available.
6.4.2008 8:51pm
nutbump (mail):

Ability to procreate? Not a required criteria for any license of marriage and as has been pointed out some people aren't allowed to license unless they can't procreate with their partner.

Marriage is not about abilities, it is about rights. Marriage licenses give couples assured rights, so it is up to them whether to exercise those rights or not. One of the most important right that comes with marriage is a right to procreate.
However procreation in certain cases may lead to the birth of people with serious genetic diseases that society tries to avoid. In those situations some of the marriages are prohibited, e.g. marriage between close relatives. On the other hand if married couple expecting a child with genetic abnormality state cannot intervene and disallow birth.
So, again, same sex marriage is illegal because it gives same sex couple a right to procreate by any possible means. That makes same sex marriage illegal, since state cannot prohibit married gay couple from cloning.
6.4.2008 8:57pm
expatriate (mail):
Why anyone would want a right established on such shaky ground is beyond understanding. How's Roe doing 35 years on?

Well it is obvious from your statement that you have not experienced the witholding of civil rights or it would be easily understood.

We do not live in a democracy for all of the reasons stated in the comments section. For all of those here who question the rights of the minority, our forefathers set up this great constitutional republic so that there would be no tyranny of the majority (against the minority), and hence the 3 separated powers of the government and proportional representation.

Gay marriage rights is a no brainer. Separate has never been equal and discrimination of any kind is morally rehensible

Many of you really should be celebrating this decision because someday ignorance may be the minority.
6.4.2008 9:15pm
Bob Van Burkleo (mail):

One of the most important right that comes with marriage is a right to procreate.
Hey John, new handle?

Of course there is no 'right to procreate' conferred by licensing a marriage, my example demonstrates that. And since an opposite gender couple could have just as many reasons to resort to 'cloning' as a same gender one you can't proscribe one without also the other. The married couple can procreate by any legal means they can, but if they can't then they will just be one of the majority of licensed marriages that never produce offspring that are the combination of the married couple's genomes.
6.4.2008 9:16pm
nutbump (mail):

Of course there is no 'right to procreate' conferred by licensing a marriage, my example demonstrates that.

So you are saying that government can force married couple to perform an abortion. That is a news.
Married couple not can procreatebut have a right to procreate. By allowing same sex couple to procreated California' supreme court have legalized cloning and simultaneously have denied a right to marry to close relatives.
6.4.2008 9:49pm
nutbump (mail):
Yes and right to procreate while married supercede a illegality of cloning. Before gays allowed to be married illegality for cloning has been applied equally, i.e. all opposite sex couple had a right to procreate. But once same sex couple have been added to the equation we can't accept inequality. Moreover either gay couples should be allowed to procreate or right for procreation have to be revoked from heterosexual couples.
6.4.2008 10:02pm
Bob Van Burkleo (mail):
So you are saying that government can force married couple to perform an abortion.


No there is just no right to procreate. That's as silly as saying there is a right to be smart or tall. You can try as much as you want within the limits of the law but that's the same regardless of the gender of your spouse. End result: some people can procreate, some can't, has no bearing on their right to marry as has been illustrated.
6.4.2008 10:08pm
AngelSong (mail):
Right to procreate! LOL! And they accuse the Supreme Court of creating rights???
6.4.2008 10:29pm
nutbump (mail):

No there is just no right to procreate.

There is, and it comes with a marriage. If not, could you explain me why staty deny right to marry for close relatives? You know why, because once close relatives get married state has no authority to prohibit them to have a child.
What is also very important, if couple is married state can't separate couple from their child. So once gays couples get married some of them will attempt to concive through modification of their somatic cells. They can go abroad and then come back with a brand new homunculus, and then another one and another and government will not have any control on them. Finally government for the sake of equality and humanity will have to abolish everything.
I hope you understand what stands behind gay marriage.
6.4.2008 10:34pm
AngelSong (mail):
I did some further research on Revels because I was intrigued by the idea of a plebiscite or legislation that can "correct" a court decision. At least from my initial reading, I'm not so sure that your reading of Revels is correct. In fact, the argument to admit Revels was NOT that the Court was wrong, but rather that Revels was half-white and that Dred Scott only applied to full-blood Africans. In fact, the Supreme Court stated in the Slaughterhouse cases that the 14th Amendment overturned Dred Scott, not that it "corrected" Dred Scott. (Which seems to raise the question, since the issue was apparently still in controversy, of whether it was the passage of the 14th Amendment or the Slaughterhouse cases that ultimately overturned Dred Scott.)

And just logically, it would seem that the idea of retroactively "correcting" a Supreme Court decision would be problematic anyway. Are there any clear precedents of such an event?
6.4.2008 11:03pm
AngelSong (mail):

You know why, because once close relatives get married state has no authority to prohibit them to have a child.
What is also very important, if couple is married state can't separate couple from their child.

So you're saying that if a brother and sister have consensual sex which results in a child, that the state has the authority to take that child???
6.4.2008 11:09pm
A.W. (mail):
Steve in CA

> Do you have any, you know, evidence of that?

Yeah, the California Constitution was written in a decidedly more homophobic time. Love it or hate it, those are the cold facts of reality. We all know that if they ever believed for one second that this outcome was possible they would have rewritten the constitution to avoid this outcome.

Angelsong

> Funny how it's a "naked act of judicial fiat" when you disagree with the ruling.

You're projecting. I am willing to say something is constitutional even when I disagree with the policy, or even unconstitutional when I like the policy. Can you say the same?

> This ruling has way too many pages to be "naked".

No, the emperor has no clothes. But, I love that. If the bullsh-- goes on long enough, then you believe it. Gotcha.

> is clear that the Court did in fact interpret and apply the law.

Why? Because they said so?

> I'm curious if a ruling that something (denying citizenship) IS NOT unconstitutional being superseded/overturned by an amendment

That's not what happened in Dred Scott. They said that Dredd Scott, who would normally have been considered a citizen, is not a citizen and could never be made a citizen, simply because he was black. So your question is based on a misunderstanding of what the case said. But, to be fair, most people have no idea that citizenship was involved at all.

KeithK

> The answer depends on whether you believe that the court's decision is consistent with the constitution or at least plausibly so.

Absolutely true, and I absolutely don't believe it.
6.4.2008 11:20pm
Bob Van Burkleo (mail):
<blockquote>If not, could you explain me why staty deny right to marry for close relatives?</blockquote>Because it would make the home environment a sexual partner hunting ground. Its primarily sociological - that's why we proscribe even non-genetically related siblings from marrying. Ah I bet you think its because of genes, hardly - people almost guaranteed to pass on devastating genetic disease to their children marry and have kids all the time.

Surely you meant to say:

<i>So once <b>infertile couples of any gender combination</b> get married some of them will attempt to conceive through modification of their somatic cells.</i>

as there are many opposite gender married couples that this would be their only option for having a genetically co-mingled progeny. And yes it will be interesting to see what happens to them when they return with a child conceived in such a manner to one where it is illegal - but it will be whether the parents are same or opposite gender.

Sorry this dog won't hunt - procreation and marriage are not joined in fact have precedence of acknowledging they are separate entities, and no one has the right to procreate - that is a specfic end that can not be promised or even guaranteed by any contract and most assuredly isn't by licensing the contract of marriage. At most people have a right to try and that is so regardless of their marital status unless 'you are saying that government can force an unmarried mother to perform an abortion.'

We're done here ;)
6.4.2008 11:24pm
AngelSong (mail):

Absolutely true, and I absolutely don't believe it

Unless I missed your election as Supreme Potentate of the Universe, this is just more hysterical rhetoric. There are a lot of people (including at least 4 Justices) who disagree with you.
6.4.2008 11:35pm
Elliot123 (mail):
<i>"the court interfered in the election process, and by unanimously refusing to stay, has signaled a disdain for the political process." </i>

If the court rules people have a right, is that right trumped by the convenience of public officials in another state?
6.4.2008 11:57pm
nutbump (mail):

ecause it would make the home environment a sexual partner hunting ground. Its primarily sociological - that's why we proscribe even non-genetically related siblings from marrying.

