Prop 8 Goes the Way of the Dodo

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Mordea, many religious folk object to homosexual marriages for the same reason they object to prostitution: their religion says it's wrong. They object to their nation embracing these things because, well, it's their nation (at least in part) and their society (at least in part). We all have concerns for the good of our society (or at least we should).

That being said, though, our nation is secular, meaning it shouldn't be concerned with things religious. That being said, though, why is the government involved in marriage at all? And why do married couples get certain benefits that singles don't? Of course, many of them are simply relational legalities that reflect the presumed relationship (next-of-kin, medical power of attorney, etc.). As for taxes, until recently, married couples often payed more (if filing jointly), and may again if certain Bush tax cuts expire. How does that make sense?

Personally, I say if the government is going to recognize relationships at all, they should all be civil unions, and we religious folk can go to Church (or Temple, or Mosque, or whatever) to get married.

 

One cannot justify the denial of someone's Constitutional Rights on personal beliefs, be they religious of arreligious. American citizens are entitled to equality before the law, irrespective of their gender, race, creed, or sexual orientation.

I find that those who claim to be fighting for the 'greater good' very rarely actually have the best interest of the collective at heart.

In this particular scenario, such a justification is especially weak, as providing homosexuals with the right to marry wouldn't even affect the quality of heterosexual marriages, let alone the health of society.

Been there, said that. As I made clear in my previous post, I don't think marriage should exist as a government institution. *However*, if it *must* exist, let both homosexuals and heterosexuals have equal rights to benefit/suffer from it.

I don't know about that. Isn't one of the veteran posters on this forum an accountant? Hopefully he will drop by and enlighten us.

 

That's not true. In fact you could say they have the best interest of society in mind but not necessarily the best interest of the individual (granted, there may be a limited scope in their definition of society). However, those with the 'greater good' in mind could also think they are looking at the 'eternal good' of others (trying to aid eternal salvation). Homosexuality is generally not in the best interest of any species (or any society of that species) for any reason except population control. I don't agree with any of the afore mentioned sentiment but I understand the mentality.

Government must be involved in marriage simply because there are legal ramifications of marriage and government benefits associated with marriage.

 

The issue with the 'greater good' arguement is that it's rare to find two people who have exactly the same idea of what 'good' is. There's an old saying, whenever you have two people, you have at least three opinions on anything. It applies to definitions of 'good' and 'evil' as much as to anything else.

 

No. They have the best interest of *themselves* in mind. They simply try to get others to buy what they are selling by trying to spin it as if they 'care' about society.

If all these people genuinely cared about the 'greater good', they would spend far more of their time donating to charity and engaging in volunteer work, instead of accumulating more money to buy a third porsche.

So excuse me if I roll my eyes () whenever I hear someone claim that they are working to improve society as a whole, rather than their own standing within it.

If these people truly cared about the welfare of homosexuals, they would attempt to reach them with kindness, acceptance, and reasoned thought, rather than with threats of violence and ostracisation. Ergo: If more Christians hated the sin, instead of the sinner, I might buy that they actually care about homosexuals, rather than simply ensuring that everyone conforms to their antiquated religious beliefs.

I don't. I don't see how allowing for homosexual marriage would have any effect on the population, nor the welfare of the species. Homosexuals are going to remain gay, whether they are allowed to marry or not.

Legal ramifications and benefits which should not exist. Added to which, marriage has historically been a religious institution. If you must give couples special rights and benefits, do it through secular civil unions, which are granted to all couples in a relationship, sexual or non-sexual.

 

Not really. Marriage has been around probably before recorded time. There are records of marriage in ancient Mesopotamia. One of the theories of why marriage was done at the time was for sexual exclusivity.

 

A lot of us do, but we rarely make the news

Again, a lot of us do, but we rarely make the news.

Marriage has been at least in part a religious matter for as long as we know. Of course, in the early days, government was a religious matter (or was religion governmental?), so things get a little sticky.

 

Sexual exclusivity? Thought too short imo. Only as a means to an end. It was about inheritance and the continuation of the bloodline.

