Splitting an Unsplittable Baby
Posted on March 5, 2009 Posted by John Scalzi 232 Comments
From the LA Times article on the Prop 8 California Supreme Court hearings:
The California Supreme Court appeared ready today to vote to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed ready to decide unanimously to recognize existing same-sex marriages.
Yeah, but how? Prop 8 was pretty unambiguous about saying what can be recognized as a marriage in the state of California — namely, only marriages between a man and a woman. If the Supreme Court lets the 18,000 or so existing same sex marriages stand and be recognized as legal, then Prop 8 is pretty much null and void — yes, it prevents any new same-sex marriages in California from happening, but in the meantime those 18K same-sex married couples are walking around still being married, and presumably enjoying all the legal benefits of marriage that California offers; in effect, they’re flipping a big fat bird to the Prop 8 forces, who tried so mightily to kill their marriages and fell short.
Mind you, I’m all for that, as I think Prop 8 is hateful and bigoted and utterly shameful, and if it can’t be knocked off entirely (which I would prefer), better to cut its balls off and make a mockery of it, and bring home the point that it’s not the end of the world to let same sex couples marry. And of course I don’t believe that thousands of people’s existing marriages should be able to be voided just because a bunch of people pulled the “yes, I’m for hateful bigotry!” lever at the polling booth (even if they believed doing so was not, in fact, an act of hateful bigotry). But what I’m wondering is what sort of legal pretzel logic will be employed to on one hand say Prop 8, which denies any state recognition of same-sex couples, is in effect, and on the other hand say that these 18,000 same sex marriages are in fact legal and recognized by the state of California. I’m not seeing how it’s possible. Maybe I’m missing something here. I guess I’ll find out when the Court hands down its final ruling.
I should note that I believe that if the existing California same-sex marriages aren’t voided, then the Prop 8 people have materially lost, since the goal was to block any recognition of same-sex marriage in the Golden State, and because it will be increasingly difficult for its supporters to continue to convince other people that such hateful bigotry is a good idea when thousands of same-sex married couple continue to go peacefully about their lives, doing the unremarkable things that married couples do and making everyone else wonder what they were so panicked about. And I’m fine with that, too.
A quick note: As same-sex marriage threads are often contentious here, I’m alerting all and sundry that I expect everyone to be on their best behavior with each other. Consider The Mallet of Loving Correction out and at ready and primed to be used without further warning. Basically, if you can’t discuss this subject without flinging spittle, virtual or otherwise, don’t comment. That is all.
You can’t wrap your brain around a decision that simultaneously recognizes same-sex marriages, and upholds a constitutional amendment prohibiting the state from recognizing same-sex marriages?
That’s why you’re not a lawyer.
Evidently!
As much as I crave the Mallet of Loving Correction, I’m in favor of gay marriage. I work in San Francisco, and 8 of my coworkers (doctors and nurses) are affected by this, i.e. they were married during the time it was legal. We have good support against prop 8 here, but its San Francisco, of course it is supported.
Meanwhile, we boycott Cinemark, and there are probably other businesses I don’t know about I should be boycotting. The CEO of Cinemark (Century Theaters and Cinearts) donated 9,999 to the Yes on Prop 8 campaign, so I’m trying to make sure he loses at least that much business from me and my friends.
My favorite California bumper sticker, seen recently: “OK, now let me vote on your marriage.”
While I too am strongly against Prop 8, and in favor of any consenting adult marrying any other consenting adult (or adults!) that they please, I can see the point of the hair-splitting. At the time that the marriages took place, they were legal. Further marriages may be banned, but I don’t see believe that the act should be backdated to undo these marriages. After all, when the speed limit changes, the police can’t go back and give me a ticket for driving yesterday at a speed that was legal then, even if it’s illegal today. I realize that this is bringing logic into politics, but have to hope for the best here.
My hope is that more and more people will realize that these marriages are no more damaging to the state of marriage than anyone else’s, and that Prop 8 will be repealed by a more sensible voting public. (and let that day be soon!)
Put me in the “WTF?” category there.
Of course, no ruling has happened yet, so it’s premature to wonder about the sanity of the judges here.
SEF:
Indeed. This is just speculation on the speculation.
The problem, Pam, is that prop 8 says “Only marriage between a man and a woman is valid or recognized in California.”
It doesn’t say “Marriage licenses shall only henceforce only be issued for marriages between a man and a woman.”
It was specifically worded that way to ensure that any same-sex marriages from other states would not be valid in California… but if the State Supreme Court says that marriages that were valid during that period are still valid, what about marriages performed in MA? Are they valid and recognized in California, or not?
Does it make it easier if it’s considered an odd form of ex post facto prohibition?
I am of two minds on this. I agree that Prop 8 is an abomination, but In the long run I think we are much better off letting the legislature or popular referendum decide these sorts of thing rather than have it decided by Judicial fiat. It takes longer, and that is a big negative, but it has a lot more legitimacy.
Easy to see how to do it in the law – Article 1 Section 10 of the United States Constitution includes “No State shall … pass any … ex post facto Law”.
Undoing a marriage that was legal at the time is pretty clearly an ex post facto law, and that can be stricken under 1.10.
Cicada, Richard Gadsden:
I understand why they might have to do it that way, I just don’t understand how it works in the real world. Any recognition of same-sex marriage in California runs counter to Prop 8.
First, it’s Cali. John, as a native you know we contradict ourselves all the time.
Second, it’s OUR state. Before you ask me to accept something I may or may not be for or against, is gay marriage legal where you live? Are you trying hard to make it so? Then please stop the comments about the greater majority of residents of California. Anyone who wanted to get married should have known it was not going to last. We may be out on the left coast but we have strong moral values just the same, and as most have been raised to believe two men should not be married of course Prop 8 was going to pass. Do not assume that just because we have two very liberal sprawls here we all are liberals. If I was one of the 18,000 is my marriage good in Utah? Or Ohio?
(Sees thread, poises fingers over keys, then sits back in office chair, rubbing chin between thumb and forefinger)
…..Nah.
@Richard Gadsden: Yes. Additionally, there have been cases on who has the power to dissolve a marriage, and the precedents answer, “Only the parties to the marriage.” So if the existing marriages are ruled invalid, there’s a big ol’ class action suit ready to be filed.
On the other hand, if the Cali Supremes rule that Prop 8 passed fair and square, but pre-existing same-sex marriages are legal, they’ve just created an artificially- privileged subclass of people. And another class action suit gears up on behalf of those who didn’t get married during the window of opportunity who now can’t.
I’ve personally got a proverbial dog in this hunt: my sweetie and I got married in Escondido in July. It would really be nice to get out of legal limbo sometime in our lifetimes…
David Moody:
Your toot there is amusing considering how much funding for the Pro-8 forces came from outside California.
Also, the next time you tell people on my site what they can or can’t talk about, I’m gonna whack it. Because, see. That’s my job, not yours.
It’s possible the weird amendment/revision distinction among California propositions is leaving a situation where an amendment can prevent future exercises of a right (e.g. future marriages) but a revision would be needed to do so retroactively (e.g. the existing 18,000).
This wouldn’t make much sense, but then neither does the whole California proposition/amendment/revision thing in the first place.
re David @14:
I believe there is a federal law on the books that says states don’t have to recognise marriages/civil unions from other states) that are not legal in their state- so, no MA marriages would would not HAVE to be recognised in CA and CA marriages do not HAVE to be recognised in UT- I think the whole thing is very UNamerican – any 2 consentng adults should be able to marry eachother. personnaly I’m not even sure about the limit on 2 as long as everybody knows who is in the contract
@David Moody: “Anyone who wanted to get married should have known it was not going to last. ”
Really? The right to get married is just a whimsical one that can be taken away any old time? [smacks forehead] Well, silly me.
I should have listened to the great philosopher, George Carlin: “You don’t have rights. If someone can take them away, they’re not rights; they’re just suggestions.”
[hitting myself with the Mallet to save John the trouble]
David Moody, it’s worth noting that holding that gay people shouldn’t be artificially deprived of the right to marriage can be a “strong moral value” in it’s own right. That whole equality thing.
@ Scalzi #13- Are you going under the assumption that the law is logically consistent? In a country that produced the 3/5ths compromise?
Joan @16 – can the ‘state’ be sued?
As a Canadian, I have a very different viewpoint on same sex marriage. It has been legal here for a few years. And there has never been a vote on it. I hope there never will be. Our Prime Minister at the time of legalization, Jean Chretien, declared that the majority should not decide the rights of a minority. Just because bigotry in this form has been legal doesn’t make it *right*. And to me, that is the most important thing. As humanity grows and changes, so too do our attitudes. The laws must reflect that.
Joan @16 – also felicitations to you and your sweetie!
sally @24
“the majority should not decide the rights of a minority”
yea – that’s why we have the Constitution and the Bill of Rights here – but apparently the system does not always work – at least not efficiently
David Moody: “we have strong moral values.”
As long as you count bigotry, intolerance and spite among the “moral values”, yes, you have “moral values.”
Giacomo @27 :
its one of the defining characteristcs of conservatism currently – conservatives believe that there is a absolute “right” vs “wrong” and that they know what “it” is and that it’s ok to impose their opinion on the public – because “what’s right is right – how can imposing that on others be wrong?”
so to them that’s “moral values”
there has got to be some psychological term for that – but I can’t think of what that would be
@26 Jason- Except that the Constitution and Bill of Rights are only there because a majority endorsed them, and only exist in the form they do as long as a sufficiently large majority doesn’t decide to change them. Even a perfect democracy guarantees no rights other than the right to vote.
They’ll wuss out and allow it prospectively, but not nullify those who got married previously through the ex post facto Constitutional analysis. This actually happens pretty regularly; the law is invalidated only to the extent that it conflicts with ex post facto (or some other Constitutional issue).
Personally, I think that Prop. 8 will go down in history right along side race- and gender-based bigotries as horrendously shameful episodes that future people just don’t understand how were allowed to happen. I would hope we had grown more as a society, but obviously not.
Of course, I live in Louisiana, which has both a strong center for gay society (New Orleans) and an entire rest of the state that would vote about 99/1 in favor of Prop 8, so who am I to cast stones….
See Giacomo’s last post? That’s right on the edge of Mallet Time, and probably would have been Mallet Worthy had David Moody not soft-lobbed that sort of “my values are better than yours” comment up there, fairly requiring a spike as a response.
Even so, if it gets anymore strident than that, then whack.
cicada – granted, but the guiding priciple of the constitution is to limit the power of the government and to protect the individual (the ultimate minority)
a government of the people, by the people, by definition represents the majority.
it is a flawed/imperfect system – its sole redeeming quality is that it works better than anything else (arguablly a benevolent dictatorship would be better – but those tend not to last beyond the lifespan on the dictator)
@28- Are you just disagreeing with the morals in question, or the entire notion that there’s an absolute right and wrong? The latter premise produces some odd conclusions… @24 Actually, this debate’s sort of the flipside of that– should the majority of Californians, working through the agency of the state, be required to accept gay marriage as legal, something they were not accustomed to doing (18 thousand cases otherwise not being sufficient to acculturate them, perhaps)
@32- The constitution does limit the power of the government, true. This in no way guarantees individual protections. Slavery in the US being one example.
Cicada:
Not 100% behind your police work, there.
I can’t wrap my head around the idea that people believe that they have the right to give their personal “moral values” legislative authority that can be enforced using the power of the state. Whether I approve of gay marriage or not is immaterial, isn’t it? If no one is harmed and only consenting adults are involved, why is that my (or the legislature’s, or the court’s) business? There is certainly enough in my own life to keep my busy without having to meddle in the lives of others.
Perhaps they should be allowed to have “seperate but equal” relationships? Or has that been tried already…..
@33
the entire notion that there is an absolute right and wrong
I know “moral relativism” is anathema to some but it is a reality that a society/culture determines what is right and what is wrong – there are guiding priciples that seem to be costant among many societies ‘it’s not cool to kill somebody without a really good reason’ – but what that ‘really good reason’ is relative to the society/culture in question
They had some explanation on NPR yesterday as to how they could manage this feat. Let me see if I can find it.
Ah. From “California Court To Review Gay-Marriage Ban,”
3/4/09, All Things Considered hosted by Robert Siegel.
Oh, sure. That’ll settle things, I’m sure.
christy @36 – yup, that’s part of the DEFINITION of being a conservative today
“because it will be increasingly difficult for its supporters to continue to convince other people that such hateful bigotry is a good idea when thousands of same-sex married couple continue to go peacefully about their lives, doing the unremarkable things that married couples do and making everyone else wonder what they were so panicked about.”
I *wish* bigotry was vulnerable to evidence, I really do.
@35 Scalzi- Nope, that’s exactly my point– the Amendment was passed in 1865. Prior to that was 78 years with a constitution which allowed slavery.
@36 Christy- I’m morally opposed to child abuse, arson, theft, negligent homicide…quite a few other things. The moral opposition is _why_ I want those things as law, and I imagine why most other people do, too. Some people have “and gay marriage, too” tacked onto their list of morals.
@37 Jason- So, say, enjoyment of child rape and enjoyment of vanilla ice cream are essentially existing on the same moral plane, and we can not say absolutely that one is perhaps wrong?
Martinl:
Bigots will likely remain bigots; it’s the people who are not who this will work on. Also, there’s the fact that demographically speaking younger people are for marriage rights for same-sex couples. The question is not if Prop 8 gets tossed out, but when.
@Sally Lou Liz
As a Canadian, I have a very different viewpoint on same sex marriage. It has been legal here for a few years. And there has never been a vote on it
To quote our host, I’m not 100% behind your police work:
“The Civil Marriage Act was introduced by Paul Martin’s Liberal government in the Canadian House of Commons on February 1, 2005 as Bill C-38. It was passed by the House of Commons on June 28, 2005, by the Senate on July 19, 2005, and it received Royal Assent the following day. On December 7, 2006, the House of Commons effectively reaffirmed the legislation by a vote of 175 to 123, defeating a Conservative motion to examine the matter again. This was the third vote supporting same-sex marriage taken by three Parliaments under three Prime Ministers in three different years.”
Ref: http://en.wikipedia.org/wiki/Same-sex_marriage_in_Canada
Cicada @41
In general, when I consider whether I think something should or should not be illegal, I think to myself ‘is this behavior hurting anyone else more than prohibiting it hurts people?’ This may be different than moral beliefs — I have a mild (and irrational) feeling that maliciously damaging or destroying books is wrong, but I think it should remain legal (provided you obtain your own books). On a more severe note, I think adults should have more legal leeway in drug use, but I’m not too morally fond of most drugs.
In that sense, I think the rights associated with marriage (visa laws, employment benefits, next-of-kin, adoption of children, etc.) to a same-sex couple are worth more than the outrage of people who are aware that someone, somewhere is doing things they don’t approve of and they are going unpunished.
Must be from reading too many Heinlein books as a teenager — I shed most of the economic libertarianism, but it gave me a strong dose of social ‘don’t give a damn about your outrage over others’ behavior’.
Don’t know if I can write this without bringing The Mallet of Loving Correction upon my head, but I shall endeavor to keep this civil. As a Californian resident for 3/4 of my 42 years upon this earth, I would ask that David Moody not include me in his narrow definition of “strong moral values.” I consider myself to have a strong moral compass. The same could be said of my anti-Prop. 8 friends – we consider acknowledging the equality and civil rights of all California citizens (no matter their race, religion or sexual orientation) to be pretty damned moral.
