The Latest in the Prop 8 Fight

This past week, Judge Vaughn R. Walker in a U.S. District Court ruled California’s Proposition 8 was unconstitutional because it violated the Equal Protection Clause of the 14th amendment of the US Constitution in that “Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based on antiquated and discredited notions of gender and that fundamental rights may not be submitted to a vote.” (Excerpts from the federal court decision, from the Los Angeles Times Website)

The LDS Church issued the following statement:

“The Church of Jesus Christ of Latter-day Saints regrets today’s decision.  California voters have twice been given the opportunity to vote on the definition of marriage in their state and both times have determined that marriage should be recognized as only between a man and a woman. We agree.  Marriage between a man and a woman is the bedrock of society.

“We recognize that this decision represents only the opening of a vigorous debate in the courts over the rights of the people to define and protect this most fundamental institution—marriage.

“There is no doubt that today’s ruling will add to the marriage debate in this country, and we urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion.”  (LDS Church Website)

There are some interesting parts of the ruling which goes into the State’s interest in marriage as a societal institution and a portion that notes “Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” And, in a rather fascinating conclusion, the Judge writes, “Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

So there you have it.  While this is but a first step toward a ruling by the US Supreme Court, I wonder what will happen?  With the current make-up of the Court, there is no forgone conclusion that this ruling will be upheld on appeal.

Frankly, I thought the opponents of Proposition 8 made a much better case than the proponents. So, the Pro-8 people ought better get their act together, if they think they have a chance on appeal. If the defense in this case was the best they can do, they should just pack it in now. it was just terrible.

Whether California resumes the issuance of marriage licenses to gay couples is also still up in the air as they are proceeding with more caution this time than last.

I am beginning to think that SSM (same sex marriage) is going to happen whether the LDS Church, other Churches and opponents like it or not. It is already legal in a few states and, in my mind, it is only a matter of time.  Whether opposed or not, folks will just have to get used to it.

The question is; two-fold:

  1. What is, if any, the slippery slope this will lead to?  Polygamy and polyandry? Churches forced to recognize and perform same-sex marriages in their churches and temples? Other odd combinations of coupling?
  2. What will be the reaction of the LDS Church and other Churches to the ultimate end of marriage just between a man and a woman? Another revelation?

Comments

comments

151 comments for “The Latest in the Prop 8 Fight

  1. Dan
    August 6, 2010 at 7:16 am

    Jeff,

    If the defense in this case was the best they can do, they should just pack it in now. it was just terrible.

    I agree. I was highly disappointed that when provided quite the right venue to really make the argument, proponents of Prop 8 slipped away. I don’t know if they don’t realize this but by not showing up, they added fuel to the fire that Prop 8 was really based on fear and bigotry and not on factual concerns.

    I am beginning to think that SSM (same sex marriage) is going to happen whether the LDS Church, other Churches and opponents like it or not. It is already legal in a few states and, in my mind, it is only a matter of time. Whether opposed or not, folks will just have to get used to it.

    Indeed, and let’s not forget that it is already legal in numerous other countries.

    What is, if any, the slippery slope this will lead to? Polygamy and polyandry? Churches forced to recognize and perform same-sex marriages in their churches and temples? Other odd combinations of coupling?

    There is no slippery slope. Polygamy might make a comeback. Churches won’t be forced to recognize or perform same sex marriages in their churches or temples.

    What will be the reaction of the LDS Church and other Churches to the ultimate end of marriage just between a man and a woman? Another revelation?

    Is another revelation needed? I thought the last one was pretty clear.

  2. April
    August 6, 2010 at 7:24 am

    The church may have to redefine the law of chastity. If two men or two women can be “legally and lawfully wedded” then they can be chaste, no?

  3. August 6, 2010 at 7:39 am

    > What is, if any, the slippery slope this will lead to? Polygamy and polyandry?

    My sister was freaked out about same-sex marriage and said that it will inevitably lead to polygamy (both polygyny and polyandry). She said that same-sex marriage is some sort of tipping point for a whole slew of weird marriage laws. Somehow if same-sex marriage is legalized, there is no way to keep polygamy illegal. I never bought this. How does same-sex marriage lead to polygamy? And if it does, so what? It doesn’t mean that millions of people are suddenly going to start marrying multiple partners. Just because something is legal, it doesn’t make it popular.

    > Churches forced to recognize and perform same-sex marriages in their churches and temples?

    Doubtful. Separation of church and state pretty much prohibits the government from forcing any church from performing any rites it doesn’t want to. They also aren’t forced to recognize marriages that oppose their doctrine.

    > Other odd combinations of coupling?

    Yeah, no. I don’t see how same-sex marriage will lead to, say, human-animal marriages.

    > What will be the reaction of the LDS Church and other Churches to the ultimate end of marriage just between a man and a woman?

    Pretty much nothing, other than a collective “Darn.” The Church is still active in other states where gay marriage is legal.

    > Another revelation?

    I doubt it. I don’t think the LDS Church will ever recognize gay unions.

  4. This Guy
    August 6, 2010 at 7:48 am

    April, the law of chastity would have to be defined before it is redefined. I think this could lead to the Church nailing down an official statement of the law rather than relying on a nebulous network of concepts.

  5. carlos
    August 6, 2010 at 8:21 am

    “What is, if any, the slippery slope this will lead to? “

    Biggest is if churches are accused of and condemned as institutions of discimination for not accepting the now legal and lawful same-sex marriages. Could have implications for things like adoption services eg. churches can’t access government funding for adoption services because they wont adopt to same sex couples, as happens today in Massachusetts.

    Another revelation?

    Already happened with the proclamation on the family.

    If the defense in this case was the best they can do, they should just pack it in now. it was just terrible

    Well knowing that they were before a gay judge and that they were most likely going to loose anyway, they probably played the minimalist approach, thinking on the appeals.

  6. Henry
    August 6, 2010 at 8:24 am

    Marriage between a man and a woman is the bedrock of society.

    The homosexual life style is unhealthy spirtually and physically. Time and science has proved this over and over again.

    Society should not legitimize the deviancy of homosexuality.

  7. Henry
    August 6, 2010 at 8:26 am

    The consequences of gay marriage will have hard hitting ramifications for society.

  8. August 6, 2010 at 8:38 am

    Um . . . the law of chastity is pretty well defined. “The Lord’s law of personal purity, which is that there must be no sexual intimacy except between a man and a woman who are legally and lawfully married.”

    It doesn’t get much clearer than that, and no redefinitions necessary.

  9. Henry
    August 6, 2010 at 8:47 am

    Silver Rain:
    You are absolutely right. Humans have no power to change the concept of what is sin.

  10. August 6, 2010 at 8:52 am

    the slippery slope issues all stem from the Boy Scouts experience and other countries. In other countries people have been subjected to all the results that people fear here, the Boy Scouts have been subjected to a number of punitive losses and exclusions. The fears have a legitimate basis and there are groups planning to implement the same results in the United States.

    The question is two-fold. First how much pain can they cause by pushing for those results? Can Mormons be banned from the use of public parks for ward parties, how much will it cost them to interact against lawsuit seeking that sort of thing be imposed by injunctions, etc.? Second how much success will there be? Those are two different questions.

    Just remember that not that long ago, the U.S. Supreme Court dismissed claims that anything they had done would legalize sodomy. Obviously that has faded away and it is very possible (though by no means a sure thing, given the current court) that the next step will occur. As a side note, we seem to have the first Court without any protestants on it, which definitely is a marginalization of sorts for a group.

    f the defense in this case was the best they can do — there was a serious diversion when the Judge decided that the motivations of voters was a legitimate basis for not counting their votes. He backed off of that in the final opinion, but the heavy legal lifting (and all the scurrilous material in the case) centered around whether a moral decision, if it had any religious flavor, would invalidate an amendment. Of course that would have meant also invalidating the 13th, 14th and 15th amendments to the U. S. Constitution under the same logic …

    Anyway, given that the judge stayed his own opinion, to preserve the status quo while an appeal is taken, this seems more of an advocacy opinion than a decisional one.

  11. April
    August 6, 2010 at 9:02 am

    SilverRain: “The Lord’s law of personal purity, which is that there must be no sexual intimacy except between a man and a woman who are legally and lawfully married.”

    The temple covenant does not say anything about “man and a woman” it just says “no person”. Just sayin’ they may need to change some things. Changing the wording of temple ordinances is nothing new, I just thought it was interesting. The author of this post asked what some of the fallout would be. I think that the church is going to have to be more specific and change some wordings and have clearer definitions, that’s all. If I were a gay man who had honored my temple covenants and my country made it legal for me to wed another man and I do so without having premarital sex, then I technically haven’t broken my covenant. I am only having sexual relations to someone to whom I am legally and lawfully wedded. Does it follow the spirit of the law/covenant? No. Does it follow the exact wording of the temple covenant? Yes. Hence the need to rethink the wording.

  12. Jeff Spector
    August 6, 2010 at 9:05 am

    Stephen M,

    Thanks for the better legal analysis. this is as much a politic victory as anything at this point. Until the SC rules on this and the defense of marriage act, it will be up in the air. but I think the public opinion is changing.

  13. Henry
    August 6, 2010 at 9:10 am

    April:
    Humans don’t have the power the change the law of chastity. It means what it means. Same sex relations/copulation is forbidden fruit to all.

  14. Coffinberry
    August 6, 2010 at 9:56 am

    “There was a serious diversion when the Judge decided that the motivations of voters was a legitimate basis for not counting their votes…”

    Uh, that precedent is long long passed under the bridge, see Romer v. Evans. Which is why I don’t hold out much hope, on the long haul, of the Pro-Prop 8 side succeeding: it’s just too easy to characterize the reasons for voting for Prop 8 as containing some element of animus.

  15. Mark N.
    August 6, 2010 at 9:59 am

    “The homosexual life style is unhealthy spirtually and physically. Time and science has proved this over and over again.”

    For something that has supposedly been proven “over and over”, the proponents of Prop 8 were suddenly incapable of doing this at trial.

    Maybe it’s a gay conspiracy. The pro-8 lawyer team must have thrown the trial! Wonder how much they got paid to do so.

    (not.)

  16. Nick Literski
    August 6, 2010 at 10:10 am

    #10:
    In other countries people have been subjected to all the results that people fear here, the Boy Scouts have been subjected to a number of punitive losses and exclusions.

    First, the Boy Scouts have received significant protection in their exclusionary practices, from the SCOTUS itself. Second, you’re trying to extrapolate the handling of the Boy Scouts in other countries to churches in the USA. That’s a complete “apples and oranges” situation, Stephen.

    The fears have a legitimate basis and there are groups planning to implement the same results in the United States.

    Did you get this from Glenn Beck? To what groups do you refer, Stephen, or is this simply McCarthy-esque fearmongering (especially since your lead-up ignored the existence of the First Amendment)?

    Can Mormons be banned from the use of public parks for ward parties…?

    Just about a month ago, the organizers of a local gay pride celebration paid rent to their city in order to hold their celebration there. A religious group demanded the right to be present in the city park during that celebration, handing out literature which condemned homosexuality. The celebration organizers objected, particularly since they’d been required to pay rent for use of the park. They sought an injunction, and it was denied on the basis of the First Amendment. The religious group was given free reign to stomp their way through a gay pride celebration, shouting epithets and handing out anti-gay literature. Given incidents such as this, I highly doubt that persecuted Mormons will be banned from holding ward parties in city parks.

    …but the heavy legal lifting (and all the scurrilous material in the case) centered around whether a moral decision, if it had any religious flavor, would invalidate an amendment.

    Stephen, that’s not what the decision says, nor was such a theory advanced by Judge Walker. Rather, the judge cited established SCOTUS precedent that moral disapproval (in this case, the moral view that opposite-sex couples are better than same-sex couples) without any other legitimate state interest, cannot considered a rational basis for legislation. The other state interests suggested by the proponents of Prop 8 were unproven, and in some cases even contradicted by the effects of Prop 8.

    Anyway, given that the judge stayed his own opinion, to preserve the status quo while an appeal is taken, this seems more of an advocacy opinion than a decisional one.

    Stephen, this statement is an extraordinary misunderstanding, built upon a selection of inaccurate facts. Judge Walker issued a temporary stay, because the proponents filed a motion to stay the judgment. This temporary stay is only long enough to let both sides file their briefs regarding the motion. He will then decide whether or not to actually enter a stay. In all likelihood, however, he will enter a stay—not because this is “more of an advocacy opinion than a decisional one,” as if that makes any sense, but rather because such a stay is extremely common where the filing of an appeal is assured. Your suggestion that the judge was merely mounting a soapbox, rather than issuing a reasoned legal decision, is wishful thinking at best.

    Seriously, Stephen, go read the actual opinion issued by Judge Walker. Actually reading the decision, rather than relying on a few excerpts from the newspaper, will go far in helping clear up your confusion.

  17. Nick Literski
    August 6, 2010 at 10:15 am

    #5
    Well knowing that they were before a gay judge and that they were most likely going to loose anyway, they probably played the minimalist approach, thinking on the appeals.

    So, carlos, if the judge had been heterosexual, do you think the opponents of Prop 8 would have “played the minimalist approach,” based on what you clearly imply to be judicial bias? Why would a heterosexual judge be any more objective than a gay judge? In any event, “playing the minimalist approach” as you suggest would have been an act of malpractice, since you can’t throw in new evidence or arguments at the appeals stage. The proponents of Prop 8 are stuck now with the evidence they presented at trial.

  18. SteveS
    August 6, 2010 at 10:41 am

    Thanks, Nick, for your views regarding Judge Walker’s decision. Like many of the readers here at Mormon Matters, I’m not trained in understanding the ins and outs of legal procedure or its terminology, and I suspect that’s why Carlos and others might make incorrect assumptions about what this decision means and how the legal proceedings will continue in the next court of appeal. I didn’t know, for example, that the proponents of Prop 8 are now stuck with only being able to present the evidence they presented at trial, and cannot enter new evidence at the appeals stage. Anyway, thanks again for your insightful comments.

  19. August 6, 2010 at 11:13 am

    Nick, first, the sexual orientation, if any, of the judge is probably completely irrelevant.

    Second that’s not what the decision says, nor was such a theory advanced by Judge Walker. — the judge decided to open the case up, allow evidence in on that point and require briefing on it. He did not rely on that in the decision or address it in the end, but that isn’t what I said.

    When he opened the door on that topic, he really created a great deal of focus on it. I can tell you from talking to a lawyer involved in the case, on the one side it was a significant issue for them, and one that caused a great deal of concern, consumed a lot of resources.

    such a stay is extremely common where the filing of an appeal is assured That’s true.

    There are two kinds of decisions. Those everyone accepts. The other lays the ground work for the appeals. I would suggest that this is not a “final” or decisional ruling, one that everyone accepts. Instead it is one that once side will advocate and the other will fight.

    Did you get this from Glenn Beck — I don’t listen to Glenn Beck, has he been saying things like that?

    I have extrapolated from what has happened to other Churches in other Countries to what people are afraid may happen here. Do I think it will? My track record outside of my own legal specialty is very poor. I’d have invested in Kaypro instead of Apple, for that matter. Do I think it concerns people, yes I do.

    As for the Boy Scouts, they have had freedom of assembly/freedom of association protection given them by the Supreme Court of the United States (SCOTUS) but they have also lost the use of public facilities in a number of venues.

    the organizers of a local gay pride celebration paid rent to their city – I’m familiar with the case and I think the judge got it wrong. If a group rents a location, they should be able to exclude others from the area they are in. You want to protest them, go over to the steps of your local courthouse and hold a protest there, don’t disrupt a private assembly. I really think the proper application of the freedom of association cases calls for that outcome, as does common decency.

    Actually reading what I am saying, rather than reading into it will will go far in helping clear up your confusion

    😉

    But seriously, there are two different things going on.

    First, what may happen, including the expense and trouble of it.

    Second, what will probably happen, which is not certain.

    Much of your approach, like many other posters on the topic on both sides is to presuppose a correct outcome, dismiss any fears or concerns the people on the other side have, and then read into comments and go on from there.

    I must admit that for both sides there are legitimate fears. There is no inevitable historical march. It is more than possible that if Prop 8 is upheld there could be other amendments. There is a ground swell of blue collar voters in the United States. Sarah Palin and others resonate with them. I’ve a friend who is an older feminist (she wrote books such as The Judas Rose) who really fears a loss of womens’ rights. It has happened in Iran. It may yet happen in Europe as the culture base changes.

    Could it happen in the United States? It definitely has happened in may places in the last two thousand years.

    Both religious and sexual freedom have also gone through cycles. I do not dismiss the concerns anyone has on any side of the discussion.

  20. August 6, 2010 at 11:15 am

    Jeff, in answer to your two questions in the post:
    1 – I don’t think polygamy will be legalized in this country. It is generally viewed as misogynistic and therefore not very politically correct, but more than that, I think it’s a question of partner benefits and stresses on the health care and social security and welfare systems. Polygamy and other forms of plural marriage make families much larger and reduce incentives for divorce (divorce keeps legally-defined family sizes smaller); I would think legislators might shy away from making those unions legal due to economic fears. And of course, many laws are based on fear of the unknown.
    2 – I agree with April that a re-word will be necessary to define chastity in a more exclusionary way. But secretly I hope there won’t be a reword of that, which would be a very quiet, slippered step in a progressive direction toward live and let live. But yeah, it does raise the question – does that mean a practicing married homosexual who had no premarital sex can participate fully in the church and temple? I won’t hold my breath on that, but the way things are currently stated, I don’t see why not.

  21. August 6, 2010 at 11:16 am

    “n may places” should read “in many places”

  22. Nick Literski
    August 6, 2010 at 11:44 am

    Stephen, I don’t believe the judge could have legitimately evaded the religious aspects of this case. The proponents of Prop 8 urged upon voters the fear that allowing same-sex couples to marry would inevitably destroy religious freedom in the United States. Further, the proponents of Prop 8 frankly opened the door to this inquiry by putting forth tradition and religious freedom as state intrests allegedly promoted by the resulting amendment.

    I can tell you from talking to a lawyer involved in the case, on the one side it was a significant issue for them, and one that caused a great deal of concern, consumed a lot of resources.

    I’d certainly love to know more about that conversation (grin)! I’m sure you realize, of course, that the extensive discovery involved wasn’t the result of Judge Walker’s judicial “iron fist.” Discovery disputes were handled by a separate magistrate judge on this case. When you say it “caused a great deal of concern,” I wonder whether that was purely from a legal strategy view, or whether there were also significant public relations worries?

    There are two kinds of decisions. Those everyone accepts. The other lays the ground work for the appeals. I would suggest that this is not a “final” or decisional ruling, one that everyone accepts. Instead it is one that once side will advocate and the other will fight.