Since when social aversion become a reason to deny fundamental right to marry.


as there are many opposite gender married couples that this would be their only option for having a genetically co-mingled progeny.

Yes and it is illegal, but we are talking about equality here. Or you do not want marriage to be equal, or you actually want marriage to be for gays only? The logic is simple if you allow couple to procreate than you have to give a couple an option to do so.


Sorry this dog won't hunt - procreation and marriage are not joined in fact have precedence of acknowledging they are separate entities, and no one has the right to procreate

Really, and you have never heard word illegitimate child.


We're done here ;)

Confirmed! I am not the one who should teach you.
6.5.2008 6:35am
nutbump (mail):
And by the way, if not birth defect why then several states
allow marriage between cousins on the conditions that they are infertile like in Illinois.
6.5.2008 6:40am
Aleks:
re: They said that Dredd Scott, who would normally have been considered a citizen, is not a citizen and could never be made a citizen, simply because he was black.

Not because he was Black, but because he was a slave.
6.5.2008 7:31am
Connie:
Nutbump, I believe you need to shorten your handle.

Is English your first language?
6.5.2008 10:02am
A.W. (mail):
Angel

Well, thank you for that substantive response. I now see the error of my ways.

And really, how naive can you get? "There are a lot of people (including at least 4 Justices) who disagree with you." Are you SURE they disagree with me? Really? Of course they say they were really following the constitution, but how naive are you to take them at their word and to ignore the overwhelming evidence that the framers of the Cali Const. never intended this result?

Aleks

Wrong. Whether he was a slave was in dispute--in fact it was the central issue--and the court never quite resolved it.

But your comment was useful to me, because i noticed in the case a nuance that hadn't previously been noted. It was not merely color, but descent from slaves and color. As the court said:

> It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves.

So black, of african descent, and descended from slaves. Which is interesting, but you have to suspect it was a head-fake. After all, only a few years before, they found that the fugitive slave law was constitutional. That law created a separate court system, where an apparently free black man could be declared a fugitive slave and put into chains based on nothing more than an affidavit, in a trial where the accused slave is not allowed to appear, and as a bonus, the judge is paid by the decision: $10 to declare the accused a slave, and $5 to declare him free. As one abolitionist said at the time (paraphrase): it set the price of a black man's freedom at $10, and a white man's conscience at $5. Finally, bluntly, this sentence from the Dredd Scott decision probably provides the best window into their thinking:

> They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.

I think the most galling part of that sentence, is the phrase "for his benefit." See, slavery is good for them! Sheesh.

But then again, how many liberals today seem to think dictatorship is good for certain peoples? And how many "liberals" today think that certain groups are happy living under tyranny, just as Confederates maintained that most slaves were happy?

And just in an abundance of clarity, i am not aiming that comment at anyone in this thread. I have not heard anyone at VC express that point of view. Its just a trend i see at large in our society. At one time in my life, i could never understand how people could 1) justify slavery or 2) ignore a gathering and explicit threat. Since 9-11, I have not learned to understand it, but I have recognized that these are depressingly common human tendencies.
6.5.2008 10:37am
Bob Van Burkleo (mail):
Well because you asked:

Since when social aversion become a reason to deny fundamental right to marry.

That sentence makes no sense. 'Social aversion'? And these people are not being denied a right to marry since there are billions of other people they can reasonably pick for a spouse. IF there were people who could be only reasonably expected to marry their close relatives you MIGHT have a point, but there aren't. Of course our rights can be regulated by government, what they can't be is selectively and effectively ignored.

The logic is simple if you allow couple to procreate than you have to give a couple an option to do so.

Again, you can't 'allow' a couple to procreate -- that is like 'allowing' them to be smart or tall. Procreation is a concrete end result of a process that cannot be guaranteed by a contract -- its not a Faustian deal, its just a contract. Many married couples license the contract knowing that barring alien intervention they won't be able to procreate together -- it will make no additional difference if a few of these couples are same gender.

Really, and you have never heard word illegitimate child.

In history books, antiquated references and in the connotation of its meaning 'not in accordance with accepted standards'. It doesn't mean the child's illegal by any notion - how can a citizen be illegal by their very nature?

There is no 'right to procreate' - your entire screed is based on an erroneous supposition.
6.5.2008 11:11am
A.W. (mail):
Bob Van,

> There is no 'right to procreate' - your entire screed is based on an erroneous supposition.

Um, depending on how broadly you are speaking, you are actually wrong. The state cannot tell a couple capable of having children that they are not allowed to. Indeed, there have been decisions stating that a jailed man had a right to conjugal visits because he had a right to procreate.

Now of course if you are talking two dudes married to each other, the right to procreate is as theoretical as the man in The Life of Brian complaining that the romans are taking away his right to an abortion. But that's another issue.
6.5.2008 11:29am
JustMe:

And these people are not being denied a right to marry since there are billions of other people they can reasonably pick for a spouse.

That is the worst argument I've heard so far. By that reasoning, there are still billions of people that gays can pick for a spouce who aren't of the same sex, therefor banning SSM is reasonable.
6.5.2008 11:37am
AngelSong (mail):
AW, scroll up. The substantive response was up the page a bit. I stand by my assertion that you haven't shown any credentials that would elevate your own personal interpretation / opinion about the motivation or correctness or any other aspect of the decision to the level you seem to think it holds.
6.5.2008 11:42am
AngelSong (mail):

That is the worst argument I've heard so far. By that reasoning, there are still billions of people that gays can pick for a spouce who aren't of the same sex, therefor banning SSM is reasonable.

I think you mischaracterize the reasoning. Bob's point was that you can't reasonably expect a gay person to pick ANY of the billions of people of the opposite gender as a lifemate. However, it would be quite reasonable to expect a person to pick one of the billions who are not related to that person.
6.5.2008 11:48am
John Howard (eggandsperm.org) (mail) (www):
Again, you can't 'allow' a couple to procreate -- that is like 'allowing' them to be smart or tall.

We can continue to allow same-sex couples to procreate or we can prohibit same-sex conception. Do you accept that we can and should prohibit same-sex conception? We should say that under no circumstances should Bob be allowed to attempt to conceive with Bill, but he certainly has a right to attempt to conceive with Sally, even though Sally had a hysterectomy, carries numerous genetic diseases, and is 75 years old. It makes no difference that he and Sally probably won't be able to procreate, what matters is that they are allowed to try. No marriage should be prohibited from attempting to procreate. All same-sex couples should be prohibited from attempting to procreate together.

And no, nutbump is not my new handle, I'm thrilled there are now two people that understand that marriage is about rights, not abilities. Thanks nutbump!
6.5.2008 12:07pm
Parenthetical:
A.W. wrote:
Yeah, the California Constitution was written in a decidedly more homophobic time. Love it or hate it, those are the cold facts of reality. We all know that if they ever believed for one second that this outcome was possible they would have rewritten the constitution to avoid this outcome.

It's difficult to say when the California Constitution was written because California changes its constitution every few years.

The privacy clause, for example, was added quite recently (1972). Certainly, that was a more homophobic time. It was, however, in the wake of the Stonewall riots when gay folks were demanding equal treatment under the law. The citizens of California were well aware of those claims at the time. A SSM claim was unsuccessfully litigated elsewhere at the exact same time.

More to the point, by 1972, it was widely understood that a Constitutional right of privacy encompassed marriage. That's still a controversial idea in some circles (including some of the conspirators here), but a constitutional claim to marriage flowing from this amendment wasn't a surprise.

Later in the 1970s, the claim to same-sex marriage was made quite explicit in California. That claim spurred both litigation and legislation in the state.

I don't suggest that in 1972 the electorate embraced the recent holding of the Supreme Court. But the people have had decades to amend the constitution to avoid this outcome. That's about the same period of time that one of the two relevant provisions of the constitution has existed.

There can be no doubt that the people of California have been on notice for at least a decade that same-sex couples would seek shelter for their marriage claims under the California constitution.