(As I tend to get exceptionally stabby about removing legally granted civil rights from an entire group of people, trust me when I say I’m being very restrained. Look, not an expletive to be found! That’s pretty impressive for the daughter of a Navy man!)
Dave, wikipedia is useful, but that doesn’t tell the whole story. The vote was made in the context of court decisions in almost all territories and provinces that the current definition of marriage was unlawful. The Canadian federal government was acting under de facto Court direction – i.e. if the government didn’t act on it, the courts were going to.
Regardless, her main point is sound – it happened, the hubbub quietly died down, and Canadian society hasn’t imploded. That will only happen when the Leafs next win the Stanley Cup. Followed soon after by the end of the world.
@44- Nope, that’s a working definition of a moral belief about as plainly as it can be stated without actually labelling it as such. “Minimize harm” is one of the big common morals, too.
It has one problematic loophole, though– what if it were demonstrated to you that the psychological trauma caused to opponents by allowing gay marriage was more severe than the psychological trauma to the proponents if you ban it? Would your opinion on passage flip-flop?
I do not comprehend how it is just or reasonable to put ANYONE’s civil rights to a popular vote. And yes, marriage IS a civil right (no matter how many misguided religious leaders say it isn’t). The US supreme court so ruled in Loving vs Virginia.
If the bigots get away with this one, who is next? Whose rights will they decide should be done away with because “decent people” disagree?
@48- JJS- That’s what the vote is: to decide whether something is a civil right or not, and therefore what the state should do about it. You would say absolutely that it is. The opponents aren’t just being sneaky and trying to lobby against gay marriage while secretly thinking that it is indeed a right– they are likely just as sure and determined as you are that it is _not_ a civil right. How else would you like to determine this other than by voting?
Eddie Clark,
You’re exactly right; the Leafs will never win another Cup (I say this as a life-long Torontonian who had the good sense to become a Habs fan at age 6).
As for SSM, I don’t disagree with your analysis, although the Supreme Court (in its opinion in the reference) left the question open as to whether or not the Charter required the federal government to recgonize gay marriage, instead of (say) domestic partnerships. I was happy with that ruling, which basically said “Hey, this is your decision, don’t try to punt it to us!”
(For those non-canucks, our Supreme Court is allowed to give advisory opinions, which the US Supreme Court is constitutionally forbidden from doing.)
I will also note that that I’m glad that all votes on SSM have been to have it. But, there have been votes; had they gone the other way, we might not have SSM in Canada.
Unless a spaceship from the future appears in front of the United Nations building filled with large-headed humans in silver unitards who want nothing more to explain to us that “Same Sex Marriage has ramifications currently undetectable in your society, that will over the course of eons erode the fabric of reality” I not only don’t understand the moral argument against marriage, I can’t understand understanding the moral argument against gay marriage.
Louis CK says it best in this NSFW clip.
My wife and I have a few friends that are gay. We’ve discussed this issue with them at length over time. Beyond the legal, financial, and property rights that are conferred with marriage, I have also felt that our gay friends were absolutely graving social validation that would come from the word “marriage”. A logical compromise to me seemed to be that state governments could establish civil unions that were legally equivalent of “marriage”. No government, state or federal, in the US can dictate to a church to whom it may administer the sacrament of marriage. If a gay couple can find a church that will administer the sacrament marriage, they are married, even if in the eye of their state they live in a civil union. I think my gay friends would say that is too close to “separate but equal segregation.” I’d be curious to here other points of view on this.
Dave,
I spent last year studying in Toronto (Native New Zealander) and quickly decided the least hopeless course of action as far as TO sports goes would be to support the Raps and ignore the leafs and jays :P.
On the actual topic – agree re the Supreme Court, but the (unappealed) provincial decisions made it very hard for the federal government to do anything else – the provinces were already acting by themselves.
If prop 8 can’t invalidate previous same sex marages because of “ex post facto prohibition”, then why could the 13th amendment free the slaves?
I’ve read the Constitution very carefully a number of times and I cannot see where it has any influence over who puts what in whom, or where, or how.
And in this Country, that which is not forbidden is permitted.
I support the right for gays to marry, own guns, and not be waterboarded.
Because that’s THE CONSTITUTION, and you cannot fuck with the founding documents of the Country. Simple as that. GET OUT OF THE BEDROOM, GOVERNMENT. You are not welcome there!
Use them together, use them in peace. Or something.
@55- MarkHB- “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Which’d mean that if the Constitution says nothing about who puts what in whom or where, then it’d be fine for the state(s) to decide as they like, no?
Eddie:
Confusing the granting of rights with the taking away of rights is a rookie error.
This deal is a head scratcher for me. On one hand, I am completely against the idea of banning gay marriage and voted against 8. But, I don’t like the idea of the court invalidating an amendment that was voted on by the people – as bigoted as they may be.
I have to say, if I was Arnold, I would order the state to stop issuing marriage licenses completely and only issue civil unions until this matter is resolved.
It is a sad commentary that our Christian Institutions are often on the side of civil rights oppression. Historically, they tried to use the bible to maintain the ban on inter-racial marriages, maintain slavery, prevent women from being able to vote. If Satan does exist, he must be proud of these institutions and their manufacturing of hatred.
I saw today, one lawyer who was representing pro-prop 8 stating that previous marriages would not necessarily be invalidated, they just would not be “recognized” in California and have no recognized legal benefits. Am I just stupid, or is there something not quite right about this claim?
Eddie:
It’s worth noting here that a California amendment-by-proposition does not necessarily have the same effect on the California constitution as federal amendment to the US Constitution does.
To borrow from Wikipedia:
Longer PDF Here.
John,
I guess that depends on how you look at it. The 13th both granted and took away rights. Admittedly the rights it invalidated were abominations, but it is hard to argue that they weren’t legal.
While I really like MarkHB’s point of view. I was just getting ready to make cicada’s point when she beat me to it. Although, is there a logical limit on what the states can or cannot do given the 10th amendment that you quoted? Can states ban people with recessive genetic diseases from marrying? Can they regulate a required IQ to have children? Scarry stuff.
Thanks Eddie Clark @ 46 for clarifying for me. I was thinking about voting in terms of a public vote or referendum. The public as a whole never voted on this idea, only the House of Commons after they were forced to by the Supreme Court.
Also, the Leafs may never win the Stanley Cup, since, as far as I know, the mice don’t know the question to the answer “42”. And the world better not explode before that answer is questioned, since this has been an extremely long lab test. At least as far as humans are concerned.
@59 Doug – Apart from the Quakers running much of the underground railroad, or the number of churches who started the abolition movement in the US (on moral grounds), and of course that one charismatic Baptist minister who had a few things to say on the subject of segregation and used churches to organize…
Personally, if Prop 8 supporters are so hot to de-legitimize same sex marriage, they should be required to go, INDIVIDUALLY, to each and every household of a same sex marriage and tell each couple INDIVIDUALLY that their marriage is no good–in effect, invading their homes and tearing up the marriage certificates.
Not willing to do that? They’re being gutless.
We may be out on the left coast but we have strong moral values just the same, and as most have been raised to believe two men should not be married of course Prop 8 was going to pass.
Just two men? What about two women?
That’s a pretty telling comment right there, you know. 90% of the anti-gay marriage brigade is simply grossed out at the thought of two dudes getting it on. All your values talk is just frills and laces to claim a moral basis for your dislike.
@62 Good question…considering that many states ban close relatives from marrying just on the off chance they might have bad recessives which’d reinforce each other…I suppose the answer there is yes.
Strech:
Yes, the whole California Amendment/Revision thing confuses things.
MarkHB@55,
Right on!
I’m just waiting for Prop 8 to run afoul of the Full Faith and Credit clause. That should be all kinds of FUN and EXCITEMENT!
I say this as a VA resident, where we enacted our own bigoted bullshit law in the 06 election. I’m waiting for ours to run into that same clause. One of those couples from NYC or Boston is gonna move to the VA suburbs of DC at some point.
Okay, I just looked up the “full faith and credit” clause. Holy cow! This is a legal mess. What is the solution here? Is there any governing body that has the author to unequivocally state, “This is the way it’s going to be.”? Can congress pass a law that says gay marriage is legal and resolve the issue? Or, would that not be constitutional? I recognize congress may not have the political will to pass such a law. But, would the law be able to stand it congress did pass it. Forgive my ignorance here.
Eddie #54, I’m not sure how the 13th amendment could be considered ex post facto in any sense. It freed the slaves. It didn’t say that they always had been free and that, as a result, the slave “owners” were guilty in buying and selling free men and women, it just said that slavery could not exist in the US.
Saying that the currently married gay couples ceased to be married after Prop 8 would not be ex post facto. Saying that they never had been married in the first place would be (particularly if they became liable for fraud for claiming that they had been married). At least, that’s my understanding.
What happened when polygamy was declared illegal? Did the people become criminals until a certain number of wives were divorced or did wives 2-n just magically cease to be wives?
I just learned that Ken Starr thinks that freedom of speech is subject to a majority vote in CA. Those would be the “moral values” David Moody’s crowd thinks are so important – the right to unmarry people, the right to silence people at a whim, and so on.
Eddie (and to our dear Host): The 13th Amendment didn’t run afoul of the prohibition against ex post facto laws because it was an amendment to the Constitution.
A couple of other things on the ex post facto business: first, it’s largely limited to a criminal law context. The California Supreme Court could indeed decide that those marriages weren’t valid without running afoul of that prohibition (although I hope mightily they do not). Second, I don’t think this is ex post facto in all events, because that’s a prohibition on the act of the legislature, not on the courts, who can decide what the law was at some period of time (e.g., the law was (or wasn’t) unconstitutional when passed, or the Prop 8 amendment was null ab initio for whatever reason).
Of course, I think the whole Prop 8 thing is b.s., and want to live in a world where happily married gay couples own closets-full of assault weapons.
AlenM:
I agree with your analysis.
Marriage used to be what you did when you got old enough to have a good enough job to support a wife who would stay home. Times changed, wife now works, etc. Marriage was still what you did if you got a girl pregnant. Now people no longer see the need to get married to have children, they just live together. Half the people I know that have children are married, the other half live together. I have to say they both work. Society changes. Gay marriage is going to be part of this. People don’t like change. Vote against it. Still want our world view to look like Happy Days. Does that make us bad, racist, bigoted people? I just can not but help think that when everyone can marry anyone, what will the point be? Will it still have the same meaning? Of course, with the divorce rate now, maybe it has already lost the “sacred” part? As to who funded Prop 8, I’m not sure it mattered. With this and the Presidential election on the ballot, people were going to go out and vote. And from what we discussed around here, the vote was split between generations. I am sure in 10 or 20 years this will be overturned. Change takes time.
Sally Lou Liz @63, my apologies, I didn’t realize that you were talking about a referendum; I thought you meant a parliamentary vote. My mistake; within the context of the post I should have realized that.
The Pathetic Earthling:
More rights are better. While I think it is possible that the California Supreme Court might overturn 8, I kind of doubt they would overturn a California assault weapon ban.
David Moody:
“As to who funded Prop 8, I’m not sure it mattered.”
Well, it does in the context of people outside the state assuming to have a say on the events going on inside of it, which was the context of your original comment. I also suspect that without the outside organizational push, Prop 8 might have failed.
It is a proven fact: Heterosexuals are the single biggest threat to marriage today.
Yes, those damn straight people going out and having sex with other straight people behind their straight spouses’ backs.
I say we ban straight marriage.
@79 Scalzi- Pesky outside ideas, tainting the ideological purity of California. Oh, if only California could keep foreign ideas out before they corrupt the innocent and easily mislead…
California for Californians!
Hear, hear!
(And I know who should be targets….)
@82- Huzzah! Quick, build a wall and ban media from other states! Protect the children!
As long as they have a law of return. I have a California birth certificate, after all.
@ Mr Moody, # 76 –
Yes.
As a native (5th-gen) Californian, I’m for a right of return. I also intend to exile everyone who arrived after, say, 1975.
@Cicada #64
Those people are noteworthy because they went against the prevailing attitudes of their times. Undoubtedly, King was able to gain traction in churches. Yet there were many, many more churches calling for his death. I’m not even talking about the KKK, who very clearly identified itself as Christian; there was no end of “good, honest” religious folk ready to attack, rape, and kill blacks and black allies before, during, and after the height of the civil rights movement. We have photos of townshaving church picnics under the bodies of hanged blacks!
(Personal pet peeve: the Civil Rights Movement didn’t start or end with King. Contrary to many a text book, King didn’t “have a Dream” and suddenly everything was hunky-dory. You may not have said it, but I do feel there is an implication of such in your post.)
Quakers are a single and relatively small subset of the mass collectively known as Christianity. “Often” does not mean “always”. That’s a misleading argument.
Religion has always been a way to rally people. The abolitionist movement (and King, and the KKK, and the Neo-Cons, And the Democrats, and the Republicans, and the Boys Scouts…) took advantage of that.
@Cowardly withheld at #52:
There’s no sense in bringing up “the sacrament of marriage” in a discussion of civil marriage; if your religion is odd enough to consider marriage a sacrament, that’s a matter between you and your gods, not a matter of state concern.
We’re talking about everyone else, including co-religionists of yours who value civil marriage and have the basic historical awareness to know that “marriage” is an anthropological concept, not a religious one.
@88- Or, possibly, their religious beliefs– their view of how a deity had arranged the cosmos, and the way he/she/it wanted people to live– was the _reason_ they thought as they did, and without it they’d have had different opinions, or felt they lacked a justification for what they were trying to do. At the very least, believing you have a deity on your side seems to increase fervor.
And no, no implication on MLK waving a magic wand, but he does always spring to my mind whenever people start cursing the very notion of preachers meddling in politics. There certainly have been quite a few reactionary churches. There have also been quite a few progressive (in whatever direction of progress) ones.
A few things:
1. I think John Scalzi has basically lost the argument since he subscribes the worst motives for any anti-SSM arguments (by calling people bigots and Prop. 8 supporters hateful). Quite frankly, having any kind of discussion of the merits of the issue is difficult when one side just questions the motives of the other.
2. As I have stated before in this blog, there is a real fear that various religious institutions and quasi-religious institutions (Knights of Columbus, Catholic Charities, etc.) will be adversely affected due to the various anti-discrimination laws (among others) from performing their perceived missions. This has occurred in different states and countries (In Canada, there is a rather famous case with the BC Human Rights Commission regarding the Knights).
3. Relatedly, the Obama administration has removed conscience clauses from physicians and pharmacists w/r/t abortion. Whatever one my think of the morality of abortion and its public policy, there is something particularly repugnant in the state forcing people to act against their conscience. Similarly, different institutions will be forced to perform actions that conflict with their very natures.
4. If, as some legal scholars/professors believe (along with some gay activists) that there is a fundamental conflict between religious liberty and gay rights, who should win? The problem (as I see it) is that religious liberty is a more fundamental, prior right than gay marriage. If such a conflict exists (I do not think that it is an existential struggle, but many people disagree with me here) why should gay rights have priority when religious freedom is explicitly mentioned in the Constitution?