    I’m with you there, Stephen. There has never been any question that the losing side would appeal Judge Walker’s decision; that much was understood before the trial ever began. Since it was obvious that the decision would be appealed, I’m sure Judge Walker was especially careful to lay out the law, facts, and reasoning which went into his opinion. In addition, he was surely aware that some critics of his decision would screech loudly about how a gay judge couldn’t possibly give a fair, unbiased opinion on this case (as if heterosexual judges are somehow immune to bias). If I were in that situation, I would certainly have been extra-careful to lay out an extensive support for the opinion.

    As for the Boy Scouts, they have had freedom of assembly/freedom of association protection given them by the Supreme Court of the United States (SCOTUS) but they have also lost the use of public facilities in a number of venues.

    Are you aware that the BSA just won their case against the city of Philadelphia, wherein the city tried to follow their own anti-discrimination ordinance by ending the long-term “$1 per year” lease which the BSA had enjoyed on a city building?

    If a group rents a location, they should be able to exclude others from the area they are in. You want to protest them, go over to the steps of your local courthouse and hold a protest there, don’t disrupt a private assembly.

    I agree that the celebration organizers should have been able to limit attendance, when they actually paid rent for use of the space (assuming, at least, that they paid fair market value, rather than a token $1 sum).

  23. Tim Rollins
    August 6, 2010 at 11:47 am

    Nick, it is so good to see you back on the board and to hear you contributing. It has been TOO LONG since reading your thoughts on these matters. I hope you are well and happy and my lovely wife sends her best.

    Right now, what we have is a shock wave going through the country – both in and out of the LDS community at large – because of a court ruling that was designed to intentionally elicit an appeal, which was set in place by the judge who heard the case. The fact that the judge bats for the other team as some have reported, is to me, irrelevant, pure and simple.

    Had the judge involved been a 42-year-old with a wife and three children under 10 living in the suburbs, the hue and cry would not be obsessing on his orientation. What everyone needs to FOCUS on is that Prop 8 is not the first time that a ballot proposition has gone before California voters, it was the SECOND time it had done so, and BOTH times, California voters defined marriage as between one man and one woman. While I have great compassion for those of my friends who describe themselves as either gay or lesbian, I do not believe they are deserving of special societal protections, either.

    While I have historically been opposed to hate crimes legislation on 4th, 5th, 6th and 14th amendment grounds, I can support the notion that hate crimes go direct to motive, and would and thus SHOULD qualify as a sentencing enhancer at trial. If you beat somebody to a pulp because he made a pass at you, that’s one thing: if you beat someone to within an inch of their lives because of their sexual orientation, then you have a hate crime that qualifies for a sentencing enhancer, and I say, throw the book at them. There is a world of difference between the two and any good student of the law would know it.

    This matter will continue by way of one sort of appeal after another for years, and can in some cases, fuel the debate being carried on in some states – especially with Washington dictating to them in increasingly hostile manner – and also makes an increasingly powerful case for peaceful secession through legal means. After all, when Texas became a state in 1845, they had an ‘out’ clause negotiated in as part of their deal. If relations between Washington and the states get much worse, especially with the Tenth Amendment movement having caught on as it has, other states will be looking at the option more closely as well.

    Just my two cents,

  24. species373
    August 6, 2010 at 11:50 am

    Hey Peoples!

    How about God’s sense of humor! I thought it was incredibly hilarious that a big bold RAINBOW popped into the sky over the Gay Pride rally in downtown Salt Lake City. True story- it really happened.

    You just can’t fake that timing.

  25. Thomas
    August 6, 2010 at 11:54 am

    I was interested to see the judge’s holding that morality is not a legitimate basis for a law.

    To back up a bit, the judge’s analysis goes back to the doctrine of “substantive due process” under the Fourteenth Amendment, which provides, in relevant part, that a person may not be deprived of life, liberty, and property without due process of law. Originally, this was understood as simply guaranteeing procedural rights — that is, before the state can deprive you of life, liberty, or property, there must be a law authorizing it to do so, and you have a right to a sufficient legal process to allow you to make your defense and require the government to show that its impositions on you are supported by the law.

    Starting in the sixties, and in a monumental stretch, the federal courts invented the doctrine of “substantive due process,” which says, in effect, that some impositions on liberty are so substantial that no amount of process is sufficient to justify them. This doctrine has been seriously criticized as not rooted in any reasonable interpretation of the Fourteenth Amendment’s text, and I tend to agree. Interestingly, Clarence Thomas, in the recent McDonald v. Chicago decision (which overturned a Chicago gun control regime), took the position (consistent with some of his earlier decisions) that the “substantive due process” doctrine is unsupportable, and used the Privileges or Immunities Clause of the Fourteenth Amendment (dormant since a bad, racist-tinged 1873 decision) should be the basis for protecting substantive liberties.

    Anyway, the doctrine of substantive due process has two different “tests.” The first one is used for laws of general application, that don’t infringe on what courts have identified as fundamental liberty interests, like the right to abort a baby, or target protected classes (race, religion, and to a lesser extent gender). These laws are subject to what’s called “rational basis” analysis: The challenged law must have a reasonable relationship to a legitimate government interest. Critically, it’s not supposed to be the government’s burden to demonstrate the connection of the law to a legitimate interest; if the court can even hypothesize any such connection, the law should be upheld. (Tuan Anh Nguyen v. INS, 533 U.S. 53, 77.) It is traditionally very hard indeed to have a law struck down on rational-basis grounds; courts are traditionally very deferential to legislatures under this standard. Critically, the law’s backers (the government, or — in this case, where the California attorney general, Jerry Brown, wanted very much to take a dive on his duty to defend a law he personally disagreed with — the amici curiae — don’t have the burden of proving that the legitimate interest was actually their motivation; all that matters is that some reasonable relationship to a legitimate governmental interest be imaginable.

    Legitimate government interersts are traditionaly defined as encompassing laws designed to provide for the public “health, safety, and morals.” (Barnes v. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 560-561 (1991).)

    Judge Walker purported to apply a rational basis test, but, in my judgment, seriously misapplied it. The first error was the evidentiary circus the judge ordered. As noted above, there is no requirement that the law’s proponents prove what their actual basis for passing the law was; the court is supposed to see if he can honestly imagine any such basis. That’s not what he did. He clearly had an agenda of making the trial a political spectacle, and “exposing” defenders of traditional marriage as nothing more than bigots. That was the reasoning behind his illegal decision (slapped back down by the Supreme Court) to open the trial to live television.

    The second error was the judge’s statement that “morality” is not a sufficient rational basis for law. As indicated above, protecting public morals is part of the traditional catalog of government interests to be considered under rational basis review. The judge cited to language in Texas v. Johnson (the case which struck down a state’s antiquated anti-sodomy law) as well as another case, for the proposition that morality is no longer a legitimate governmental interest, but those cases (and the cases which those cases were quoting) didn’t say that. Rather, they discussed the tension between liberty in cases involving the heightened “strict scrutiny” standard that’s applied to fundamental rights. Judge Walker either cheated or choked. I vote for “cheated.” He — like most left-wing judges — knows exactly what he was doing. They are antinomians; the law only exists for them to warp; it has no objective meaning. This isn’t just me speaking –they say this themselves, criticizing those of us who think the law does and should have an objective meaning as naive and old fashioned.

    In the best of all worlds, it shouldn’t have mattered that the judge was gay. In this case, it did. He is a disgrace to his office.

  26. August 6, 2010 at 11:57 am

    Just a note on arguments in this area.

    First, just because some people who favor something want a conclusion does not mean everyone who favors it wants that conclusion. For example, there is a historic group that has favored gay marriage because they oppose marriage. You would be wrong to conclude from that fact that when my gay office manager at my old firm announced his new permanent relationship and I suggested they should have a wedding and we should throw them a shower that I want to destroy marriage.

    Second, just because someone talks about a possibility means that they think it is a probability or they want the outcome. E.g. in a discussion of what were the possible reasons we are so silent on a Heavenly Mother, one person suggested that it might be because the heavenly couple was a gay couple and we had two Heavenly Fathers. That I repeat that (for an example) does not mean I endorse or desire it.

    Third, that the existence of counter-examples means that a general trend does not exist. For example, just because I buried three children does not mean that childhood deaths have dropped dramatically from the 1700s.

    Too often all three of these flaws in argument come up in the SSM discussions I run into.

  27. August 6, 2010 at 12:03 pm

    “caused a great deal of concern,” I wonder whether that was purely from a legal strategy view — I’m afraid I was only talking law. My knowledge of public relations is rather limited.

    “iron fist.” — I litigate in federal courts. No particular judge has a monopoly on that 😉

    Nick, the Philadelphia case is one I’d love to see a link to. I had not gotten an update on it.

    assuming, at least, that they paid fair market value, rather than a token $1 sum — I don’t really care if they paid a cent, as long as they scheduled it, they should not have to put up with competing use in the same space. Imagine if the other people had just decided to peacefully fry burgers, but took up their space. Being disruptive doesn’t make it less wrong to intrude, does not make it less a violation of their freedom of association rights.

    I’ve a plane to catch. I’ll try to check back in tonight after I get home and have checked on the chickens.

  28. Thomas
    August 6, 2010 at 12:04 pm

    “Had the judge involved been a 42-year-old with a wife and three children under 10 living in the suburbs, the hue and cry would not be obsessing on his orientation.”

    “Straight America” is surely more divided on the question of gay marriage than the gay community, and in my experience — with the possible exception of Mormons — less invested in the question. My experience is that gay Americans tend overwhelmingly to support gay marriage, and feel very strongly on the issue. With that level of group near-unanimity and strong feelings — yes, I do believe it’s reasonable to question the judge’s partiality. I would have wanted a Mormon judge to recuse himself for the same reason. Even if the judge were one of the 10% of gay men (pulling a totally unscientific number out of my hat here; open to correction by anyone with actual numbers) who opposes gay marriage or doesn’t really care one way or the other (let’s see, that would be Elton John, and maybe a couple others), the appearance of partiality is substantial.

  29. DrPepper
    August 6, 2010 at 12:45 pm

    #13 Henry “Humans don’t have the power the change the law of chastity. It means what it means.”

    –Except it used to mean that I could have sex with any women I was married to. Now it means that I can have sex with just the one woman I’m married to. And in the early ’80s it meant no oral sex, even within marriage. Now apparently it doesn’t.

    –Every change to doctrine comes from humans. It’s just a matter of whether you think those humans are channelling God.

  30. Jared L.
    August 6, 2010 at 1:34 pm

    #24 That’s just to remind us He will not destroy the earth by flood again… as much as He might want to.

  31. August 6, 2010 at 1:43 pm

    “1.What is, if any, the slippery slope this will lead to? Polygamy and polyandry? Churches forced to recognize and perform same-sex marriages in their churches and temples? Other odd combinations of coupling?”

    I believe this will lead to polygamy, polyandry, group weddings, etc.

    I believe the other churches WILL NOT BE FORCED to recognize and perform same-sex marriages in their churches and temples, though I’m sure many will do so anyway of their own free will.

    However, as concerns the Mormon church, I can see how this particular church WILL BE FORCED to perform sealings in our temples to homosexual couples. In fact, it now clearly appears to me that this whole legalization of gay marriage thing is a set-up of the Mormon church for what is on the planned horizon. I had this impression prior to the Prop 8 vote in 2008, but couldn’t see how it would happen. Thank you, Dan (#1) for what you wrote, which gave me the aha! moment. I now can finally connect the dots.

    “2.What will be the reaction of the LDS Church and other Churches to the ultimate end of marriage just between a man and a woman? Another revelation?”

    I haven’t a clue, but I’m pretty sure another revelation is not forthcoming from the leading brethren.

  32. Peter
    August 6, 2010 at 1:44 pm

    Jeff, my reading of what happened in the discovery process was that the proponents of prop 8 felt bullied by an unsympathetic judge. Not sure we can judge how weak the true case is when the case wan’t presented or allowed to be presented fairly.

  33. Peter
    August 6, 2010 at 1:50 pm

    Yes, just another series in Federal overreach. Not that DOMA was any better from the conservative side, in all fairness. Our country is on the tipping point of fighting some serious 10th amendment battles on health care and other mandates from Washington. This just adds fuel to the fire. I think threats of secession are not unwarranted if things continue as they are going.

  34. djinn
    August 6, 2010 at 2:05 pm

    Peter, most of the “bullying” by the magistrate judge for the proponents of prop. 8 consisted of the proponents attempting to keep evidence out, and the judge ruling. I don’t see how the pro prop 8 case keeping evidence out helped the pro prop 8 side to from being presented fsirly.

  35. Rigel Hawthorne
    August 6, 2010 at 2:13 pm

    “What is, if any, the slippery slope this will lead to?”

    One study reported that daughters raised by Lesbian mothers tended to experiment more in their sexuality. I believe that the slippery slope may follow this trend in that more people follow Anna Paquin’s footsteps and more outspokenly announce their bisexuality. The judge said what will become the prevailing attitude in that you don’t choose your sexual orientation and it can’t be changed. With earlier awareness of alternate lifestyles reaching children through media embracing diversity, young adults will find bisexuality a more acceptable notion. The idea of keeping a bisexual aspect of ones sexuality repressed for the sake of a monogamous marriage will be deemed confining and the trend of children being raised by a mixture of parents and step parents will expand.

    I would not be surprised with developments in the field of medicine if one day medication could be marketed which diminishes attraction of one type or another. We have medications that raise seratonin levels, raise norepinephrine levels, or block nicotine receptors. Medicines that modify the neurochemical pathway of attraction, though not on the horizon, are not unthinkable. Then the situation will be not unlike the Star Trek plot of whether or not it is ethical to block an attraction that one group my find less than optimal and another finds to be perfectly acceptable.

  36. Thomas
    August 6, 2010 at 2:15 pm

    Djinn: The answer is “because this isn’t supposed to an evidentiary issue in the first place.” The test in rational basis review is not the subjective actual motivations of a bill’s proponents, but simply whether any rational relationship between the text of the law and a legitimate governmental interest can be hypothesized.

  37. Jeff Spector
    August 6, 2010 at 2:27 pm

    If the ultimate outcome is that the State has no interest in marriage as an institution, then what stops the FLDS from a lawsuit on that very topic and polygamy?

  38. Mike S
    August 6, 2010 at 2:56 pm

    If any church should “accept” gay marriage, it should be ours:

    1) Unlike the majority of other churches, we already make a distinction between a civil marriage and a religious marriage, even though we use the word “marriage” for both types. A civil marriage (such as might be performed in a chapel) has certain legal and civil ramifications, yet we are taught that it has no weight in the eternities. A religious marriage (ie. sealing) is primarily done for the eternities and the civil ramifications are, in essence, an after thought in the US. In other countries, this is more delineated where a couple has an official civil marriage performed that is recognized by the government for civil benefits. The same couple can then go to the temple for the religious marriage/sealing. It seems to be only in the US where the Church refuses to let this happen. If gay marriage ultimately becomes the law of the land (as it appears eventually likely) the Church can do as it does in other countries. Let a couple follow the law of the land for civil benefits. For sealings, as a religious institution, it can make whatever requirements it wants.

    At the end of the day, this may actually get rid of a HUGE problem for mixed member families and marriages in the US. A couple can get married civilly and enjoy the moments with ALL of the their family and friends. They can then go get sealed in a more private and meaningful ceremony with people who might join them in the temple. Wouldn’t it be ironic if Prop 8 is what ultimately gets the Church to “fix” the problem of their US-only marriage policy?

    2) Our history is replete with non-traditional marriage. We argued for decades that we should be able to practice marriage as we felt, despite the vast majority of the country’s population being extremely opposed to polygamy. The rest of the country could argue that polygamy was a mockery to “traditional” marriage, or would be “bad for the children”, etc. The LDS Church argued that us practicing polygamy wouldn’t affect the rest of the country. We now use the same arguments on the other side. But our history suggests that we should support the minority.

  39. Nick Literski
    August 6, 2010 at 3:13 pm

    Thomas, your comment #25 is so filled with factual and legal errors, that one can hardly know where to start, but I’ll take a few stabs.

    (1) Kindly cite the language used by Judge Walker, where he (as you claim) said that “morality is not a legitimate basis for a law.” That’s quite a distortion from what the decision actually states. My only question is whether you’re knowningly distorting his words, or whether you’re truly that confused.

    (2) Judge Walker’s ruling is based on both the due process and the equal protection clauses. Interesting that you would pretend one of those bases, arguably the stronger one, did not exist.

    (3) Your claims regarding the requirements of rational basis scrutiny are not entirely erroneous, but they are greatly oversimplified. If your description was accurate, then no law would ever be overturned upon that level of scrutiny. Even a casual reading of Romer v. Evans demonstrates otherwise.

    (4) While Judge Walker did find that Prop 8 failed even a rational basis level of scrutiny, he also noted that gays and lesbians, as a class, fit the requirements for strict scrutiny.

    (5) Your wild accusations of intentional judicial malfeasance provide no basis whatsoever upon which to conclude that the judge’s sexual orientation influenced his ruling. You claim that he purposely erred. You claim (correctly, it seems) that the judge is gay. You do not, however, provide us with any evidence to establish your contention that the judge purposely erred because he is gay.

  40. Nick Literski
    August 6, 2010 at 3:17 pm

    #23:
    While I have great compassion for those of my friends who describe themselves as either gay or lesbian, I do not believe they are deserving of special societal protections, either.

    Tim, you’re smarter than that. Please identify what “special” (i.e. unique to them, not provided to others) protections are sought by gays and lesbians in regard to marriage equality.

  41. Nick Literski
    August 6, 2010 at 3:23 pm

    #31:
    However, as concerns the Mormon church, I can see how this particular church WILL BE FORCED to perform sealings in our temples to homosexual couples. In fact, it now clearly appears to me that this whole legalization of gay marriage thing is a set-up of the Mormon church for what is on the planned horizon.

    Please tell me that I’m misunderstanding you, and that you are not claiming that supporters of marriage equality are all part of a grand cabal, whose sole purpose is to persecute the LDS church. The paranoia inherent in such a statement would be simply beyond belief.

    Contrary to your freakish speculation, I don’t know any gay or lesbian couples who wish to be married in an LDS temple, or by any LDS authority. To the contrary, I am one of many gay men who would gladly defend the LDS church against any such attempt to violate their constitutionally-protected free exercise of religion.

  42. MoHoHawaii
    August 6, 2010 at 3:30 pm

    Frankly, I thought the opponents of Proposition 8 made a much better case than the proponents. So, the Pro-8 people ought better get their act together, if they think they have a chance on appeal.

    As has been mentioned above, no new evidence can be brought in on appeal. Any higher court, including the Supreme Court, must limit itself to the facts presented in the record of the original trial. This is fair because the original trial allowed both sides to present whatever evidence they wanted.