If you look at very ... old fashioned ... communities today that can be very clearly seen: The very reason why the Pashuns in Afghanistan hide their women and treat them in our eyes like crap, is that they are paranoid about their bloodlines. That's why they have honour killings and that's why they will kill you for calling them a bastard.

You may well be reading that into it. In many societies marriage has distinct contractual characteristics. Never mind the spiritual component - since I am a catholic marriage is a sacrament - but beyond that marriage inevitably involves the worldly, thus worldly requirements permeate marriage. Marriage has always been a solution to real world problems.

The reason religion went into it was to give it greater legitimacy - it is no accident that in ye olde days, when reason didn't rule, Kings were King by the grace of God, not because they took power, conquered a land or were born into office. The divine was the cause of law. Only the Renaissance and the age of enlightenment changed that. To the better.

 

Do you believe in a right to privacy? Because that is exactly where the equal protection clause comes into play. Essentially, it boils down to there being an implied right to privacy. The argument is that marriage is a private matter - that any person can marry whomever they wish (provided that the two people are consenting adults) without government approval and/or interference. It was the equal protection clause, with the implied right of privacy that caused inter-racial marriages to be ruled unconstitutional. The same clause is what caused laws regarding contraceptive use to be ruled unconstitutional. It was also that clause that was the deciding factor in the (in)famous Roe v. Wade decision.

EDIT: The larger point - there is legal basis for considering marriage - and the use of the term - a right.

 

I am not keen on gay marriage, but I think that there are other world problems that take priority. That said, however, I want to pose a question:

Everyone is talking about the fact that the judge who struck the law down is gay. In the first place, the fact that there IS a gay judge undermines the contention that gays are horribly discriminated against in our society at the current time. But I digress. Some in favour of Prop 8 are saying that his gayness interfered with his judgement. Everyone opposed to Prop 8 is saying that his gayness had nothing to do with it, and that his decision was based on a rational and reasonable interpretation of the legal code. In other words, they are asking us to give the fellow the benefit of the doubt and trust that he wasn't letting his personal feelings cloud his judgement.

I actually have no problem doing that (which might surprise some on these boards!) But my question involves reversing the situation: What if the polarities on this were reversed? What if the judge were a Catholic or Mormon, and had ruled in favor of Prop 8? Would the opponents of Prop 8 be willing to give him the benefit of the doubt? Or would they immediately cry bias and claim that religious people are too stupid, selfish, venal, bigoted, and all around foolish to seperate their religious beliefs from their decision making?

Make no mistake, I despise the proponents of Prop 8 who are using the judge's homosexuality against him -- they are fools. I think his track record deserves the benefit of the doubt. But I also think that many of the people claiming that we should give a proven judge the benefit of the doubt would be singing an entirely different tune if the shoe were on the other foot. Such hypocritical bastards earn my eternal contempt.

 

And his conclusions aren't gay. It's normal legal reasoning; reasonable reasoning even.

 

That's not reversing the situation though. A more appropriate question would be: What if the judge was heterosexual, and had ruled in favour of Prop 8? Would everyone be up in arms, squealing 'Bias!'? I doubt it.

Um, what? A gay judge's ruling is being questioned because of his sexual orientation. As I observed earlier, had he been heterosexual and ruled in favour of Prop 8, I doubt his sexual orientation would have been a sticking issue.

Also note that the fact that we are even discussing this matter (ie. whether gays should be allowed to marry) pretty much conclusively proves that gays are horribly discriminated against. If your country passed a law tomorrow preventing blacks from marrying each other, I think we know how the general public would respond.

 

(a) Judge Walker's homosexuality is an allegation; not fact.
(b) He is a registered Republican ... ok, THEN he may well be gay (yes, a cheap shot )

as for the activist judge ... that's

(c) Walker was appointed by St. Reagan and then by Bush Sr.
(d) His Republican and conservative credentials are beyond dispute. From what I read, he is of the libertarian, law-and-economics branch of the G.O.P., not the socially conservative, religious-right branch.