Jamie @ 70
Under current caselaw and federal law (see DOMA, Defense of Marriage Act), states do not have to recognize same-sex marriages performed in other states. If you read through some of the Full Faith and Credit cases, you will find that they don’t apply to everything. Some states still recognize common-law marriage and some will not, no matter if the marriage was recognized in a prior state.
This is a legal mess, as the federal gov’t, constitutionally and historically, has not regulated marriage.
If there is a fundamental conflict between religious liberty and the desires of certain conservative denominations to have the law conform to their dogma, who should win? The problem, as I see it, is that religious liberty is a more fundamental, prior right than such dogmatism. Why should dogmatism have priority when religious freedom is explicitly mentioned in the Constitution?
@Paul Barnes: on #4, I think it depends on if you think that being gay is something you are born with, something you are, vs something you choose. For those of us that think it is something you’re born with, then to deny rights to this group is akin to denying rights to an ethnic group or gender. It makes a minority group second class citizens. If it is a choice, then it is like choosing to be a fundamentalist christian, and then you do get into the whole religious freedom vs another belief group’s freedom.
Our culture has changed a lot since the Constitution was written. Civil rights for minorities was not a high priority for the founding fathers, which is why various civil rights were added over time. I truly believe that in a few decades, it will be unthinkable to deny civil rights to gays. OK, maybe half a century. Women have had the right to vote for less than a century, but I think most would consider it wrong to deny women this right. And yes, I believe that your gender identity and sexual identity are things you are born with, not a choice.
The question of morality continues to bother me. Laws were never created to be moral, they were created to be sure society functions. The fact that there is some overlap – I believe murder is morally wrong, and it is also illegal because society just plain doesn’t function if it’s cool for me to shoot my neighbor in the head if I feel like it – does not mean the two are the same.
People who believe they have the right to withhold legal rights to other citizens because of their moral objections are simply wrong. If I suddenly decide I’m morally opposed to the right to free speech because it could lead to people saying mean things about my God, that moral objection does not give me reason to remove that right. And so it is with gay marriage.
If you’re looking for a place where morality IS the rule of law, go to church. Homosexual couples can bang on the door of the church asking to be married all they want forever more – if the church holds fast, there’s no legal reason they should decide to sanctify those marriages. And gay people can’t do anything about it. I think it’s pretty lousy of the churches, but that’s MY moral opinion, and it holds no sway in someone else’s church.
Legal, government-recognized marriage, however, is not a moral issue. It is a legal issue. It is a question of rights. And gay people should have the same rights as the next heterosexual guy. The state has no reason not to recognize their marriage legally – only morally. And morality does not rule law.
@ Cicada #90
“There certainly have been quite a few reactionary churches. There have also been quite a few progressive (in whatever direction of progress) ones.”
Exactly my point. Often doesn’t mean always. We both admit that religion is a powerful rallying force; I’m suggesting that history has shown that in spite of (or better yet, because of) how deeply religious people have felt the correctness of their actions and morality, history has shown that they “are often on the side of civil rights oppression”.
Feelings are not a good substitute for a measured and fair reading of the law. Neither is rule-by-mob.
I do have a question, and though it may come off as an accusation please know that I don’t mean it that way.
If the Cali Supreme Court shouldn’t judge the validity of the law, what should they do?
Or worded differently, if you don’t want the court to do its job, what should it be doing?
Mr. Barnes…
1) Sorry, you don’t get to determine who won or lost a priori. If you think Scalzi is wrong, then you better mount a better defense than you did. How is it NOT hateful, given the various defenses of prop 8.
2) Conflating US and Canadian issues is sloppy and may be disingenuous. Different arguments and different justifications. Try to compare apples with apples, please. I can’t argue as hardly on Canadian issues, but I can argue hard on US issues.
3) Given that removing the conscience clauses is a return to pre 2000 era regulations, the onus is on you to document the problems in the pre-2000 era that these clauses would solve. Note the various exceptions available then and the various rights that are being balanced.
4) There is no conflict between religious rights and gay rights. However, religious rights are an individual matter. They do NOT apply to other individuals. You’re being sloppy to imply that religious beliefs have sway over individuals who do not share those beliefs.
Whatever one my think of the morality of abortion and its public policy, there is something particularly repugnant in the state forcing people to act against their conscience.
They’re not forcing them to act against their conscience. They’re forcing them to get another job.
If you don’t want to dispense birth control pills, don’t become a pharmacist.
Similarly, different institutions will be forced to perform actions that conflict with their very natures.
Civil marriage has nothing to do with the sacrament of Holy Matrimony. Churches will not be forced to marry same-sex couples any more than Catholic priests are required to marry divorcees.
@96 Onion- “Feelings are not a good substitute for a measured and fair reading of the law. Neither is rule-by-mob.”
I’m not entirely sure how profound that statement is– the law is made by people who presumably had some feelings about the issue being legislated, and ultimately likely reflected the will (however civilized) of the mob.
In any case, the court certainly did its job in ruling on the validity of the proposition, and I’m willing to presume that they came up with a reasonable verdict– personally I know California law about as well as I know Mongolian.
As to oppression and religion– examine your most deeply-held moral beliefs. How tolerant are you of people who violate those? How tolerant would your country be if people who thought almost identically to you on those morals had free reign with your country’s laws?
@98- Actually, the conscience clauses have a broader application than just the conservatives. I believe there was a case in Texas where a prison sent over its representatives to the hospital where it got its drugs for lethal injection, and the pharmacist on duty there flatly refused on moral grounds since he didn’t want to be part of killing someone.
My foursome plus one:
1) If we’re judging the merits of cases by the rhetoric one side uses about the other, i don’t think the pro-same sex marriage side loses. You have the right to an opinion; you don’t have a right to avoid other people having an opinion about your opinion.
2) Fear is not the same as standing. I asked Google about your Canadian example, and it’s more complicated than you implied. The case involved a hall rented out to the public, and the Knights of Columbus wanted a release before they’d make those generous offers. The human rights commission of BC ruled that they -did- have the right to cancel the wedding, but fined them two! thousand! dollars! (Canadian) for how they handled it.
3) There are certain sacrifices you make in exchange for a state-licensed monopoly. If medical professionals acted on their conscience, you could have fat-phobic EMTs who refused to give CPR to the obese, Scientologist pharmacists who refuse to prescribe antidepressants, and Jehovah’s Witnesses working in the ER who refuse to grant blood transfusions. Also, Google “lunch counter sit-ins” if you want to learn some history.
4) There’s no conflict; same sex marriage isn’t mandatory. You have the right not to marry a man; should you choose for religious reasons not to marry a man, that’s still OK. You aren’t talking about religious liberty; you’re talking about using religious language to deny other people their liberty. All the arguments you can make about same-sex marriage were once made about interracial marriage.
+1) Cicada, if you don’t read Fred Clark (Slacktivist), you should. When the religious come to change the secular world, they should translate their cause into shared, nonsectarian principles.
@ Cicada #99
My most deeply held moral beliefs don’t map to the question as you’ve framed it.
Actually, to my mind it doesn’t really matter if “being gay” is a choice or not w/r/t SSM. The actual thing that we are discussing is the act of marriage. Just like being heterosexual does not require someone to marry (or even have sex) neither does being gay. Besides, I am more inclined to argue that the actual act of sex is a more accurate description of “gayness” then other characteristics. However, I am not entirely unsympathetic to being same-sex attracted as being a qualifier for “gayness”. (See John Heard or Eve Tushnet’s blogs for these discussions)
Tei # 94: I liked your response, even though I disagreed with it. To my mind, law and morality, while not perfect overlaps, are certainly interrelated to a large degree. My disagreement comes from two angles. First, if law and morality are separate, I do not think that we can answer the question of “why we should have law this way and not that way”. I mean, even within your response, you suggested a moral way to resolves these conflicts through the notion of rights. Rights-talk has become the primary method of moral discussion for our culture. Secondly, I perceive that large sections of law are reflections of moral commitments. For example, many people hold that taxes should be at a certain level because the government should have some sort of social welfare/safety net. This level reflects people’s moral sentiments about the nature and role of government. Similarly, there is a normative component to whether SSM should be granted or not.
Just to liven things up…
Reports from the hearing indicate that it seems likely that the justices are tipping towards the can’t-split-the-baby middle ground – acknowledging that the majority in the state have the right to amend the constitution (and overturn earlier laws or judicial rulings, such as the one that legalized gay marriage), and yet stating that such an ammendment cannot legally undo acts which were legal (by law, or in this case the earlier CA Supreme Court ruling) at the time.
I.e., no ex post facto law or amendments – if the marriage was legal when performed, one is still married, no matter that such marriages can’t be legally performed anymore.
Yes, read as written the Prop 8 amendment intended to outlaw those marriages in that time period, but they’re seemingly leaning towards saying “You can’t (constitutionally, within the legal system) retroactively do that, so we’ll interpret the proposition narrowly in that regard but otherwise hold it as valid.”
It’s especially noteworthy that at least two justices who were against the earlier decision that made gay marriage legal, were asking questions leaning towards that interpretation (that no matter how it was written, it’s not legally/constitutionally able to be interpreted as ex-post-facto now so it just doesn’t mean that).
My personal opinion is that as someone who strongly opposed Prop 8 and supported gay marriage, this is an unfortunate (in that 8 is found to be valid) but legally and morally acceptable (in the sense that they’re not stretching to try and invent new rules for constitutional amendments via initiative in California on the fly for this one case). I think that the case points out that perhaps we should change the constitutional amendments process in California (2/3 majority? require legislature to approve first / as well ? Not a simple majority, I think). But it’s entirely legally defensible that Prop 8 was consistent with the process that stood and stands now, as wrong as I think it was for it to be passed.
I’m reminded of a dissent by US Supreme Court Justice Thomas from a few years ago, where the majority overturned the Texas Sodomy law, and Thomas said in his dissent (to paraphrase) “I disagree with this law, I think it’s repugnant, an intrusion into privacy, and if I were a legislator in Texas I’d vote to overturn it. But I don’t think it’s right for the US Supreme Court to step in and undo it.” Judicial restraint sometimes means that we have to trust that the system should be maintained and trust that it will eventually do the morally right thing, even though the specific instance was wrong.
Re: Conscience Clauses
There’s a very simple way to avoid working at a job that compromises your morals:
Choose a different job.
There are a number of jobs I couldn’t do, due to finding them morally objectionable. (Working at a slaughterhouse, for example, or being a cook at most restaurants). It would never occur to me to take such a job and then claim discrimination for not doing it. (And while I’m not Buddhist, there’s a religious angle there for some of those that are).
As for broader legal consequences:
Yes, there are some messy intersections between non-discrimination laws, same-sex marriage laws, and religious organizations, although the continued dishonesty by conservative religious groups on the extent and detail of them is a pain.
And notably, not always dependent on marriage. See Florida and adoption. Or even the Catholic Charities case – the organization had been doing gay adoptions for quite some time (and before the marriage decision), despite Vatican opposition, until the leadership decided to stop. Anti-discrimination law was the issue with or without marriage.
As for John attacking the motivations of his opponents, I think he’d perfectly accept that many Proposition 8 supporters acted out of sincere religious belief. It just happened to be bigoted sincere religious belief; the two are not exclusive – just look as Leon Bazile.
All that said, I do support fairly strong exemptions from anti-discrimination laws for religious groups; but given how many of those laws already exist and the high profile of this fight it should be a lot worse if they’re as threatening. So the balance of the two is not hopeless.
The Maple Leafs, on the other hand, are pretty much screwed. Maybe they could kidnap Ken Holland or Lou Lamoriello, though.
Paul Barnes:
“I think John Scalzi has basically lost the argument since he subscribes the worst motives for any anti-SSM arguments (by calling people bigots and Prop. 8 supporters hateful).”
I said Prop 8 is hateful and bigoted and shameful; I allow the people who voted for it may not see themselves as doing something hateful and bigoted (even if I believe they have). That you conflate the two is not my problem.
Beyond that, you need to explain how my expressing the opinion that Prop 8 is hateful and bigoted has any relevance to the actual question at hand — i.e., how the court can on one hand affirm Prop 8 and on the other hand retain and recognize 18,000 existing same sex marriages. These are two entirely separate things: One is an opinion, the other is question of the implementation of law.
Basically, Paul, what you’re saying is “I don’t like the way John Scalzi says something, so therefore he loses the argument.” This is pretty dumb, and non-responsive to the actual argument of the entry (which isn’t an argument, but a question).
Do better.
Re: Moral v. practical foundations of law.
The primary function of any species is, initially, personal survival. The next function is survival of the tribe. Then the species as a whole.
None of this has anything to do with morality. It’s simply how all species function on a natural basis.
In human terms, this translates to creating and enforcing a system of law and government that is aimed at those three primary functions.
Over time, we have discovered, through empirically derived data, what kinds of behaviors lead to what kinds of outcomes, and if we’re paying attention, we set law according to that data.
From time to time, rogue actors in a given state will get control over law and government, and act in ways that have nothing to do with the first primary function and that are actively detrimental to the other two.
They usually argue for continued power despite this destruction by claiming divine right of some sort; by claiming that $deity wants them to be in power, or wants them to set law that, conveniently, benefits only them and their allies or causes harm to opponents.
In order for the rest of the species/tribe to survive, it is incumbent on them, then, to unseat these rogue actors and get them out of positions in which they can do harm.
This is the choice we face now.
The people attempting to deprive same-sex couples of the same benefits enjoyed by opposite-sex ones are claiming divine right. They’re not setting out any empirically derived data that reinforces their position. They’re not proving that the tribe or species is in danger of dissolving. They’re only arguing that this is what “God” wants. (Some do argue to the effect of “we must ensure reproduction!” but there’s no empirical basis whatsoever for this claim, and when you scratch the surface of it, it turns out to be the same divine right stuff after all.)
If, in fact, we are to survive, the rest of us have a responsibility at this time to keep these rogue actors from shredding the foundational documents of our system of law and government. Regardless of whether we or anyone we know are are gay or would personally be harmed by these laws, the legal precedents they set are pretty terrifying. The argument, for instance, that their religious rights are being trampled on by the behavior of non-believers should keep any thinking person awake at night. What happens when it’s YOUR behavior that comes into question?
The only practical application of law and government has to be based in empirically derived data about what will best ensure our survival. It can’t, in any way, be based on superstition, conjecture or vague, unproveable ideas of who and what $deity likes best or the whole thing comes tumbling down.
This isn’t about morality, in other words. It’s about our very basic functions as a species, and whether we’re going to pay attention to observable reality or continue to stick our heads in the clouds to the detriment of all.
@ Cicada #99
Oops, forgot to reply to the top point. The U.S. constitution was not framed by mob rule. In fact, they went to great pains to keep the new country from raising kings. They tried to limit the influence of religion on politics while simultaneously insuring the rights of the religious.
They were learned men who tried their damnedest to apply what they’d researched about what does and does not work to creating a more perfect union (than the articles). Yet they acknowledged their own inability to know everything by making provisions that would allow for some modification as time played out. They didn’t care for mob rule. Mostly because they didn’t really trust the American people (and each other) to not screw everything up.
And boy, did they have some foresight!