    The value of the ruling in this particular case (which can be found here) is that it takes the facts of this emotionally divisive matter and lays them out with impressive clarity. I highly recommend reading the ruling itself, especially the section that presents the findings of fact.

    If the defense in this case was the best they can do, they should just pack it in now. it was just terrible.

    Indeed. The defense of Prop 8 didn’t fail for lack of funding. It very well funded. I think the problem was the inability to find qualified secular witnesses who could testify in a way that supported the religious arguments that the rules of evidence rightly disallowed. Religious disapprobation (“sin”) is not a legitimate interest of government; the concept of sin is religious belief that you are fully free to apply to yourself but not enforce on others. This makes perfect sense for a country founded on religious freedom. The defense was given an opportunity to make a secular case against gay marriage, and it simply chose not to. The weakness of the defense, whatever its cause, is the single most remarkable aspect of this trial.

    #8, SilverRain: “The Lord’s law of personal purity, which is that there must be no sexual intimacy except between a man and a woman who are legally and lawfully married.”

    The “legal and lawful” part of this is is a huge rewriting of history. My grandparents, on both sides of my pioneer Mormon family, were children of polygamous marriages. These marriages were solemnized in the temple, but nobody was “legally and lawfullly” wed in any sense of civil law. Were my temple-going polygamous great-grandparents therefore violating the law of chastity? Of course not. Basically, I agree with MikeS’s point in #38. Civil marriage isn’t relevant from the LDS viewpoint. Interracial marriage used to be an excommunicable offense even in cases where it was permitted by civil law of the era. Legally married gay couples will be within the Law of Chastity when and if the LDS leadership says so.

    I think gay marriage is a case of rendering unto Caesar the things that are Caesar’s (and Jason’s). It’s not a religious issue, but it is an important matter of civil fairness (“equal protection”). If you don’t believe me, read the findings of fact in the Walker ruling itself.

  43. Tim Rollins
    August 6, 2010 at 3:53 pm

    #31 – LDS Anarchist apparently has his head elsewhere; clearly, it is not in this discussion. The issue of gay marriage is not the point Anarchist seeks to force down the collective throats, either of society at large, or of the LDS Church.

    I’ve known Nick for a lot of years and have known his opinions to be well thought out and far more informative than not. While Nick and I have seen some things differently on occasion, he is a man whose opinion I trust and respect, and while we see some issues from different perspectives, I see him as a man of integrity who – like I – will defend the right of the LDS Church or any other church to perform marriages according to LDS rites and within the framework of their doctrines. After all, it is the LDS Church exercising the free practice of their religious doctrines and rites; to afford otherwise is only a violation of their constitutional right to the free exercise of their religion, it is an affront to all religions, as well as an affront to those who choose not to have religion in their lives.

    The Church of Jesus Christ of Latter-day Saints (LDS) will NEVER sanction nor will they EVER perform any gay or homosexual marriage within any of its temples, anywhere within the world. Truth be told, in many countries of the world – especially in Europe and South America – LDS temple weddings are NOT performed. Under civil law, weddings must be performed in a public venue; couples who are so married are then free to step into a nearby LDS temple where they can then be sealed in a private ceremony which is NOT open to public view. Inasmuch as the Church of Jesus Christ of Latter-day Saints (LDS) does not advocate homosexual or lesbian relationships, to advocate marriage along these lines is beyond patently absurd, and would not stand up to any court challenge. Anarchist simply acts like a spoiled child – if he can’t have what he wants, he seeks to employ a ‘scorched earth’ policy so as to ensure that nobody gets anything at all.

  44. August 6, 2010 at 3:58 pm

    While I am SO happy that things seem to be turning in favor of gay marriage, I’m so sick of all of this. The church won’t have to seal anybody in the temple. It’s a religious ordinance. No law will make any church perform a religious rite on someone. The church should get leave the legal “marriage” stuff to the state and keep the temple sealing exactly what it should be – a religious ordinance, not a legal matter. Frankly, I was a little put off having to sign some legal stuff in the morning at the temple. What does Caeser have to do with my sealing?

  45. Thomas
    August 6, 2010 at 3:59 pm

    Nick, read the decision before getting your knickers twisted. From the top of page 8 of the Order:

    A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in
    enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947).

    I invite you to check the cases cited, and see if the referenced language comes remotely close to Judge Walker’s novel holding that “health, safety or morals” now means “health, safety, or morals accompanied by a secular purpose.” Neither case says that. (I would add that Lawrence itself is an intellectual-honesty trainwreck.)

    “(2) Judge Walker’s ruling is based on both the due process and the equal protection clauses. Interesting that you would pretend one of those bases, arguably the stronger one, did not exist.”

    I like to lead with the stronger of my arguments. There’s a reason Judge Walker put the equal-protection argument second.

    “While Judge Walker did find that Prop 8 failed even a rational basis level of scrutiny, he also noted that gays and lesbians, as a class, fit the requirements for strict scrutiny.”

    First time someone’s done that, as far as I’m aware.

    “(3) Your claims regarding the requirements of rational basis scrutiny are not entirely erroneous, but they are greatly oversimplified. If your description was accurate, then no law would ever be overturned upon that level of scrutiny. Even a casual reading of Romer v. Evans demonstrates otherwise.”

    Yes. Odd how the only things that ever get overturned based under a rational basis test, are those cases where the justices would have a hard time explaining to their friends at dinner parties why they ruled on the side of the rednecks. That “animus” argument in Romer was certainly novel.

    “You claim that he purposely erred. You claim (correctly, it seems) that the judge is gay. You do not, however, provide us with any evidence to establish your contention that the judge purposely erred because he is gay.”

    Inference.

    From the decision:

    Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.

    How on earth does a judge expect to be taken seriously with an argument that the character of marriage as involving males and females was “never part of the historical core of the institution of marriage?” As hard as poor Michael Quinn has dug and spun, nobody’s ever been able to come up with any significant evidence of same-sex unions ever being part of the “historical core” of marriage.

    <blockquoteInstead, the evidence shows beyond debate that allowing same-sex couples to marry has at least
    a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state.

    “Beyond debate,” huh? Where have we heard that before? “The science is settled! You have to be the equivalent of a flat-earther to disagree with me!”

    The arrogance of these people is astounding, and it will bite them.

  46. Henry
    August 6, 2010 at 4:01 pm

    ADAMF:

    While I am SO happy that things seem to be turning in favor of gay marriage,

    Why are you in favor of something that is in such stark contrast to church teachings?

  47. Tim Rollins
    August 6, 2010 at 4:03 pm

    #23; What I seek to point out is that the issue of special protections is moot from the equal housing standpoints and end-of-life issues. if you have two people in a committed relationship who have executed advance directives, and appointed one another executors over their final affairs, then ‘family members’ in my view, should have no legal right to challenge the validity of the agreement. As I see it, they have no standing on which to base a challenge. In that regard, these two partners are consenting adults, and as such, their rights should and must be respected on matters of this level of importance.

    By special protections, I hold to my original position when it comes to hate crimes legislation. While I have historically been opposed to such legislation, I also believe they are DIRECTLY tied to motive, and MOTIVE qualifies for enhancement penalties at sentencing. What you and I are seeking to do here is to strike a balance between the two ends of the spectrum, and I cannot help but respect the mutual efforts both of us are striving towards. I wish you well in your continued journey and am delighted to have you back on board!

  48. Henry
    August 6, 2010 at 4:05 pm

    AdamF:
    If a member of the church supports someone in gay relationships/marriage/copulation and that person never repents, how can a church member not be complicit when that person is denied their exaltation?

    For example, if someone came to me and confided that they wanted to kill someone and I supported and encouraged them, how am I not complicit?

  49. August 6, 2010 at 4:06 pm

    Keep it up Henry. I respect you as a human being who lives and breathes and suffers just like the rest of us.

  50. Henry
    August 6, 2010 at 4:22 pm

    AdamF
    Are you unwilling to answer the questions?

    I really don’t want to offend. I realize that people have different opinions and this is a lively debate. That’s all.

  51. Thomas
    August 6, 2010 at 4:33 pm

    Another thought:

    Judge Walker based his leading argument on the “right to marry” based on the 1968 Loving v. Virginia case, which struck down restrictions on interracial marriages.

    What right did Loving recognize? It recognized the right of two people to enter into the relationship called marriage, as it had come down to the society of 1968. Judge Walker’s laughable line about gender complementarity never being part of the “historic core” of marriage is just dishonest. Of course it was. People fiddled around the edges with the numbers of parties to a marriage, and their respective legal rights, but the one overarching constant across all the variations was gender complementarity.

    Judge Walker is stealing a base here. Strictly speaking, the right recognized in Loving was the right to enter into the specific relationship called a marriage — a union involving one man and one woman. (Polygamy doesn’t involve multiple parties to one marriage — it involves multiple marriages, with each union constituting a separate marriage.) There is no evidence anywhere that the Loving court meant anything more or less than this. Judge Walker redefined Loving’s holding into “the right of a person to enter into a formally-recognized relationship with a person of his or her choice, and have it called a “marriage.” And that is absolutely not a right so deeply rooted in American tradition (the applicable legal standard) to qualify as “fundamental.” It is beyond dispute that no such right has ever existed in the United States.

  52. Mike S
    August 6, 2010 at 4:58 pm

    #47: Henry – “If a member of the church supports someone in gay relationships/marriage/copulation and that person never repents, how can a church member not be complicit when that person is denied their exaltation?”

    There are so many flaws in this comment, it is obvious why he didn’t respond.

    1) Are you absolutely sure that someone in a “gay relationship” is going to be denied their exaltation?

    2) The tone of your comment regarding “copulation” seems to reduce the whole argument down to sex. I’m not gay, but from talking with friends who are, it’s MUCH more than that – just like my relationship with my wife is MUCH more than just sex.

    3) We are all sinners – we just have different sins. We should still support each other. So if I support a friend who is gay, I’m complicit? How about supporting a bishop or stake president who I know if dishonest in his business? Am I complicit there too? How about if I support illegal aliens whose entire premise in the United States is based on dishonesty any a life. If I support them and try to help them out, am I complicit in that deception too?

    4) Who knows that the future holds? In the past, in our OWN CHURCH, your same comment could have been said regarding interracial relationships/marriage/copulation which was vehemently despised and condemned by Brigham Young. Yet today, even the words of a modern prophet are disregarded as symbolic of “his time” and not really the eternal principle that he taught it was. Prophets also taught that marriage between a man and several woman was also essentially required to get to the Celestial kingdom, yet today prophets will excommunicate you for that and keep you from the Celestial kingdom. So, I wouldn’t be so sure of what is “absolute”.

  53. Peter
    August 6, 2010 at 5:28 pm

    34. I didn’t read it that way. I read that the proponents felt intimidated to testify due to repercussions. Some feared violence. He wanted to televise it–get the mugs of those ignoramuses out in the public–and he got shot down on that. He should have reused himself for being incompetent, not gay.

    37. Jeff, you are right, and frankly, if the state has no inherent interest in promoting one type of relationship over another, then polygamy should be hands off if one were to apply the 14th amendment equally. Who cares how popular it is? I thought popularity in Constitutional matters wasn’t the point anyway. If polygamist feel repressed, they now have some great judicial precedent at their backs to overturn anti-polygamy federal and state law whether we like it or not. Traditional polygamy may not do it, but triads and swingers may make this happen. Swingers are the next moral annoyance line that has be to be crossed.

    41. Nick, refute the conspiracy if you find it absurd. We certainly don’t find Haliburton or the military industrial complex conspiracies absurd do we? Why is it that when people are concerned with the context all of this has to play into cultural Marxism, Marcuse, Gramsci and critical theory that its just a bunch of conspiracy hogwash but will see a Darth Vader behind every Dick Cheney. All of these organizations want to destroy family and religion so that the state can take its rightful place. This isn’t to say that all or most gay and lesbian groups want this, yourself included–I will believe them at their word–they want equal rights, but they certainly are great tools for these left-leaning types aren’t they? How many gays felt repressed in the 1970’s because they couldn’t marry. Zero. My uncle–who was a main leader during the Milk era of San Fransisco–eschewed marriage along with many of those leaders of their day. It was an outdated institution for the rest of us and they wanted none of it. They were more concerned with the ability to be left alone and not persecuted for their lifestyle. Well they’ve got it. They’re about ready to have the word, “marriage,” and win a semantics argument on the back of a fraying 10th amendment. Now that supremacy clause will just make it that much harder won’t it. Power has now shifted up more towards the top, more centralized, towards the smart ones and away from the unwashed mobs. Goody, goody.

    Now what? And where will it stop? Should they become a protected class? Hasn’t in Canada where it’s now illegal to say that homosexuality is a sin–called hate speech. Hasn’t in Sweden where they now say marriage is an outdated institution that must be eschewed–you see the gays wanted marriage in the early 90’s–and now the arguments and beliefs have come full circle. They don’t care for marriage, and now you can’t have it either. Chess games don’t stop with cultural wars. There is an endgame here–no one wants to see it–but it’s the destruction of one side or the other. None of you want that, I know, and you’d be horrified to think that your compassion would be used to such a degree, but power is never about fair play, its about playing to win it all.

  54. carlos
    August 6, 2010 at 6:40 pm

    I wake up and already there are heaps of comments

    Nick #17

    So, carlos, if the judge had been heterosexual, do you think the opponents of Prop 8 would have “played the minimalist approach,” based on what you clearly imply to be judicial bias? Why would a heterosexual judge be any more objective than a gay judge?

    To clarify: Its not so much about being objective but about which side of the fence a judge leans towards. It’s similar to the current liberal-conservative issue in US jurisprudence, seen most clearly in the Supreme Court, and which I know you are well aware off. Now, in the 21st century, you guys will probably have to add pro-gay/anti-gay to that equation, seeing Walker’s a republican.

    And ‘minimalist approach’ is to see what the judge comes up with (knowing you’ll loose) since you are appealing his argument or rather his findings strictly speaking; its not about introducing new evidence.

  55. carlos
    August 6, 2010 at 6:58 pm

    “The judge said what will become the prevailing attitude in that you don’t choose your sexual orientation and it can’t be changed. ”

    Not if this study is correct:

    [http://www.southernct.edu/womensstudies/uploads/textWidget/wysiwyg/documents/WomensSexualityThesis.pdf]

    Seems some women might change their sexual orientation later in life but the gay lobby will probably argue that they were always repressed lesbians and so on…

  56. carlos
    August 6, 2010 at 7:47 pm

    Looks like the pro-gay/anti-gay judge fighting thing is already firing up in the old USofA, based on what’s reported today in the deseretnews:

    “Byran Fischer, issues director for the American Family Association, urged the group’s members to contact their congressional representatives about launching impeachment proceedings because Walker had not recused himself from a case in which “his own personal sexual proclivities utterly compromised his ability to make an impartial ruling.” ”

    I guess only a eunuch judge would be impartial then……..

  57. Nick Literski
    August 6, 2010 at 7:54 pm

    #44:
    Quoting from the decision: “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”

    This is by no means the same as saying, as you claimed he said, that morality is not a legitimate basis for a law.

    First time someone’s done that [i.e., found that gays and lesbians, as a group, meet the requirements for strict scrutiny], as far as I’m aware.

    Then you’re not very aware. It’s at least the third time that I’m aware of. In fact, the California Supreme Court found strict scrutiny to be the appropriate analysis in the in re Marriage case that Prop 8 sought to nullify. That finding was not, in itself, affected in any way by Prop 8, so sexual orientation is still a matter of strict scrutiny in California law.

    You still haven’t given any legitimate basis upon which to accuse the judge of intentionally erring in his opinion because of his own sexual orientation. Your cynical “Inference” response is useless, and only demonstrates your own level of paranoia and animus against gay men.

  58. Nick Literski
    August 6, 2010 at 7:58 pm

    #50:
    Thomas, your attempt to reframe the question is transparent sophistry. Further, your evident knowledge regarding the history of marital relationships on this planet is incomplete, at the very least.

  59. Nick Literski
    August 6, 2010 at 8:08 pm

    #52:
    I read that the proponents felt intimidated to testify due to repercussions. Some feared violence. He wanted to televise it–get the mugs of those ignoramuses out in the public–and he got shot down on that.

    Funny how the proponents of Prop 8 had plenty of opportunity to call their “camera shy” witnesses after the SCOTUS ruling against televising the trial, yet they didn’t. The whole “intimidation” argument was merely an attempt to hide the fact that the proponents’ own witnesses hurt their case.

    How many gays felt repressed in the 1970′s because they couldn’t marry. Zero. My uncle–who was a main leader during the Milk era of San Fransisco–eschewed marriage along with many of those leaders of their day. It was an outdated institution for the rest of us and they wanted none of it.

    You are correct that some gay men want nothing to do with the institution of marriage, Peter. It would not be accurate, however, to say that “zero” gay men felt [o]ppressed in the 1970s for not being allowed to marry. I’m aware of at least one lawsuit brought by a male couple who were denied a license during the 1970s. It was quite promptly dismissed, but it existed. All that said, I’d love to hear about your uncle sometime!

    There is an endgame here–no one wants to see it–but it’s the destruction of one side or the other.

    Peter, I get the impression that you’re making an eschatological argument, rather than spinning a conspiracy theory. If so, I certainly respect your right to believe as you will. If one believes that all of creation is aligned on one side or the other of an unequivocal “good vs. evil” battle, then it makes sense in that context to consider anything contrary to one’s faith as an implicit effort to destroy that faith.

  60. Nick Literski
    August 6, 2010 at 8:17 pm

    Carlos,

    And ‘minimalist approach’ is to see what the judge comes up with (knowing you’ll loose) since you are appealing his argument or rather his findings strictly speaking; its not about introducing new evidence.

    You’re missing my point, Carlos. If the lawyers held back relevant evidence for the reasons you suggest, then they are likely guilty of professional malpractice. They don’t get to bring more evidence at the appeals stage. They’re stuck with the factual record established in the trial, so the 9th Circuit and/or SCOTUS can only examine the case in light of that evidence. Since they presented such limited evidence, it will be very difficult for either the 9th Circuit or the SCOTUS to find that Judge Walker’s ruling was erroneous. Their only real strategy now is to claim that Judge Walker made serious errors in actually conducting the trial, to the point that they should get a new trial. The trouble with that argument is that Judge Walker basically bent over backwards in allowing the proponents to present arguably irrelevant or otherwise inadmissable evidence, so it’s tough to argue that he prevented them from presenting a defense.