Love it or hate it, the legal landscape in California isn't as clear cut as you note suggests.
6.5.2008 12:08pm
Bob Van Burkleo (mail):
[i]That is the worst argument I've heard so far. By that reasoning, there are still billions of people that gays can pick for a spouce who aren't of the same sex, therefor banning SSM is reasonable.[/b]

No that's what's changed - we know there are people who can only be reasonably expected to marry someone of the same gender. When people thought being gay was merely a vice or a bad habit you could make a point that they had other choices, now we know that isn't true anymore than it is for straight people. With a restriction to only opposite gender partners some gay people are given an effective pool of zero potential spouses licensable with the state. Some people can only marry men, some only women, and some of those people are of both genders. The government ignoring this is selective proscription rather than regulation and unconstitutional.

If you could find people that can only be reasonably expected to marry someone of their immediate family you could make a similar argument - no one has or is.

[i]Um, depending on how broadly you are speaking, you are actually wrong. The state cannot tell a couple capable of having children that they are not allowed to.[/i]

Actually they can - whether there are cases were conjugal visits were required I know there is one high profile case that made it to a Supreme Court where they specifically were not and would never happen yet the judge said they still had the right to marry.

Regardless saying someone is not allowed to accomplish a goal is not the inverse of saying they will accomplish it, and it is that which is being claimed. He isn't using the 'right to...' syntax the way we normally use it. You might have a 'right to marry' but its pretty useless if you can't find anyone willing to marry you using legal means - having the right is no guarantee its going to happen.

nutbump is contending you have a ' to procreate' in that you can use any and all methods to accomplish this and because of this no method of procreation could be considered illegal. If that line of thinking were applied to marriage we'd be back to the club-over-the-head kind of proposal being ok. ;)

[i]Now of course if you are talking two dudes married to each other, the right to procreate is as theoretical as the man in The Life of Brian complaining that the romans are taking away his right to an abortion.[/i]

Ditto for a man with a wife who's had a hysterectomy - an infertile married couple is an infertile married couple. Currently 16% of married Americans never pass on their genes for one reason or another - So if really the complaint is that might jump to 18% its both humorous and flailing all at the same time. ;)
6.5.2008 12:14pm
Bob Van Burkleo (mail):
We can continue to allow same-sex couples to procreate or we can prohibit same-sex conception. Do you accept that we can and should prohibit same-sex conception?

Of course not since there is no technique that is exclusively for use by same-gender couples. Now you might preclude somatic cell gamete production, and that would disallow the technique from everyone that might use it. But saying that only same gender married couples can't procreate - how can you even predict that? What if an angel/devil came and made it possible, or Harry Potter's wand showed up, alien intervention? If the problem is the technology why would you want to ban anything other than it? Disallow the technology and problem is solved. Again, there is no 'right to procreate' in the sense there is a right to successfully procreate - some people just don't and never will.
6.5.2008 12:32pm
John Howard (eggandsperm.org) (mail) (www):
But there is only one way to conceive using unmodified gametes - and that is joining a man and a woman's unmodified gametes.

Neither of us are saying that there is a right to successfully procreate, only that marriage means there is a right to attempt to procreate.

People should not be allowed to attempt to procreate with someone of their same sex. Only with someone of the other sex. Its pretty simple.

You are insisting that everyone has an equal right to procreate with someone of either sex, and that is just flat out stupid! It is a bad thing to insist on. Even without speculating on how it would be done, we ought to say that people only have a right to procreate by joining with someone of the other sex.
6.5.2008 12:45pm
AngelSong (mail):

Neither of us are saying that there is a right to successfully procreate, only that marriage means there is a right to attempt to procreate.

And people accuse supporters of gay marriage of "creating rights"! The right to attempt to procreate? How ridiculous can you get?

Bob's proposition makes a lot more sense. Your issue is clearly with the technique. Are you saying that you would have no problem with a male/female couple using modified gametes? Exactly what technique is there that you think ONLY same-sex couples would ever attempt to use? For that matter, is there some requirement that restricts fertility treatments and other artificial reproduction means only to married individuals?
6.5.2008 1:00pm
Bob Van Burkleo (mail):
You are insisting that everyone has an equal right to procreate with someone of either sex, and that is just flat out stupid! It is a bad thing to insist on. Even without speculating on how it would be done, we ought to say that people only have a right to procreate by joining with someone of the other sex.

And considering more opposite gender couples are just as infertile your desire, now that it has been clearly stated, sounds more of a religious doctrine rather than a rational desire.

Sorry I don't share your belief - if reliable gametes can be developed from somatic cells someday I whole heartedly think the tech should be available to those that need it. Futurists say that in 50 years many people will be being genetically modified prior to conception. The technological singularity is coming and it will terrify the Luddites.

Oh well.
6.5.2008 1:17pm
John Howard (eggandsperm.org) (mail) (www):
No, my issue's not just with any particular technique, or even with safety or risk, it's with the feeling that we shouldn't have to procreate with someone of the other sex, that we should be allowed to figure out some way to procreate with someone of the same sex. I think that is unwise and causes harm, in and of itself. Regardless of marriage, people should only be allowed to conceive with someone of the other sex.

A (married) male-female couple should be allowed to attempt to conceive using their own genes. If it takes a private medical procedure to enable them to do that, even if it involves restoring gametes, then marital and medical privacy would seem to give them the right to do that. It is what healthy male-female couples do, and people have a right get healthy.

Are you saying that you don't think marriages have a right to conceive together, using their own gametes? Phrased another way, are you saying that government could rightly prohibit a marriage from even attempting to have children, by any means?
6.5.2008 1:17pm
AngelSong (mail):
Hmmm... what about procreation with extraterrestrials? If we're going to prohibit hypothetical events, perhaps we should consider this important issue as well. Doesn't the legislature already waste enough time with silly non-issues as it is?
6.5.2008 1:28pm
John Howard (eggandsperm.org) (mail) (www):
Bob, thank you for putting it on the table. SSM is part and parcel of Transhumanism and the eugenicist "Futurism" that thinks that some great "Singularity" is coming and everyone is going to be designed by computers in fifty years. If you believe that, then obviously SSM seems like a completely rational idea.

I'm no Luddite, I just think that the world will be better if we eschew genetic modification and affirm the permanency of sexual reproduction using our own genes. There are so many other problems we need to be addressing, starting with lack of basic health care and over-consumption of energy and resources, and yet crazy people are pursuing ways to live forever and genetically engineer people to have higher intelligence or whatnot. Again, I'm no Luddite, I believe in using technology to improve healthcare and access to health care and improve economic fairness and efficiency.

People that think that we should be working on same-sex conception are batshit insane. Being able to conceive with someone of the same sex is not necessary. Equal protections are a much smarter goal.
6.5.2008 1:29pm
John Howard (eggandsperm.org) (mail) (www):
AngelSong, you look like a fool. Same-sex conception is a real issue. But, yeah, the law we need would prohibit creating human children anyway other than combining a man's actual gamete with a woman's actual gamete. That would rule out attempting human-animal, human-extraterrestial, human-swamp fungus children, etc.
6.5.2008 1:33pm
Cruising Troll:
NI
Brett, I'm not usually this blunt, but for you I'm going to make an exception: Voters as a group are complete imbeciles who should not be allowed within a country mile of the decision making process. We are talking about people who gave us Prohibition, passed Jim Crow in the South, and actually think the War on Drugs is a good thing. The Founding Fathers rightly understood that direct elections more often than not produce the passion of the mob, which is why they diluted the political power of the people to the greatest extent they could.



Voters are also the ones who gave us the California Constitution in the first place, as well as the Equal Protection Amendments at both the state and Federal level. Voters are the ones who gave us (well, actually them, since I'm not a Californian) the justices in question in the first place. Given the voter based provenance of the decision in question, how can you possibly defend something grounded in the consent of those you consider imbeciles? hmmm....


But the right to marry (or right to have your marriage recognized by the state) was never limited to some of the populace. All competent adults had the right to marry following the traditional definition of the term.

?? Say X, immediately and obliviously refute X. The right of free speech is not limited merely to "competent adults." The right of freedom of religion is not limited only to "competent adults." Clearly, the right to marry has ALWAYS been limited. This matter is about what those limits should be.


Mere tradition? As far as I'm concerned just another word for 'stagnation'. You do what's right, not what's wrong just because its what's been done before.