I hate to follow myself up, but…
Conveniently, if the California Supreme Court rules the way they were leaning from the questioning, then they’ll uphold the initiative modifies constitution process and Prop 8 specifically, and allow that it can stay as is but not retroactively.
This means that the process is still available for future constitutional amendments… Such as one stating “Marriage between any two otherwise unmarried consenting adults is valid and recognized by and within the State of California”, a Prop -8 as it were.
Simple demographics indicates that, given that young voters of all persuasions and ethnicities seem to strongly support gay marriage, in only 3-4 years there will be a majority the other way in the state. In 5-6 years the majority will be big enough that even a low-turnout election cycle could pass the opposing proposition.
I don’t think that anything would be more useful in defusing some of the vehement opposition than there being a few years of completely reasonable peaceful coexistence with those who were married during the time it was legal (between the supreme court ruling and Nov 5th 2008) and those who oppose gay marriage. This leaned-towards decision is in fact a great way to get this all reversed in a few years – it locks in those marriages which were “on the books” as legal, which avoids all sorts of nasty ongoing fighting over ex-post-facto and unwinding the legal benefits issues, and familiarity will over time breed acceptance with at least some of the opponents, as demographics marginalize them anyways.
I predict a successful Anti-8 in the 2012 presidential election cycle.
I would suggest perusing four blogs that deal extensively with the law about the possible conflict between religious liberty and SSM (and gay rights):
Mirror of Justice
Prawfsblog
Religion Clause
Volokh Conspiracy
I do not have the time to find the exact posts that I have in mind, but they are in those sites, so feel free to browse.
Paul, to put it succinctly: Freedom of religion does not include the right to make others adhere to your religion’s laws.
You don’t have the right to limit others’ behavior just because you’re afraid that it will alter how or whether members of your religion–including your kids–adhere to your religion’s laws.
You don’t exactly see Jews out there picketing hog farms because they’re terrified that their kids will get the idea that eating pork is OK.
If your faith truly is strong, then it can survive the existence of people who do not adhere to it.
I think that the case points out that perhaps we should change the constitutional amendments process in California
Starting with no paid petition gatherers.
Paul Barnes @110:
Why are you conflating “religious liberty” with “the dogma of certain denominations”?
Why are you not equally concerned with the religious liberty of those people whose religions offer sacramental marriage to same-sex couples?
I am sick unto exhaustion of those people who want to pile up “religious people” on one side and “gay people” on the other. One of the couples I know whose marriage is in this unsplittable baby was legally married by their minister (and sacramentally married a little afterwards, they had two ceremonies); what about their religious liberty?
(I’m setting aside my irritation at being presumed to have sacramental marriage because I’m religious, in favor of my annoyance at having my nonexistent sacramental marriage presumed to be exclusionary.)
John Scalzi,
Upon rereading your post, I think that I was uncharitable in my interpretation in your post. I think that you are wholly correct in that I conflated two separate things into one. I apologize for this misunderstanding.
Moving on, I am uncomfortable with nullifying the unions that did take place. As has been mentioned, I do not like the idea of retroactively making an action illegal or void when it was legal beforehand. All kinds of mischief would occur if that become normal government behaviour. As to a specific solution to the California case, I don’t have a solution. However, making a decision like this in the courts does create issues for the future that might not have occurred if a legislative response had happened. Similarly, I think the treatment of the Mormon church by the No’s was counter-productive and risible.
There is a legitimate religious freedom question – can a church refuse to rent out its facilities for a gay marriage ceremony if the church doctorinally objects to such marriages, for example, if they rent it out for heterosexual marriages.
A church would for example get in very hot water very quickly if they had a general rental policy that wasn’t parishoner specific (i.e., we rent it out to anyone not just our own members) but refused a Jewish rental or a Black couple or interracial couple a rental.
The fear is that refusing a Gay couple the rental would then be grounds for a lawsuit etc.
My opinion: Even as someone who is pro-gay marriage, I support people’s rights to be stubborn about their own personal beliefs if that’s how they really feel and to not participate.
Note that this does extend to letting organizations not rent to blacks or jews too… though I also see no problem with the great majority of civilization running people that stubborn right out of town for being that offensive. Some things which are offensive enough to be antisocial should be legal and not actionable. The KKK can march – and be jeered by counter-marches. Them marching is more effective a demonstration of their fundamental buttheadness than anything that the civil rights organizations can say about them…
Tal:
Paul’s point (or at least one of them) is that anti-discrimination laws, etc, can affect how the religious people themselves can legally act, not necessarily how others that don’t follow said religion act.
This is a real issue, even if not as strongly as the right thinks. (Pastors are never going to be arrested for simply preaching against homosexuality, and those that proclaim otherwise are ludicrous fearmongers that are either stupid or dishonest).
On the other hand – an Arizona court did rule it was illegal for a Christian wedding photographer to refuse to work at a same-sex wedding, although that’s likely to be overturned on appeal. Adoption agencies in a number of states must consider placing kids with same-sex couples, although here both marriage and possibly anti-discrimination law are irrelevant, given the that discriminating against gay couples here can’t even pass a rational basis test and “best interest of the child” language appears to mandate that sort of thing, if I read the Florida decision correctly.
There are a handful of other examples, but I can’t remember them off the top of my head. And I don’t think religious freedom should always win out – although the wedding photographer should undoubtedly win in AZ, the adoption rules I agree with.
Thanks, Paul, and no worries.
Dw3t :
Because religion is an individual and institutional enterprise. Just as freedom of speech requires institutions to protect, expand, and create space for it, so does religion. As the political-legal environment stands, SSM undercuts this institutional formation of religious bodies by denying the space for those who might oppose same-sex acts.
I am a strong proponent of institutional pluralism, whereby different groups have considerable sway over how to live their lives. For example, I would not argue that the various denominations do not have a legal right to “sacramentalize” SSM. That is an invasion of state power of the internal workings of a church. Conversely, that does not mean that the state “has to” recognize every and all religious marriages. In fact, the state does discriminate against polygamous and underage marriage (say, 15 year olds marrying). Similarly, the state does not have to recognize SSM.
On another note: for the conscience clauses, let us assume that the belief that abortion is killing a distinct person. Let us further assume that the morning-after pill acts as an abortion. Is it within the duties prescribed to doctors or pharmacists to provide these services?
Perhaps, but I would suggest that an overly rigorous legal formalism is blinding you to the fact that, according to the holder of the previous beliefs, you are killing another person. Just as I would support the pharmacist who refused to be part of a legal execution, I would support the pharmacist to not partake of what they perceive of as a legal execution.
strech,
While this might not have occurred in the States, pastors have been fined in Canada and arrested in the Netherlands (I believe that is where it happened). Furthermore, the Catholic Bishop Henry in Alberta, Canada has been charged with hate crimes by the Alberta Human Rights Commission.
Pam Adams @112: The only way I can see that paid petition gatherers might be a problem is if they’re paid by the number of signatures they collect. That would clearly be improper, much as paying police by the number of people they arrest would be.
Why is it not that as the political-legal environment stands – in at least some areas, as it is not the case where I live – it undercuts the institutional formation of religious bodies by denying the space for those who do not oppose same-sex partnerships?
It rather seems to me that those people who so euphemistically “oppose same-sex acts” and use that as a basis to oppose civil marriage wish to impose their notions of sacrament on everyone else. They are free to be as exclusionary as they wish within their own space – as Tal noted above, the Catholic Church is not required to marry divorcees – but I cannot see how you can support enshrining a denominational belief in the law.
Paul Barnes @ 118: How does the mere existence of same sex marriage effect anyone’s freedom of religion? That’s what you’re not explaining. Describe a credible and specific example of how equal marriage rights prevent any individual or group from practicing the religion of their choice, and I might take your argument seriously.
A thought just struck me; did the out-of-state donors and organisers who propped up Prop 8 also oppose the passing of gay marriage legislation in Massachusetts? What about Canada? After all, both of those places are, like California, outside their ability to influence by actual voting …
Paul Barnes:
I was assuming a US legal perspective, yeah. I’m vaguely aware of a very very stupid Canadian Human Rights commission decision along the lines of fining a Pastor and banning him from speaking in an anti-gay way in the future, but in general the First Amendment puts a kibosh on such things here. The HRCs in Canada are are astoundingly dumb, yes, though I’m not familiar with the Netherlands case you mentioned.
Paul Barnes – Again, I looked up the case in question and it doesn’t match your rhetoric.
Bishop Henry – apparently notable for his opposition to homosexuality and his support for alleged pedophiles – had two complaints filed against him, one of which was dropped. I don’t parse that as “charged with hate crimes”.
Even if the Albertan HRC eventually fines him another two! thousand! dollars!, for calling homosexuality evil and pushing for it to be recriminalized, that’s how Canada rolls. I have to confess I can’t work up a lot of sympathy for poor Bishop Henry, so let’s move on.
I’ll counter your hypothetical with another one – let us assume that ensoulment happens when a man gets an erection. (God knows which sperm would be the lucky one, after all.) That means if a man get an erection looking at a woman, and they don’t conceive a child together during that sperm’s lifetime, that would act as an abortion. What does that imply for the behavior of anti-abortion men and women?
Hey, it’s about as probable as your hypothetical.
Fletcher – I got a lot of ugly, ugly mail from opponents of same-sex marriage in Massachusetts a few years ago. I don’t know whether it was paid for in-state or out of state, but it didn’t stop the state rep who voted against same-sex marriage from being voted out (twice) and replaced with an openly gay man who’s since done a great job pushing for public transportation and hepatitis C education and screening.
My local rep at the time (I have since moved) was one of the ones who was specifically targetted by an imported opponent who opposed same-sex marriage access. A number of Massachusetts representatives were unsuccessfully challenged in that manner.
FungiFromYuggoth:
If it’s the Canadian pastor thing, he may be referring to the Stephen Boisson case. It’s good to know that you support the fining (and silencing!) of people for expressing different opinions than you, though.
Amazingly, your hypothetical may be even dumber than supporting the suppression of dissenting opinions. It’s pretty straightforward to realize that
(1) At some point a person is a person, with all the rights thereof.
(2) Conception, while not the current legal standard (nor, incidentally, mine) is not an inherently absurd one.
(3) People can have legitimate objections to actions which they believe are murder.
I still don’t agree with conscience clauses – if you feel participating in certain actions of a job is murder, and your boss will not accommodate you not taking part in such actions, find a new job.
I’m not certain how, say, a Catholic church that rents out its facilities for a Methodist wedding could then object if the Methodists happen to be two women.
At some point, you’ve kind of declared that your beliefs aren’t as important as making money on facility rental, so to claim that you will allow people of any faith to use your church as long as they are not gay is a bit silly.
strech – I don’t think I can be blamed for not Googling the right example when Mr. Barnes is unwilling to do the same. I think I’ve done enough of his homework for one night.
I will stick by my position that conception is, in fact, an inherently absurd legal standard for which to starting life. You should look at how many fertilized eggs fail to implant, and consider the implications thereof. Particularly if you are a religious person who does not envision heaven dominated by harp-playing week-old zygotes.
Today is the only day in weeks I haven’t been appearing in SF Superior Court, which is out of frame to the right of that photo John posted. Pro-8 protesters were setting up shop in front of the Supreme Court building yesterday morning. They had charming signs about “Protect the Children” and other such inanity, which they held facing the court – because, you know, all the court employees who have nothing to do with any Prop 8-related matters were so very interested in what they had to say.
Lawyerly matters here: ex post facto refers to making something illegal after the fact. “Full faith and credit” and “comity”, in theory, mean that states have to recognize each others’ marriage unless it is vastly against the state’s public policy; funnily, this didn’t keep Nebraska from recognizing a Kansas marriage between a 22-year-old and his pregnant 12-year-old girlfriend. (Pedophiles, yes; queers, never!)
And the “protect the churches” nonsense is, well, let’s be charitable and call it 50 pounds of bullshit in a 10-pound bag (that’s a technical legal explanation). I have asked many, many same-sex marriage opponents to find me a single case where, say, a rabbi was sued for refusing to wed a Jew to a Gentile, or where a priest was sued for refusing to sanctify the union of a divorced Catholic to a Hindu.
Stretch has the right case.
However, I have two problems with the accusation of “not doing my homework”. One, I am on a political blogfast for Lent. In other words, all the blogs in my “political” category I am not reading this Lent. Second, I read 2 hours (at least) a day from many different sources, so that it sometimes becomes difficult and time-consuming to find all the cases/articles that are on my mind. However, Edward Feser, Francis Beckwith, and Richard Garnett are three scholars that often discuss these and related issues.
I appreciate this discussion and the generally thoughtful responses everyone.
I’m perfectly aware of the gleeful abandon with which nature, shall we say, naturally aborts. But no-one said nature was nice. And fallen world and all, so it’s not like Christian doctrine can’t be on point there.
Now, if you wish to argue that the pro-life movement has never fully internalized the implications of its ideas, and has a tendency to act in blithe ignorance of them, you will have no argument from me there.
Not the heaven sort of religious person at all, really, but that would be kind of awesome. I mean, live background music everywhere!
I think the worse thing about prop 8 for me is that it imposes peoples’ religious values on society. How can a law that is based solely on someone’s religious values be legal. The seperation of church and state should be complete.
Since no one can come up with any reason other than it is not moral. It’s ridiculous and bigoted. It denies a legal right to only one group of people. I hope they toss it out. If they don’t then the people who are already married, should stay married. I don’t know how that would work but I am sure they can find a way.
As a Libertarian, I think that anyone who wants the bloody Government involved in their marriage is a bit off to begin with.
So yes, I’m opposed to the State granting marriage licenses to homosexuals. I’m also opposed to the State granting licenses to heterosexuals. Marriage is supposed to be a contract with yourself, your spouse, and your god(s) assuming you have any.
As it is, its a contract between two people and the State, which is what makes the California situation interesting. Since a license is involved, it can’t be a “right”, so a 14th amendment equal protection argument is a bit of a red herring. Of course, that’s not what the California SC rulled in Perez v. Sharp.
Does no one remember the whole reason marriage licenses were invented in the first place: to prevent miscegenation.
Mark Horning:
Anthropologically speaking, marriage is something like a contract between the marrying parties and their community. Gods are not necessary, and not all of them care; marriage exists even in cultures where marriage has no sacramental nature.
In situations of common-law marriage, the community is pretty much just like that – the people say they’re married (with whatever procedures are appropriate), and the community says “Okay” and treats them appropriately by that community’s standards, including in matters of property, progeny, and separation.
In sacramental marriage, the religious organisation is the stand-in for the community (and presumably handles the community role of whatever gods care to show). In civil marriage, the government is the stand-in for the community. Since common-law marriages are dying out, some sort of stand-in for community is probably, barring massive reform, inevitable.
As the political-legal environment stands, SSM undercuts this institutional formation of religious bodies by denying the space for those who might oppose same-sex acts.
How?
How on earth is someone’s religious freedom curtailed by the completely unrelated behavior of non-believers?
Hate speech (by Canadian law) is a completely different animal, and is totally irrelevant to this discussion, so don’t even go there.
I want to know how Jews are harmed by gentiles eating pork and not circumcising their sons. I want to know how Muslims are harmed by non-Muslims not praying five times a day. I want to know how vegan Buddhists are harmed by dairy farms. I want to know how Catholics are harmed by the existence of divorce and female clergy in other faiths. I want to know how pagans are harmed by other people not using athames or calling the directions in their rituals. I want to know how the Amish are harmed by other people driving cars and using electricity. I want to know how Mormons are harmed by Juan Valdez and his coffee-bean-toting burro.