    Seems some women might change their sexual orientation later in life but the gay lobby will probably argue that they were always repressed lesbians and so on…

    Actually, most studies suggest that female sexuality is somewhat more maleable than male sexuality, and you’ll find that most educated gays and lesbians recognize this. While there are more gay men than lesbians (speaking in percentage of population), the data does make it appear that women are much more likely to “change orientation” (for lack of a better phrasing) than gay men are.

  61. Mark N.
    August 6, 2010 at 8:44 pm

    Adding some closing tags…

  62. August 6, 2010 at 8:50 pm

    Nick:

    I think there is definitely an endgame here, and in a great many of the issues playing out now, of which SSM is only one. The purpose of the game is to destroy BOTH sides.

    The game is to take legitimate grievences as perceived by two groups, pit the GRIEVENCES against each other so that their resolution is win-lose, amplify the volume, and hope to improve your own power in the chaos.

  63. carlos
    August 6, 2010 at 8:54 pm

    # 60 Mark N.
    Aug 6th, 2010 at 8:44 pm

    Adding some closing tags…

    yeah, sorry I left #53 open

  64. carlos
    August 6, 2010 at 9:05 pm

    Nick,

    I think you’ve misunderstood what I meant by a minimalist approach. Its not about withholding relevant evidence but more with getting the case over and done with quickly to then challenge the judge’s finding of facts and his conclusions in appeals plus then possibly seeking a new trial before a different judge (as you mentioned) a new judge who may be closer to one’s political views. That’s basically what we did many times in my previous job with several discrimination and unfair dismissal law suits filed against us.

  65. carlos
    August 6, 2010 at 9:43 pm

    Something else people aren’t seeing is the different reactions to SSM by the First Presidency.

    They hardly said anything in Iowa or Vermont, little in Massachusetts and then answered questions from Argentina members last month by telling them in an almost condescending manner to go read the Proclamation on the family!

    Seems the first presidency was more concerned about the way SSM came about in California -via judges overturning the will of the people- then with SSM in and off itself. Tells me at least that they are really more about GOP’s trumping that anti-judicial activism line than concerned about the moral decay in society’s acceptance of homosexuality and SSM! jmh observation here.

  66. August 6, 2010 at 9:51 pm

    Carlos that is an interesting perspective, had not looked at it that way before.

    Well, my flight got in an hour late.

    I’m going to bed.

  67. Thomas
    August 6, 2010 at 11:46 pm

    #58, the irony of a defender of Judge Walker — he of the casuistry that would make an old-school Jesuit blush bright vermilion — accusing anyone of “sophistry” or “reframing the question” is a bit rich.

    Enlighten us, if you can, of the long history of same-sex marriage, which is evidently deeply rooted in the traditions of American civilization.

  68. brjones
    August 7, 2010 at 1:17 am

    I can say with confidence that there isn’t a regular on MM whose opinions and analyses I respect more than yours, Thomas. You are consistently objective and dispassionate (in a good way). That said, in this thread it really feels like your arguments are being driven by your obviously strong emotions about this issue. I’m not saying they’re wrong. I’m just a little surprised by what appears to be a bit of a lack of objectivity on the issue. Sorry if that sounds overly critical – I don’t mean it that way. Just an observation.

  69. August 7, 2010 at 3:23 am

    #45 Thomas remarks:
    From the decision:

    Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.

    How on earth does a judge expect to be taken seriously with an argument that the character of marriage as involving males and females was “never part of the historical core of the institution of marriage?”

    I do not believe Judge Walker was trying to say that the “historical core” of marriage did not involve males and females. He would have had to come from another planet to intend that point. Rather, I suspect Walker means that the gender restrictions (women must be virgins, men must be fertile, women must submit their rights, property, and desires to their husbands) were never really “essential” to the core of the institution of marriage, because over time [this is where his word “historical” fits in] the institution of marriage has survived without those restrictions remaining in place.

  70. Jeff Spector
    August 7, 2010 at 9:36 am

    brjones,

    I think that this is a subject where objectivity is difficult because it occurs at so many different levels. While the church and religious organizations clearly see this as a moral issue and a societal issue, the courts and most secular people see it strictly as a civil rights issue.

    The irony is some respects is that little over a century ago, the Church was arguing for continuing the practice of polygamy as a religious, moral and civil right. Now, in a similar situation, they are on the other side of the issue.

    The mood of the country with regard to SSM is shifting in favor of the civil right more than the moral issue.

  71. Peter
    August 7, 2010 at 11:21 am

    59. Nick, yes excuse my hyperbole. My point was to illustrate that is wan’t on the radar–it seems that there is a suggestion of repression more than a historical sense of repression. When dealing with black/white relations, the curse of slavery is in the DNA of every discussion. With the gay rights issues, I’m not sure what’s in the DNA–we keep shooting at a moving target of injustice. I’m just not certain that this would ever solve anything. When I see the victors in this fight send out an olive branch when and if this ever gets finalized at SCOTUS, then I will believe the rhetoric. Sadly, I expect another stick in the eye–taking the fight further. You and I may believe the good intentions in the disagreement, but that doesn’t mean others don’t see the world in such stark terms of good and evil, be it of the old fashioned scriptural type or the scientific Orwellian type.

    My argument is eschatological, sure, but it isn’t without understanding the sensibility of those that see the world in a terms of a more humanist utopian outlook allowing for shades of grey. I realize that many progressives see the world like Heidegger, that truth is a postmodern personal quest, pluralism is the goal, etc. I think it would be lovely if that’s what we could see beyond the horizon, a sort of Gene Roddenberry view of the world. Essentially the way we all look at these issues is under-girded by our hopes for the future. As a student of history, I’m more cautious about what is promoted in the name of love, peace, and harmony however–foundational documents indicate that there is something more to this–and its about power. Power is a very hard thing to combat once you have it and many who don’t have it want it and they’ll be tyrants of another sort. My anger in this is firmly rooted in the Constitutional understanding of a separation of powers. I’m still floundering at this new right to marry, or even the right not to be discriminated against. Such is case law. Now gays will have the right not to be discriminated against because that’s now a right thanks to legal precedent. Well we can connect these dots. It won’t be enough not to combat codified discrimination. If private discrimination is proven to show “harm,” it will be the next target. I may be wrong, but I guess we’ll see. I’m willing to wager I’m not, however.

  72. Peter
    August 7, 2010 at 11:31 am

    60 Nick, I appreciate your honesty in seeing the malleability of homosexuality. As someone who understands this very well personally, I have a hard time arguing marriage when we can’t even argue what it means to be gay, when it’s obvious that its not all that cut and dry. Science has codified the term men-who-have-sex-with-men versus being gay. Seems that there is a difference here. We know that people who have been gay are now not and vice versa. We know that there are people that like to have sex with the same gender because they get off on the naughty factor. Then there are the environmental concerns. What if this is a all a product of increased hormonal disruption because of food contamination by chemicals. Studies have shown that male fish and other animals are becoming increasingly effeminate because of chemical overload. How would that make you feel if your orientation is a product of pollution? Another big elephant in the room. There are so many issues here that get buried by the politics and the player behind the throne so to speak–it’s sad.

  73. August 7, 2010 at 11:36 am

    If there is a slippery slope, it began with the adoption of the 14th Amendment, where the nation decided that a despised minority (at that time, the African race) should be given full citizenship and civil rights.

  74. August 7, 2010 at 12:12 pm

    Peter:

    I think, like I suspect Thomas does, that rights are given by God, not government. But I suspect that none of our societues (or even our prophets) have necessarily noticed the entire list.

    So how do we correct our imperfect list without so concentrating power that all rights for all of us can be destroyed?

    Isn’t the slippery slope the one that goes back to the philosophical plan of salvation debate as advocated by Jesus vs that as advocated by Lucifer?

    I don’t know how to decide this issue at the legal/political level. I don’t know how the LDS can address this issue because your theology (and cosmology) are so entangled with concepts of gender.

    It’s hard enough in the CofChrist without those complications, because we do get hung up on the conflicts between our North American progressives, our North American conservatives, and our Third-world Conservatives to the extent that we fear shattering the church.

    Yet, our demographics say we won’t preserve our institutional relevance whatever we decide. Our theology says “MONOGAMY is the BASIC principle of Christian marriage.” We settled that 40 years ago, though a lot of us didn’t notice that the implications didn’t just apply to polygamous tribes in India converting to our church.

    The CofChrist ought to testify of that in its internal actions and protect the covenants of monogamous couples, whether heterosexual or not. If we bless each other and separate without rancor, so be it.

  75. scott
    August 7, 2010 at 12:52 pm

    I am a member of the Church of Jesus Christ of Latter-Day saints and I do not believe that the government should be given the power to determine the definition of a religious ceremony. Marriage should be left in the hands of individuals. It should not be determined by a majority vote and the spiritual and personal beliefs of minorities should not be constrained by the beliefs of the majority. In accordance with what Joseph Smith wrote in Doctrine and Covenants 134 verse 4, “we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion,” I strongly support the right of all individuals to determine the conditions of their own marital vows and beliefs and their right to not have those beliefs constrained by the beliefs of others.

  76. August 7, 2010 at 2:57 pm

    One thing that I’ve noticed has been largely ignored in this thread — the evidence and experts presented by the pro-Prop 8 side were pathetic (foreseeable based on the facts?). I read some of the testimony of the last witness called by the pro-Prop 8 side. No factual basis for anything he was spouting and actually laughed out load at how ludicrous he was — not logical, not factually based, pure prejudice. Funny, that everyone jumps on the legal arguments to start trying to fortify their position, when the true problem in this case is that the facts, the evidence given to the trial judge did not support discrimination on the basis of gender in marriage.

    Marriage (at least in the context of this legal case) is a government created license to create a new legal entity between two consenting adults. Historically, it has been between a man and a woman, but the evidence and facts from the trial were what led to the legal conclusion, not the law or its interpretation. No credible factual evidence existed that there was a reason for a secular government to differentiate between a marriage of man-woman and a marriage of man-man or woman-woman. The real strength in Walker’s decision is that is primarily based on the factual evidence presented at trial and not on a stretched legal interpretation. On appeal, traditionally at least, the appellate courts give deference to the trial court’s findings of fact. I’ve read the testimony and saying he was wrong in his factual findings is much more difficult than arguing the legal theory.

    Always better to have great facts, rather than great law.

    He**, just do away with marriage from the government. Civil unions for everyone and go to your private religious institutions for whatever kinky hereafter your after.

  77. August 7, 2010 at 6:21 pm

    Ulysseus:

    A writer in one of the Denver papers (I’ll find the link later) actually suggested that government get out of the marriage business entirely as well. He also wrote that both state registration and church sanction were first required at the time of Venice.

    I don’t know if the latter is true, or how one “unrings the bell” in practical cases today, but globalization alone raises similar questions. For example, there was a New Jersey judge who ruled that a man could continue to sexually abuse his wife and no state restraining order would be granted recently on the basis of the man’s sincere belief in Sharia law. The judge was overturned on appeal, but still…

  78. Mark N.
    August 7, 2010 at 7:46 pm

    I seriously don’t see the government voluntarily giving up any power where it isn’t absolutely forced to do so. What percentage of the laws on the law books do you think are involved with family law, divorce and all that?

    Asking the government to get out of the marriage business isn’t probably all that realistic at this point.

  79. carlos
    August 7, 2010 at 7:55 pm

    “He**, just do away with marriage from the government. Civil unions for everyone and go to your private religious institutions for whatever kinky hereafter your after”

    Several countries have done that for more than a century, ie Mexico, Argentina, France, but the SSM issue was just as conflictive as in the US. I think Britain and Australia got it right when they passed laws early on to allow same sex ‘civil unions’ which are equivalent in every sense to marriage except in the word used. Therefore they came up with a new term to a same sex union called ‘civil union’ and didn’t need to change the definition of the old word ‘marriage’. Then since everything was equal legally between the two only a small, or smaller minority, still complain since they still aren’t ‘married’ but have to use the term ‘partner’ to define themselves as a couple.

    “No credible factual evidence existed that there was a reason for a secular government to differentiate between a marriage of man-woman and a marriage of man-man or woman-woman.”

    Because it never occurred to people that someone would challenge the definition of marriage as not being that of a man-women. Its about what the word means.

    But I still think, or now I’m more convinced, that the issue the church had was in the way the change came about in California, where judges overturned the will of the people, than with SSM in and off itself.

  80. August 7, 2010 at 9:43 pm

    Mark N.

    You’re probably right. So I guess the issue of what the law on SSM is in the US will depend on whatever Justice Kennedy, the swing vote on SCOTUS, will say it is.

  81. August 7, 2010 at 11:09 pm

    #41, Nick, I was speaking of spiritual things, or of things according to the gift of the discerning of spirits (D&C 46: 23). Everyone appears to be a pawn in this thing, on both sides. Up until now, I was able to discern the spiritual plan (introducing same-sex marriage into the church), the principle target (the Mormon church) and one of the main tools (legalization of same-sex marriage), but I wasn’t able to discern how this would come about. Now I see it clearly.

    #43, Tim Rollins, you stated, “LDS Anarchist apparently has his head elsewhere; clearly, it is not in this discussion.” Lol! I answered the questions asked in the post. Were these questions not part of this discussion?

    You also stated, “The Church of Jesus Christ of Latter-day Saints (LDS) will NEVER sanction nor will they EVER perform any gay or homosexual marriage within any of its temples, anywhere within the world.”

    Tim, the impression I get from your statements (in #43) is that you are not a prophet, meaning that you do not possess the gift to prophesy. Methinks that your quotation is more wishful thinking than any familiarity with the spirit of prophecy and revelation. According to my own gift, I cannot categorically state that your statement is true, or will hold out true. It may hold our true, meaning that while the entity “The Church of Jesus Christ of Latter-day Saints” exists as a unified, corporate structure, it may be as you state it. However, it is as plain as day to me, speaking prophetically, that same-sex marriage will be performed by members of this church, even within the temples. Nevertheless, I can’t see everything perfectly clear, so it may even start while the current unified corporate structure remains intact. But I doubt it. If I were to put forth a guess, based on the current information I’ve got, I’d say that “an entity” called “The Church of Jesus Christ of Latter-day Saints,” which will not be the unified corporate structure we see today, but will be an institution recognized by many Mormons (though not all), will in the near future perform these ordinances with same-sex couples in the temples which will be under its control. That ain’t no prophecy, just a guess, but I’d be willing to stake my guess as the more probable in happening than your strongly worded statement of belief.

    What this ruling ought to have taught the LDS is that conditions among men ARE SLATED TO CHANGE. Often suddenly. One day same-sex marriage is banned in California, the next it’s back on. One day only a few States permit same-sex marriages, the next the Supreme Court orders it allowed in every State. One day we spend millions of dollars to pass a measure, and it wins. The next day it loses (and all that money is spent for naught.) Such is life.

  82. August 8, 2010 at 6:43 am

    Marriage originally was all about male property rights — including owning the woman, which is why it was government sanctioned and licensed — kind of like contract law. Read a 19th century novel and discussions of dowrys and the economic machinations behind the marriage match. Remember Mrs. Bennett from Pride and Prejudice? What we have left today is a bastard hybrid of that lusty threesome — the law, religion and misguided thoughts of romance. Marriages legally are all about money, possession and property rights. Government is not in the game of morality. Government is in the game of protecting property. All this “morality” talk about the government is misplaced. If you don’t think marriage is all about the cash, spend a day in divorce court (even child custody issues revolve around who is going to pay for the child). Giving homosexuals the right to marry is about giving them the right to set up this economic unit.

    Mark N. — you asked about what percentage of the law relates to marriage and divorce — in Utah, about 1/78th (if you don’t count regulatory agencies, then it is even less). As for federal law, much less than 1/78th. The Government isn’t exerting much statutory ink on marriage.

    Back to the issue at hand, however. It isn’t certain that SCOTUS will even hear this case. Everyone is assuming they will, but they sure don’t have to. And they may not. Depending on the disposition of the Court, they may wait for a case that is more to their liking. As I said before and none of the legal minds here have responded: no credible evidence against gay marriage was presented by the pro-Prop 8 side in the trial. If you have a trial about whether or not an act by the majority is discriminatory or not, you better plan on presenting this little legal necessity called evidence.

    “Yes, your honor, the defendant is guilty of murder. What do you mean someone has to die for us to convict him of murder? We said he did it. Uh, no, we don’t have any evidence. Uh, no one is dead. Uh, no there is no weapon. Uh, motive? What is that? But he did it. Really, believe us. We promise.” You put on a case like that, you lose. And bottom line, go read the transcripts. That is what happened.

  83. mark
    August 8, 2010 at 6:55 am

    The LDS Church ( and all churchs really) are concerned about their survival here, they depend on their members to accept irrational logic to stay involved in the church. Once logic is the standard of thought (such as same sex marriage) people relize faith is no different than pure ignorance, and they abandon the religion. It does happen, who belieives in Zeus anymore. Much of the world had faith in Zeus at one time, but that did not make Zeus real.

  84. August 8, 2010 at 8:09 am

    Ulysseus — marriage goes back a long, long way, and seems to be about pair bonding as much as anything else. You fail to realize that a married couple is a much more effective economic unit than you might otherwise understand. Partnerships of all kinds are. You used to see non-sexual partnerships as well, that were at their core social bonding and economic survival units.

    That is why throughout Southeast Asia the great trade families were kinship groups linked mostly by marriages. If it were just property rights, that someone owned something that used to belong to you (i.e. married a child of yours) would not create the same bonding.

    One thing that is interesting about the debates is that we have a new gender essentialism arising.

    Gender, in the old meaning of another word for the sex (rather than the sexual orientation construct) used to be seen as essential in many cultures, a somewhat observable feature.

    Now, Gender (as in a sexual orientation social construct) is now seen as an essential. That is a huge shift. Many of the societies we look at and think of as supportive of gay relationships did not consider sexual orientation as an essential part of human beings. You read Greek philosophers on love, they would discuss women as being necessary for children, hetari for sex, men for love (because women were too stupid and not their equals and therefor inadequate creatures to love), etc. But much of what they discussed and satirized involved sex as a preference, not a compulsively controlling essential part of identity.

    Which is what creates all of the interjection of fetish behavior into the discussion. You want to marry someone of the same sex, someone else wants to marry —- (or at least have a recognition that a sexual preference for —- is acceptable and normative). Others want marriage not to mean sexual exclusivity (e.g. open marriages) while traditionalists insist that “forsaking all others” (the partnership model) is a core part of what marriage means. But sexual fidelity is not necessarily partnership fidelity. In my old firm, I did not care who my partners had romantic entanglements with, what they did in terms of clients and billing — that was important. I only expected economic fidelity.

    So, does marriage mean a validation of a sexual relationship? An understanding and acceptance of economic partnership? Formalized pair bonding? Whatever you want to call it?

    The trendline analysis we can draw from other countries seems to indicate that the more we broaden the definition, the less it means. Marriage soon starts to be as meaningful as “blond” or “natural blond” is in our society.

