CA Prop 8

[Rexer25]

The democratic process in many states, including California and most famously Virginia, reached the conclusion that interracial marriage should be illegal. That abomination of public policy wasn't fixed by the democratic process. It was fixed by the courts.

To me (and to the California Supreme Court, judging from the portions of its opinion that I read), what just happened is exactly the same. My only qualms about mounting a legal attack against Proposition 8 are practical, not moral -- if it's attacked and survives, the status of gay marriage will be set further back than if we simply stick to the democratic process. --Bob

The democratic process is something to be attacked when you don't like the outcome.

Noted.

I think he's saying attack the proposition, not the democratic process.

[Appa23]

Thanks; I was going to look that up & you saved me the trouble

The other difference is, that if first cousins wish to marry, and live in a state where it's not permitted, they can move to a state where it is. And, if they move back to their original state, or any other of the 50 states, their marriage will be recognized everywhere!

Same with laws governing the permissible age to marry, & age of consent to sexual activity. If a 14, 15, or 16 year old is married, in a state where that is permitted -- regardless of the age of the spouse -- and they move to or visit a state with a higher age of marriage or age of consent -- the marriage is recognized. Even if the younger spouse (or even both spouses!) are under that state's age of sexual consent.

I'm of the opinion that marriage has precious little to do with what (if anything!) goes on in the bedroom, & everything to do with what goes on in the rest of your life. Really! What goes on in the bedroom is: a)private, and b) going to go on regardless of what "The Law" allows (as it has for the whole of human & pre-human history, & a good thing too or we wouldn't be here!)

I need to go do some work but may post the rest of my 2 cents later.

Just to correct the oft-stated but nonetheless incorrect idea that states have to recognize all marriages from other states -- there is a common law exception that no state is required to recognize a marriage that violates a "strong public policy." Many states have included this in their state constitutions, especially recently after the idea of same-sex marriages began being discussed.

So, in order to determine if the marriage of first cousins must be recognized, a court would look at whether the state has a "strong public policy" against such marriages. There was a case out of Louisiana that addressed this issue (interestingly, the lower court also refused to recognize the marriage because the couple were married in Iran, and the court essentially went off on a Pro-America rant.)

If the original marriage occurred in the United States, it's hard for me to see how such a ruling would be consistent with the Full Faith and Credit Clause. And if I'm right about that, the Defense of Marriage Act doesn't change the outcome. --Bob

The federal DOMA has little to nothing to do with this issue. I accurately stated the law on recognition of marriage between states. I do not know if you took a Marriage and Family Law course in law school, or if you had to know this area for a bar exam, but you sthen would have learned that a state does not have to recognize a marriage from another jurisdcition that violate a strong public policy. State DOMAs and state constitutional amendments are proof of a state's "strong public policy" on the issue of same sex marriages.

[Flybrick]

I think he's saying attack the proposition, not the democratic process.

In this instance, it's one and the same.

[franktangredi]

The democratic process is something to be attacked when you don't like the outcome.

Noted.

Do you really believe that, if the vote had gone the other way, the opponents of gay marriage would have just said, "Oh, well, the people have spoken?" Or do you think they would have defiantly said, "This fight is not over!"

If you believe the former, you underestimate the passions involved.

[Flybrick]

Do you really believe that, if the vote had gone the other way, the opponents of gay marriage would have just said, "Oh, well, the people have spoken?" Or do you think they would have defiantly said, "This fight is not over!"

If you believe the former, you underestimate the passions involved.

No, I don't believe they would have 'gone quietly into the night.' However, the supporters of the proposition followed the rules, got the measure on the ballot, and achieved a, to them, successful outcome.

Nor am I asking those dismayed with the outcome to give up.

They should fight it at the next election not use the courts to overturn the will of the majority of the people.

[franktangredi]

No, I don't believe they would have 'gone quietly into the night.' However, the supporters of the proposition followed the rules, got the measure on the ballot, and achieved a, to them, successful outcome.

Nor am I asking those dismayed with the outcome to give up.