Interestingly, the effort to overturn Proposition 8 was led by a bipartisan dream team consisting of George W. Bush’s and Al Gore’s attorneys from the 2000 election campaign, Ted Olson and David Boies. Add in some more decisions where Republican judges have decided against the Christian Right (in the general sense of the word). If it is a trend, that may be signal that Republican judges and lawyers are sending. I'd welcome that.

 

Ragusa, in many societies, especially early ones, religion has distinctly contractual characteristics. Seriously, study the 10 Commandments. They're a formal contract between God and His people, in the traditions of the time.

I think you may have made my point, but in doing so assumed I was wrong. We have no record of a government, or even a society, seperate from religion until Athens, and even that was iffy (I don't think any of the gods established their democracy). It then becomes a chicken-and-the-egg game. Did government and order come before religion, and religion get tacked on later, or did religion come first and establish the governmental system? No one knows.

While I agree with your reasoning on equal protection, I really can't see how privacy comes into play on any of these. Yes, there is an implied right to privacy in the Constitution, but that doesn't prevent the government from legislating against something. And it really goes to pot when you seek government sanctioning of your 'private' act. It's not really private at that point.

No, LKD had it right. A heterosexual doesn't necessarily have any bias for or against gay marriage, as this discussion has proven. A mormon or catholic, however, sees it as a violation of their religion (whether they care to defend their religion or not is another matter).

Yes, and I've read a few opinion pieces (on FOX if you'll believe it) arguing that conservatives need to divorce ourselves from the homosexuality issue, that it's in direct conflict with our belief in a strong constitution. I agree.

 

Homosexuals (who in light of catholic doctrine tend to not be catholic anyway) are nothing I have to defend my religion against, not any more than I have to defend my religion against, say, Hindu paganism.

And since I accept the separation of church and state, I accept as a reality other people's sexual orientation, or religion, as long as they conform with the constitutional order. Homosexuality isn't illegal; Hinduism isn't either. So I have a problem with neither.

And I believe that FOX is capable of critical reporting. There is just very little of that. As far as personalities go, Shepard Smith is very much, if quite welcome, an exception on FOX. And Judge Neapolitano, never mind the format of his show, which I think is terrible, is at times a very sharp and rational legal observer. For instance he also considers SB 1070 unconstitutional. I doubt he thinks about prop8 any different.

 

I don't think he was addressing the issue of which came first; I think by "Ye Old Days" he was addressing sepcifically the Divine Right of Kings in the MA.

The notion of complete sepration of chruch and state seems a modern one, as Ragusa points out (the Enlightenment). His larger point is that religion has been fairly useful for despots and tryannical states during most times, regardless of the structure of the institutions. This is almost certainly a Jeffersonian view of government and religion.

Here is the text of the letter. It is an interesting read.

http://www.positiveatheism.org/hist/jeffspaff.htm


http://en.wikipedia.org/wiki/Divine_Right_of_Kings

 

If you wiki Judge Walker, you'll see that his original appointment was by Reagan (as Ragusa points out). So Judge Walker is no spring chicken - the guy is in his 60s. While it is suspected he is gay, that is probably not something that was suspected when he was initially appointed 30 or so years ago.

Well, as you said, there are some people that are claiming bias because he is suspected of being gay. It defies beflief that had the situation been as you say, that no one would cry foul. I think that's just human nature.

There have been numerous SC cases over the course of the past 50 or so years that have interpreted the equal protection clause as an implied right of privacy - on contraception, abortion, inter-racial marriages and anti-sodomy laws just to name a few. That has been the interpretation by SC Justices appointed by both Democratic and Republican Presidents.

The first broad interpretation of a right to privacy in the due process clause came from SC Justice John Marshall Harlan II in 1961, who was a conservative, appointed by Eisenhower. For review the first article of the 14th Amedment states:

Harlan's opinion was that if all people have the same "liberty" that cannot be denied to them, then there is an implied right of privacy. The first case where we saw such an interpretation involved a challenge to a Connecticut law banning the use of contraceptives. He wrote in his opinion:

This is one of the most oft-cited opinions in the history of the SC, and certainly the most famous passage Harlan ever wrote. Harlan went on to conclude that that the due process clause therefore encompassed a right to privacy, and that a prohibition on contraception violated this right. In the years since, the SC would adopt Harlan's approach, relying on the due process clause in right to privacy cases such as the ones I listed earlier.