    One of the real problems we have is that we have not fully defined our terms.

    So, Ulysseus, (Odysseus or Ulysses being the normal spelling, btw, yours drives me up a wall, though I’m certain there is a good reason for it) marriage is not just property rights or ownership, other than in very narrow historical settings, and even there the bottom line illustrated by the stories you quote to is that everyone involved saw it as economically central and wanted more than just property rights, that is a core part of the stories.

    mark — there is a growing neopagan movement, and in terms of Zeus, one of the indoeuropean gods, in the incarnation that made it to India, hundreds of millions of people still worship those gods. Interesting thought though. How far can the thunder god’s myths and nature change before people fail to realize he is still himself? Was it still Zeus when he was called Jupiter? His worshipers definitely thought so. Thor? Yes again. Thor in the comic books? Meh.

  85. August 8, 2010 at 9:03 am

    I’m not denying the economic benefits of marriage. In fact, I’m saying that the way our current law is designed the ability to get married gives a significant economic boon to those who can participate — tax benefits, inheritance rights, dissolution procedures, etc.

    My first point was that everyone’s view of marriage is as convoluted as your response to me. By convoluted, I mean that it is a hodge podge of different approaches to the concept of marriage, i.e. blood bonds of inheritance securing economic power, gender essentialism, validation of a sexual relationship, formalized pair bonding, affirmations of sexual fidelity, child rearing and family stability, etc. No one can even quite agree on what “marriage” means — as the 80+ comments reveals. From a purely legal standpoint, narrow the definition to a formalized pair bond that forms a domestic economic relationship that is state sanctioned. Leave sex and gender out of it, otherwise it gets convoluted and divisive.

    Which brings me to my second point, which you deftly avoided. No credible evidence was presented at the trial in this current case (I’m specifically referring to the evidence presented to the court in the California case.) that would support the restriction of the legal marriage definition to man-woman, as opposed to man-man or woman-woman. Without evidence, without facts you have a hard time winning cases. Go back and read the posted transcript of the “expert” testimony. It was a joke.

    If you are going to discriminate on the basis of gender, you have to use terms like “gender essentialism”. Blame the testimony of homosexuals at the trial who discussed how much it meant to them to have their “pair bond” recognized by the government and then yanked away from them, for not being clear on the concept of marriage and wanting it to be more than mere property rights. Talk about how the Greeks liked boys, degraded women and were in the subtext homosexual friendly, thus inferring that our current system is more enlightened and preferred over those decadent Greeks. Add that gender has become about not whether you are male or female, but what gender you like to diddle, and who you diddle is always just a preference. Talk about how enlightened you were in your law firm because you didn’t care who was boinking whom as long as they didn’t rip you off financially. And say it in a high flowing style that disguises the underlying prejudice.

    You seem to care about words and what they mean (Ulysseus chortled in his aesthetical ethical reverie). You seem to care about avoiding conflict. You talk about dispute resolution. You know you can’t win a case without evidence. Why not go for the resolution supported by the facts.

  86. August 8, 2010 at 3:43 pm

    Paraphrasing … No credible evidence was presented at the trial in this current case … Go back and read the posted transcript of the “expert” testimony. It was a joke.

    Assuming it passed the Daubert test, then it was sufficient to support a verdict. If it did not pass Daubert, then it should not have been admitted in the first place. If it was, then it was credible evidence.

    But what I was disagreeing with was your statement Marriage originally was all about male property rights since it has always been beyond that.

    I’m glad you agree with me that it is more than just economics of male property rights.

    I have two points.

    First, the debate gets nowhere until we define our terms. I think that attempting to define marriage as “something that involves one man and one woman” is an inadequate way to approach the debate and leads to nothing but problems and people talking past each other. One of the real problems we have is that we have not fully defined our terms.

    Second, I think your question Why not go for the resolution supported by the facts. (well, I’m subsuming that you really meant a “?” in there) misses the point. Both because the “legal” facts (such as they were) are irrelevant until the terms are defined and because I think that leads us away from the real point.

    My discussion had nothing to do with about how enlightened you were in your law firm — that was a discussion about role and self-interest (not even enlightened self-interest, really) and how it changes what people measure.

    I really think you were reacting to something other than what I was saying.

    Marriage originally was all about male property rights — including owning the woman, which is why it was government sanctioned and licensed — kind of like contract law. Read a 19th century novel and discussions of dowrys and the economic machinations behind the marriage match. Remember Mrs. Bennett from Pride and Prejudice? What we have left today is a bastard hybrid of that lusty threesome — the law, religion and misguided thoughts of romance. Marriages legally are all about money, possession and property rights. Government is not in the game of morality. Government is in the game of protecting property. All this “morality” talk about the government is misplaced. If you don’t think marriage is all about the cash, spend a day in divorce court (even child custody issues revolve around who is going to pay for the child). Giving homosexuals the right to marry is about giving them the right to set up this economic unit.

    You can set up domestic partnership trusts and civil unions for the same economic effect. It is obvious that those do not suffice for many people. Obviously that means that there is something more than just economics (in dollars and cents, though not economics in the wider sense as an applied economist would study it). The fact that there is something more, I think, tends to support those who want marriage applied to them.

    If you are going to discriminate on the basis of gender, you have to use terms like “gender essentialism” — in the old sense, though to go the other way you have to have it in the new sense, or else it is just a matter of taste or preference and not identity.

    As I’ve said before, I favor the following:

    We claim the privilege of marrying according to the dictates of our own conscience and acceed to all others the same right, let them marry how, when, who or what they may.

    cf http://www.suite101.com/article.cfm/mormonism/34642

    Since marriage is essentially religious, it should be a matter within a religion who and how they marry. Reynolds to the contrary, I think it is a constitutional matter of religious freedom to allow people to marry who they choose, when they choose and how they choose to marry them. I think the tax code should concern itself solely with registered civil partnerships.

    I’m still thinking on the point, Ulysses, but I think you really missed the point of what I was trying to say. I’m sorry if I wasn’t clearer before.

  87. Holden Caulfield
    August 8, 2010 at 4:28 pm

    “Since marriage is essentially religious…”

    From Judge Walker’s ruling:

    “Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law….

    From testimony from expert Cott: “Civil law has always been supreme in defining and regulating marriage…Religious practices and ceremonies have no particular bearing on the validity of marriages. Any clerics, ministers, rabbis etc, that were accustomed to performing marriages, only do so because the state has given them authority to do that.”

    In my mind, marriage is essentially religious only to the religious. The state does not care if any one is religious, nor should it, only that the laws applies to all equally.

  88. August 8, 2010 at 7:21 pm

    Marriage is a religious ritual. Judge Walker’s conclusions are interesting, but not terribly correct. Cott’s thoughts misplace a good deal of history. He’d have made a fine Anglican though.

  89. Holden Caulfield
    August 8, 2010 at 9:29 pm

    “Marriage is a religious ritual.”

    Ok, I’ll bite. This is true based on?

  90. August 8, 2010 at 11:40 pm

    Stephen M:

    Are you suggesting that the common law tradition, which remains an important part of the American legal system, actually predates the time when the state regulated marriage, i.e., before England split from Catholicism to sanction Henry VIII heir-siring shenanigans?

    Otherwise, I don’t get your point either.

  91. August 9, 2010 at 12:10 am

    Actually Stephen, it sounds like we may agree. I’m glad you clarified, because I think we were talking past each other coming from opposite directions, but both possibly wanting to end up in the same place.

    I agree that “marriage” should be a religious creature the way most people are wanting to define marriage. I think you are being a little disingenuous to suggest as you did that “marriage is essentially religious, it should be a matter within a religion who and how they marry” when every state has laws like Utah’s or California’s that create a legal entity of a married couple that prohibits people of the same sex from marrying. So how about this definition?

    Utah Code 30-1-2. Marriages prohibited and void.
    The following marriages are prohibited and declared void:
    (1) when there is a husband or wife living, from whom the person marrying has not been divorced;
    (2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;
    (3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;
    (4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and
    (5) between persons of the same sex.

    The Prop 8 battle is not about religious marriage. It never has been. Most Unitarian Churches are more than happy to perform gay “marriages”, but they don’t have the guns of the state backing up the enforcement of that union. This argument is about government sanctioned marriage. I gave you a great definition, so I think I’m clearly defining my terms: “narrow the definition [of government sanctioned marriage] to a formalized pair bond that forms a domestic economic relationship that is state sanctioned.” Where is the fight if that is the definition of marriage (and on a side note) isn’t that what Judge Walker said the evidence required of the government?

    Sure there are reasons within a mythological or religious framework for limiting a religious marriage to one man-one woman or one man-many women, or one woman-one woman, but that is religion. We are talking about a secular government, not a theocracy.

    As you mentioned, Ethesis, it can really not be pleasant when the Reynolds shoe is on the other marital foot (for those missing the veiled legal reference, the Reynolds decision was the US Supreme Court case that declared polygamous marriage was not protected as religious freedom under the first amendment and polygamists could be criminally prosecuted). Instead of showing the same compassion it had wished for and legally fought for over 100 years ago to homosexuals, the current Church chose to act with the same paranoid religious fervor that they were persecuted with and discriminated against by the anti-polygamists.

    I disagree with your comment “You can set up domestic partnership trusts and civil unions for the same economic effect. It is obvious that those do not suffice for many people.” This isn’t legally accurate. You can approximate the economic benefits of marriage with partnership trusts and civil unions, but it is the same as the “separate, but equal” water fountains of the Jim Crow South. Which for you students of Constitutional history gave rise to the 14th Amendment which created this whole idea of equal protection under the law — which is exactly what the California trial was about.

    And I’m a little bit off put by your attempt to throw out “legal terms” like the Daubert test in response to my factual challenge when your wrote:
    “Assuming it passed the Daubert test, then it was sufficient to support a verdict. If it did not pass Daubert, then it should not have been admitted in the first place. If it was, then it was credible evidence.” (For the legally uncertain, the Daubert standard deals with the admissibility of expert testimony, not the credibility or validity of that evidence.)

    Merely having an expert certified to present evidence does not mean that the expert will give testimony sufficient to support a verdict or that the expert will ultimately be found to be credible. This is the equivalent of saying an eyewitness is always sufficient to support a verdict, even when the eyewitness says it was someone else. Have you even read Blankenhorn’s testimony? I have. He could offer no credible evidence that the State had a rational basis for discrimination on the basis of sex in state sanctioned marriage. He wasn’t credible. He was evasive and wouldn’t answer questions that would show conflicts in his own testimony and at one point, when really caught, almost capitulated saying “I believe that there are valid arguments on both sides of the issue.” This was the evidence against same sex marriage in the Court.

    So my word-conflating compatriot, are we agreed that the State needs to get out of the business of government sanctioned “one man-one woman” marriage?

  92. August 9, 2010 at 7:01 am

    Re: Ulysseus
    “Sure there are reasons within a mythological or religious framework for limiting a religious marriage to one man-one woman or one man-many women, or one woman-one woman, but that is religion. We are talking about a secular government, not a theocracy.”

    THANK YOU.

    Why are people so eager to create alternative titles to marriage such as “civil unions” and “domestic partnership trusts”? We’d need to add a bunch more, folks.

    -Hospital/hospice visiting privileges
    -co-habitation tax benefit
    -alternative family health-care parachute
    -workplace benefits for person sharing employee’s bed
    -family leave for when them queers skirt the law and git themselves a youngin’.

    Gee, sounds to me like gay people would have to arrange for a whole lotta ceremonies and trouble to get the exact same benefits as a MARRIED COUPLE HAS simply by getting married and having a license to show for it. So we are not discriminating when we make them jump through hoops, but not a hetro couple? Please.

    As Holden Caulfield stated–marriage is religious only to the religious. I want to ask a sincere question to any and all who want to answer. What are you afraid of really? I mean, Steve is all huff-n-puff legally, but look at all of the sudden-experts on the legality of marriage within the LDS community. You hide behind “It isn’t legal” but it’s all about fear. Of what are you afraid?

    Just admit it. You’ll feel better.

    “I’m afraid they’ll force us to let them marry in our temples.”

    “I’m afraid it will make my insurance premiums go up.”

    “I’m afraid it will sanction schools to teach my kids that gay marriage is normal, and my son Billy is already wearing Susie’s underpants to play soccer–he doesn’t need any more encouragement!!!”

    The point is, if you look at all of these fears with facts and logic, they are baseless and irrelevant. Gays can’t force their way into your temples (why would they want to?) Insurance premiums will not go up–why would they? Billy is either gay or he isn’t; Susie’s underpants notwithstanding. You cannot “teach” a person to be gay. If that were true, then gay people would have been taught to be straight a long time ago and we wouldn’t have this issue at all.

    Finally, gay marriage will forevermore be taught to our children based on the hub-bub the LDS Church and religious right has made about it. You created your own boogey man. But it’s not after you OR your kids. It’s after bigotry.

  93. Henry
    August 9, 2010 at 8:20 am

    The natural goal of marriage has always been the furtherance or propagation of society.
    Everyone on this blog and planet is alive and breathing because of a man and woman, your father and mother.
    Homosexuality has been shown to be an unsafe and unhealthy lifestyle.
    Gay marriage would bring catastrophic consequences to society.

  94. August 9, 2010 at 10:15 am

    I think this decision is the result of the slippery slope of allowing interracial marriage and the further continuation of the slope beginning by allowing inter-religious marriages. Next thing you know we’ll allow homosexuals to drink from the same water fountains as heterosexuals.

  95. Peter
    August 9, 2010 at 10:51 am

    Two other thought to add to the debate–I was watching a law program on PBS–they were discussing the implications of the Massachusetts court that struck down laws that supported marriage between a man and a women. In the case, they could have taken the Michael Kinsley liberal-neutral tack of stating that marriage shouldn’t be in the realm of the state, that as a religious function, the state really has no business in the business of marriage. Instead, they took the Platonic approach of not only defining marriage as within the realm of the state (that the state has in interest in promoting religion) but that homosexual marriage should be placed within that realm as well. In essence, they stated in their conclusion that not only was marriage good, but that gay marriage was good also, and had normative benefits to society. In every case that has gone forward we have this same sort of set-up. Courts could diffuse the issue–the state used to be hands-off with marriage–they could do so again–but time and again, they set up themselves up to define it as inherent to the state interests, and promoted by the state. What this does is set up a showdown every time with those that think homosexuality is wrong and those that think it is good or right. In other words, it promotes the fight, the battles, and kicks the ball down the road because if what society thinks is bad, is not bad, as judges have indicated, then somehow society must accept it as good. For all of the rhetoric about the polarity of the debate, not one ruling has done anything to detente the polarity. Forgive me then, if many of us wax conspiratorial about intentions.

    Second, Julie, there is evidence of using the jurisprudence to set up protected classes and infringe upon the freedom of speech in Canada and Europe with regards to declaring homosexuality as wrong–it is now hate speech. In Massachusetts, private school institutions are being sued to force homosexual dormitories where none existed before–things aren’t quite as benign as you state. The fear IS based on fact. The institutions behind the gay rights movement have their own nefarious purposes, and bigotry can pop its head up against those who are of the Christian mindset just as well. Witness the death threats and destruction against those who did support it: http://en.wikipedia.org/wiki/Protests_against_Proposition_8_supporters#Death_threats.2C_vandalism_and_scare_tactics

  96. August 9, 2010 at 11:29 am

    Peter, It is not the role of judges to diffuse issues, it is the role of judges to apply the law.

    You seem to say that by making something legal, judges are saying that society must accept it as good. This just flies in the face of all evidence. Adultery is legal – but you don’t see people accepting this as a moral choice.

    Your argument that “declaring homosexuality as wrong” is hate speech is just not factual, in Canada, Europe or anywhere else.

  97. Thomas
    August 9, 2010 at 1:16 pm

    On a re-reading of Judge Walker’s decision, I came across this interesting line:

    “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

    One of the aspects of our modern system of deciding policy questions by judge- rather than legislature-made law, is that you can never really tell which throw-away lines in one opinion, can become the foundation for whole constitutional tangents in later years. For example, Justice O’Connor concurred with the decision in Lawrence v. Texas, which struck down an obsolete sodomy law. Her concurrence included a recital that maintaining the traditional understanding of marriage was a legitimate state interest. Yet her concurring vote resulted in the overall Lawrence precedent being set — and made available as support for a decision that preserving traditional marriage was not a legitimate state interest.

    We are not being paranoid to be concerned that the line “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians” will be used against the Church. To a leftist, the Constitution is just an artifact from dead white slaveholding males anyway, and is respected by them only to the extent it gives them power to rule as they could never convince a majority of the people to allow them to rule. As long as gays and lesbians are being harmfully stigmatized by retrograde religious beliefs, there isn’t a First Amendment protection in the universe that can’t be outweighed by the overriding governmental interest in Inclusivity.

    Frankly, I think the Church should give up its 503(c) tax-exempt status right now and beat the rush. We have enough money anyway, and being that much freer from a government caste that is increasingly hostile to us is worth the cost.

  98. Jeff Spector
    August 9, 2010 at 1:24 pm

    Thomas,

    ““Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.””

    Wow, this is a very interesting statement and could be the object of an entire appeal based on religious bias. Since I am not a lawyer, I really don’t know but it seems to be that he really should have said, “People who hold strong religious views against homosexuality are entitled to their beliefs under the first amendment of the constitution; However, the state must view this issue as a civil rights issue and not a religious rights issue.”

    Lawyers, what do you think?

  99. August 9, 2010 at 1:42 pm

    Even a lawyer can’t give an opinion based on one line out of context. “Religious bias” is not a basis for appeal. A judge can be as bias as he wants so long as his opinion is not based on this bias. Here, the judge was analyzing whether the state was trying to legislate morality and was looking at the stigma that false stereotypes and religious idology have inflicted on homosexuals.

    Your suggested alternative doesn’t make sense in the context of what the judge was doing at the time. He wasn’t making a legal argument or a legal point, but was making a list of evidence presented at trial.

  100. Thomas
    August 9, 2010 at 2:14 pm

    “Even a lawyer can’t give an opinion based on one line out of context.”

    It’s called “relying on dicta,” and, despite that you’re not supposed to do it, it’s done all the time.

    I’m still shaking my head at the sheer nerve of the judge saying he couldn’t hypothesize any rational basis for the definition of marriage being as it was. Seems easy enough for me: Marriage evolved (long before formal law or government did), as a social institution designed to promote procreative stability: Society has an interest in channeling activity that, in the ordinary course of things, and seen in the aggregate, is likely to result in childbearing, into a framework where the various complications of childbearing (loss of women’s economic production capacity, long human juvenile dependent stage) are accounted for, by increasing the social incentives for the stability of relationships involving that activity.