They should fight it at the next election not use the courts to overturn the will of the majority of the people.

Then it comes down to a philosophical question.

I believe that the courts are ALSO part of the democratic process. Yes, yes, I know the mantra that the courts today have exceeded the authority that the Founding Fathers gave them.

But, then, so have the people.

The Founding Fathers, in fact, did not trust the will of the majority. Hamilton certainly didn't:

The voice of the people has been said to be the voice of God; and, however generally this maxim has been quoted and believed, it is not true to fact. The people are turbulent and changing, they seldom judge or determine right.

Distrust of the popularity majority is one reason we have the Electoral College, and why the Constitution had to be amended before direct election of Senators was permitted.

The referendum, like the direct election of Senators, is a creation of the Progressive Era.

I happen to believe that applying to the courts is also part of the demoratic process as it exists in this country. I bet even conservatives have made use of it. (You can get a lively argument going about whether the actions of the Supreme Court in the 2000 election were a subversion of the democratic process.) You can disagree, and I'll respect that.

[danielh41]

Then it comes down to a philosophical question.

I believe that the courts are ALSO part of the democratic process. Yes, yes, I know the mantra that the courts today have exceeded the authority that the Founding Fathers gave them.

But, then, so have the people.

The Founding Fathers, in fact, did not trust the will of the majority. Hamilton certainly didn't:

The voice of the people has been said to be the voice of God; and, however generally this maxim has been quoted and believed, it is not true to fact. The people are turbulent and changing, they seldom judge or determine right.

Distrust of the popularity majority is one reason we have the Electoral College, and why the Constitution had to be amended before direct election of Senators was permitted.

The referendum, like the direct election of Senators, is a creation of the Progressive Era.

I happen to believe that applying to the courts is also part of the demoratic process as it exists in this country. I bet even conservatives have made use of it. (You can get a lively argument going about whether the actions of the Supreme Court in the 2000 election were a subversion of the democratic process.) You can disagree, and I'll respect that.

You know, when I was looking at third party candidates and platforms (which I did when it became clear that McCain would be the GOP nominee), I found one (http://aipnews.com/mxPage.asp?ID=3) that I agreed with wholeheartedly on every single point except one, that one point being the repeal of the 17th amendment. And it wasn't that I disagreed with its repeal; it's just that I didn't really see it as important. I guess I hadn't given it much thought. But Frank, you have caused me to really think about it in terms of Hamilton's quote. I'm proud to say that I can wholeheartedly agree with that point in the platform too. So thanks Frank!

[Thousandaire]

[
My position is grounded in my understanding of the Bible, but that is not the sole basis. I believe that certain societal norms need to be maintained and upheld for the stability and order of our society. I don't want the Government dictating what consenting adults do in the privacy of their own homes, but that support of basic privacy rights does not lead me to conclude that the government must sanction behavior that I believe is detrimental to our country.

Hosw is homosexual behavior detrimental to our country?

Way to pull something out of context and completely ignore what I said.

How is that pulling it out of context? It's what you said, "I believe (homosexual behavior) is detrimental to our country." I asked you to explain how. I'm genuinely curious. I won't respond negatively if you answer.

[franktangredi]

You know, when I was looking at third party candidates and platforms (which I did when it became clear that McCain would be the GOP nominee), I found one (http://aipnews.com/mxPage.asp?ID=3) that I agreed with wholeheartedly on every single point except one, that one point being the repeal of the 17th amendment. And it wasn't that I disagreed with its repeal; it's just that I didn't really see it as important. I guess I hadn't given it much thought. But Frank, you have caused me to really think about it in terms of Hamilton's quote. I'm proud to say that I can wholeheartedly agree with that point in the platform too. So thanks Frank!

Always glad to help.

[wintergreen48]

I must point out that if you had taken a public vote on Slavery in the 1850's much of the south would have approved it.

Likewise a national referendum on women's suffrage in the late 19th century.

Or Segregation of schools throughout the south in the 1950s.