Well, then let's not bother with constitutions or laws or any of that bothersome stuff that comes from the past at all, 'tis merely "stagnation." We'll just make everything up as we go along, and remake it as well, willy nilly. Let us embrace wholeheartedly what that most famous of recent Willies said, "it depends on what the meaning of is is."

Perhaps you should consider this: nobody is born knowing "what's right." The key way folks know what's right is by referring to the past, whether its their own individual past, or collectively. Tradition is one signficant facet of our collective knowledge of the past. To disregard something simply because it is "tradition" is even more idiotic than blindly embracing it. Such disregard is "adolescent fundamentalism", rejection simply because its "old". Perhaps you've reached the point in your life where you've realized that maybe your parents weren't such total idiots after all. Perhaps you can even expand your narrow minded thinking to encompass the notion that THEIR parents weren't total idiots either, nor their grandparents, etc...
6.5.2008 1:38pm
AngelSong (mail):

People that think that we should be working on same-sex conception are batshit insane.

How many people do you really think are working on this? I guarantee you that a lot more are working on the other issues you bring up than this one.

And I'm still far from convinced that and so-called "right" of conception/procreation is necessarily linked to marriage anyway.
6.5.2008 1:40pm
Bob Van Burkleo (mail):
Are you saying that you don't think marriages have a right to conceive together, using their own gametes?

For the umpteenth time, no I think they have a right to try and conceive, partially depending of course on if they have the gametes to do it. The 'right to do…' and the 'right to try…' are two different things.

Phrased another way, are you saying that government could rightly prohibit a marriage from even attempting to have children, by any means?

And again for the umpteenth time, no because they aren't inverse statements. Our 'right' to try and procreate comes from our right to privacy, to keep government at arm's distance in its role as a mere conceptual tool to be used by the individual, not the individual to become its slave. Think of it as a Planck's limit beyond which government becomes more important that reality. We get to try because government has no business interfering in our lives at that level. That's why we have the right to marry, to free speech, to movement, to pursuit (not have!) happiness - because government and law is BELOW reality, not above it.
6.5.2008 1:44pm
Steve in CA (mail):
A.W., the issue isn't what the "California framers" thought in their hearts of hearts, the issue is what they put into the Constitution. And the state constitution isn't like the federal one -- it's been amended many times in more recent years, and those amendments say that sexual orientation is a protected category just like race or religion. I'm sorry if you don't like it, but it's very clear. So, if the state can't prohibit interracial marriages, it can't prohibit intragender ones.

You seem completely unwilling to discuss the decision on its merits. Have you read any of it, or are you convinced that any decision that rules for gay marriage must be a bad one?

I'm perfectly willing to admit that my preferences aren't the same as the Constitution. For example, I don't see a federal constitutional right to gay marriage, as much as I would like one.
6.5.2008 1:45pm
John Howard (eggandsperm.org) (mail) (www):
Do some googling. Try "Transhumanism" and "Postgenderism" and "same-sex conception". There are enough people working on it and related issues for it to be a real issue. And it seems that every SSM supporter feels that it should be a right. Not one has ever agreed that people should not have a right to attempt to conceive with someone of their same sex. They are stubbornly sticking with the "equal rights" line even as they see that perhaps the rights should not be equal. Thus, they are pushing open the door for all the genetic engineering that Dr. Moreau can dream of.

It is time to admit you are wrong, and seek equal protections via civil unions and leave marriage for couples that have a right to conceive together. Same-sex couples should not have a right to conceive together.
6.5.2008 1:51pm
Bob Van Burkleo (mail):
Tradition is one signficant facet of our collective knowledge of the past.

And we can differentiate 'good tradition' from 'bad' by if it can be explained logically and consistently within our constitutionally supported ethics. No one has been able to explain why some married citizens should be ignored by the state as well as all reasonably spouses they might have.

Give me a non-superstitious rationale that explain how to differentiate between those marriages that accounts differentiating citizens merely on the basis of the gender of their spouse? Ability to procreate with their spouse? Nope. Some qualitative difference between the motivations of the citizens? Nope. Some difference between the subsequent results to the citizens? Nope. Merely because that's the way we've always done it before... seems like it.
6.5.2008 1:54pm
AngelSong (mail):

And it seems that every SSM supporter feels that it should be a right. Not one has ever agreed that people should not have a right to attempt to conceive with someone of their same sex.

I think it is much more likely that most of us know so little about this so-called "issue" that we are unwilling to form an opinion one way or the other, especially given how hypothetical all of this is in the first place. Genetic engineering is indeed a real issue, of which same-sex gamete modification may be part, but I think you are needlessly (and incorrectly) conflating the issue with marriage.

You keep arguing that marriage provides the "right to attempt to procreate". That would seem to suggest that those who are not married have no such right. Otherwise what would be the point? The problem with your argument is that in order for something to be a right of marriage, that right would need to be unique to marriage. By your standards, marriage also bestows the right to eat spaghetti ala Lady and the Tramp. I'm not all het up about that one either.

Personally, I exercise my right to attempt to procreate with someone of the same sex quite frequently. But if I thought for half a second I might be successful, I would buy every contraceptive I could find. I suspect that the same is true for a significant number of gay people who also seek the right to get married to their partners.
6.5.2008 2:06pm
JustMe:

If you could find people that can only be reasonably expected to marry someone of their immediate family you could make a similar argument - no one has or is.

That's a horrible test for the constitutionality of a restriction on marriage and directly opposes the original assertion I was disputing: that marriage is a constitutional right. If it is a right, then how is the arbitrary restriction of marrying the group consisting of your family members or those already married (who could be the only people someone is attracted to) differentiated from restrictions of marrying people of your gender (who could be the only people someone is attracted to)?
6.5.2008 3:01pm
Bob Van Burkleo (mail):
That's a horrible test for the constitutionality of a restriction on marriage and directly opposes the original assertion I was disputing: that marriage is a constitutional right.

As is freedom of speech - but can we make it illegal to yell 'Fire' when there isn't one? Absolutely! Even our rights can be regulated, what they can't be is effectively completely proscribed or selectively allowed for just some citizens.

If it is a right, then how is the arbitrary restriction of marrying the group consisting of your family members or those already married (who could be the only people someone is attracted to) differentiated from restrictions of marrying people of your gender (who could be the only people someone is attracted to)?

Because even our rights can be regulated they just can't be proscribed. IF there were people who could only marry close genetic relatives we really would have to revisit the issue. IF there were those that could only marry more than one spouse we would have to revisit the issue. But as far as we know there are no such individuals. Now there ARE citizen who can only reasonably be expected to marry someone of a particular gender - for the government to only allow some of these citizens the right to marry would be a proscription, not regulation.

As it stands CA now allows all citizens some avenue to a licensable marriage with a spouse with all having a massive pool of potential spouses to select from - functional marriage equality. That some want their pool to be slightly bigger or that some want to be able to have more than one spouse are totally different issues that absolutely could be addressed, but they aren't all citizens having equal access to licensing' issues.
6.5.2008 3:24pm
John Howard (eggandsperm.org) (mail) (www):
I think it is much more likely that most of us know so little about this so-called "issue" that we are unwilling to form an opinion one way or the other, especially given how hypothetical all of this is in the first place.

Well, I'm know something about it, and I can tell you that it is bad and we should be seeking equal protections, not same-sex conception rights. So listen to me. Go to my site and learn about it. You shouldn't be claiming a right to do something you are completely ignorant about, you are being used.

Genetic engineering is indeed a real issue, of which same-sex gamete modification may be part, but I think you are needlessly (and incorrectly) conflating the issue with marriage.

Nope, I'm correctly not separating the issue. Separating the issue would strip conception rights from everyone's marriage.

You keep arguing that marriage provides the "right to attempt to procreate". That would seem to suggest that those who are not married have no such right.

There is no right to procreate outside of marriage. It is done without there being a right to do it, and we don't punish anyone because it would punish the children, who were innocent.

Otherwise what would be the point?

Good question! There would be no point to marriage. This is a "eureka" moment for you.

The problem with your argument is that in order for something to be a right of marriage, that right would need to be unique to marriage.