    That there are exceptions to the rule that most long-term sexual unions are potentially procreative, doesn’t justify eliminating the rule, any more than the fact that there are exceptions to the circumstances that are the subjects of any other law mean that the law can’t be passed at all.

    Thus, recognizing the institution of male-female marriage is a rational response to a particular situation: the perceived social utility of stabilizing relationships with a high potential of being procreative. That consideration simply isn’t there, as a general rule, with same-sex unions; accordingly, there was no compelling reason to formally structure them as “marriages.” Declining to create gay marriage doesn’t have to be the result of insidious anti-gay prejudice (of which there has of course been plenty, historically); it can equally have been the result of a social judgment that it wasn’t as necessary as marriage is in the opposite-sex context.

    To analogize (inexactly), society has determined that the practice of medicine is a subject that has enough potential complications, that it’s proper to channel the practice into the highly related structure of a licensed learned profession. As it’s developed, being admitted to that licensed profession presently carries a fair amount of prestige. Maybe lawnmowers would like a similar level of prestige (and guild protection from competition!), and so might demand that their profession be as formally structured as the medical profession. But their demand to receive a formal governmental structure for their profession isn’t a matter of right, and it should probably be denied on the grounds that the same considerations that justify the formal structure of medical practice aren’t present in the case of lawnmowing.

    Fine, fine, you can say — all of this is just rationalization for deep-seated homophobia, doubtless the result of something that happened long ago in Boy Scouts, or designed to keep my closeted underlying gay self safely sealed away. But the thing about rational basis review is, I’m not required to show that my rationale is my real motivation. It just has to be plausible. And it is.

  101. August 9, 2010 at 2:19 pm

    “It’s called “relying on dicta,” and, despite that you’re not supposed to do it, it’s done all the time.”

    My comment was in response to Jeff’s question to lawyers as to whether this line was a basis for appeal. Not that it couldn’t be used in further cases. And it’s not dicta, its a statement of fact.

  102. August 9, 2010 at 2:23 pm

    “Thus, recognizing the institution of male-female marriage is a rational response to a particular situation: the perceived social utility of stabilizing relationships with a high potential of being procreative.”

    Even if true – you’re only demonstrating why heterosexual marriage is rational – not why denying homosexual marriage is rational. If heterosexual marriage could be shown to undermine the benefits you put forth for heterosexual marriage, that’d be one thing – but it doesn’t. Can two homosexuals being married prevent heterosexuals from progreating? If so, how?

  103. August 9, 2010 at 2:34 pm

    “But the thing about rational basis review is, I’m not required to show that my rationale is my real motivation. It just has to be plausible.”

    This is not an accurate summary of the rationa basis review (without conceding “rational basis” is the appropriate level of scrutiny here). While underlying congressional motives are considered and relevant, even if you are correct that the legitimate government interest (protecting hetero-marriage) exists, you’d have to have a reasonable relationship to it – ie. in what way does denying marriage to homosexuals advance the legitimate government interest?

  104. August 9, 2010 at 2:37 pm

    Oh yes. Let’s go back to “when Time began”. Always a good way to measure truth. Because that’s how you determine if something is relevant, appropriate and suitable in today’s world.

    what is the problem here? Can we possibly, just for a second, all pretend we aren’t attorneys (except for you attorneys, you guys go ahead and parse your legal terms until your blue in the ba–face) and look at this as a whole, an issue that has come to the fore due to changing tolerance, time, and, quite frankly, education and the (hopeful) dissipation of ignorance.

    The laws involving marriage have changed considerably over the course of human history. It’s time to catch up, Mormon Church. It’s time to stop worrying where someone puts their winkies and start opening your eyes to the fact that gay marriage is inevitable, appropriate and there is no legal basis–NONE, for banning or disallowing it.

    Marriage only between a man and a woman is based in religious dogma. It may have been in legal terms, but it’s time to change that, folks. Yes, “change” the thing that’s scarier than death for many people. We changed the laws so that a man can’t legally beat his wife. We’ve changed the laws so that he can’t put her to death for spilling his tea. Give me one–ONE–good reason why gays should not be allowed equal protection under the law. The only person to take on my argument is Henry, someone who, it sounds like, had one too many relatives procreate to get him as an end result.

    One good reason. One. Not one mired in legalities and bombast. ONE that is solid, based on fact not fear and presupposition, and logical. One.

    The gauntlet has been cast.

  105. August 9, 2010 at 2:42 pm

    Ironically, marriage as we now know it is a very recent construct. For most of eternity, marriage was about property rights. Everyone knows (then and now) that marriage is not a component in procreation – men and women were procreating long before marriage.

  106. August 9, 2010 at 2:48 pm

    Uhh hum, excuse me. Civics 101 everyone — Judges rule on the law by applying it to the facts that are presented to them at the trial. The rules of evidence that are in place are there so fear mongering and irrationality don’t poison the process. In the current case, the only expert witness for the Pro-Prop 8 side capitulated into his contradictions. If you don’t like it, then maybe you should have offered your “expert” services.

    If you are so certain in your convictions, then the person you should be mad at is not the Judge who ruled, but the lawyers that presented no evidence for your belief system. (Oh and there was a bunch of evidence on the long and colored history of the institution of marriage, which managed to show that the one man-one woman version is just one of many — which all you Mormons should already know by heart.)

    And Thomas as left leaning as I am, this was over the top, ignores history and two hundred plus years of law: “To a leftist, the Constitution is just an artifact from dead white slaveholding males anyway, and is respected by them only to the extent it gives them power to rule as they could never convince a majority of the people to allow them to rule.”

    Last I checked in my Civics class, the Constitution (to which all laws have to comply and all office holders swear to uphold) was passed by the majority. There is even a mechanism for changing the Constitution if you don’t like it. Most of the things you seem to be really upset about Constitutionally, Thomas, seem to revolve around Amendments to that Constitution after a bloody war. Any lefty worth their salt is really proud of those amendments (13-15) that put into our Constitution the original basis for this great country — that all are created =.

    =

  107. Thomas
    August 9, 2010 at 3:46 pm

    Ulysses, the Constitution was indeed passed by a majority, which is why it has its legitimacy: It is rooted in the expression of consent by certain people, at a certain time, to be governed by a certain text, which has a certain objective meaning.

    I understand that language is imprecise, and so succeeding generations are left to tease out what a Constitutional text actually means when applied to particular circumstances, including some that may have been beyond the imagination of the people who drafted and approved the text. And that process will invariably be tainted by the interpreters’ own prejudices, and while I’m not happy about this, I accept this as part of the human condition, like lower back pain and existential angst. Can’t be helped.

    But where I get off the bus is with the (invariably) leftist constitutional theorists who openly declare they don’t have to bother with seeking to understand the original meaning of a text, because they’re not bound by it; that they are free (when they secure appointment as judges) to interpret according to the “spirit” of Constitutional principles, as they see it. That is, rather than simply applying a general text to specific circumstances, they take the general text and walk it upstairs, deciding that it in turn protects an even more general principle — and then decide specific cases on that general principle, notwithstanding that the actual text doesn’t support their decision.

    This is exactly what happened with the Supreme Court’s abortion jurisprudence, whose ultimate textual foundation people still haven’t identified precisely. It simply sufficed to say that various Constitutional provisions tended to protect a right to privacy — and so anything that could be classied as being encompassed within that right, should be deemed Constitutionally protected. That’s absurd. The Constitution does protect privacy rights — but by the specific means of its specific provisions. If an aspect of “privacy” protection isn’t reasonably discoverable in any of those democratically-enacted texts, it’s just not in there, and to impose a rule on the country in the absence of any Constitutional text, legitimately enacted by popular consent, lacks democratic legitimacy.

    You can look all of this up. Leftists really do adhere to the concept of a “living Constitution,” and disparage the originalists as naive or reactionaries (usually with stupid arguments, like “you must want slavery still to be legal” that overlook the availability of the amendment process). They may not teach this in high school civics class, but it’s still the name of the game on the Left, and it needs to be beaten down by all legitimate means.

    Most of the things you seem to be really upset about Constitutionally, Thomas, seem to revolve around Amendments to that Constitution after a bloody war.

    No, most of the things I am really upset about Constitutionally, are the things that leftists have tried to ram through as being mandated by the Civil War amendments, that have no reasonable basis in the actual words that Lincoln’s generation voted (and bled) to be governed by. It’s a cynical abuse of a sacred trust, enabled ironically by the very fact that true patriots reverence the Constitution so much that they’re willing to be governed by it even when it’s being cynically abused.

  108. Thomas
    August 9, 2010 at 4:02 pm

    #104 Julie: I think I gave a rational defense of marriage having its traditional male-female component (which, no matter how much people can try to muddy the waters by noting the fluctuation in the numbers of women a man can enter into marriages with, has been a constant Since Time Began). You don’t like it. But in the immortal words of the Vice President (he being dense enough to articulate what every other member of his caste inwardly thinks), I think I have a much higher IQ than you do, so I must be right.

    “The laws involving marriage have changed considerably over the course of human history. It’s time to catch up, Mormon Church. It’s time to stop worrying where someone puts their winkies and start opening your eyes to the fact that gay marriage is inevitable…”

    Then you don’t have to worry, do you? I’m just wasting my time — and you’re just wasting your time responding to me. But if not, please know that the “Resistance is futile!” card never works on anyone worth a damn, and so just makes you look weak.

    For the record, where anyone’s winkie goes is his business, the business of whoever’s on the business end of said winkie, and maybe God’s. But of course we’re not talking about that. We’re not talking about denying people the right to enter into whatever sexual arrangements suit their fancy. The question is, rather, whether government must, having established some ground rules for a particular sexual arrangement that in the general course of things tends to carry the potential for procreation, apply those same ground rules to a fundamentally different sexual arrangement that does not carry that same potential.

  109. Thomas
    August 9, 2010 at 4:30 pm

    Chicken @102 and 103: Where the same-sex marriage cases depart from the typical rational basis case, is that here the plaintiffs (the challengers of the law) aren’t simply trying to overturn a law. Rather, in effect*, the argument is that a law designed to govern a particular class of transactions, must be expanded to apply even more broadly, applying its same framework to a different class of transactions that, while they have some similarities to the first, also clearly have some differences, too.

    *I say “in effect,” because Prop. 8 was restoring a status quo that California’s judges had just overturned, namely, the traditional definition of marriage, which you (along with most gay-marriage advocates) evidently believe lacks rational basis regardless of the age of the enactment, i.e. recent like Prop. 8, or eighteenth-century.

    I’ve always viewed the rational basis standard as something resembling the “business judgment rule” of corporate law, under which businesses are entitled to exercise discretion in making business decisions, without being second-guessed as to whether their decisions are necessarily the best. As long as those decisions are lawful, and within reason (i.e., a manager can’t commit waste or do something similarly irrational), the policymaker has broad latitude to respond to specific problems as he sees fit.

    With marriage, government made the judgment that the potential for harm from a completely unregulated potentially-procreative sexual environment justified regulation. It did not decide to similarly regulate same-sex, inherently nonprocreative arrangements. I have never seen any constitutional case making the argument that if you regulate one, you must regulate all, particularly when one circumstance differs substantially from the other. To make another analogy, that the government heavily regulates securities transactions of a particular kind, does not mean it is “irrationL” not to regulate all securities offerings the same way. Neither is the government required, as a matter of constitutional equality, to craft as extensive a framework for the regulation of sales of ice cream cones as it does for the sale of real property. Apart from truly arbitrary distinctions (like distinctions based on racial differences, which as a strictly biological matter don’t even exist), the government — that is, the people, via their representatives — are entitled to exercise their best judgment as to what policy approaches are appropriate for which circumstances.

    Iceland just enacted a same-sex marriage law by a unanimous vote in their legislature. Bully for Iceland. They did it the right way, even if I myself would not have voted for the “it.” I probably have less interest in the whole gay-marriage question than the LDS Church leadership; dealing mostly with Mormons, they may underestimate just how thoroughly shot to hell Western marriage culture in general has gotten over the past half-century anyway. My larger issue is with the antinomianism of the Left, and their drumbeat of compromises if not outright assaults on the concept of objective truth. That kind of thing can’t be safely quarantined to hot-button social issues, where we wink and nod at fraudulent Constitutional rationalizing in the name of the greater good. If objective truth does not exist, then everything is fudgeable. I think we’re too far down that road already, and not just in the secular realm.

  110. August 9, 2010 at 5:58 pm

    Tom~#108

    If I thought you’d made a compelling and/or rational defense of marriage being between a man and woman only, I wouldn’t have asked for a rational, logical argument. Perhaps the defense could have used your obvious expertise and IQ in the courtroom? You must also have a higher IQ than the judge as well. Be careful, you know what they say about pride. Even the Catholics don’t like it. (really, you’re going to pull a Biden? At least have some merit to your quotes. Biden’s comment, by default, makes his IQ less-than.)

    Now….Since Time Began. Do you mean, since time began when Adam was created and then Eve was out of his rib and then a talking serpent came to her and told her to eat magical fruit oh, about 6000 years ago? THAT “Since Time Began” time? Or are we talking actual, fact-based time 4.5 to 4.6 billion years ago?

    You declared that I “don’t like it”. Damn skippy I don’t like it, Tom. Which is why I vote, I am involved and I care. It’s called democracy and, although it’s taken some time, a democracy does not abide bigotry for long.

    I do believe that resistance in this case is futile based on the facts and evidence in support of gay marriage. But I’m not closed off to reason. I have yet to find anyone with a logical argument FOR Prop 8. Plain and simple. You go back to “Since Time Began” and you’re talking fairy tales. And by the by, same-sex attraction has been around as long as marriage according to the bible. And even if you buy the whole talking snake scenario, who says it doesn’t need to change? You? God? Because God’s changed His mind about lots of things, Tom, not just marriage. I’m fairly certain there are other things that have happened that God’s had to backtrack on. But we won’t digress into those little embarrassments.

    The government has heretofore stayed outside of the marital bed and does not insinuate itself into the pro-creative habits of it’s citizens. Why then would the government now decide that marriage is solely for the purpose of procreation, therefore deigning non-pro-creative couples such as gays and lesbian’s right to marry null and void? Furthermore, would we then forbid and deny people who are not interested in procreating the rights to marry? How about infertile couples? Are they “real, live spouses” or do they also fall outside of the “potential for procreation”?

    This is not about religion. This is about equal protection under the law. If it is about religion, you might want to check the First Amendment. No laws can be passed that establish a religion. If you legislate morality, you are essentially establishing a religion that infringes on the rights of the people. If it ISN’T about religion, then what in the Handbasket is the LDS Church doing sticking it’s nose in the political arena?

  111. August 9, 2010 at 6:12 pm

    I’ll be happy to debate Constitutional Law with you any day of the week Tom, suffice it to say that the Right has just as much an active judiciary as the Left. I don’t want this to turn into a thread hijack on Constitutional Law. If you will note, the crux of my post was that no evidence was presented at the trial to support the allegation you claim later in your response to JulieAnn. Don’t you think the experts all testified about the marital arrangements, not only historically, but across cultures, not to mention currently in Canada, Sweden, and even, gasp, Mitt Romney’s home state of Massachusetts.

    Here is the actual testimony – judge for yourself if one man-one woman is the standard SINCE TIME BEGAN for marriage based on the evidence presented by the expert for the one man-one woman crowd at the trial.

    Q. The question I want you to answer is whether in your
    view there are any instances in societies, prior to the last
    50 years, of marriages that are inconsistent with your rule
    of opposites? [rule that “marriage” has to be between opposite sex]
    A. Okay. So it’s the former. I will not seek to answer
    the question, is there any marriages that could be considered
    same-sex marriages.
    (Laughter.)
    A. It’s not — it’s actually not a laughing matter to me,
    Mr. Boies, because I’ll tell you, this is a very important
    topic and your — it’s two different questions. And you can
    take your pick, I will answer either one.

    Q. I had tried to take my pick, Mr. Blankenhorn. That’s
    what I was trying to do when I asked you the question.
    A. Okay. Let’s go.

    Q. My question is whether in your view in societies, prior
    to the last 50 years, there are marriages that have been
    inconsistent with your rule of opposites?
    A. Okay. If you will just give me maybe 10 seconds to
    compose my thoughts on this.
    (Brief pause.)
    My answer is that I can think of one instance of — in a
    human group that has been studied where some scholars believe
    and others disagree, but it is a hard case and there are
    arguments on both sides; but there has been one case where
    there is some dispute or some scholarly argumentation over
    whether or not there is an exception to this rule. . . .

    Q. Let me ask you some questions about that.
    What societies are you aware of that prior to the
    last hundred years had polygamy as a regular course?
    A. The best scholarly estimate I have seen on that is
    83 percent.

    Q. Eighty-three percent of the countries?
    A. Eighty-three percent of societies.

    Q. Eighty-three percent of societies had polygamy as a
    regular course?
    A. No, sir.

    Q. My question is —
    A. I’m trying to be precise here.

    Q. My question is: Prior to the last hundred years —
    A. If you wish, we could just say in human history, because
    the scholarship I’m citing that says 83 percent, he’s just
    trying to —

    Q. Eighty-three percent of what? What is the numerator?
    What’s the —
    A. Societies, societies. Eighty-three percent of societies
    permit polygamy. . . .
    Even in instances of a man engaging in polygamous
    marriage, each marriage is separate. He — one man marries
    one woman. That’s the way it works. . .

    Q. Okay. Now, let me go on to your third essential
    structure of the institution of marriage. And that is sex.
    A. That’s a good subject.

    Q. It is. And I don’t want to fall into the trap of making
    sex boring.
    (Laughter)
    A. Maybe together we can do that.
    (Laughter)
    No insinuation.
    (Laughter)

    Q. My question was going to be, and is now, whether you are
    aware of instances in which marriage — marriages are in —
    they are inconsistent with your rule of sex?
    A. I’m sorry. You were saying the couple is married and
    they do not have sexual intercourse, am I aware of such
    marriages?

    Q. That actually wasn’t my question, but why don’t you
    answer that question. That’s really easy, right? The answer
    to that is yes, correct?
    A. I — I was going to answer no. But maybe I’m
    misunderstanding the nature of your question.

    [Blankenhorn then gives several ‘hypothetical examples’ of a marriage without sex. One of those being an incarcerated inmate marrying while in jail and when he can’t have conjugal visits. The questioning resumes . . .]

    Q. Well, because it is my understanding that you have
    previously recognized that — this very specific example of
    where the United States Supreme Court held that you could not
    deprive somebody of the right to marry merely because they
    were incarcerated and could not have sex.
    And I thought that you had talked about that. And
    if you tell me that that’s not so, and I can’t find —
    A. To the best of my ability — I mean, to the best of my
    recollection, I’m telling you that that is not so.