All examples of laws that were in existence and are now pretty widely believed to be unjust.

I don't know what the future holds for same sex marriages, but the the will of people has often passed unjust laws.

This is all true, but then, if you took 'the will of the people' to include ALL of the people, perhaps the outcome would have been different.

if you had taken a public vote on Slavery in the 1850's much of the south would have approved it.... but perhaps the outcome would have been different if 'the people' would have included black folks.

Likewise a national referendum on women's suffrage in the late 19th century... but perhaps the outcome would have been different if 'the people' would have included persons of the female persuasion.

Or Segregation of schools throughout the south in the 1950s... but perhaps the outcome would have beendifferent if 'the people' would have included black folks.

In most of the instances of 'bad laws' that have passed that have had adverse impact on a defined group of people, the people who passed those 'bad laws' generally did not include that 'defined group of people.'

Certainly, you can still have 'bad laws' that have adverse impact on a defined group of people even if you do include that 'defined group of people' (if, for example, the group is numerically very small), but it is generally much less likely to be the case. But in all of your instances, the 'defined group of people' was, in fact, entirely excluded from the process that impacted them.

[peacock2121]

Here is what is really true for me:

If I were gay, I would want to be able to get married to the person I loved and wanted to spend the rest of my life with.

I know it is simplistic and all and that he pretty much how I look at these sorts of things.

[themanintheseersuckersuit]

WG made me look up the population stats for South Carolina to see if I remembered them correctly, yep.

1850 South Carolina Total 668,507 Slave 384,984 57.6 % slave

[TheCalvinator24]

Hosw is homosexual behavior detrimental to our country?

Way to pull something out of context and completely ignore what I said.

How is that pulling it out of context? It's what you said, "I believe (homosexual behavior) is detrimental to our country." I asked you to explain how. I'm genuinely curious. I won't respond negatively if you answer.

I didn't say what you "quote" me as saying, as even the immediate context illustrates.

[TheCalvinator24]

I don't expect many of you to agree with my position, but I will not let anybody put words in my mouth that I didn't say or ascribe motives to me that I don't hold.

So far, the anti-Prop 8 crowd's argument has been "If you don't agree with us, you must be a bigot." That is pathetically weak.

[franktangredi]

I don't expect many of you to agree with my position, but I will not let anybody put words in my mouth that I didn't say or ascribe motives to me that I don't hold.

So far, the anti-Prop 8 crowd's argument has been "If you don't agree with us, you must be a bigot." That is pathetically weak.

I hope you aren't putting those words into my mouth. Because "I will not let anybody put words in my mouth that I didn't say or ascribe motives to me that I don't hold."

[TheCalvinator24]

I don't expect many of you to agree with my position, but I will not let anybody put words in my mouth that I didn't say or ascribe motives to me that I don't hold.

So far, the anti-Prop 8 crowd's argument has been "If you don't agree with us, you must be a bigot." That is pathetically weak.

I hope you aren't putting those words into my mouth. Because "I will not let anybody put words in my mouth that I didn't say or ascribe motives to me that I don't hold."

frank, that was most definitely not aimed at you. I don't view your participation in this discussion as "argument." I see you as someone who genuinely hopes to understand a viewpoint with which you disagree, and I'm sorry that I just am not capable of explaining my views here.

I really couldn't care less if some of the folks on here think I'm prejudiced, but I'm not going to continue posting things that are going to be taken out of context and twisted to try to prove that I am nothing more than a hate-filled bigot.

(Now, I expect someone to post in reply that I do too care if people think I'm prejudiced)

[SportsFan68]

I do see how it would solidify same-sex relationships. Anything that makes it easier to establish healthy long-term relationships is good for the larger group.