What part of “you don’t get to make other people follow your religion” do you not understand?
I think Mark Horning @134 and Tal @136 just knocked it out of the park. Mark for zipping past the Constitutional Law/State Law divide, and Tal for nailing it under the 1st Amendment.
Let’s take the case where gay people get married, be they man, woman or hermaphrodite.
Zero churches get burned, zero people get muzzled, nobody has anything taken from them, and nobody has their right violated.
Kinda like when two straight people get married. Amazing, isn’t it? It’s like the same thing… and only different if you have some kind of issue with gay people!
Why would you have an issue with gay people, then, becomes the question in my mind – which is why it’s terrifyingly easy to see Prop 8 as a mechanism of hatefulness and bigotry. Because it’s enforcing unwanted codes of behaviour on a LARGE group of people who one hasn’t even been introduced to personally for Reason or Reasons Unknown. Hate and Bigotry are hugely popular on this planet, so it’s awfully tempting to ascribe RoRU to them as the least common denomenator.
And I’m sorry, but the first amendment as well as granting freedom of religion, also grants freedom from religion. So what your God tells you to do does not affect me. Or them. Or anyone who doesn’t voluntarily follow your God.
Well, the problem is that there are overt acts by government agencies on behalf of “gay rights” that adversely affect people, such as the photographer in New Mexico, Catholic Charities in Mass. and California and the calls for the loss of tax-exempt status of different church’s. Yet, let me suggest some reading material for further reflection:
A Quiet Faith? Taxes, Politics and the Privatization of Religion – Richard Garnett
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=904225
Confine and Conquer – Richard Garnett
http://www.nationalreview.com/comment/garnett200403030850.asp
How Traditional and Minority Religions Fare in the Courts: Empirical Evidence From Religious Liberty Cases – Gregory Sisk
http://personal2.stthomas.edu/GCSISK/Siskwebpagestuff/Sisk.Trad.Minor.Religions.pdf
My larger point is that the state has established a precedent the seriously undermines institutional churches and the advancement of SSM will solidify the state’s interference in churches. (I have one post with links in moderation as well)
Excluding Religion Excludes More than Religion – Richard Stith
http://mirrorofjustice.blogs.com/mirrorofjustice/stith/excludingreligion.pdf
Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace – Robert Vischer
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875472
But Paul, that’s absolutely frak all to do with gay marriage. In fact, legalising gay marriage adds to what churches can do.
How is this “precedent” meaningfully different from the undermining of institutional churches that came in with no-fault divorce? How about the “precedent” set by Loving, which undermined those institutional churches that were quoting Bible verses to explain why interracial marriages shouldn’t be allowed?
We have actual precedent on marriage law becoming more inclusive of the needs of the population despite the opposition of certain religious groups; has the world ended yet? Does your larger point have an explanation for why these marriages are the ones that will end religious freedom, when no previous instances have done so?
Well, unfortunately, some of the questions may be answered in my moderated comment, so we will wait for that.
And its not solely a matter of what the state allows churches to do, as if they need to ask permission from the state to run their own affairs. I started out with a more narrow focus on SSM, but as I have come along in the posting here, I don’t think that adequately explains what is going on w/r/t SSM, nor my concerns.
Essentially, (to my mind) the real question is what are the limits of a liberal democratic state (which is what the US is)?
During the Bush administration, there is a generally agreed upon conception that he centralized power for the federal government through various policies. Similarly, Obama is doing the same, but by different tactics and measures. Therefore, my argument is that the curtailment of religious liberty since World War II is a continuation of our feeding the Leviathan.
These things have increased the power of the state to regulate, direct, and control through a bureaucratic government which then shapes our beliefs and behaviour.
This, then, could tentatively be my thesis. The growth of the liberal state fundamentally undermines any effective institutional opposition to its power, thereby limiting dissident voices and giving it sole discretion in determining moral and policy choices.
Hi, I voted yes on prop 8 and I feel I did the the right thing. Contrary to popular belief I did my research before I voted and I stand behind my decision because I believe that marriage is between a man and a woman. So hey, feel free to label me as one of the hateful bigots, Christianity has suffered worse over the years than trivial insults.
However. I do want to make it clear that when I voted on this issue it was never my intention to screw over or take away the rights of gay couples. As much as I frown on the idea of gay partnership I do believe that they should be afforded the same respect and rights as those whom are married, just under a different name. Currently gay couples have “almost” equal rights with married couples with the California’s domestic partner law. Is seems to me that the true fix here is to give them all the rights as married couples while withholding the “marriage” title.
http://en.wikipedia.org/wiki/Domestic_partnership_in_California
The below was pulled from the “Yes on 8” website.
http://www.protectmarriage.com/about/why
* The Issue
California voters passed Proposition 22 in 2000 by more than 61%, saying that a marriage in California is between a man and a woman. Earlier this year, four activist judges based in San Francisco wrongly overturned the people’s vote, legalizing same-sex marriage.
* The Consequences
The Supreme Court’s decision to legalize same-sex marriage did not just overturn the will of California voters; it also redefined marriage for the rest of society, without ever asking the people themselves to accept this decision. This decision has far-reaching consequences. For example, because public schools are already required to teach the role of marriage in society as part of the curriculum, schools will now be required to teach students that gay marriage is the same as traditional marriage, starting with kindergarteners. By saying that a marriage is between “any two persons” rather than between a man and a woman, the Court decision has opened the door to any kind of “marriage.” This undermines the value of marriage altogether at a time when we should be restoring marriage, not undermining it.
* The Solution
Vote YES on Proposition 8 to overturn the outrageous Supreme Court decision and restore the definition of marriage that was approved by over 61% of voters. Proposition 8 is NOT an attack on gay couples and does not take away the rights that same-sex couples already have under California’s domestic partner law. California law already grants domestic partners all the rights that a state can grant to a married couple. Gays have a right to their private lives, but not to change the definition of marriage for everyone else.
Passing Proposition 8 protects our children and places into the Constitution the simple definition that a marriage is between a man and a woman.
Ridlam:
“I do want to make it clear that when I voted on this issue it was never my intention to screw over or take away the rights of gay couples.”
Funny how when people take away other people’s rights, the first thing they do is say how it was really never their intention to do so. It just sort of, like, somehow happened.
Dude, you took away their constitutional right to be married, whether you think that’s important or not. I think it’s cute you can rationalize taking away someone else’s rights by saying that it’s all the same and they didn’t lose anything in the bargain, but I think we both know that’s a big fat lie.
I do wish people who voted to lessen the rights of others would just come out and acknowledge that’s what they did. It wouldn’t make me like their hateful and bigoted act any more, but as a general rule I hate to see people being delusional about the intent and consequence of the actions.
As a final note, Ridlam, your argument would be rather more persuasive it were more than a simple cut-and-paste from the Yes On 8 Web site. Aside from being a violation of copyright, all this convinces me is that you had someone else do all your thinking about the issue, which reflects rather badly on you, both as a voter and as a willing, mindless automaton vomiting up pre-formatted talking points on the Web.
Try not to post here again until there’s evidence you can actually think for yourself.
Article. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
So, SteveS@92, I’m curious how the hell this can be interpreted as anything other than what it says. It’s very clear that congress can set the bar on what constitutes proof and procedure, but it does not have the right to void an act in one state from being recognized in another. Now, I fully expect insanity from Scalia, because that’s just what he does, but how the hell does the rest of the court justify that as meaning anything other than exactly what it says? (I do love that the framers used straightforward language.)
I think that in order to be consistent with the need to stop the wrong kind of people from marrying, not just ANY couple — straight or gay — should be allowed to marry and procreate.
We should have mandatory aptitude tests for couples-to-be:
“Fill in this questionnaire:
-Should you beat your child to make it obey you?
A) Yes
B) No
C) Don’t know
-Is incest wrong?
A) Yes
B) No
C) Don’t know
-Is it right to force your own child to convert to your own faith?
A) Yes
B) No
C) Don’t know”
(etc…)
Of course I jest. Most people would cry bloody murder if such laws were implemented for their own good…
(*SATIRE*)
Ridlam @ 143; I have to second our gracious host on this one. Allow me to provide a personal example: Many years ago, I was a young journalism graduate whose primary aspiration was to be a sports journalist. I had a lot of good experience via internships and had paid my dues in all the places that young journalists (at that time) were expected to pay them. I was hired as a by-line sports reporter by a wonderful sports editor and wrote happily for a couple of years until he retired. The new sports editor was “old school”. He called me into his office and told me that there had clearly been a mistake, that a woman couldn’t and shouldn’t be doing my job and that there was no longer a place for me. He might be willing to speak to the Lifestyle editor, who might make room for me. I asked him explicitly if he was firing me and he said yes (Oh, how I wish I’d had my mini-recorder in my pocket!) .
Now, that nice grandfather, church deacon, fine community citizen, he honestly believed he’d done the right thing, and he was morally opposed to a woman doing my job. He certainly didn’t mean to mess with my livelihood or deprive me of my career or means of support. After all, he was willing to try to get me into Lifestyle, which was “almost” equal.
That did not stop me from being unemployed regardless of his intentions.
The people that you inflicted your opinions on are living with the consequences, and it seems that you should have enough courage of your convictions to do at least that much. You can’t justify doing harmful things to people by saying, “But I didn’t really mean it,” after it’s over.
jasonmitchell@28: I’m in a different field now and can actually answer your question: those of us who use cognitive behavioral techniques would call these thinking errors.
cicada@41: Perhaps you missed the part of my initial post in which I said that no one is hurt and the participants are consenting adults. Child abuse and homicide meet neither of those criteria.
For everyone who talked about “What if society was governed by religion?” I suggest Margaret Atwood’s “The Handmaid’s Tale”. It’s easy to put emotional distance into a discussion of conditions in, say, a fundamental Muslim country where a woman may be stoned to death for being raped. Atwood brings it a little closer to home, and I’ve always found her novel to be one of the most frightening thing I’ve ever read because it has always sounded a little too possible.
A.R.Yngve @146: Satirical you may be, but I’m also a foster parent, and have met WAY to many people who would have answered A, B, A to your quiz. The results are pretty universally tragic.
Paul @ 138 – Well, the problem is that there are overt acts by government agencies on behalf of “gay rights” that adversely affect people, such as the photographer in New Mexico, Catholic Charities in Mass. and California and the calls for the loss of tax-exempt status of different church’s.
Yeah, they do that with interracial couples too. So if, say, a black man who marries a white woman get protections, why not two women who get married, or two men?
Yeah, that separate but equal thing has really worked out in the past. Also, it’s failing miserably in practice in New Jersey.
Ah yes, Catholic Charities in Massachusetts. The group that:
1) Took a contract to handle special needs adoptions for the state of Massachusetts
2) Placed 13 kids with gay couples who wanted to adopt (out of 720 kids placed)
3) Voted unanimously (42 out of 42 board members) to continue considering gay couples for adoptions
4) Had several board members resign in protest when they were forced by the Catholic hierarchy to act as if special-needs kids languishing in foster care was better than them finding loving homes for them with gay couples.
Again, I don’t think this example is proving what you think it’s proving. Didn’t someone write something about what you had to render to Caesar when you were working for the state?
However. I do want to make it clear that when I voted on this issue it was never my intention to screw over or take away the rights of gay couples. As much as I frown on the idea of gay partnership I do believe that they should be afforded the same respect and rights as those whom are married, just under a different name.
Ridlam: So, not only is the first sentence a flat out lie, but you just voted to screw families over a matter of semantics (and a semantic fudge that doesn’t seem to take the sanctity of marriage as a straight-only club very seriously, at that)?
And don’t you dare try and wrap yourself in the moral authority earned by those who have truly suffered persecution for their beliefs. You degrade those who are genuine profiles in courage
The conversation is drifting rather significantly into a generic “same-sex marriage: for or against?” rehash. I suggest a refocus on the questions posed in the entry itself. Hint, hint.
Paul, you don’t seem to understand that when a religious institution acts as a secular business, it’s bound by the same rules as everybody else. Do you think that if the World Church of the Creator opens a restaurant to the public, it has a legal right to forbid blacks from sitting at the lunch counter?
I’m still waiting for one of you to point to an actual lawsuit where a religious institution was sued for refusing to marry someone in violation of its faith. Even with the dramatic pruning of the Establishment Clause pioneered by your soulmate, Justice Scalia, that ain’t gonna happen.
As for let’s-not-call-it-marriage, if the name of the thing doesn’t matter, then why do you care if it’s called marriage? Either it’s unimportant, in which case let them use the “M” word; or it’s important, in which case the whole argument that you can simply call it civil unions collapses.
I don’t particularly appreciate Ridlam’s trying to pretend that ‘Christianity’ and ‘gay-hating bigots’ are synonymous, either.
Sorry, John, x-posted with you.
I get the sense as well that the CA Supremes don’t really have the heart to bust up marriages that were perfectly legal when made. It will be entertaining, from a lawyerly point of view, to see how they square that with Prop 8.
No worries, Mythago. Cross posts happen.
Boy am I tired of that whole “activist judges overturning the will of the people” thing.
The judiciary exists at least in part to protect the rights of the minority from the whims of the majority. That’s what it does. Let’s imagine that this measure was on the ballot in California:
“It shall henceforth be legal for any citizen of the state of California to beat anyone who is left-handed about the head, shoulders and torso with a sock containing no more than twenty-five dollars worth of assorted loose change on Tuesdays in months whose names end in the letter ‘r.'”
Let’s further imagine that somehow, every last right-handed voter in the state of California decides that’s a great idea, and they vote yes on it. It passes, 90% to 10.
Does that mean it’s right and proper for someone to drag any random southpaw out behind the building and go to town with a tube sock full of nickels? Of course not. It’s at this point that someone needs to take the case before the judiciary, who should say, “Hey, this is a blatant violation of the rights of the left-handed. This law, passed by the voters as it is, doesn’t hold water.”
Yes, it’s kind of an absurd analogy – but the point is that basic rights simply cannot be abrogated by a vote of the people. What the judiciary – these “activist judges” that opponents of equal marriage rights talk about like the boogeyman – is saying is that it is a basic civil right of two consenting adults to form a family and a household of legal standing equal to all other such households. The will of the majority, powerful though it may be, must not be allowed to run roughshod over the rights of the minority.
And it’s not like the “activist judges” are simply waking up one morning and saying, “I’m feeling saucy today. I think I’ll overrule the sacred Will of the People.” They’re ruling on cases that are brought before them BY the people.
Majority rule is great…except for when it’s not. And it’s for the times when it’s not that the judiciary has the powers it does.
GBN:
Note “drifting” comment of mine @ 153.
(Sees thread one day later, scratches head and yawns over bowl of cereal….)
I suppose my only contribution to this discussion, is to ask why 26 states before California were able to effect a gay marriage ban, yet it largely went under the national radar. Suddenly with California, it’s a national ‘rights’ crisis, and the culture war goes into high gear. Is it simply because CA has a larger-than-average number of citizens who identify as homosexual? Is it because the number of gay marriage licenses being nullified is so large? Where was the national stink in the years before the 2008 election?