    Q. So you are not aware of that case, at all?
    A. No, sir. Not — no. . . .

    Q Would you turn to page 258 of your deposition. And
    beginning at line 13:
    “But in any society, if a man and woman
    want to marry and not have sex at all, and
    neither one seek divorce, they’re free to do
    that, right?
    “ANSWER: Well, you know, the law on
    this has changed in recent decades. And now,
    in recent years, there has been a growing
    permission on the part of courts to accept
    married couples who cannot have sexual
    intercourse. For example, when one spouse is
    in prison.”
    Do you see that, sir?
    A. That’s exactly what I told you in my answer.

    It goes on, but it doesn’t get any prettier for the pro Prop 8 crowd.

    It is easy to post whatever flows out of your keyboard on to a comment board. Being able to maintain your position under cross examination is not quite as easy.

  112. August 9, 2010 at 6:18 pm

    So Ulysseus–who’s on first?

  113. Thomas
    August 9, 2010 at 6:23 pm

    “Which is why I vote, I am involved and I care. It’s called democracy and, although it’s taken some time, a democracy does not abide bigotry for long.”

    Since we are talking here of a single, partial judge overturning the vote of the democracy, there’s some irony in that statement.

  114. Thomas
    August 9, 2010 at 6:45 pm

    Ulysses: Although the supporters of Prop. 8 could have perhaps made a better evidentiary case, the point of rational basis is that they’re not supposed to have to. The standard is whether any rational basis can be hypothesized, including by the court sua sponte. It’s not the law’s proponents’ burden to carry themselves.

    The examples you cite of non-procreative unions that nevertheless are covered under the general framework of marriage. So what? Why does it follow from an institution’s coverage being broader than its objectives strictly require, that it must therefore be broader still?

    Again, re: polygamy, why is that relevant? The argument is whether gender complementarity is an essential characteristic of marriage. Showing that the number of men and women in a marriage (actually, polygamous arrangements typically involved multiple one-man, one-woman marriages, not one “marriage” with three or more parties) doesn’t speak to the issue involved here.

    “If you will note, the crux of my post was that no evidence was presented at the trial to support the allegation you claim later in your response to JulieAnn.”

    Seriously? I haven’t read the full transcript; have you? I’d be shocked if the pro-8 side choked that badly. If true, it underscores why this kind of substantive policy decision is a poor fit for judicial resolution, especially when the state AG who is supposed to defend the law is playing for other side: It makes the democratically-expressed will of the majority of the people dependent not on the merits, but on the skill of the lawyers. Granted, this is a bug of the adversarial process in general.

    “suffice it to say that the Right has just as much an active judiciary as the Left.”

    Oh, I want an “active judiciary,” as long as the political branches insist on acting unconstitutionally. Returning some teeth to the emasculated post-Wickard v. Filburn Commerce Clause would be a nice start. It’s not “activist judges” I care about, it’s imperial judges who don’t root their activism in Constitutional text, and actively boast of it.

    Can you actually conceive of an Antonin Scalia or a John Roberts finding that the Constitution requires that abortion be illegal? Of course not. Because there’s nothing in the Constitution that requires that, any more than it requires that abortion be legal. The other side is not limited in the same manner. If the Left does not in fact have a more flexible understanding of the judiciary’s ability to set substantive policy, why does it openly boast of it?

  115. August 9, 2010 at 6:59 pm

    Based on the testimony presented, you think the judge was partial? The only “partial” seems to be your facts.

    Being actively involved as a citizen is my duty and right under the framework of democracy. The judge’s job is to resolve disputes regarding the law based on the facts presented to him. One of the court’s jobs is to strike down laws that don’t meet constitutional standards There is nothing undemocratic about it. It’s how the system works. You can rail against the partial judge all you want, but it wasn’t his burden to prove the constitutionality of Prop 8.

    If given to popular vote back in August of 1920, women would still, to this day, not be voting, would they? Irony indeed.

  116. Thomas
    August 9, 2010 at 7:03 pm

    #110:

    The government has heretofore stayed outside of the marital bed and does not insinuate itself into the pro-creative habits of it’s citizens. Why then would the government now decide that marriage is solely for the purpose of procreation, therefore deigning non-pro-creative couples such as gays and lesbian’s right to marry null and void? Furthermore, would we then forbid and deny people who are not interested in procreating the rights to marry? How about infertile couples? Are they “real, live spouses” or do they also fall outside of the “potential for procreation”?

    See my above re: exceptions not invalidating the rule.

    Not every opposite-sex couple will procreate. Similarly, not every person who has not been heard from in five years is dead. And yet enough such people are in fact dead, that the law recognizes a presumption to that effect. (Cal. Evid. Code, s. 667.) That there are exceptions, does not mean that a government cannot, in the name of practicality, establish a general rule.

    Not sure what you mean re: “the government has heretofore stayed outside of the marital bed and does not insinuate itself into the procreative habits of its citizens. Marriage absolutely has been regulated by the state as long as this country has existed. (That, and not Since Time Began, is the relevant inquiry here — which is additionally why the Perry v. Schwarzennegger case’s forays into Swedish law and African polygamy are irrelevancy on stilts.) If the government never formally stated the legitimate government objectives underlying marriage, it was because it never had to. Even the most socially liberal statesmen, until a short while ago, never conceived of a union between same-sex partners as a “marriage.” This is fundamentally different from slavery, where there was substantial opposition from the beginning. Don’t you find it at least a little self-righteous to brand virtually an entire civilization’s thinking about marriage as nothing more than bigotry? And doesn’t that make Barack Obama (who opposes gay marriage) just one more bigot? (Unless, of course, you assume that he’s lying about it, just to keep the rednecks off his case.)

    Finally, who said anything about talking snakes? I gave you an entirely secular basis for marriage being what it’s been. You seem to be so caught up in your self-satisfied Manichean vision of a world divided between lovely tolerant secular liberals, and oogedey-boogedy religious conservatives trying to “legislate morality” on nothing more than a God-said-so, that you went right to that argument without first checking to see if it applied.

    “If it is about religion, you might want to check the First Amendment. No laws can be passed that establish a religion. If you legislate morality, you are essentially establishing a religion that infringes on the rights of the people.”

    [Arch, snooty comment self-deleted.] No, “legislating morality” does not equate to “establishing a religion.” Morality (along with public health, safety, and general welfare) is one of the state’s recognized interests under the “rational basis” Constitutional text Judge Walker pretended to apply.

  117. Thomas
    August 9, 2010 at 7:11 pm

    “If given to popular vote back in August of 1920, women would still, to this day, not be voting, would they? Irony indeed.”

    Why do I even bother?

    Ma’am, a little Constitutional education for one spectacularly and proudly underinformed: The Nineteenth Amendment was passed by popular vote.

    Judges are to strike down laws that don’t meet Constitutional standards. Real Constitutional standards, that is, not “standards” creative judges pull out of their…out of thin air.

    “You can rail against the partial judge all you want, but it wasn’t his burden to prove the constitutionality of Prop 8.”

    Will somebody (perhaps a Prop. 8 opponent who wants to show he’s capable of arguing in good faith) please explain the Constitutional concept of rational basis to JulieAnn? With a special focus on the issue of burdens of proof?

  118. jmb275
    August 9, 2010 at 7:39 pm

    Okay, I’m not a lawyer, and not nearly so eloquent as any of you. I also am not in favor, nor against Prop 8 (personally I would prefer my gov’t get out of the business of regulating marriage at all, and have something like legal “unions” for everyone, thus leaving “marriage” to religious institutions). But I find this to be very odd.

    Re JulieAnn

    If you legislate morality, you are essentially establishing a religion that infringes on the rights of the people.

    No offense Julie, and perhaps this isn’t really what you meant, but this feels so far out in “left field” I don’t know what to think. What philosophy of ethics would this even fall under? What political philosophy (particularly the ones influencing this nation) would this fall under? None that I know of (though I confess to being just an amateur philosopher). After all, since the “beginning” of bi-peds we have been killing each other willy-nilly, even in some cultures as a perfectly acceptable mechanism for appeasing the various sundry gods of the moment. Yet I would fully support a law prohibiting (and exacting stiff penalties for) murder. What religion is this establishing? What the heck what is “morality” to you anyway?

  119. August 9, 2010 at 7:58 pm

    Uh, Tom — women were given the right to vote through the popular vote of men. Try that little thing called empathy they teach you in Sunday School. Would men not being able to vote during your parent or grandparent’s lifetime influence your outlook or color your perceptions? Maybe you wouldn’t talk to women like a misogynist pig. Uncalled for, uncool and not very Christ like or masculine.

    It is this same bigoted, condescending and downright petty attitude that fueled the fear and hate behind Prop 8.

  120. Thomas
    August 9, 2010 at 8:31 pm

    Ulysses, JulieAnn can take care of her arrogant self without someone who’s thrown his own rhetorical elbows insisting that I treat her like a fainting belle in crinolines. In fact, I’m the true egalitarian here: Having been conditioned by modern progressive culture to regard chivalry as simply an outdated support of phallocentric oppression, I’ll hammer a foolish argument just as hard when a woman makes it as when a man does.

    As for Fueling Hate & Fear (TM), you’ve called me, my friends, the Church, the President, and pretty much everybody who ever thought about marriage pre-1978 or so, bigots. Julie called another poster “someone who, it sounds like, had one too many relatives procreate to get him as an end result.” You accused me of distaste for the post-Civil War amendments. Pardon me if I don’t take that unfriendliness and dishonesty lying down. Feel free to play rough, but don’t go whimpering “uncool” when somebody gets down in the mud with you.

    “Would men not being able to vote during your parent or grandparent’s lifetime influence your outlook or color your perceptions?”

    Yeah — but it still wouldn’t excuse me for making a bone-jarringly ignorant statement in defense of judicial imperialism, to the effect that if we’d left women’s suffrage to a popular vote, women would still lack the franchise. Seems we misogynistic pigs were perfectly capable of righting the wrong done to women. We didn’t need a platonic guardian of a judge to save us from our ignorance. Democracy works better than the typical modern liberal will ever admit. And “hate” and “fear” have come to mean nothing more or less than “an argument a leftist can’t easily refute.”

    This illustrates, by the way, why Mormons and other supporters of traditional marriage are wise to be concerned that winning gay marriage (which I think has at least a 50% chance of coming out ahead in the end) will not be social leftist’ last territorial demand. This is a movement whose adherents’ whole self-image is constructed around the notion that they are the vanguard of Social Progress. The movement absolutely needs an Injustice to fight at all times, just as the medieval aristocracy needed constant war to justify itself. Having helped beat racism, sexism, and other genuine injustices (to their credit, and that of their non-leftist allies in these causes, among whom I hope I would have been counted), the social Left needs another dragon to slay. Same-sex marriage fills that space for the moment. If and when they win, they will not just fold their tents and settle down for a blessed age of concord and consensus. There will always have to be another war to fight. If a social injustice does not exist, it will be necessary to invent one. Churches with retrograde notions of human sexuality are a logical target — and the social Left’s hard-wired craving for a demon figure will go through the free-exercise clause like a whale through a net.

  121. August 9, 2010 at 8:37 pm

    Gee Tom, your superiority is most impressive. “Will somebody who wants to show HE’S capable of arguing in good faith?” Psst, your misogyny is showing. I’m the one wasting my time.

    re: jmb275–You’re right–morality was the wrong word to use. Sorry about that. I should have said “one religious view point over another”. You have heard of separation of Church and State, yes? If you have two conflicting religious beliefs and the State is deciding which one is made into law, it is CHOOSING a religion–choosing a favored way of legislating based on one religion and not the other. This is why the courts get involved–to resolve the dispute using facts.

    Despite what Tom says, (and I’m not a ‘he’ but I *think* I got this) rational basis is a standard of review for determining the constitutionality of a statute that does not involve a fundamental right. It is the lowest standard of review for a court–way less than beyond a reasonable doubt or preponderance of the evidence–simply a rational reason for the law. Tom’s problem is that he wants to apply “rational basis” in the current case, BUT the Supreme Court has ruled on several occasions ie: Loving vs. Virginia, that marriage is a fundamental right. So Tom’s just flat out wrong about the standard of review.

    So, jmb, my point was this: if we start allowing church morality to govern us, we are allowing the line between church and state to blur and disintegrate. People in certain religions may not like gays and lesbians, but they don’t get to decide if they can marry. They didn’t get to decide on your marriage, my marriage….did they? If it’s all going to be equal, then we have to decide on your marriage AND theirs.

    See, I feel that to require a vote on whether or not people can love and commit to one another and have equal protection under the law is MORALLY WRONG. That’s what the heck morality is to me. Being fair, I suppose, among other things.

  122. August 9, 2010 at 8:47 pm

    Re #120

    If and when they win, they will not just fold their tents and settle down for a blessed age of concord and consensus. There will always have to be another war to fight.

    But you also realize that this goes both ways. Religions are notorious for inventing an enemy with whom to wage war. Just look at our rhetoric in the church with regard to the “war of good vs. evil” the “secular world” etc. etc. If Prop 8 wins, and the whole nation agrees that heterosexual marriage is the only just and true form of marriage, Mormonism will find another opponent and still declare that the morality of the world is going to hell in a handbasket.

    The thing is this is a tendency that virtually ALL groups have. Having a common enemy unites us. It also destroys others. To me, removing the argument is a FAR better alternative when possible, and in the case of marriage I don’t see why it is not possible (well, perhaps it is politically impossible, but technically it isn’t).

  123. Thomas
    August 9, 2010 at 9:06 pm

    Julie, are you aware that rational basis was the test Judge Walker used in his decision?

    Loving recognized “marriage” as a fundamental right. But what is the “marriage” that the Loving court said people have a fundamental right to? Marriage as it was at the time of that decision; that is, a union between a man and a woman. Not necessarily any union that any two people want to form and have it called “marriage.”

    In fact, three years after Loving, the same Supreme Court summarily rejected a gay couple’s appeal from a Wisconsin Supreme Court decision (the procedure is complicated) denying that Loving implied that gay unions must be defined as marriages.

    This exchange, in which I confess I’m being kind of a jerk (even if I plead provocation), is why I’m afraid going at this question using the judicial rather than the democratic process is going to stir up more anger than resolving even this contentious issue really has to. Under the Romer v. Evans test, and now the Perry case, there is now an additional avenue for overturning a popular enactment, even if a specific Constitutional principle isn’t implicated. The catch is, that avenue involves convicting the majority of “animus,” or irrational hostility. It’s not human nature to like that. It’s especially not going to go over well, when in the process of convicting a popular majority as a bunch of haters, you throw whole cherished religions (whose sexual ethic is typically a lot more central to them than the occasional racism they were also used to justify) into the hater hopper as well.

    Calling 51% of the people “haters” isn’t exactly calculated to lead to social concord, and you people really ought to consider whether winning increasingly marginal social quarrels is worth the price it will exact in social cohesion. The more this is done, the more there will be reinforced a perception that the country is being governed by an elite that is incapable of seeing things through the subjects’ eyes. I understand that Ulysses, Julie, and Judge Vaughan Walker don’t think there can be a rational defense of traditional marriage. But I do, and I like to think I’m not a complete idiot. From my perspective, it seems that what people consider “irrational” has more to do with what they want the final outcome to be, than the objective logic of the respective arguments. And that, to me, militates against the kind of liberal (as in “broad”) application of the rational basis test, which Judge Walker just expanded. It’s just too easy for what seems “rational” to a person to be colored by the person’s biases.

  124. Thomas
    August 9, 2010 at 9:08 pm

    Wisconsin, Minnesota, whatever: http://en.wikipedia.org/wiki/Baker_v._Nelson

  125. August 9, 2010 at 9:13 pm

    Re JulieAnn

    re: jmb275–You’re right–morality was the wrong word to use. Sorry about that. I should have said “one religious view point over another”. You have heard of separation of Church and State, yes? If you have two conflicting religious beliefs and the State is deciding which one is made into law, it is CHOOSING a religion–choosing a favored way of legislating based on one religion and not the other. This is why the courts get involved–to resolve the dispute using facts.

    No need to coddle here. I’ve been down this road on this subject so many times I could vomit. I lived in the Bay area through the whole Prop 8 ordeal. I have studied the issues until I was sick of it. I HAVE BEEN and WAS open-minded enough to change my mind on the issue leading to a serious faith crisis.

    See, I feel that to require a vote on whether or not people can love and commit to one another and have equal protection under the law is MORALLY WRONG.

    Then surely you are an anarchist as that is the ONLY political platform which does not impose its morality on others by using force. Right? It’s fine if that’s the case, just pointing it out. If not, then you concede that unfortunately, due to the limitations of human beings and the laws of physics, we sacrifice someone’s idea of morality in favor of the group’s on some things.

  126. Thomas
    August 9, 2010 at 9:17 pm

    jmb@ #122: “But you also realize that this goes both ways.”

    Of course. You’ll note I don’t join with some other posters in damning Bitter Fruity Apostates as the second coming of Korihor. As Hugh Nibley liked to quote some Roman or other, “the secret of internal unity is an external foe.” I’m frankly not a huge fan of excessive “internal unity” in any case, and I especially don’t like it being artificially generated on the back of a convenient bad guy. If he’s bad, smack him down, but don’t make the smackage an excuse for something you wanted to do anyway.

    “Mormonism will find another opponent and still declare that the morality of the world is going to hell in a handbasket.”

    Maybe. Alternatively, the Church will just make generalized statements about the wickedness of The World, and not focus on any one particular challenge. I mean, as annoyed as people were about the ERA and Prop. 8, those two big bad examples of Church opposition to progressive politics were more than a quarter century apart. We get a lot of mileage out of talking about how things are going to hell generally, without having to regularly single out one specific class for more special attention — I mean, more than you get in the odd Elder Packer talk.

  127. August 9, 2010 at 9:23 pm

    Under a rational basis standard of review (and even the more stringent strict scrutiny), I’d say you were right that JulieAnn was more than capable of taking care of herself, crinolines and all.

    I said that personally attacking JulieAnn’s intellect was uncool. I said it appeared to be misogynistic, because you don’t attack male poster’s intellect, but you did go after the woman. Maybe that isn’t what you intended, but your tone isn’t one of a person taught to avoid “phallocentric oppression.” I also said your behavior was “like a misogynistic pig” not that you were one. It is a distinction, but an important one. Attack the message, not the messenger. And it is the personal attacks that fuel hate and fear.

    You can disagree with someone and not say, “Would someone please take the keyboard away from the monkey”, no matter how big the temptation. I’ve never personally attacked anyone on the marriage issue. My solution has for quite some time been to have the State get out of the “marriage” business. I don’t know that this is particularly leftist, more libertarian and conservative actually.