When illegitimacy laws were repealed back in the 70's, it was because they were unfair to children, and new reliable paternity tests were making it possible to enforce marital obligations on men, making an unmarried couple no different from a divorced couple. Also, the Pill and reliable birth control brought along new physical freedoms to have sex, and everyone started doing it, including every judge's own daughters, so it just became normalized. But none of that was intended to change marriage, none of that said that marriage no longer granted the right to conceive together.

By your standards, marriage also bestows the right to eat spaghetti ala Lady and the Tramp. I'm not all het up about that one either.

How so? Was that ever illegal until a couple got married? You don't have to go back in history to see that premarital sex was once illegal in Massachusetts, because it still is! There is nothing explicit in the law that explains that marriage makes sex legal, it is just so deeply understood that is what it does that fornication laws and marriage laws don't even mention it. It would be like a law against murder having to explain that murder is killing someone.

Personally, I exercise my right to attempt to procreate with someone of the same sex quite frequently.

You shouldn't have that right, we should prohibit people from attempting to conceive with someone of the same sex.

But if I thought for half a second I might be successful, I would buy every contraceptive I could find. I suspect that the same is true for a significant number of gay people who also seek the right to get married to their partners.

Right, due to the physical natural reality of sex, same-sex couples are not going to accidentally conceive, they would have to purposefully use many technologies to produce a viable embryo, which would then have to be purposefully implanted in a womb or artificial womb. But they should not be allowed to do that, or anything that might produce an embryo from two progenitors of the same sex. Society should not give any same-sex couple that right, whether they want to do it or not, just like we don't give siblings that right, whether they sleep in separate rooms or not.
6.5.2008 3:34pm
John Howard (eggandsperm.org) (mail) (www):
IF there were people who could only marry close genetic relatives we really would have to revisit the issue.

No one claims that a gay man can't marry a woman, they just claim they don't want to, because the person they want to marry happens to be their same sex. Many of the couples in the Goodridge decision had in fact already been married to someone of the other sex. They say, how does this man marrying another man affect someone else's marriage?

If you are taking it a step further and suggesting that gay men CANNOT marry a woman, and gay women CANNOT marry men, that is getting rather fascist. Who would enforce this law on those gay men and women? Would there be a background check, including music and movie and clothing preferences, hair style inspections, etc? How would you determine if someone was illegally attempting to be straight?
6.5.2008 3:44pm
JustMe:
Shouting "Fire" in a crowded theater illustrates my point perfectly: there must be a compelling public interest before a constitutional right can be limited, what could that compelling interest be for incestuous or polygamous marriages that does not exits for SSM?

Now there ARE citizen who can only reasonably be expected to marry someone of a particular gender

There is no proof of this. I have heard of gays who have married people of the opposite sex, just as I've heard of those who love a relative and marry someone else. Both are tragedies, but there is no evidence that the first is either any less the persons choice in who they love or more unconstitutional than the second.
6.5.2008 3:46pm
John D (mail):
John Howard

I have a couple hypotheticals for you.

Let's say we have Tim and Mary. They're a heterosexual married couple and they want to have a child. But...

Tim bears a genetic defect that he does not want to pass on to his child.

Mary has a uterine problem which will prevent her from carrying a baby to term.

Hypothetical 1
Ought they be able to do the following: clone Mary by implanting her genetic material into an egg and then bringing that egg to term in either a surrogate or (let's shoot the works here) an artificial womb?

Note that the resultant baby would be an exact duplicate of Mary, with no genetic material coming from Tim.

Hypothetical 2
Ought they be able to do the following: repair the genetic damage in one or more sperm cells taken from Tim and then use these to fertilize an egg harvested from Mary? Again, the fertilized egg would then either be implanted in a surrogate or brought to term in an artificial womb.

This time, the resultant baby would be genetically related to both of them, although through modified DNA.

What do you say to these?
6.5.2008 3:51pm
whit:

What the court found was limiting it to just some of the populace was unconstitutional.


no, they didn't. they didn't find a right to marry a close relative or marry somebody who is already married, or polygamy, etc.

they extended marriage rights to ONE group (same sex couple). if they did what you claim it would also be extended for incestuous marriages, for instance
6.5.2008 3:56pm
John Howard (eggandsperm.org) (mail) (www):
John D, no Tim and Mary shouldn't be allowed to do either of those things. But they should certainly have the right to procreate using their own unmodifed gametes. If they cannot, they just won't. But it won't be because they were prohibited from trying.
6.5.2008 4:11pm
Bob Van Burkleo (mail):
Shouting "Fire" in a crowded theater illustrates my point perfectly: there must be a compelling public interest before a constitutional right can be limited, what could that compelling interest be for incestuous or polygamous marriages that does not exits for SSM?

Absolutely as numerous threads have covered in the past. And of course the test is less strict if the limitation is not an effective proscription. Again (and again and again) if you could find people that had demonstrated they could only be married to those of their own immediate family that would be an effective proscription and the issue would have to be revisited. You haven't while it is accepted that some people can only marry those of the same gender.

There is no proof of this.

You are saying that there aren't people who only pair-bond with someone of a particular gender - I think most heterosexuals would disagree with you very very strongly. Rather there is no proof there is not, and lots of evidence that has accumulated over 50 years of time saying there is - when it comes to rights the law errors on the side of the individual. Again there is the difference, that's what changed.

You keep acting as if the law was a sharp instrument, its a dull one that can be no sharper than our knowledge about reality. As the SCoCA noted, the legislature had already recognized that same gender couples pair-bonded with the same legal needs as opposite gender ones - that's not even a contestable issue anymore.

No one claims that a gay man can't marry a woman, they just claim they don't want to, because the person they want to marry happens to be their same sex.

Putting the law above reality seems to be the only way you can make your case. Again, the CA legislature had already recognized that same gender citizens naturally married and gave them legal recognition. That issue is long past - the remaining question is 'why are the married citizens treated differently? ' The court could find no reason.

If you are taking it a step further and suggesting that gay men CANNOT marry a woman, and gay women CANNOT marry men, that is getting rather fascist.

Impressive strawman - almost wicker man in its proportions. You are the one who thinks the government can tell a married couple how they can conceive - you've already set that fascism bar pretty high.
6.5.2008 4:18pm
JustMe:

if you could find people that had demonstrated they could only be married to those of their own immediate family that would be an effective proscription and the issue would have to be revisited.

And I keep saying that's a hideous standard. If there is a constitution right, then there must be a compelling interest in order to restrict it. If we must prove that each right needs to be granted in every situation individually, then we have a long, hard road ahead.


You are saying that there aren't people who only pair-bond with someone of a particular gender

I have never claimed this. What I claim is that those who only pair-bond with others from a particular gender are not legally distinguishable from those who only pair-bond with people from a particular family (such as their own), those who are already married, or those who have large feet. If there is evidence to the contrary, then show it.
6.5.2008 4:44pm
John Howard (eggandsperm.org) (mail) (www):
You are the one who thinks the government can tell a married couple how they can conceive

The government should tell everyone they can conceive with their own gametes, and no other way. It should tell scientists they cannot create people any other way, the only way that should be allowed to create people is by a man and a woman joining their gametes, their unmodified gametes.

But that's a far cry from the way it will be if we allow genetic engineering and/or strip from marriage the right to conceive with the couple's own genes. If we do either of those things, we will very soon have government agencies regulating labs using coercive marketing and incentives to subject our reproduction to their approval and design.

It's a case where limiting freedom results in more freedom and equality for everyone. Whereas, allowing people to do whatever they want would result in people being coerced and forced and eventually losing their freedom.
6.5.2008 4:55pm
Bob Van Burkleo (mail):
And I keep saying that's a hideous standard. If there is a constitution right, then there must be a compelling interest in order to restrict it.

Yes and we've had no problem with it for almost 2 hundred years... If you have some evidence to say its changed then present it... I'm all ears.

If we must prove that each right needs to be granted in every situation individually, then we have a long, hard road ahead.