@Paul Barnes
Hi. I’m a Lesbian woman. Let’s stop talking theoretical for a moment.
I’m have a good job. I pay taxes. My significant other works for a wonderful religious organization that shelters abused children. We go to church every Sunday. We volunteer in our community on Saturdays.
Most of our straight friends are married couples. Three of them have been divorced. The majority are not religious and were married outside of a church. But they are married. They have all of the state and federal rights granted to all heterosexual couples – regardless of religious orientation.
My SO was in the army. She loved it. She was repeatedly promoted in rank. She actually WANTS to serve our country. She is more than willing to go to Iraq if that is where she is needed. If she re-enlists she will be unable to recognize me or our (future) children. If our family was “discovered” she would be discharged.
I would never dream of asking the Catholic Church or any other church that does not support gay marriage to marry me. Just like I would never demand that a Rabbi perform an orthodox Jewish wedding for a Christian woman like me – even if I were marrying a man. If my church and pastor is comfortable with performing the ceremony, wonderful. If not, I’d still like the legal rights afforded to my married friends.
If my SO is in the hospital, I’d like the right to know what is going on. I’d like for her to have the right to make decisions for me if I am unable to make them for myself. When I die, I’d like her to have the right to inherit our property without paying enormous taxes. Our property belongs to both of us, even if I am the primary bread-winner. I’d like to receive the same tax benefits and Social Security benefits that other married couples do.
Please tell me, not the “gay community,” how I am hurting you. Please tell ME how who I love and choose to spend my life with treads on your religious rights, because I promise you – I have no agenda against you or your religion. Please tell me why I don’t deserve the same rights that you do. Tell me.
P.S. – I live in Massachusetts, and I thank God every day that I live in a community where I am welcome and respected. I am patiently waiting for my country to catch up. I have high hopes for the current MA challenge to DOMA.
@John
Sorry! Should have refreshed before posting. I’ll stay on topic from now on…
*sigh*
@John – Really, I should not be allowed to read anything about this case before I have my morning coffee, and possibly a donut. Please feel free to delete my soap-box post and get us back on topic!
No, no, it’s fine. EVERYONE ELSE gets the Mallet, though.
(raises Mallet)
@157- That holds true only so far as the law itself has provisions to protect the minority in question. If the population carefully went through from Constitutional amendments on down that allowed clubbing the lefties, taking care to remove or specifically amend any provisions in the law which would prohibit it, the judge has no cause to declare the law invalid. It might be horrible, it might be bad, but it wouldn’t be legally invalid.
Now, here we have the problem that the law is complicated beyond mortal belief and frequently self-contradictory. Imagine if you had one law which allowed you to beat left handed people for fun, and another which outlawed beating people for fun.
One of these laws is going to have to yield once they’re in conflict. Should it be the one supported by the majority of voters, or the one supported by the judge in the case? Which has more legitimacy (not morality, not goodness, not sense, but legal legitimacy)– the will of the majority, or the will of a single person?
Someone upthread mentioned that it might be possible to pass a law saying essentially that “marriage between any two consenting adults is legal and valid in California regardless of gender”. I’m not sure that that would work – it seems to me you’d either get a straightforward clash with the existing Proposition 8, or the two would stack, so that law X would say you could marry anyone and Prop X would add “… so long as they’re not the same gender.”
It looks to me as if it’s going to have to be smote by the judiciary (let’s hope!) or repealed by referendum; the latter is, apparently, a difficult thing to do in California, which is probably why Prop 8 supporters wanted it in the state constitution, precisely so it’d be harder to get rid of.
With that said, though, it’s only a matter of time. The question is whether it’ll get repealed on the 2012 ballot or the 2016 one. I don’t think you’ll have to wait until 2020 to see the back end of it …
in my opinion/hope (exremely optimistic) the court will rule that prop 8 is unconstititional – that it violates the US Constitution (Under the 14th amendment – equal protection under the laws) – there have been other court cases. IANAL so I don’t know if precedence applies – John’s question that started this thread then becomes moot – at least until a different prop/law is passsed that needs to be tested to see if it passes constitutional muster.
For reasons I can’t fathom, nobody wants to admit that this is an issue of gender discrimination; and sexual orientation isn’t a protected category under the US Constitution (whereas it is under the California State Constitution). That’s why nobody is making the argument that the US Constitution bars Prop 8.
Anyone other than me thing it’s really dumb to have a state constitution where a simple majority has the right to do things like overturn free speech?
Because if the “Yes on 8′ proponents have their say, that’s the interpretation of the CA state constitution that sticks.
@59
I think you’re grasp of history is a bit shakey there, Doug. The Bible in it’s many forms has been used as a tool to justify slavery and abolition, prohibition and drinking, woman’s sufferage and them not getting the vote, miscenigation laws and the ability for people of different racial backgrounds to marry. If you want a good book with examples I suggest you read “The Bible Told Me So” which gives scripture examples people used in the arguments I listed above.
@76
” I just can not but help think that when everyone can marry anyone, what will the point be? Will it still have the same meaning?”
People inject their own meaning into marriage. For some people marriage is not “sacred” for whatever reason; maybe they got married for politics or a good business decision, others simply don’t view it as “sacred” because they’re not religious. Some people are married but hate their spouse and did it because “it was the thing to do”.
There is no one meaning to marriage. There never was.
@91, Paul Barnes
So, we shouldn’t force people to go against their feelings? So, a mysgnostic doctor shouldn’t be required to give the very best care to the women he treats? I’m sorry, if you’re going to be in a “public” job then you have to treat the “public”
Now, your argument fails in regards to “private” organizations. If you will remember the Boy Scouts of America were allowed to kick out several gay members because they frown on that sort of thing. The Knights of Columbus would no more be required to allow gay people into their organization than the BSA because they are a private organization.
Your argument regarding religious liberty also fails in a number of ways:
1. No one religion owns the idea of marriage. Whose idea of marriage should we follow? Christianity, Judaism, Hinduism, Islam, one of the various flavors of paganism? This is a country of multiple religions, as well as nonbelievers, because of that basing a law on one religion’s views impinges on the views of all other religions because they might not match 100%.
2. Allowing SS couples to marry doesn’t impinge on your religious rights. Churches are not required to marry anyone. Religions, as private insititutions, do not have to allow gays into their numbers.
@93, Peter Barnes
“The actual thing that we are discussing is the act of marriage. Just like being heterosexual does not require someone to marry (or even have sex) neither does being gay”
Except that heterosexual people are allowed to marry if they so choose but homosexual people cannot. We’re talking about the fact that a certain portion of the population are allowed to do something while another portion of the population cannot.
Your argument could be changed to this: “The actual thing that we are discussing is the act of driving. Just like being white does not require that you only drive during the day (or even drive at all) neither does being black.” It’s a ridiculous argument.
Again:
Let’s wander back in from a general discussion of same-sex marriage and focus more specifically in the questions raised in the original entry.
@170- While I know this sounds asinine to say, I do wonder if the hair’d be split finely enough for this to pass legal muster– homosexual people _are_ allowed to marry, they merely can’t marry someone of the same gender, the same injunction that applies to heterosexuals.
Admittedly, that’d make for useless, loveless, sexually unfulfilling marriages which were made only for tax purposes, but the same rules apply to both orientations. Possibly that’d get it through any equal protection challenges.
@118, Paul Barnes
” As the political-legal environment stands, SSM undercuts this institutional formation of religious bodies by denying the space for those who might oppose same-sex acts. ”
How? Churches can still preach that it’s against God’s will just as the KKK can still say that whites are suprior to everyone else. That’s freedom of speech.
@138, Paul Barnes
“Well, the problem is that there are overt acts by government agencies on behalf of “gay rights” that adversely affect people, such as the photographer in New Mexico, Catholic Charities in Mass. and California and the calls for the loss of tax-exempt status of different church’s”
While I cannot speak to the photographer in New Mexico because I have no idea what you’re talking about, “gay rights” are not taking away the tax exempt status from different churches.
Churches have a tax exempt status because they have to obey certain rules and, one of them I believe, is not making political donations with the funds that they receive. Now, as a church is not just the building that houses the congregation but the organization of the clergy, if members of the church, using church funds, make political donations, then yes, because they violated the terms of their tax exempt status they should lose it. It just so happened that they donated to the Yes on 8 campaign and are being called on it.
cicada @170 –
The line of argument that gays have the same rights as anyone else to marry someone else of the opposite-sex was invalidated decades ago in Loving vs. Virginia when the Supreme Court ruled that while people of different races all had the equal right to marry someone of their own race, it was still discriminatory and unconstitutional.
To return to John’s original question … unfortunately the establishment of a temporary legal act has a lot of historical precedent in US, so while it may seem nuts to say “oh yes, you lot can have rights because you got in first, but everyone else has to stop” can very easily exist in amongst US jurisprudence.
Personally I’m kinda happy that the Illinois Civil Unions bill here made it out of select committee yesterday and is going to be voted on in the House, where it actually looks like it might pass, even if it is appearing that the bigoted Mormon Church is eyeing sticking its nose into yet another state. But then, I’m one of those evil pinko-commie liberal foreigners stealthily hidden to pursue my evil ends in destroying the ‘murican way of life ;)
MattRenthere:
Why are you not actually paying attention to what I’m telling you?
oops, that should have been cicada @172, above, not 170.
That’ll teach me not to use ‘preview’
@John
Because I didn’t see you response in between writing my comments. *ducks head* I apologize, very sorry. *waits for the hammer*
#115 George, you ask “There is a legitimate religious freedom question – can a church refuse to rent out its facilities for a gay marriage ceremony if the church doctorinally objects to such marriages, for example, if they rent it out for heterosexual marriages”.
Well, what about people who have been divorced? Is a church required to rent out its facilities for a marriage ceremony for a couple, one or both of whom have been divorced if the church (Catholic, for example) thinks that divorce is icky? This isn’t a leading question, I genuinely don’t know.
John, with respect to your original question, the law unfortunately does not often mean what it appears to say; lawyers are very adept at finding ways to read a law to get the result they want.
In this case, for example, the court may decide that since Prop 8 doesn’t say explicitly that it works retrospectively, that it therefore only works prospectively. Even though the amendment by its terms doesn’t appear to have a time-based distinction of any kind. If Prop 8 only works prospectively, then the 18K marriages are left intact–even though this means that the state will be recognizing marriages that Prop 8 says that the state can’t recognize. Lawyers can easily believe seven contradictory things before breakfast.
They’ll ignore the fact that by this logic, Prop 8 does not prevent the state from recognizing marriages made in Massachusetts before its passage, only those made after. (Although most likely other laws do.)
They are also probably thinking they can get away with this–that before there’s too much overly-convoluted gymnastic case law dealing with the side effects of trying to read Prop 8 as they are doing, Prop 8 will be overturned.
It’s also entirely likely that there are precedents and various kinds of case law in California specifically affecting whether or not propositions are to be considered retrospectively active. That’s a technical body of law that only appellate lawyers and judges in California are likely to have any familiarity with, and not having that information makes it harder for us to anticipate and understand their reasoning.
I realize this is just an unsatisfying dumb end-around, but procedures already exist for reassigning legal gender for transsexual individuals. If I was a legally influential individual who wanted to defang Prop8 without pushing my luck, I might instead change the requirements for legal gender reassignment to something a bit slow/tedious (to prevent people doing it for a lark) but practical on marriage timescales. (Say, fill out a long form, $50 and a month of processing, no other requirements.)
Then again, considering the pervert potential, maybe not.
On the third hand, maybe allowing people to freely choose their own legal gender would be a good thing once the dust settled.
@174 Sarah- Maybe, maybe not– that case decided the issue for race. It didn’t decide it for gender.
And as the case that started this discussion shows, the hair can be split pretty thin.
cicada @181 –
Another spanner in the works is that unlike race, gender isn’t recognised explicitly as a category of equality in the federal constitution. The ERA hasn’t passed unfortunately, so you are technically correct, gender and race are hardly the same thing constitutionally.
However, and while I admit that it would be subject to said hair splitting (it IS the law after all), I’d like to see someone make the practical claim in arguing a legal opinion in front of SCOTUS that gender and race can’t be compared constitutionally in terms of equality.
Personally I think ‘Loving’ is highly applicable … but as I said above; not my country, despite living here :)
@182- Sarah- If we presume that the law tends to follow cultural trends, then trying for legal gender neutrality is quite a bit behind racial.
For example, a woman saying she prefers a doctor of her own race would get raised eyebrows, but one who said she preferred a female gynecologist likely wouldn’t.
For that matter, I imagine doing away with all the “separate but equal” public restrooms would actually cause some uproar.
Some things actually are considered valid differences, others aren’t. Age, close consanguinity, and the like are even though race isn’t.
cicada @183 –
For example, a woman saying she prefers a doctor of her own race would get raised eyebrows, but one who said she preferred a female gynecologist likely wouldn’t.
Well, actually those two aren’t quite comparable … it is perfectly okay for a person of colour to ask for a doctor of their own ethnicity, just as it would be for a woman to ask for a female doctor … they’re comparable because both the woman and the person of colour are minorities, and hence a vulnerable population, whereas for whites and men, asking for such is merely a reiteration of privilege … context matters :)
That aside, mind you, I would never argue that race and gender are perfectly equitable, legally or otherwise. However, if one exists within tight specific legal contexts, then one can make that argument in that specific legal context.
Not to mention, I’m hesitant to use cultural trends to extrapolate to the law, as the reverse tends to the be case more often, with the law leading opinion more often.
@184- Sarah- Now, why are you discriminating based on privileged status?
Of course, the question occurs for fun– what about a gay white man who was uncomfortable with a white female physician and wanted a male one of whatever race? Case of privilege? Minority status at work?
Homophobic women who preferred the male gynecologist? Same deal?
And I think it’s perhaps more accurate to say that the law imposes opinion rather than leading it. The law didn’t arise with no one pushing for its passage after all.
cicada @185 –
I’m ‘discriminating’ on the basis of privileged status, because one doesn’t address oppression piecemeal at merely the individual level. Acknowledging one’s status as privileged within certain categories is the first step in deconstructing such.
But that’s a bit of a LARGE drift from John’s original questions for this thread :)
I would agree that the law didn’t arise without someone pushing for it, but it doesn’t require the majority of a population to have an opinion in favour of such for it nonetheless to be law … at the time of ‘Loving’ a small minority of the country still thought miscegenation was morally wrong, after all. Hell, a lot of interracial heterosexual couples will tell you that it’s still viewed as such in a lot of places, particularly if it involves a man of colour with a white woman.
Josh – don’t get me started. It’s easier to amend the California constitution than it is to pass a 1/2% sales tax increase here.
re gender – there is a large body of case law stating that it is a ‘quasi-suspect class’, less so than race but still a big deal. There’s not a lot of dispute that gender discrimination is facially unConstitutional. Problem is that, again for reasons that I cannot fathom, nobody wants to go the Baehr v Lewin route and note that this is gender discrimination (and cicada, the same “everybody is discriminated against, so nobody is” argument was indeed rejected as to race in Loving).
@186 Sarah- That seems to leave us with an odd situation, then- presumably a privileged person’s reasons for a given preference do not change, but your objection to implementing the preference would change based on location? Say, if a white male demands a white physician in Houston he is exercising privilege and this behavior should be discouraged, but if he flies to Tokyo and demands the same that’s fine?