There are reams of paper filled with SC rulings that disagree with your assessment of this. I think those opinions stand on their own merits, and there is nothing I can possibly add that would strengthen or detract from them.

 

Exactly, but you could see how someone could look at a Catholic ruling on such issues and say they have a conflict of interests or a bias. It's not necessarily true, just like a gay judge (assuming this guy even is one) ruling on homosexual marriage isn't necessarily biassed, but the appearance is there.


Aldeth, while I know there have been numerous SC rulings on Right to Privacy, I confess I don't understand it. How can a necessarily public matter fall under Right to Privacy? Is the right just misnamed? This right has been used to undo laws against a variety of activities, but what are it's limits? Is drug use constitutionally protected because of privacy? That seems to make more sense to me than gay marriage (as that's actualy a private matter). What about consensual incest? Cannibalism? I can think of a dozen illegal things that someone could claim as a private matter, but are still illegal today.

And, just to clarify, I really am asking for enlightenment on this issue. It's never made sense to me.

 

And I was hoping that my previous post would have been more informative. The previous post was a brief history of how the right to privacy has been legally interpreted, to show by corrolary how marrying whomever you chose (provided you are both consenting adults of course) can also be seen as one "liberty" we have. I was hoping that part would be enlightening...

So I'm not sure I can help clarify any further. I could post some more SC cases where the right of privacy clause was invoked, but it sounds like that won't help either, as the entire concept of this appears to be foreign to you. I posted Harlan's reasoning for his decision, and if you do not understand the conclusion he drew, I'm not sure I can help futher. Who can better explain what Harlan meant than Harlan himself, who actually wrote his opinion on the matter? You may want to read more of the opinion in that or other right to privacy cases where the Justice will expand on his views, although the paragraph I posted from Harlan is the most famous part of that opinion.

Would it make more sense if I said the right to chose who you will marry is a private affair? Yes, marriages (the actual ceremony) are part of the public record, but your marriage is part of your personal life, and thus, private. The only public part is the actual ceremony, even though you may be married to that person for 50 or more years.

As to your larger question about what falls under the right to privacy, generally speaking, it's anything that doesn't have any ill-consequences on anyone, and doesn't infringe on anyone else's right of privacy. (I'm sure there is a much more specific legal definition, but I don't know it.) Drug use, whether the legal kind like tobacco and alcohol, or the illegal kind like marijuana or heroin, have always been a gray area for precisely that reason - all pose a potential harm (at least to the user), but their legal status varies.

Consensual incest could result in harm to any potential children you have, and there's a whole host of weird brain diseases you can get from eating other humans, and I imagine even once you are dead, there are some people who would not want to be eaten. I cannot imagine there's even such a thing as consensual cannibalism, and there are laws already on the books about desecrating a body.

Then again, the gay population is much larger than the population who wants legalized consensual incest and cannibalism. (Out of curiosity - where would one go to get the bodies? If you're killing people in order to eat them, that would obviously be harmful.) The point being that about 3% of people are gay, so there are millions of people living in the US in that group. Conversely, there's probably about 3 people living in the US who would like legalized consensual incest and cannibalism, so they are kind of silly examples to use. (Drug use is much better, but as we see, there is talk of at least a partial legalization of marijuana.)

EDIT: But this is all diversionary from the topic at hand. This has been the interpretation of right to privacy for about half a century at this point. Any way you want to look at it, right to privacy (taken as a whole - not as it specifically applies to gay marriage) is settled law. Even if you do not completely understand why this is so, you should accept it as so for the purposes of this discussion.

EDIT: Walker issued an order that gay marriages may resume on August 18th, unless the feredal Circuit Court of Appeals intercedes. Walker said taht would give the Circuit Court of Appeals time to decide whether or not Proposition 8 would continue to be enforced during the appeal process. If the Circuit Court does nothing, same sex marriage can resume as early as next week. Link