    The logically consistent argument (depending on how you define marriage of course-see my discussion with Mr. Marsh) is that if the state is going to sanction such pair bonds, it can’t discriminate on the basis of gender or race, because the main purposes for government sanctioned marriage apply to both heterosexual and homosexual couples. You can rail against judicial imperialism, but you are missing the point, which is a government needs to treat its citizens equally and fairly.

  128. August 9, 2010 at 9:30 pm

    Re #126

    Of course. You’ll note I don’t join with some other posters in damning Bitter Fruity Apostates as the second coming of Korihor. As Hugh Nibley liked to quote some Roman or other, “the secret of internal unity is an external foe.” I’m frankly not a huge fan of excessive “internal unity” in any case, and I especially don’t like it being artificially generated on the back of a convenient bad guy. If he’s bad, smack him down, but don’t make the smackage an excuse for something you wanted to do anyway.

    I know, I don’t even know why I bothered. I have engaged in discussion with you enough to know this about you. Forget I said anything.

    Maybe. Alternatively, the Church will just make generalized statements about the wickedness of The World, and not focus on any one particular challenge.

    Yeah, I suppose. Not likely. Let’s see: Missourians, Illinoisians, the U.S. government (for like 50 years), Prohibition, Native Americans (in a couple of ways), ERA, Civil Rights, Prop 22, Prop 8. No I think there are plenty of examples of us uniting against a common (and particular) enemy. But yes, we do get a lot of mileage out of the generic “world->hell” rhetoric. From what I’ve been reading in MormonTimes.com I’d say our next target is the folks seeking to take away freedom of religion by taking away our tax-exempt status (currently falls a bot into the “figment of our imagination” I think).

  129. Thomas
    August 9, 2010 at 9:40 pm

    Ulysses, be aware that I’m now scanning all of your previous posts to see if I can find something to call you stupid about. To establish my egalitarian bona fides.

    “because [SOME OF] the main purposes for government sanctioned marriage apply to both heterosexual and homosexual couples.”

    FTFY.

    On the “get out of the marriage business entirely,” I think we come close to agreement. My one reservation, is the particular status of marriage as an institution pre-existing Anglo-American law, and the formal libertarian tradition. A purely libertarian government (such as I would probably like to have seen arise) would not have regulated marriage to begin with. But that’s not where we are. Where we are, is a place where it seems that in order to re-jigger marriage as is now being proposed, we have to brand whole swaths of the population and cultural as irrationally bigoted. And I have to say that I suspect this is as much a point of the exercise as the substantive result.

    “but you are missing the point, which is a government needs to treat its citizens equally and fairly.”

    And from the definition of those broad adverbs flows the whole argument. “Equally and fairly” means, to me, to treat like alike. The other side argues that it means to treat mostly like alike. Maybe the differences are so trivial as to justify identical treatment, or maybe not. Trust me, I get the point.

    If my more-or-less well-behaved family hadn’t been the subject of dirty looks and loud-whispered comments about “breeders” last night at dinner at the Greeter’s Corner in Laguna — from a guy who looked about 60 and a pretty boy — then maybe I wouldn’t be so snappish tonight. But my experience is that a Mormon has to get pretty mean indeed before he rises to the level of the default setting of some of the people on the other side.

  130. Thomas
    August 9, 2010 at 9:43 pm

    “I’d say our next target is the folks seeking to take away freedom of religion by taking away our tax-exempt status (currently falls a bot into the “figment of our imagination” I think).”

    If I hadn’t been in a con-law class full of tomorrow’s liberal leaders who basically made that very figment-of-our-imagination argument, I’d be more sanguine. I give it twenty years, max. As I wrote earlier, dump it now and beat the rush. Better to make a strong statement of independence while you still can, than to go down with a whimper later.

  131. Thomas
    August 9, 2010 at 9:52 pm

    “Gee Tom, your superiority is most impressive. “Will somebody who wants to show HE’S capable of arguing in good faith?” Psst, your misogyny is showing.”

    I suppose I could have used gender-neutral language, but I’ve always found “he or she/it” to sound stilted. And if you try to make it less so by saying it really fast, it sounds obscene.

  132. August 9, 2010 at 10:36 pm

    “I’ve always viewed the rational basis standard as something resembling the “business judgment rule” of corporate law, under which businesses are entitled to exercise discretion in making business decisions, without being second-guessed as to whether their decisions are necessarily the best.”

    That explains your lack of understanding of the Judge’s opinion specifically and the rational basis standard in general.

    It doesn’t seem a good strategy to back up your position by exposing that you don’t understand the basic concepts of judicial review. You post as if you are a constitutional lawyer or scholar, but to those actually versed in such matters, you are pretty obviously a novice. It makes it difficult to engage you in these discussions as there is no common level of understanding.

  133. August 9, 2010 at 10:38 pm

    I find myself favoring the recognition of monogamous same sex marriages as MARRIAGES on both secular and theological grounds. Monogamy is a more important principle for social cohesion than gender, period. Same sex attraction and same sex attraction phobia stand on exactly the same evolutionary foundation, so there’s a reason for both of them persisting in a larger population of heterosexual reproduction. I got it.

    But I’m also with Thomas on the general principle expressed in #123. An elite that secures a right to same sex marriage can just as easily decide to take away a right to violate the Word of Wisdom. (Remember Prohibition.) An elite that can integrate gays into the Army can (and did early in the 20th century) re-segregate the races in that Army. The right to same sex marriage will not be secure until the majority of people “write that law into their hearts”.

  134. Birdman
    August 9, 2010 at 10:47 pm

    Thomas,
    I believe you are missing an important part of the message provided by the LDS church in its statement:

    “There is no doubt that today’s ruling will add to the marriage debate in this country, and we urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion.”

    Respect and Civility appear to be outside of your vocabulary

  135. Thomas
    August 9, 2010 at 10:52 pm

    Chicken, that’s what’s called an “analogy.” Both rational basis and the business judgement rule involve deference to a policymaker’s discretion. Now, do you have anything useful to say, or are you just going to pose?

    I know it’s difficult to engage with someone so lacking in understanding as I, but you’re evidently “versed in such matters” and ought to be up to the challenge. How, precisely, have I misdescribed rational basis review?

  136. August 10, 2010 at 7:30 am

    I appreciate the analogy, but it is a very poor one.

    Any judicial review looks at the substance of the law in question. The business judgement rule, by definition, will not look at the substance of the decision and assumes it is fine – so long as those who made the decision (the managers/directors) did so without violating any of their duties. In this regard, the rational basis review and business judgment rule are pretty much the opposite.

    The rest of your analysis is similarly flawed.

    First – even with the lowest level of review – rational basis – the court must examine the law to see if (a) it is reasonably related to (b) a legitimate government interest. You propose “protecting” hetero-marriage and the procreation aspects thereof is a legitimate government interest, but don’t offer how preventing homosexuals from getting married is related to that. This is an essential element of the test.

    Second – you say that the government’s reason doesn’t have to be “real” – that it can be homophobic if it wants, so long as some legitimate reason “could” exist. This just isn’t the case. To the contrary, even if the reason IS legitimate, but tends to have a discriminatory effect, it could still fail the test if a better or alternative approach could serve the same purpose. And specifically, the Supreme Court has consistently held that advancing moral principles is NOT a legitimate government interest.

    Finally – you say that “rational basis” was the level of review used by Judge Walker, and this just isn’t the case (at least not entirely). He did say that the law would not stand even if the lowest level of review was used, but he also found that, as the law dealt with a fundamental right (marriage) that strict scutiny applied.

    From the decision: “Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388.” pg. 116.

    If you want to say that hetero-marriage is an important relationship and that this is the legitimate government interest – then go ahead and connect the dots to show how denying homosexuals the same benefits with respect to property rights, taxes, adoption, visitation, etc. etc. etc. is “reasonably related” to protecting that interest.

    If you think strict scrutiny shouldn’t apply – then tell me how you would distinguish this case from Loving v. Virginia in that restpect?

    So far all you seem to offer is your opinion (homosexual marriage bad) and then use legal sounding words and phrases to bolster that opinion. If you are going to make a legal argument, then make it. If you’re just offering a lay opinion, that’s fine, but don’t trick others into thinking you’re doing anything more.

  137. August 10, 2010 at 3:29 pm

    BTC:

    Glad to see you’re moving up in the quality of your media sources. 😀

    Perhaps you can get this to the CofChrist Presidency before their meetings on the reinterpretation of the 1982 policy toward homosexuality in mid-September.

  138. DYC 4557
    August 10, 2010 at 10:25 pm

    I believe God wants SSM to be legalized in the USA. The LDS church’s involvement has actually enabled this result to occur. By passing a state constitutional amendment it gave the Supreme court jurisdiction over the matter which the constitution had not given it. Prior to the passing of prop 8 it could have been held that the federal government had no power to judge a purely religious matter as a marriage sacrament. Now it has jurisdiction over the very definition of what marriage is. As Lincoln said regarding the efforts of those in his day expanding slavery, “We shall lie down pleasantly dreaming that the people of Missouri. are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State.”
    The legalizing of SSM will be forced upon all states. God needs and wants all people to be tested. What will they choose when there are no negative consequences from the society around them? What will we choose when not choosing evil results in persecution even from other members of the church or even from church leaders?
    I do not see this as bringing the return of polygamy. Not because polygamy is wrong, but because it is of God and the courts are doing Satan’s will and only unwittingly fulfilling God’s will. But it could return and even add a further test if God gives those who truly wish to live the fullness of the gospel the opportunity to do so even in the face of persecution.
    Implications of SSM being legal in all 50? If you need a new revelation telling you that sexual relations between people of the same sex is wrong you wouldn’t believe it or live it if the Lord gave one.
    The real implications is that all will be tested and tried as to where they really stand. And the judgments of God will be more quickly be poured out upon the USA as long promised by the God of this land who is Jesus Christ who the peole have rejected and whom may of the LDS have also rejected. The instituting of the system of judges among the Nephites was by the hand of the Lord. The result was more war and blood shed than in the whole history since the Lehi’s family landed in the land of promise. It condemned some and granted others eternal life according as they chose.
    I suggest we all choose wisely and enjoy the ride.

  139. August 11, 2010 at 6:02 am

    FT: “Glad to see you’re moving up in the quality of your media sources.”

    Facts are facts. If Fox used more of them, I’d refer to them more.

  140. August 12, 2010 at 8:02 am

    Thomas – I worked hard on that response. I can only hope you are out researching your retort.

    Meanwhile, another thing of note is the demographics in Argentina, where same-sex marriage rights were granted by overwhelming referendum. The interesting thing is that the same huge majorities are Catholic and think homosexuality is wrong. Yet in that country, they were able to draw a distinction between a civil right and a spiritual rite.

  141. Henry
    August 12, 2010 at 2:33 pm

    DYC 4557

    Interesting comment. Something to think about.

  142. August 12, 2010 at 6:40 pm

    Ulysses, “The Prop 8 battle is not about religious marriage. It never has been” — but it should be, and marriage should be a religious ordinance so that limits, other than those for health and safety, should not be placed on it. If there is a privacy right we respect, then there should not be a barrier imposed by the State.

    As for Blankenhorn — if he was as you say he was, then his testimony should have been stricken.

    cf comment 141 for an example of things in progress.

    Julie “Insurance premiums will not go up–why would they?” — probably down the more lesbians who got married, given the health impacts. But I dealt with spin-off litigation from viatical settlements …

    bewarethechicken — you need to visit http://www.24fightingchickens.com/ but I liked Facts are facts. If Fox used more of them, I’d refer to them more.

    Thomas If I hadn’t been in a con-law class full of tomorrow’s liberal leaders who basically made that very figment-of-our-imagination argument, I’d be more sanguine. Same here. Too bad that “doubting Thomas” seems to mean doubting you, rather than your doubts.

    Firetag — Monogamy is a more important principle for social cohesion than gender, period. though I saw a firestorm of complaint from pro-SSM types over on Volokh dot com when people made that assertion. That has caused me to think more on the topic.

    I’m watching the impact on marriage rates in countries that have opened up to SSM. Does it increase marriage more or does it weaken marriage over the long run? That is something we can observe.

  143. Thomas
    August 12, 2010 at 7:18 pm

    “So far all you seem to offer is your opinion (homosexual marriage bad) and then use legal sounding words and phrases to bolster that opinion.”

    I’ve said over and over again that the legitimate governmental interest underlying marriage is the fostering stable procreative environments. And you and others (like Judge Walker) simply ignore that.

    How do I distinguish Loving? The way I did above: When Loving was decided, marriage was universally understood (in the United States, which is the only relevant inquiry in American constitutional law), to mean a union between a man and a woman. Therefore, what Loving ruled, was that a man and a woman have a right to enter into that union. That says nothing one way or another about the right of two men or two women to get married; Loving did not establish a right for any two people to form a union and call it “marriage,” any more than the right to marry means that a man has a right to marry a duck.

    As I noted above, only three years after Loving, the Supreme Court summarily rejected an appeal seeking to apply Loving to establish a right to gay marriage. How on earth can you therefore argue that that same Court, in Loving, established a right that it almost immediately afterwards declared that it had not?

    The deeper I plow through Judge Walker’s 132-page trainwreck and the trial transcripts, the madder I get. He is a thoroughly shameless man, with an unbelievably shoddy understanding of the law of evidence. As in, you don’t need live testimony from Lord Blackstone, he being dead for more than two centuries.

    There was plenty of admissible evidence in the record of the legitimate, procreative-stability basis for marriage. Walker just ignored it.

  144. Thomas
    August 12, 2010 at 7:26 pm

    Birdman, thank you for your kind advice, doubtless made with nothing but pure unselfish concern for the welfare of my soul.

    Unfortunately, the kind of scorched-earth jurisprudence you seem to favor — that is, the simple resort to declaring “irrational” and “hateful” anything that you can’t convince 51% of the people to vote against — is not calculated to keep dialogue to the quiet deliberative tones of a faculty seminar. If I was feisty, I was responding to a proudly ignorant poster who had just suggested an opponent of gay marriage was some kind of inbred retard, and to someone else who insinuated that I was some kind of closet Klansman who disliked the post-Civil War constitutional amendments.

    I have a duty of civility, but that duty varies on the circumstances. It does not require me to bring a pillow to a knife fight. Reap the whirlwind, pal.

  145. Thomas
    August 12, 2010 at 7:34 pm

    #36 — “To the contrary, even if the reason IS legitimate, but tends to have a discriminatory effect, it could still fail the test if a better or alternative approach could serve the same purpose.”

    I think you’re mixing rational basis up with the “disparate impact” test from antidiscrimination law.

    “the Supreme Court has consistently held that advancing moral principles is NOT a legitimate government interest”

    More accurately, the Supreme Court has indicated a grand total of twice that morality alone is not a sufficient basis for law. Actually, it didn’t actually come out and state this — it sort of tiptoed around the issue in Planned Parenthood v. Casey and Lawrence v. Texas, both in 2003. In so doing, it was ignoring — pretty much the entire body of Anglo-American law up to that point. From Justice Scalia’s dissent in Lawrence:

    Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F.3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality … indisputably is a legitimate government interest under rational basis scrutiny”); Milner v. Apfel, 148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition that “[l]egislatures are permitted to legislate with regard to morality … rather than confined to preventing demonstrable harms”); Holmes v. California Army National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage”); Sherman v. Henry, 928 S. W. 2d 464, 469—473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991), that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality,” ibid., (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196.2

    It should be noted that Justice O’Connor’s concurrence in Lawrence specifically stated that the state did have a legitimate interest in perpetuating the male-female nature of traditional marriage. But she was clearly just another one of the haterz.

  146. Thomas
    August 12, 2010 at 7:50 pm

    I add that I am less concerned here with how the gay-marriage question finally shakes out (I’m probably more agnostic on the subject than many Mormons) than with the deeply deceitful, intellectually sloppy, and ultimately antirepublican manner in which it is being imposed. The process will do far more harm to self-government and social cohesion than the country will be affected by the ultimate outcome one way or the other. That’s what I’m flaming mad — as in, Lexington Green flaming mad — about, not whether two people of the same sex can legally say they’re married.

  147. August 12, 2010 at 10:28 pm

    Stephen M:

    I should have omitted “period” because that made it sound like the issue was over if SSM was made legal. To the contrary, I feel that common-cause is necessary between heterosexual and same-sex marriage advocates in holding up monogamy. Otherwise, as with no fault divorce, abortion, “serial monogamy”, negative overall societal brokenness will result from trying to correct individual injustices.

    Someone earlier in the thread asked how granting gays the right to marry will impact heterosexual marriage. Statistically, very little. But it’s more interesting to invert the question. How will a deterioration of heterosexual marriage as a norm really affect gays?

    I think this is Thomas’ concern about the method of granting same sex marriage being so important. We have to be righting a wrong, not exploiting a wrong to create a wedge issue through which some hope to acquire political power.

  148. August 13, 2010 at 9:29 am

    Stephen – thanks for the link – it is awesome!

    Thomas – thanks for your reply. I note that you seem to re-state your argument without addressing my points. For instance, you say again what the legitimate government concern is – but ignore that I went so far as to concede that point but asked how denying marriage to same-sex couples was reasonably related to that interest – an essential element of the reasonable basis test.

    As for Scalia’s dissent – I will acknowledge he makes a reasoned argument in your favor. However, you do understand that the dissents aren’t what make law in this country, the majority does. Here the majority ruled, again, that morality is not a legitimate government purpose, just as I said. The fact that a reasonable argument could be made in the alternative does not change that fact.

    Your Loving distinction is not very convincing. Obviously at the time Loving was decided, marriage was known to be between people of the same race. The court didn’t decide there was a right to “interracial marraige” the court decided that the right of marriage encompassed the right to marry whomever one pleased. That is the same decision here. There is no mention in the current case of a new “right to same-sex marriage” merely a continuation of Loving that the right to marriage includes the right to marry whomever one chooses – unless there is a very good reason to restrict it. Here, there is no reason – or at least, I haven’t heard you offer one.

  149. Birdman
    August 13, 2010 at 9:47 pm

    Thomas…145

    My friends were correct in the assumption that you would not follow or head the advice given in the official church statement because you are a bombastic egocentric individual who feels entitled to deminish the opinions of others in order to place himself above them.

    The only one who feels you have entered a “fight” is yourself…the others on here believe it to be a debate of viewpoints and assembled facts. Your blessed opinion in no way describes a fact and you are so far askew no one can tell if you even have a viewpoint.

    As far as being your “pal”, you don’t have the money to buy my loyalty, the respect to earn it or the wisdom to understand it.

    It’s not a whirlwind,it’s just a blast of hot air blowing off your deserted mind.

Leave a Reply

Your email address will not be published. Required fields are marked *