Working for a judge, I can tell you the institution of marriage is in trouble, and I believe gay partnerships have very little, if anything to do with that fact. That's a whole 'nother issue(s). I do think allowing gays access to legal marriage is necessary to stabilize the families that gay couples are, more and more, beginning, raising, etc. Here in MT, two lesbians made a commitment to one another, they agreed together that one of them should get pregnant, and I believe two children ultimately were born to the couple. The woman who actually carried and birthed the baby eventually 're-thought' her position on homosexuality, ended the relationship, and married a man. She sought sole custody of both kids. That ain't right. Those kids were raised by both women for several years, and now she wants to unilaterally cut them off from her ex-partner. Legal marriages would establish a consistent means for determining custody and visitation of children born/adopted of or to homosexual couples.

t.

I agree with this 100%. I've seen the same thing happen, except the woman who bore the children took up with a different woman. She re-thought her position about sole custody only when the local gay and PFLAG communities threatened ostracism. The two now share custody, and that's working as well as it works anywhere.

[franktangredi]

I don't expect many of you to agree with my position, but I will not let anybody put words in my mouth that I didn't say or ascribe motives to me that I don't hold.

So far, the anti-Prop 8 crowd's argument has been "If you don't agree with us, you must be a bigot." That is pathetically weak.

I hope you aren't putting those words into my mouth. Because "I will not let anybody put words in my mouth that I didn't say or ascribe motives to me that I don't hold."

frank, that was most definitely not aimed at you. I don't view your participation in this discussion as "argument." I see you as someone who genuinely hopes to understand a viewpoint with which you disagree, and I'm sorry that I just am not capable of explaining my views here.

I really couldn't care less if some of the folks on here think I'm prejudiced, but I'm not going to continue posting things that are going to be taken out of context and twisted to try to prove that I am nothing more than a hate-filled bigot.

(Now, I expect someone to post in reply that I do too care if people think I'm prejudiced)

Thank you.

[peacock2121]

I think each and every one of us is prejudiced.

I confront my own on a daily basis.

[wintergreen48]

CNN is reporting that Melissa Etheridge is stating she will no longer pay California state income taxes as she's not being treated as a "full citizen."

A big part of this whole debate runs along the track of 'if gay people cannot marry members of their own sex, then they are being treated as second-class citizens...' and so on.

But marriage laws really do not have anything to do with anyone's status as a citizen (except, presumably, the laws that require the parties to be of a certain age-- minors are 'second class' citizens in many respects, insofar as they have to pay taxes if they have income, but they cannot vote, nor can they enter into contracts, including marital contracts, nor can they otherwise enjoy the full benefits of citizenship, but that seems to be OK with most people; similarly, while you can only marry members of your own species, I don't think that anyone would say that this means that, say, duck lovers are being treated as second class citizens, although probably the ducks are not being treated as full citizens, but no one really cares about the civil rights of ducks, other than the PETA people). Marriage laws are based upon societal judgments as to what works best.

The marriage laws are, for the most part, 'incest laws.' Everyone knows about 'incest' laws, but for the most part these laws do not have anything to do with what most people think they have to do (most people assume the incest laws arose from a concern about the genetic problems related to 'close relations' getting married); rather, 'incest laws' have their origin in concerns about maintaining social order.