Whew, yeah good then we don't eh? Change in the road to marriage equality has been long and arduous with incremental changes in knowledge. While individuals may have been presenting their cases it is the expanding body of knowledge that has tipped the scales, not each individual case. Again, if you want to do the same for incest have at it, I think it would be a difficult road since I can seen no biological mechanism that would justify incest as a right but maybe there is one - find the evidence and present it. Until such time its like a discussion about the flavor differences between the milk of pink and purple cows - lofty thoughts that have no substance.

What I claim is that those who only pair-bond with others from a particular gender are not legally distinguishable from those who only pair-bond with people from a particular family (such as their own), those who are already married, or those who have large feet. If there is evidence to the contrary, then show it.

Well we know there is an oxytocin-vasopressin mediated mammalian pair-bonding response that is queued by triggers in all our major senses. These trigger mechanisms are gender-specific for the most part and most people only respond to those of one gender, most to the opposite, some to the same. We naturally marry as a species.

That this can happen is expectable genetically since all men have all the base female genes, and all women have all the genes of a man save those on the 'Y' chromosome. Absolutely no reason why men couldn't have the 'I'm attracted to men' pathways active, in part or in total, and women the 'I like women' ones or at least a strong subset. Supporting this are large numbers of studies show statistically significant variances between the qualities of those of a gender attracted to one gender over another that imply this is happening.

We know by massive amounts of empirical evidence and testimonial that there are people who are only attracted to one gender and that they have and possibly will only pair-bond with someone of that gender.

These relationships all involve contractable adults who are by law and even tradition considered capable of making these kind of decisions and commitments.

The broad acceptance of these qualities has lead to many different ways of acknowledging these same gender marriages.

There is more but you get the idea.

In contrast,

There is no known biological mechanism that would explain being only attracted to those of your immediate family. No evidence for one exists, hard pressed to even understand why one would develop. While obviously the documented gender based pair-bonding could exist between close genetic relatives there's nothing to indicate that it would be exclusively triggered.

There is no body of evidence to show there is a significant difference between those who claim a desire for incest and those that don't. There is no body of evidence to show that the desire for incest precludes attraction to others that are not close relatives.

Further allowing incest would turn the family unit into a sexual hunting ground with massively different levels of competence and responsibility among the individual members. An argument can be made in a society where equality and personal autonomy are paramount allowing this situation could mean some members of society are given no conscious choice as to their role or consent in these relationships raising the specter of sexual predation and essential slavery. Even if adults at the time of pair-bonding, one or both members could have been 'groomed' to accept their role before they could give consent.

As there are significant risks, and no indication that any individual can only reasonably be expected to pair-bond with someone of close family relation we preclude the entire class of relationship.

See the difference? The 'legal difference' is based in real differences. Law separate from reality is worthless - it can't be argued in a vacuum as the law has no real existence. IF you could find the mechanism, the evidence, the testimony and allay the fears of citizen abuse in the home you MIGHT be able to make your case for incest. But in their absence there is no 'legitimate' comparison between marriage equality regardless of gender combination and marriage equality regardless of familial relationship.
6.5.2008 5:35pm
JustMe:
Bob Van Burkleo,
Is your argument is that the deciding legal distinction between a constitutionally protected marriage and one that can be prohibited by statute is that there must be a known biological mechanism that causes the two people to be attracted to each other? If so, how well does it have to be known and its effect identified and where does that leave equal protections?

Alternatively, perhaps a collection of studies that show some people are only attracted to a specific group sufficient for constitutional protection. If so, I've seen some that show certain people are only attracted to their parent (and sometimes marry surrogates who they cannot be happy with).

As to family hunting grounds, statutory rape laws protect against that until both parties become contractable adults who are by law and even tradition considered capable of making these kind of decisions and commitments.

If you haven't taken the hint, I'm not going to respond the pointless assertions that I'm using the law as a sharp instrument, without respect for reality, or any of the other baiting characterizations. I could say similar things about you, but prefer to keep the discussion to those aspects we can debate.
6.5.2008 7:06pm
whit:
i gotta give bobs props. that is one of the best constructed arguments against the gay marriage/incestuous marriage argument (as regards constitutional requirements)

bravo.
6.5.2008 7:32pm
John Howard (eggandsperm.org) (mail) (www):
Bob, you haven't heard of "Genetic Sexual Attraction?" It's a documented phenonenon of siblings finding each other attractive when they were raised apart and meet later in life. They're barred from marriage too, and from having sex.

Face it, the reasons are "religious" type reasons: it's just taboo, just the same as homosexuality was. There just hasn't been a Stonewall yet for incestuous lovers to rally behind and come out en masse. I love your concern for people being "groomed" for incest while they were children, is that the same as being "recruited" or "indoctrinated"? The case for gay marriage did not rest on gays only being able to love someone of the same sex, that wasn't even true. Do bi-sexuals not get to marry someone of the same sex? Duh. It rested on them having the same rights as other couples, and so they should be allowed to marry rather than have a different name for the same legal relationship. Incestuous couples however do not have the same rights, they do not have the right to conceive children together, they are prohibited, even as adults, from having sex. Couples that do not have a right to conceive children together do not have a right to marry each other. It's not just because of the risk of defects, but its not just because of manipulation or abuse either.
6.5.2008 8:01pm
AngelSong (mail):

Incestuous couples however do not have the same rights, they do not have the right to conceive children together, they are prohibited, even as adults, from having sex.

In what world??? Some of the things you come up with, you can't really be serious.
6.5.2008 8:47pm
A.W. (mail):
Paren

> I don't suggest that in 1972 the electorate embraced the recent holding of the Supreme Court.

Then you have conceded the entire argument. For it is not the job of the people to amend the constitution preemptively to prevent a misreading of the constitution. Instead it is the job of the Supreme Court to honestly try to get it right. And they didn't here.

And further, I don't see how on earth the right to privacy is impacted at all. The only issue on the docket that day was the label the state would put on their relationships: domestic partnership or marriage. The state has not abridged any right to privacy because it puts a label you don't like on your behavior. Privacy is only impacted when your freedom is impacted.

Bob Van

> Actually they can

No, you are frankly ignorant on this point.

> Regardless saying someone is not allowed to accomplish a goal is not the inverse of saying they will accomplish it, and it is that which is being claimed.

Well, again, it depends on how far you want to go with that, and your phrasing is incomplete at best. If you mean to say that the fact a state can't prevent you from having children, is not to say the state can encourage you to have children, again you are wrong. Indeed, given our massive welfare state that needs a high birth rate to sustain itself, the ability of the state to promote procreation—to say, go forth and multiply—is vital. Either that or we will have to abolish social security, and so on. Which wouldn't be a bad idea, but I find it curious how liberals don't seem interested in doing what it takes to make these programs soluble.

But on the other hand, the existence of a right to procreate does not imply the power on the state to force you to do so. In other words, the state can't rape you, or require someone else to rape you. Maybe that is what you are saying.

Now if either of those are a straw man, well, that is because I am not quite sure what you are trying to say.

> Even our rights can be regulated, what they can't be is effectively completely proscribed or selectively allowed for just some citizens.

Except it is allowed for all citizens. What is not allowed is specific pairings. But gay men and straight men are both equally allowed to marry women.

Instead you want to say that a gay pairing should be treated as equal to a straight one in every way, including name. But an incestuous pairing should not be treated as equal, or a polygamous one. Or an interspecies pairing. And why? As demonstrated before, because you feel different about homosexuality, which is good enough for you, but is hardly a satisfactory reason to the millions of Californians who found their vote nullified.

I thought liberals like you always said, "count every vote." But what you really meant was, count every vote, but none of them really count. What counts is the whims of our judicial overlords.

> You are saying that there aren't people who only pair-bond with someone of a particular gender

Your theory that you should be have an available "pair bond" is alright as a theory, but has nothing to do with the actual law.

And I swear if I hear you use the term "pair bond" one more time, I will probably vomit. What is it with some people that they have to find terms that drain all the blood out of our concepts?

Angelsong

First, I scrolled up and I never found a substantive response.

Second you said:

> The right to attempt to procreate? How ridiculous can you get?