As for the case of Loving, that’s my point– a minority thought it was wrong, but the majority had already changed their minds.
@187 Mythago- Race, yes. But we still do discriminate against gender in ways we’d never do for race. Restrooms, say.
Sarah in Chicago – In 1968, a year after the Loving decision, Gallup found that 73% of Americans disapproved of interracial marriages, down from 94% in 1958. I don’t think it was a “small minority” of the country that thought miscegenation was morally wrong.
If we trust Wikipedia, the applicability of Loving v. Virginia to same sex marriage is disputed. The New York Court of Appeals felt it didn’t, but Mildred Loving hoped it would.
California’s constitution has drifted out of alignment, but once the cruft gets in it’s hard to get out. I wonder if a ballot could revise the California constitution to make the constitution harder to revise by ballot?
@144
Wow John, that was kinda harsh.
Ridlam:
Then allow me to rather more gently suggest you take a look at the site disclaimer and comment policy, in which I warn people I do sometimes take the harsh route.
Okay, thirty-second lesson on Equal Protection analysis.
1. Side challenging a law shows that the law is facially unconstitutional – that is, it draws a distinction based on some classification (race, gender, national origin, sexual orientation) and/or is discriminatory.
2. What kind of classification this is determines the level of scrutiny the appellate court applies to the law. Protected classes, like race, require “strict scrutiny”. (Some classes are more protected than others; at the federal level, gender is a “quasi-suspect class” that has ‘heightened scrutiny”.)
3. The government then must show that even though the law is facially a no-no, there is some important government interest and the law is not really overbroad in achieving that interest. How high a fence they have to clear to make the law OK depends on #2. So the government has to show a lot more to justify laws that discriminate against white people than laws that discriminate against Green Lantern fans.
What I think will happen after reading over this court case:
The court will uphold Prop 8 but refuse to nullify the 18,000 gay marriages already performed. Those will still be recognized. Even though Prop 8 says that only a marriage between a man and a woman can be recognized.
This will mean that the state of California will have to also recognize all gay marriages performed in MA before Prop 8 passed, but not after.
The new challenge to DoMA filed in MA this week will, eventually, go all the way to the U.S. Supreme Court. By the time that happens, the tide will have turned enough that the challenge will win, forcing the federal government to stay out of marriage laws (states rights, people). The federal government will then have to recognize MA-married gay couples AS married, and provide equal benefits (taxes, passports, immigration).
Mass gay married couples with full federal rights will move to California and other states, where they are now married according to the federal government, but not the state they live in.
The hairs are going to get split much thinner before we get it right…
cicada @188 –
I said ‘context’, not ‘location’. That language use was very intentional. In the issues of disclosure, I’m a sociology instructor, so what you think I’m meaning by context probably isn’t what I actually mean by it.
To the short of it, because this is WAY off what John was intending for this thread, but yes, changing context DOES alter which social category(s) have privilege and which do not, and which are salient, and which are not.
And as FungiFromYuggoth does so accurately point out, the majority did NOT approve of ‘Loving’ when the law was passed. The majority opinion lagged behind the law.
I actually miss-typed in comment 186, as I meant to say “a small majority” not “minority”; my bad (and as it turns out, the majority was even larger than I thought).
Loving v. Virginia didn’t say that mixed race couples had the right to marry, it sad that making mixed race marrage illegal was a violation of equal protection, and that punishing blacks and whites equally did not meet the standard of equal protection. A significant point because if marrage is a “right” it is not subject to infringement via taxation (i.e. liscense fee)
For example, in Star Tribune v. Minnesota ruled that a tax on newsprint and newspaper ink was unconstitutional, as such a tax constituted illegal prior restraint of a fudemental right (1st amendment).
I’m guessing that the pro-choce folks really don’t want the pro-life folks getting the idea that “ok we will agree that abortion, is a right, but you need a $10,000 liscense to get one”
Given how pathetically easy it is to modify the CA constitution, the anti-8 forces would be far better off writing their own inititive. The reason 8 passed was demographics; large numbers of blacks and hispanics showed up at the polls to vote for Obama, the vast majority of both of those groups also voted for prop-8. The “historic” election being over, the demographics are likely to change back. Prop 8 never would have won in 2006.
@194 Sarah- Can you think of a better way to illustrate a change in context than changing location for purposes of examining how easily you’d have to change your view on whether something was privileged or not?
In any case, I find there’s something comical in the notion of someone who would say “I shall avoid insisting on the physician of my choice in my home culture, but away from there I shall demand it as my right!”
On further reflection of the initial post, I imagine that letting the 18,000-odd marriages stand is just going to be a nice, fat sabot round pointed at Prop 8’s hateful heart next time things swing ’round.
So here’s hoping lots of out-of-state churches piss money up a rope trying to re-pass the filthy thing and go broke. Frakkin’ well serve ’em right.
@ ThatLWord, # 193
Which opens up the door to couples who were married in MA after the ban was passed to tell CA it’s none of their damn business *when* they were married.
What I don’t get — and perhaps the California lawyers here can explain it to me — is that this same Supreme Court ruled gay marriage was legal as the result of a challenge to an earlier proposition passed by California voters that it should not be legal, which was virtually identical to Proposition 8. The Supreme Court ruled that this earlier proposition was unconstitutional. So why would Proposition 8, which attempts to enact the same exact law, be suddenly constitutional, and found so by the exact same Supreme Court? What exactly changed to make the same legal proposition more constitutional?
If the Supreme Court rules that Prop 8 is constitutional and legal, it will be challenged, whether or not they declare the earlier marriages still valid. It will continue to be challenged until it’s gone. Though Florida had no marriages and is as yet not getting as much attention, the similar unconstitutional law passed there will eventually be challenged and continue to be challenged until it is gone. Once any one country around the globe declared gay marriage to be a legal, civil right, the fight was lost, as it should be, in my opinion. The question is, how long the death throes are going to go on. So I would like to see the Supreme Court live up to its own ruling and toss Prop 8 on the garbage heap where it belongs. And if they don’t, it’s not alright with me. But the fight to point out that the fight is already over will go on.
KatG:
The first was a law, which was found unconstitutional, the second an amendment to the constitution, so that the constitution was changed.
Ah, but MA marriages are an issue of federal law – that is, of full faith and credit. If you marry a 12-year-old in Kansas and then move to California, you’re married here. Can Prop 8 nullify the full faith and credit clause? I bet that the CA Supremes’ opinion will be chock full of Dude, We So Aren’t Going There. (In court-ese, “that issue is not now before the court and so we do not address it here.”)
Mark, please re-read Perez v. Sharp.
As a Californian who recently exercised her “right of return” (yes, John, you can too!), I really hate the whole ballot initiative process. It’s ridiculous that you can get ANYTHING on the ballot using paid petition circulators (and in reponse to someone’s question upthread, yes, they are often paid per signature), and that you can amend the state constitution this way. Further, it’s ridiculous that it is easier to amend the constitution than to raise a tax or pass a budget. I’m hoping that the not-too-distant future will bring a revision of this whole system.
As for the split-the-baby verdict, I fully expect it. I expect that the court will rule that the state cannot stop recognizing marriages that were lawfully performed here, during that brief period when same-sex couples were acknowledged to have the constitutional right to marry. It’s like a grandfather clause, I guess — when you did this it was legal, so it stays legal even though no one else can legally do it now.
Frankly, as a “No On H8” supporter, that makes me happy. The support for this initiative was a bare majority, and that majority won’t last. As time passes, younger voters will have more power, and more people will have the chance to observe that those couples practicing marriage equality have not caused any real damage or destruction to the institutions of marriage and family (which predictions motivated a lot of pro-8 votes).
As an aside, my partner and I DO have the right to marry in California, but we’re not going to. For a number of reasons, but one of them is that it would feel to much like eating at a segregated lunch counter or riding proudly in the front of the bus. No thanks.
Can Prop 8 nullify the full faith and credit clause?
I’m going to go with the federal constitution trumping a state constitution on this one, because if states get to nullify the full faith and credit clause on this one, they get to do it on every thing they want to. And that’s bad. As in “don’t cross the streams” bad.
mythago @# 201: I think court opinions would be much more entertaining to read if instead of saying things like, “that issue is not now before the court and so we do not address it here,” they said things like, “Dude, We So Aren’t Going There.”
With all due respect, Mr. Scalzi, worrying about ‘splitting the unsplittable’ is a bit premature. What the California State Supreme Court must first determine is if the changes in Prop 8 is an amendment or a revision to the state constitution. “As far back as 1894, the California Supreme Court distinguished between a revision of the constitution and a mere amendment thereof (Livermore v. Waite, 102 Cal. 113). As reiterated in 1978, the court held that a revision referred to a ‘substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions’ (Amador Valley Joint Union High School v. State Board of Equalization, 22 Cal.3d 208.” [CPS Brief, Vol. 3, No. 3] An amendment can be pass with a successful ballot initiative whereas a revision requires 2/3 legislative vote before proceeding to a voter referendum.
Since the decision filed by our supreme court (yes, I’m in CA) on 05/15/08 – the decision that resulted in those 18,000 marriages – says “… the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage…” and “We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual…”, I am not convinced that the upholding of Prop 8 is a forgone conclusion regardless of how it’s being reported in the press.
This is the same Supreme Court who heard arguments to overturn Prop 8 yesterday.
I should note that italics in my earlier post is from the source material, not my own.
cyan:
“With all due respect, Mr. Scalzi, worrying about ’splitting the unsplittable’ is a bit premature.”
As has been noted earlier in the thread — we’re doing a thought exercise here taking as given Prop 8 will be upheld, but that the existing marriages remain legal. Actual reality may of course diverge from this thought exercise.
Mr. Scalzi:
“As has been noted earlier in the thread — we’re doing a thought exercise here taking as given Prop 8 will be upheld, but that the existing marriages remain legal. Actual reality may of course diverge from this thought exercise.”
Clearly, I miss that, my bad. But I do think it is worth bring up the real possibility that Prop 8 may be overturned because our Supreme Court could decide that the scope of Prop 8 falls into the realm of ‘revision’ as opposed to ‘amendment’.
Thanks for the clarification. It had been unclear in the press coverage I read.
The presence of legal gay marriages in California is not necessarily going to change minds about gay marriage being a threat, because the fear is not about individuals, but social institutions. Opponents to gay marriage regard homosexual sex as abnormal and morally wrong. If the government legalizes gay civil marriage, then civil institutions will be presenting gay sex as normal and equal to heterosexual sex. The greater fear is that religious institutions will then be forced to perform religious gay marriages by the government, lawsuits, bad press, etc. To combat this expected future threat, they attempt to continue to prohibit civil marriage, which is what they mean when they say that they are protecting their own civil rights to religious freedom. Some of these folk understand that this is a civil rights violation that hurts gays, and so propose that gays be given civil unions, which would give them the equivalent rights of a civil marriage, but because it is not marriage, they believe churches and temples could not then be compelled to perform gay religious marriages.
So it’s not the family they are protecting, but that their religious and cultural beliefs remain legally dominant in the civil society. Opponents to gay marriage do not want to give up the legal power they have in civil government, and are concerned that gay marriage and the civil social acceptance that would come with it will give gays and those who support them more social and political power, just as has been the concern with women, blacks, Jews, etc., in previous civil rights battles. It’s not just an issue of some bigoted people finding gays icky.
As long as they can hold on to that legal power, it doesn’t matter if it’s in clear violation of the federal constitution and the ideas of equality built into that constitution. But the costs of trying to legally disempower and constrain large groups of citizens are high and California is experiencing those costs in the middle of an economic recession. If the Supreme Court rules for Prop 8, California will likely become even more of a Democratic state in the future.
KatG:
“If the government legalizes gay civil marriage, then civil institutions will be presenting gay sex as normal and equal to heterosexual sex.”
Stop! Right there! That truly is the crux of the entire issue, imho. It’s not about religion or morality or power for institutions ~ those are just veils that opponents of SSM use to justify their position. The REAL problem is sex. Yes, sex! Homosexual sex, specifically. Because: “If the government legalizes gay civil marriage, then civil institutions will be presenting gay sex as normal and equal to heterosexual sex.” And every parent who believes that homosexuality is a ‘choice’ fears that that sort of “officially recognized normality” will cause their children to consider ‘gay-ness’ as an option.
It’s not just an issue of some bigoted people finding gays icky.
If the government legalizes gay civil marriage, then civil institutions will be presenting gay sex as normal and equal to heterosexual sex. The greater fear is that religious institutions will then be forced to perform religious gay marriages by the government, lawsuits, bad press, etc.
KatG @209 –
Those two paragraphs are incompatible.
Either you think gays and lesbians are equal to straights, or you don’t. If you don’t, it’s contrary to ALL the evidence out there, and you’re sticking to your beliefs rather than reality, holding that a group of people are less than you.
It doesn’t stop being bigotry just because the motives aren’t pure hatred. Bigotry is bigotry, regardless of cause, it doesn’t matter if it comes with a worried vote rather than a white hooded sheet or a flaming cross in the front yard.
This kind of opinion, moreover, is fundamentally antithetical to a modern, pluralistic society. The idea that something that you disagree with is deserving of not having civil recognition merely because you disagree with it is in contradiction to the ideals of what it means to have our society. There are plenty of lifestyles out there that I find highly repulsive, even disgusting, and yet I don’t think for one millisecond that they are deserving of anything less than the rights that I should have as a lesbian.
The problem hence is not a worrying about losing rights as religious people, because it is demonstrably not so the case, particularly not in a US constitutional context. The problem is that some people with a religious background have such in an ‘absolutist’ frame, where there is one ‘big-T’ Truth, one Way, one Good, one Bad, etc. While a modern pluralistic is, by definition, operating in a ‘pluralistic’ frame, with many individual truths, many ways, many goods, many bads.
The mere existence of something other than their own is a threatening and scary prospect for those in the former frame, because that mere existence is perceived as a direct assault and challenge to them.
But as I said above, despite this being as earnest as hell in many of them, it doesn’t stop it from being bigotry. And it doesn’t stop it from being the curtailing of civil rights merely because what I do in bed makes them feel ‘icky’.
cicada @196 –
Not ignoring your question, just trying to find a good definition for you … got in not too long ago after being at the gym and being out is all.
Speaking as a gay Californian cynic and pragmatist I think it will play out this way: Prop 8 will stand since the CA Supreme Court since it passed as a majority amendment and they need to respect the voters choice (and if they invalidated it the court would be flooded with cases to get tons of other propositions repealed by scores of people with long memories and axes to grind). The court will let the gay marriages done stand since they made the conditions for them in the first place. Also the judicial branch hate retroactive laws since a retroactive change gets too close to constitutional prohibition of double jeopardy (cannot be tried twice for the same crime). This means the Prop 8 backers will go slowly insane to get those 18,000 marriages gone anyway they can, Rush Limbaugh and company will weigh in as a way to get attention, ratings points and a culture war issue to try to rally the Republican base. This will lead to alienating more moderates since bashing gays is one thing but destroying marriages is another. And after that people will just get used to gays being married, a propostion will be proposed to annul Prop 8 and it will pass. It will probably will take 10 years and during that time expect also to deal with a lot of pissed off gay people saying nasty things about right wingers and the religious. Having to go through all this crap for stuff straights can take for granted tends to make a people rather bitchy.