For many years I lived in Maryland and long practiced there; I think other states have laws similar to those in Maryland, but I do not know them for certain, but I do know the ones in Maryland, so I will use those as examples. In Maryland, it would be illegal for me to marry my brother's former wife, or to marry my uncle's widow, even though there is absolutely no possible 'genetic' concern: to the best of anyone's knowledge, my brother's wife has no blood relationship to me (or to my brother), and the same is true with respect to my uncle's wife; the reason for the prohibition against my marrying either of those ladies is to protect 'the family,' and ultimately, the social order, and the origins of this are actually Biblical (Leviticus expressly prohibits a man from marrying his brother's wife, and provides that they will not have children if they do marry; this was the grounds for Henry VIII's request for a divorce from Catherine of Aragon, who had been married to Henry's brother Arthur; Henry was convinced that the reason why he and Catherine could not have a son-- Mary did not count-- was because of the incestuous nature of their marriage): if a man can marry his brother's wife or his uncle's wife, there is, at least theoretically, the possibility of internal family rivalries that could be disruptive to the family unit, and hence, to society as a whole; so we protect society from these problems by prohibiting even the possibility of such rivalries. We do this, even though my marrying my brother's ex-wife would not possibly have any adverse impact on anyone-- they divorced almost thirty years ago, and have not seen nor spoken to each other since. The 'incest laws' prohibit me from marrying my (former) sister-in-law JUST IN CASE I might be enough of a sociopath to take advantage of the possibility (i.e., if I COULD marry her, perhaps I might do something to break up their marriage, and then marry her; or if I were a real sociopath, I might kill my brother to get his wife). That's the motivation for most of those kinds of laws-- allowing certain marriages to take place could be disruptive to the structure of society, and prohibiting those unions becomes part of the social fabric, even in cases where (as in the case of my marrying my brother's ex-wife) there is absolutely no possibility of harm to anyone. Society does not prohibit brothers-in-law from marrying their (former) sisters-in-law, or nephews from marrying their aunts, because they are 'second class citizens,' but because it seems, somehow, wrong for them to marry. The judgment about rightness or wrongness may not be accurate, but that is the basis for it, not anyone's status as a 'citizen.'

There are a lot of these 'moral' rules that have similar origins that people don't think about. Using Maryland again, 'adultery' is a crime (punishable by a $10 fine), but no one has ever, in more than 200 years, been prosecuted or punished for it. Adultery is also one of the 'fault' grounds for divorce in Maryland (kind of interesting trivia note, but there is no formal definition of 'adultery' in Maryland-- there is none in the statute, and since no one has ever been prosecuted for it, there is none in the Courts: church law and common law had different definitions, one definition says it is 'adultery' if a married woman gets any action from someone other than her husband, while the other definition says that it is 'adultery' if any person who is married gets any action from someone other than the person to whom he or she is married). Courts do not like to give divorces based upon adultery because that can impact the social fabric in significant ways: if a woman commits adultery, there is at least some question as to the paternity of her children (maternity, of course, is not a problem: most women know pretty well which children they have squirted out; but pre-DNA days, most men are at least slightly in the dark as to which children they have actually sired... unless the mother of the children has never, um, known another man, which is the reason why certain cultures pretty much keep 'their women' under close guard, at least, during their child-bearing years, and why certain cultures react so violently to 'their women' getting it on with someone other than their husbands). It is because of this reluctance to grant divorces based upon adultery that adultery is a (non-prosecuted) crime in Maryland: under the 5th Amendment to the Constitution, and under the equivalent provision of the Maryland State Constitution, you cannot be compelled to testify against yourself in court, so if you are charged with adultery, you cannot be compelled to testify that you have, um, had a close personal relationship with someone other than your spouse; in most states, it is actually pretty difficult to prove that a spouse has committed adultery, and this is, again, because of a public policy determination that adultery is bad, but we don't really want to know about it unless it is really, really blatant.

There are very sound public policy reasons for prohibiting adultery, and these prohibitions originate (in the West) in the Bible (fully 10% of Moses' Commandments specifically prohibit adultery, and another Commandment gets into what we in the One True Faith call a 'near occasion of sin,' the Commandment that prohibits you from even coveting your neighbor's wife, much less actually boinking her); the fact that the 'original' prohibition against adultery is Biblical has nothing to do with whether or not it is appropriate to ban or prohibit adultery. You may believe that the ban on adultery is irrelevant or unnecessary, but the fact that it is ultimately Biblical in origin does not, in itself, make the ban somehow 'illegitimate.' Nor does the ban on adultery mean that adulterers are second-class citizens.

The point, and I do have one, is that there are reasons for these things. Reasonable minds may differ as to whether the reasons are valid or not, or whether they are valid or not in particular circumstances, but criticizing these things on the grounds that they are 'religious' or on the grounds that they treat some people as second class citizens are simply wrong. This is especially absurd in the gay marriage context: Melissa Etheridge is not being treated as a second class citizen because she cannot marry a particular woman of her choice, because that rule is universally applied to all people (i.e., no one can marry a particular person of her/his choice if they are of the same gender).