So you feel the state can restrain two married people from procreating if it wants to? And you think the overwhelmingly heterosexual men who wrote the constitution, who valued God and family, really thought they were giving the state the right to tell them that they couldn't have children with their wives, God willing? Hell, given the state of contraceptive tech at the time, the only realistic way to prevent procreation is to ban heterosexual sex altogether. Who knew? They were all trying to be Shakers!

Sorry, the ridiculous argument is on your side.

I'm not big on leaning on the Ninth Amendment when the text doesn't help, but if there ever was a case where a right was considered such a "given" that it doesn't need to be said, the right of straight people to have sex and children, at least in the context of marriage, is about as easy a case as you are likely to come by.

Steve

> and those amendments say that sexual orientation is a protected category just like race or religion

Really? Where does it say that?

Prediction: he will point at a provision that doesn't say it "in so many words"—as in, not at all.
6.5.2008 9:21pm
Randy R. (mail):
"Have you read any of it, or are you convinced that any decision that rules for gay marriage must be a bad one? "

Actually, the question is, are you convinced that any deicision that rules for gay rights of any sort must be a bad one?

And for AW and many others, the answer, of course, is yes.

Furthermore, the CA Supreme Court extended the right to marriage to both homosexuals AND heterosexuals. Now, people of both classes are able to marry person of the same sex.

So you see, both gays and straights are treated exactly the same. What's the problem?
6.5.2008 10:15pm
whit:

...Incestuous couples however do not have the same rights, they do not have the right to conceive children together, they are prohibited, even as adults, from having sex.


......In what world??? Some of the things you come up with, you can't really be serious.



you are kidding right?
RCW 9a.64.020

(1)(a) A person is guilty of incest in the first degree if he or she engages in sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood.

(b) Incest in the first degree is a class B felony.

(2)(a) A person is guilty of incest in the second degree if he or she engages in sexual contact with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood.

(b) Incest in the second degree is a class C felony.

(3) As used in this section:

(a) "Descendant" includes stepchildren and adopted children under eighteen years of age;

(b) "Sexual contact" has the same meaning as in RCW 9A.44.010; and

(c) "Sexual intercourse" has the same meaning as in RCW 9A.44.010.
6.5.2008 10:29pm
A.W. (mail):
Randy R.

> Actually, the question is, are you convinced that any deicision that rules for gay rights of any sort must be a bad one?

> And for AW and many others, the answer, of course, is yes.

No, actually it depends on the law in question. I don't object, for instance, to the courts in Washington, D.C. and Maryland saying that the law protects homosexuals from job discrimination. You know why? BECAUSE THOSE LAWS ACTUALLY SAY THAT. I am sick and tired of liberals believing that the very concept of constitutionalism, rule of law, and democracy itself should be subordinated to their narrow agenda. And I am sick and tired of lamers like you accusing every person who wants to see the law followed as written, and not how you want it to be, as somehow being unprincipled. Show me where the law actually supports your agenda and I will agree that the courts should follow that law, and any advocacy for change will be an appeal to democratic process, not to judicial fiat. Can you say the same?

Some of us believe in the rule of law, and some of us don't. you and at least four members of the California Supreme Court apparently do not. You believe a constitution is just a stogy piece of paper that handcuffs you from the reforms you really want, and the wisdom of its authors something to shed at the first chance you think you can get away with it. You are ruled by the almighty doctrine that the ends justify the means. Some of us think a better approach to government should be followed.
6.5.2008 11:19pm
AngelSong (mail):

First, I scrolled up and I never found a substantive response.

The one about Revels posted 6.4.2008 at 10:03 p.m. I would be interested in your response since you are the one that pointed me to Revels in the first place.


So you feel the state can restrain two married people from procreating if it wants to?

Is that all it takes to constitute a right? So there's a right to breathe air? A right to paint your fingernails purple? A right to eat pizza? A right to be tall?

Hmmm, an interesting thought. Let's say that hypothetically there was at one point some kind of right to have sex that was bestowed with marriage. Clearly there has been either a court decision or legislation or both that has extended that right to those who are unmarried as well. So is there still a right to have sex if everyone can do it now? Does a right necessarily require exclusion of some in order to exist?
6.5.2008 11:38pm
Steve in CA (mail):
I'll admit I was wrong, A.W. Turns out California's prohibitions against discrimination on sexual orientation are all statutory, not constitutional. At least, as far as I could tell from a quick scan of the state constitution.

What the state supreme court decided, at least in part, was that the prohibition against gay marriage was based on gender -- which is true, a county clerk who denies a marriage license to two guys does so because they're both guys, not because they're gay. A gay guy could marry a woman, and many have. It's the gender. Anyway, in California, unlike in federal law, gender discrimination triggers strict scrutiny, and the ban on gay marriage couldn't (and shouldn't) withstand strict scrutiny.

Now, I'm still waiting for you to make any substantive criticism of the decision. Care to argue with any of it? Or just call it a bunch of doubleplusungood judicialactivisim?
6.5.2008 11:48pm
Randy R. (mail):
AW: "T. I am sick and tired of liberals believing that the very concept of constitutionalism, rule of law, and democracy itself should be subordinated to their narrow agenda."

Really? And perhaps WE are sick and tired of conservatives who use 'tradition' and 'morality' to keep us down. We see conservatives using lame and stupid arguments to prevent us from marrying. I will fully respect arguments that say 'I just don't like gays' or alternatively, "my religion prevents me from showing any sympathy for gays.' But when I see stupid and disengenous arguments like, gays always could marry -- they just had to marry the someone of the opposite sex! Or that the world will collapse and heteros will stop getting married once gays get married. Or that that pregnancy rates will drop. Or that people will stop caring for their children.
I see conservatives constantly using every scare tactic in the world to deny us our rights.

"And I am sick and tired of lamers like you accusing every person who wants to see the law followed as written, and not how you want it to be, as somehow being unprincipled."
And yes, you might find that the CA Supreme Court came to the wrong decision, but to say that this was an act of 'naked judicial activism' is just silly. The law says everyone has to be treated the same -- if you don't like that concept, then go to another country where people don't have equal protection.
6.6.2008 1:01am
Randy R. (mail):
A poll from USA Today shows that a narrow majority of Americans think that SSM should be a private decision between two people. For the younger generation, it's at high as 80% or so.

I think the ballot initiative in CA will fail. Once people are asked to take away a right from people, they are very reluctant to do so. Which means that the denial of this stay will prove fatal to the anti-gay crowd. At least I hope so!
6.6.2008 1:04am
whit:

Really? And perhaps WE are sick and tired of conservatives who use 'tradition' and 'morality' to keep us down. We see conservatives using lame and stupid arguments to prevent us from marrying. I will fully respect arguments that say 'I just don't like gays' or alternatively, "my religion prevents me from showing any sympathy for gays.' But when I see stupid and disengenous arguments like, gays always could marry -- they just had to marry the someone of the opposite sex! Or that the world will collapse and heteros will stop getting married once gays get married. Or that that pregnancy rates will drop. Or that people will stop caring for their children.
I see conservatives constantly using every scare tactic in the world to deny us our rights.


randy, yer stereotyping.

i'm a conservative (well, right-moderate libertarian ... that's pretty conservative) and i support gay marriage. i can't speak for the california constitution, but i don't think there is any constitutional federal right to gay marriage.

constitutionalism and rule of law means more to me than gay marriage. iow, i don't want judges to invent a right (federally at least, since i can't speak for each state constitution) merely because i think gay marriage is good policy.

tradition and morality are important things. as a libertarian i respect the power of taboos, tradition, religion, etc. to help people 'self-check' themselves WITHOUT the authority of govt. telling them what they can or can't do. tradition, morality, etc. are what seperates us from our base desires and elevate us above our animalistic desires.
6.6.2008 1:30am
Parenthetical:
A.W.

Then you have conceded the entire argument.

Hardly. You asserted that "if they [unnamed people who wrote the constitution] ever believed for one second that this outcome was possible they would have rewritten the constitution to avoid this outcome."

Sometime between 1977 and 1997, it became perfectly apparent that this outcome was possible. Since then, the people of California had more than 300 million seconds in which to rewrite the constitution. They haven't yet. Perhaps they will in November.