@ Cyan # 210
Have you got any proof for that? Or are you saying that, because these idiots think that’s the case, they ought to try and protect themselves from it, even if it’s never going to happen? Because either way, it’s still about morality – those parents think it’s immoral to have gay sex. And they probably think it’s immoral to have gay sex because religions tell them it is. There are very few atheist or agnostic moral systems that care one way or the other about gay sex.
So, you’re wrong. It is about religion or morality.
KatG @ 209 – I keep hearing this argument about the Yes-On-8 crowd gulling themselves into thinking they’re “protecting” something, but they’re not. There is no real threat to marriage, just a threat to people’s desire to prevent same sex marriage.
There’s never been real proof that SSM threatens anyone, unless of course you accept that mixed-race marriage was also a threat.
I agree, JJ, gay marriage threatens no one, but that’s how they see it and that’s the argument they are making for why it is a threat, and it was that argument — that gays are fine but gay marriage threatens the institution and tradition of marriage and threatens their religious rights because they will be forced to accept gay marriages and have their churches perform gay marriages — that swayed many voters, even if they weren’t particularly religious, though obviously religion plays a big role.
Sarah in Chicago — I’m not saying the bigotry is excluded or minimized — it is the crux of the whole thing — just that there are issues involved with the bigotry, just as the battle over gay marriage has implications for other civil rights issues as well. For instance, one of the chief financial backers and organizers of the Prop 8 movement is a religious movement (not the Mormons though allied with them,) that openly wants to replace the U.S. Constitution with their interpretation of Christian Biblical law. They speak freely in the press about this being their goal and how they see preventing gay marriage as an important step in reaching that goal.
So it’s not just the bigotry of some people but that this bigotry is made law over all of us, about the political power to make that law stay even though it violates our country’s most fundamental constitutional law, on the shaky grounds that since we let it violate the constitution in the past, we should keep on doing it. If the Supreme Court rules that Prop 8 stays, then they are allowing the California constitution to be in violation of the federal constitution, as are the other 27 states who have such laws in place. Opponents to gay marriage who organize voters believe that keeping the violation in place will also give them political power, because marriage as a legal civil institution packs a lot of political power. In reality, by attempting to keep discrimination as law when it has been challenged, they’ll lose political power. How much and how fast is up to us.
I believe that I will see gay marriage legalized in the U.S. in my lifetime. But I want it legalized yesterday. And if the California Supreme Court splits the baby, then they have failed in their responsibilities both to Californians and to the country, whose first law is that the majority cannot make laws to take away the civil rights of the minority. Prop 8 should have been removed from the election ballot as discriminatory and illegal. One day it will be.
KatG – I agree people *make* that argument in public, but “gays are fine” is part of a lie they’re telling. If they were really “fine” they could get married just like everyone else.
And that is an utter fabrication by the yes-on-8 crowd. You can no more force an anti-gay church to marry gay people than you can a Catholic priest to marry someone who was excommunicated.
The last few posts are precisely why I did not continue within this thread.
I was accused of arguing in bad faith, not having done my research, or being a liar.
The only thing that I can fathom is that people fail to understand how the expanding government ever since FDR has been pursuing a “liberal” (term used here loosely) political project. In a similar vein, the government has, since at least the 90s been pursuing a Rawlsian liberal state, even under the dreaded Bush administration. The expansion of the federal government under Bush, and its increasing expenditure under Obama, will result in institutional clashes over identity, legitimacy, and authority.
One of those authorities are churches (mosques, synagogues, temples, etc.). With the increased technocratic state (which is run by people much more liberal than the populace) the ability or even the option for dissent becomes infinitesimal.
My concern is the over-reliance on the state in regulating what is or is not under their jurisdiction. In my post 138, I posted a link to a paper by Richard Garnett (law prof at Notre Dame) about the use of the tax code to divide and confine churches “to their proper place”. However, I do not think that the government (or, more likely special interests or bureaucrats) has the capability to really make that distinction. It is outside its sphere of competency.
It is these types of things that are affecting churches nationally. Its not solely a matter of clergy not being forced to marry gay couples, just as religion does not solely take place within the confines of a church.
Here is an LA Times story about some of the conflicts that are occurring: http://www.latimes.com/news/opinion/la-oe-stern17-2008jun17,0,5628051.story
Paul, there are lots of other legal states that people can’t claim religion trump. For example, you can’t card check at an adoption agency if people are – eating shrimp, masturbating, having consensual anal sex in a monogamous marriage, previously divorced (unless that somehow has a bearing on raising a child) etc..
Florists are not allowed to decide who they sell flowers to if that person is a white woman marrying a black man, but I swear, there are churches out there that forbid mixed race marriages. A member of that church can’t decide not to sell flowers to mixed race couples, open a florist shop, and expect not to have a court case about it.
A Baptist homeowner can’t decide they don’t want to rent to someone if they’re a practicing satanist. There are lawyers who make good money suing people for just this thing.
Your religion allows you rights to discriminate in some very specific circumstances. Sexual orientation was left out because back when the civil rights act was created, homosexuality was still illegal in most states.
Your problem is clearly not just with same sex marriage, it’s with the whole Civil Rights Act. And you’re correct in that the Civil Rights Act is liberal. It does intercede in a religion telling it’s followers not to do business with people of the wrong race, religion or who’re the wrong sort of sinner. Personally, I think the county is better off without it, but in making your argument about same sex marriage, and not the Civil Rights Act, you’re being unclear. You should have a problem with the whole thing, not just the idea that someone might add “living in a same sex marriage” to it.
What on earth does this have to do with Proposition 8? Other than, oh, being a scare tactic and a lie that the queers are gonna force your church to marry them?
(with apologies to Martin Niemoller)
First they came for the hotels that said “No Jews or Irish”, but I said nothing, because, I was Irish on my grandfather’s side
Then they came for the country clubs that didn’t allow Jews, but I said nothing because I hated golf.
Then they came for the “Whites only schools”, but I said nothing, because, well, I didn’t want to *seem* racist. But forced integration was totally a violation of my civil rights!
But then they forced *florists* to cater to those godawful queers, and I, a queer hating florist, had no one left to speak for me!
Why do you think we “fail to understand” this, hmm? Why do you presume to think that we see such as a bad thing?
Expansion of government, along with the rights of the individual, the provision of health care, the increase in a social justice frame, control of the excesses and inequalities of the market … personally, I think these things, ie basically joining the rest of the civilised western world, are things to be praised in my book.
But as with the others here … what on earth has this to do with anything other than scare-tactics and fear-mongering that somehow the ability of religions to impose their beliefs on others will be curtailed if more and more pluralism is supported in society?
Answer: nothing.
Curtailing a group’s intolerances and discriminations being enshrined in law is not curtailing that group’s rights.
Oh, and as to you being “accused” of numerous things …. I am so SO sorry, I feel so bad … makes my loss of civil rights totally pale in comparison.
Not.
Paul@218: My concern is the over-reliance on the state in regulating what is or is not under their jurisdiction
If you have a specific issue that is over-reliance on state regulation, then raise that specific issue and debate it on its specific merits and lack of merits.
If you don’t have a specific issue, this is nothing but a slippery slope argument. You are afraid (concerned), not about an actual problem, but about a hypothetical problem, which you’re arguing can occur if your fear comes true. And so we are supposed to take on your same fear. No thanks.
Marriage is a civil legal and financial partnership that is administered by the government, pays taxes to the government and is granted as a civil right to citizens on the grounds that they are equal under the law, regardless of their religion or lack thereof. A civil marriage is required for there to be a marriage. It has been this way for the entire history of the U.S. and for thousands of years besides in much of the world, if you know anything at all about history.
Religious marriage, on the other hand, is optional. You don’t have to have one to be married and to be treated as married under the law. The government isn’t operating outside its jurisdiction, the churches are. The churches — some of the churches — are claiming that they should legally be in charge of all marriages, inside and out of their church, that they should set the law for civil marriages, that they should act as the government for all citizens on this issue, and they should be the ones who legally define marriage for all of those citizens. That’s not a matter of being liberal or conservative, but of democracy versus theocracy.
The churches are currently basing this demand on the claim that if they aren’t put in charge of all civil marriage, all churches will eventually be forced by the government to perform religious gay marriages. This has never happened in any civil rights issue in the U.S. — though the same argument has been made every time from the right of women to vote to racial segregation. It is never going to happen in the U.S. as long as we are a democracy and the amendments of our federal constitution are not radically altered, particularly the 1st amendment, and the claim has no legal or moral validity whatsoever. It’s an attempt to claim political power for religious organizations that they don’t legally have and to invalidate freedom of religious belief.
It is, for instance, the right of a church to decide that they will perform religious gay marriages for gay couples, in addition to a civil marriage, as some churches have done or wish to do. Banning civil gay marriage discriminates against the religious freedom of these churches to operate according to their religious beliefs. Instead, they are being forced by the government to follow other faiths’ religious beliefs they don’t agree with, like forcing Jews to pray to Jesus. Prop 8 increases government control of religion, not decreases it.
(Let me know if I’m not being polite enough, Scalzi. I wouldn’t want a Mallet.)
I am *still* waiting for any anti-same-sex marriage advocate to provide me a case where a religious entity has been sued for refusing to perform a religious ceremony in violation of its beliefs. Usually they fumble around and dig up a newspaper article about a church running some kind of secular business and being forced to obey civil-rights laws.
KatG:
“The churches are currently basing this demand on the claim that if they aren’t put in charge of all civil marriage, all churches will eventually be forced by the government to perform religious gay marriages.”
No. Church will NOT be put in charge of civil marriage; government will NOT force church to do anything. Separation of church and state!
KatG:
“It is, for instance, the right of a church to decide that they will perform religious gay marriages for gay couples, in addition to a civil marriage, as some churches have done or wish to do.”
Huh? What church, in the history of the U.S., has ever had the right to perform civil marriages? Aside from instances where the pastor or priest also happens to be the mayor or governor, that is.
Sorry, uglyscot, let me clarify: “in addition to a civil marriage that the couple also gets.” When you get married by a priest, it is a religious marriage, but that priest is licensed by the government as an officiate, just like a judge. The civil marriage administered and recognized by the government is mostly the marriage license, but there usually does have to be some form of officiate involved to process the marriage license. So when couples are married by a priest, they get both a civil and a religious marriage together. The civil part is required for citizens, the religious one is optional. You can have John Scalzi come and marry you, because he is a licensed officiate.
This of course may be one of their causes of concern. If the government licenses the priests to be officiates, what’s to stop the government from taking away that license if the priests won’t perform gay marriages, they might argue. The answer is constitutional law, but people who have trouble with the constitution may not feel that answer is sufficient.
Except that legaly speaking there is no such thing as a “religious marriage”. The State will only recongnize a marriage after filling out their form, and paying the allways present government fee. The only way to avoid the government fee is in the few states that have common law marriage statutes on the books.
Now there are a number of people empowered to sign the document, including: juges, justices of the peace, and duly ordained memberships of the clergy. However, If I, as a duly ordained minister of the Universal Life Churge (ulc.org), sign the paperwork for a ceremony I offiate that does not make it “religious”.
See varius court cases regarding whether the ULC was really a church or not for examples of the courts saying “Dude, we are SO not going there.”
We’ve agreed to create a society which requires demographic population growth to avoid collapse (see the welfare state, how we build infrastructure in general, etc). So long as we’re doing that, state involvement in heterosexual marriage makes sense. Since we don’t want to be too intrusive about the whole thing, the approvals are highly indirect and aimed as a sort of libertarian paternalist institution (you get certain benefits that statistically will lead to an uptic of stable partnerships but nobody gets assigned a spouse because that would be a particularly creepy form of tyranny). These approvals, like all government interventions, cost society.
So, are homosexual marriages worth the cost of extending these approvals to them? I have yet to see any sort of honest cost/benefit assessment that says so.
As for the need of “societal approval”, if you think that there’s something enobling by having the ward glad hander approve of your intimate relations, there’s something wrong with you. I involved the state in my marriage reluctantly, and their involvement has been a general pain in my posterior.
Aside from a necessary nudge to society to make enough babies to avoid societal collapse (which I reluctantly agree to because I understand basic population math), the state shouldn’t be in the marriage business. There is no legitimate secular purpose to it other than the baby business in all its myriad aspects.
On that basis, I’d have voted for Prop 8. Homosexuals expand the costs, provide a precedent for the polygamists (whose arrangements are very destabilizing) et al, and they simply don’t provide enough of a societal benefit to be worth it.
So, is cost-benefit analysis bigoted?
Presumably TM would have voted against laws designed to allow interracial marriages for the same reason.
“Except that legally speaking there is no such thing as a “religious marriage”. The State will only recongnize a marriage after filling out their form, and paying the allways present government fee.”
Exactly. The civil marriage is one that everyone has to have in order to have a marriage. It is the only marriage that is legal. And it is administered by the government. In addition to a civil marriage, couples can also have a religious ceremony but that religious ceremony is not legal without the civil marriage. Marriage is a legal contract; it isn’t religion’s balliwick. Even in the Middle Ages, the majority of marriages took place without a priest officiating, but any marriage above the poverty level took place with a legal contract of some sort. Religious groups are claiming that marriage is their territory and they should be in charge of it, but even when the Church was running politics and recording county stats in parish records, marriage has always been the responsibility of the State. That doesn’t mean that couples cannot regard marriage as a holy state and insist on an officiate who is a priest. But it is not required that they or anyone else do so for the marriage to be legal.
TMLutas is making the claim that marriage is the domain of religions and government should stay out of it or at least not be involved any further. But government has never been out of it — government is in charge of it. To say that secular people who want only a civil marriage shouldn’t need marriage at all is to ignore marriage as what it is — a legal contract. One filled with love, ideally, though that sentiment is relatively new, but still, a legal contract.
The idea that gay marriage sets a legal precedent for polygamy is entirely without legal merit. Gay marriage sets no more a precedent for polygamy than interracial marriage did, which is to say none. It’s a scare tactic used because opposition of gay marriage is clearly a civil rights violation. A scare tactic just like the idea that the government will make churches perform gay marriages against their will.
And preventing gay marriage is not a less government argument — it’s a more government argument. You’re insisting that the government keep interfering in gay citizens’ lives and prevent them from marrying when they want to, and prevent churches that do want to perform gay marriages from legally doing so.
Costs/benefits analysis of gay marriage has already been done. The costs are minimal, since the machinery for marriage between a couple is already in place. The benefits are large, in the increased economic benefits of additional weddings, in the increased tax base and simplification of taxes, insurance and other legal and financial issues. There is also the benefit of fewer lawsuits over child custody, inheritance benefits, etc. Gay marriage harms no one and provides an economic boon.
Harms no one, that is, unless you believe that gays are degenerative to society and therefore should be deprived of equal civil rights (while still paying taxes,) to prevent them from living their lives as full citizens. On the basis of your religious beliefs, throwing separation of church and state — a law that protects churches — out the window.
In short, there’s no logic to opposition to gay marriage. It’s entirely bigotry toward gays and wanting to use that bigotry to achieve more political power for certain groups, and more governmental control according to those interests.