I, for one, have no problem with same-sex marriage per se, and if I had the misfortune to live in California I would not have voted for the Proposition; like Cal, my greater concern is with the fact that 'the state' has forced its hand into something in which it probably has no business intruding, and whenever 'the state' does that sort of thing, it just makes things more and more complex, and creates more problems than it solves. I just think that the debate is all based upon the wrong issue.

[silverscreenselect]

and ultimately, the social order, and the origins of this are actually Biblical (Leviticus expressly prohibits a man from marrying his brother's wife, and provides that they will not have children if they do marry;

In Deuteronomy, if a man dies before bearing a son his brother (or his nearest male relative) is required to sleep with the widow until she bears a son, who would then be the dead man's heir..

Incidentally, the very next section of Deuteronomy says that if a man is in a fight with another man and his wife tries to rescue him by grabbing the other guy's private parts, then her offending hand should be cut off.

A lot of these Biblical prohibitions make sense if you look at the context in which they occurred. When the Israelites were going through the desert and undoubtedly suffering a high casualty rate, they needed to produce all the babies they could so anything that would tend to get in the way of that would be prohibited. You didn't want two guys off with each other instead of fathering children nor did you want a guy sowing his wild oats with an ox or by himself. And you sure didn't want a bunch of widows without kids who were probably very unlikely to get replacement husbands on their own.

We are basing our morality of today in large portion on what were essentially emergency laws designed for extremely harsh circumstances.

[Thousandaire]

Way to pull something out of context and completely ignore what I said.

How is that pulling it out of context? It's what you said, "I believe (homosexual behavior) is detrimental to our country." I asked you to explain how. I'm genuinely curious. I won't respond negatively if you answer.

I didn't say what you "quote" me as saying, as even the immediate context illustrates.

That's exactly what you said, as even the quote above illustrates. I must conclude you are either delusional, or unable (or unwilling) to defend your belief.

[Beebs52]

How is that pulling it out of context? It's what you said, "I believe (homosexual behavior) is detrimental to our country." I asked you to explain how. I'm genuinely curious. I won't respond negatively if you answer.

I didn't say what you "quote" me as saying, as even the immediate context illustrates.

That's exactly what you said, as even the quote above illustrates. I must conclude you are either delusional, or unable (or unwilling) to defend your belief.

I gotta ask. Isn't "you are either delusional, or unable (or unwilling) to defend your belief" responding negatively?

Perhaps we can turn this thread into an analysis of meanings of words.

[Thousandaire]

I didn't say what you "quote" me as saying, as even the immediate context illustrates.

That's exactly what you said, as even the quote above illustrates. I must conclude you are either delusional, or unable (or unwilling) to defend your belief.

I gotta ask. Isn't "you are either delusional, or unable (or unwilling) to defend your belief" responding negatively?

Perhaps we can turn this thread into an analysis of meanings of words.

I said if he explained his position, I wouldn't respond negatively. I still won't. Evidently Cal thinks I'm trying to trap him; I'm not. I just asked a question. It's a sincere question and I have no aganda other than wanting to know the answer.

Maybe we can turn this thread in an analysis of reading comprehension.

[Beebs52]

I gotta ask. Isn't "you are either delusional, or unable (or unwilling) to defend your belief" responding negatively?

Perhaps we can turn this thread into an analysis of meanings of words.

I said if he explained his position, I wouldn't respond negatively. I still won't. Evidently Cal thinks I'm trying to trap him; I'm not. I just asked a question. It's a sincere question and I have no aganda other than wanting to know the answer.

Maybe we can turn this thread in an analysis of reading comprehension.

Actually, you said "if you answer." He answered. Not to pick nits or anything. I truly don't have anything to contribute to this thread, knowing its radioactivity. I was just amused by someone (and I'm a great negative responder at times, so don't take this as personal) actually stating they wouldn't respond negatively. Negative is so subjective. I think I comprehend fairly uniquely 24/7. (shoutout to TMITSSS)