I don't see how on earth the right to privacy is impacted at all.

Well, the Calif. Supreme Court disagrees with you. I mentioned the privacy clause as a relevant example because the Calif. Supreme Court is the authority as to what the privacy clause in the Calif. Constitution requires.
6.6.2008 11:53am
Parenthetical:
Steve in CA:

What the state supreme court decided, at least in part, was that the prohibition against gay marriage was based on gender ...

I don't want to pile on here, but the court explicitly rejected the gender-discrimination argument.

The court's equal-protection holding was that sexual-orientation discrimination also triggers strict scrutiny, like gender discrimination does. I was a bit surprised that the court--in particular the chief justice--chose to do that.

Insofar as other state courts are persuaded by California finding sexual-orientation a suspect class, it may have consequences in all kinds of discrimination claims that don't touch on SSM. That's potentially a very big deal in places where SSM is off the table by virtue of a state constitutional amendment.
6.6.2008 12:06pm
Cruising Troll:

And we can differentiate 'good tradition' from 'bad' by if it can be explained logically and consistently within our constitutionally supported ethics. No one has been able to explain why some married citizens should be ignored by the state as well as all reasonably spouses they might have.

Give me a non-superstitious rationale that explain how to differentiate between those marriages that accounts differentiating citizens merely on the basis of the gender of their spouse? Ability to procreate with their spouse? Nope. Some qualitative difference between the motivations of the citizens? Nope. Some difference between the subsequent results to the citizens? Nope. Merely because that's the way we've always done it before... seems like it.


First, let's address the last element, "because we've always dont it before." I hope you realize that it is incumbent upon those arguing for change to demonstrate why the change is better, not the reverse. Obviously, if one proceeds from the starting point that nothing that has gone before is of any value whatsoever, then one's task would seem simple, and one's opponents would appear to be ignorant, benighted, bigoted, etc. If, on the other hand, one stops and considers the question of why no society on Earth ever seriously considered the idea of "gay marriage" until the last 20 years, you might be brought up short. No Judeo-Christian society, nor Mohammeden, Hindu, Confuscian (sp), Buddhist, Jain, animist, pagan, heathen, or secularist. None. It isn't merely OUR American tradition, it is humanity's tradition. Unlike foot-binding, widow-immolation, polygamy, incestuous marriages, circumscision, tatooing, or any of a myriad of other "traditions", this one is universal. Either its a response to a fundamental human reality, or the SkyGod visited everybody (some in disguise) and laid down the law. If the former, then considering what that reality is and what this experiment's impact on it may be seems to be required, and I've yet to see any gay marriage advocates seriously engage it. If the latter, well, this particular subject pales.

As for the a constitutional basis, well, I've explicated it before here, albeit not in this thread. Legal marriage does exactly nothing to change the relationship between two people. Nothing, zip, nada. Whether married or not, they can still sleep together, have sex, fight, raise children (if biology cooperates), set up housekeeping, etc. What legal marriage does is change the relationship between the couple and the REST OF SOCIETY. When two people marry, the rest of us are required to treat them differently. It imposes burdens on others without asking their permission. Now, one interesting aspect about the "fundamental rights" such as speech, assembly, etc, is that they impose no burden on anybody else. I can yammer away all I want, but you don't have to listen, much less provide me with a soapbox and my right of free speech certainly doesn't require that you applaud and agree. (This distinction has been lost on many who equate civil disagreement with censorship.)

The question of why the state will recognize marriage and compel others to do so is because it benefits society. So, the question becomes, how does gay marriage benefit society enough that it justifies imposing burdens on others as well as overriding their conscientious (sp?) objections.

In following this argument over the last decade, the social benefit seems to boil down to this, "so that gays and lesbians can feel better about themselves." This is especially the situation in this California case, because the ONLY thing they gain from this decision is the word "marriage." I don't know about you, but forcing others to support and endorse behavior simply in order to assuage to fragile egos and emotions of a small segment of society seems remarkably juvenile, unAmerican, and narcissic.
6.6.2008 12:33pm
Bob Van Burkleo (mail):
Is your argument is that the deciding legal distinction between a constitutionally protected marriage and one that can be prohibited by statute is that there must be a known biological mechanism that causes the two people to be attracted to each other? If so, how well does it have to be known and its effect identified and where does that leave equal protections?

Well see what you've done here, I'm talking about 'a right to marry', and you are talking about a particular marriage. I am not and never have contended you have a right to marry any particular person, rather that the need to marry a right and the state has to give you some reasonable option of exercising that right. And that's not new, our system has always said there were some you can and some you can't. Again, what has changed is we have a lot of evidence to show that the current licensing restrictions basically tell a segment of the population 'no one you can reasonably be expected to marry is licensable'. And to compound that all the people they reasonably could are perfectly great candidates for the license if someone of the other gender was their spouse.

How much evidence do they need? Simply enough! People have been trying to get marriage equality for decades with a case reaching Washington state's Supreme Court back in the 70s as I recall. I mean its merely the law, not rocket science. The change we have here is that states, particularly CA, have acknowledged through legislation that same gender couples have a right to marry in the natural sense and the SCoCA just said you gotta treat all the ducks like ducks.

Oh and yes I am aware of siblings who have inadvertently married, and the studies that show that to muting of sexuality between siblings is accentuated by if they have seen each other nursed, etc. Still that attraction can exist doesn't mean that the other mechanisms for generic attraction aren't there and there is no body of evidence to show that they are. I'm not talking about the right to marry any particular person but 'the right to marry' someone that you can reasonably be expected to pair bond with. And yes 'reasonably expected' is a very soft target but for same gender couples its been amply reached in California.

s to family hunting grounds, statutory rape laws protect against that until both parties become contractable adults who are by law and even tradition considered capable of making these kind of decisions and commitments.

Oh yes and all those kids raised in those polygamist homes could just leave. ;) I don't think either of us is that gullible. Grooming involves no sex but merely shaping the mind of the target into being receptive to the eventuality desired. To say that statutory rape laws would protect children from an overwhelming bias towards complicity even when they were contractable isn't very convincing to me - is it really to you?

If you haven't taken the hint, I'm not going to respond the pointless assertions that I'm using the law as a sharp instrument, without respect for reality, or any of the other baiting characterizations.

Yet you will bring up assertions like statutory rape laws are sufficient to prevent families from becoming sexual partner hunting grounds. Far as I'm concerned that is giving the mere law way more real world power than it actually has.

Except it is allowed for all citizens. What is not allowed is specific pairings. But gay men and straight men are both equally allowed to marry women.

But marriage is a natural state derived from our biology and gay men only marry other men - it is a terminology problem - the same word being used for different things. The state merely licenses marriages, it doesn't create them. So saying the state will only license a marriage with a gender you would never marry is a pretty transparent effective proscription.

Instead you want to say that a gay pairing should be treated as equal to a straight one in every way, including name. But an incestuous pairing should not be treated as equal, or a polygamous one. Or an interspecies pairing. And why?

They derive from the exact same biological mechanism, same triggers, same desires, same goals, same benefits to society and its the citizen's only reasonable option. Incestuous covered, polygamous - they all already can license the contract with someone they can reasonably marry, they just want more than one - totally different issue, and we have no other species that we recognize as a contractable entity - again when the Vulcans arrive we WILL have to revisit this issue. :)

I hope you realize that it is incumbent upon those arguing for change to demonstrate why the change is better, not the reverse.

Lets see, encouraging and helping couples to pair up, become stable economic units, stabilize for family rearing, etc - which of these benefits of marriage are unique to a gender combination?

The benefits of the natural state of marriage are so numerous it would be hard to list them and I can only think of one that is unique to some opposite gender married couples - puts the home environment already in place if a spontaneous child by pregnancy arrives.

Please be an advocate for having the state pretend that same gender couples don't marry, that they and the state don't derive benefits from their union.

In following this argument over the last decade, the social benefit seems to boil down to this, "so that gays and lesbians can feel better about themselves."

Well a statement like that does validate your handle - if you really can't give me a long list of benefits for the citizens themselves and society I really would have to question either your motives (as your handle implies) or your bias.
6.6.2008 2:03pm