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News Prop 8 struck down

  1. Aug 4, 2010 #1
    I'm surprised I don't see a thread about this already up.

    A federal judge struck down California's constitutional amendment banning gay marriage today.


    The ruling will be appealed, of course, and will likely end up in the Supreme Court. This ruling is a huge step in the right direction for equality and civil rights. I have never heard a single sensible argument against same-sex marriage. Most come down to one of two things:

    1) The dictionary says it's wrong


    2) The Bible says it's wrong

    Neither of which are a good enough reason to discriminate based on gender. If a woman can marry a man, why can't another man do so? The government cannot discriminate based on gender without some compelling state interest. So far, no such compelling state interest has ever been demonstrated in court to my knowledge.
  2. jcsd
  3. Aug 4, 2010 #2


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    Why can a woman marry a man? No compelling state interest has been shown. I'm opposed to it. (As well as gay marriage.)

    But the legal decision was the correct one, of course; insofar as the state must recognize marriage at all it must do so with equal protection.
  4. Aug 4, 2010 #3


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    So, if you are gay and in a same sex marriage and you are in the military, do you tell anyone? Sticky, sticky, sticky....
  5. Aug 5, 2010 #4


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    Yes it will be appealed, but I'd be surprised if this ends up in the Supreme Court. I mean it will get there but the Court will decline to hear it, I think. They're going to let the states deal with this issue.
  6. Aug 5, 2010 #5

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    But the federal judiciary has already acted and said the states cannot deal with the issue. So to restore the situation where the states handle it, a higher court would need to overturn this.

    This is a very interesting legal issue. Some questions that will surely come up:

    1) Does a state have the right to craft a bad law? When can and when must the federal government step in?

    2) US territories, where the federal government has more direct control than states, have differing rules on this. If the federal decision trumps state decisions, which federal decision?

    3) Is this a Tenth amendment or a Fourteenth Amendment case? If the Tenth, doesn't the State get to "deal with the issue"? If the Fourteenth, where the Congressional action? (In the 14th, it's Congress that has the power to enforce)

    (Note that I am not arguing that gay marriage is a good idea or a bad idea. I am arguing that the legal basis of the decision will have profound impacts on the question of how the US democracy is structured)
  7. Aug 5, 2010 #6
    I generally agree that the state should recognize same-sex marriage to the extent that it recognizes any marriages, but is it really an equal protection issue?

    The supreme court traditionally respects three categories of 14th amendment interpretation:

    A) Racial discrimination laws, which are always illegal.
    B) Gender discrimination laws, which are illegal unless there is a compelling, important public interest.
    C) Everything else (which would include laws which discriminate based on sexual orientation), which are always legal unless there is shown to be no rational basis for the discrimination.

    The prop 8 case was argued on the broadest basis of 14th amendment interpretation, the rational basis. So the courts effectively found that, based on the testimony offered, there was no rational reason for the state to deny marriage licenses to same sex couples. Doesn't this effectively declare the debate in psychology over the stability of homosexual families over?

    I'm not up on the details, but I find it hard to believe that the defendants couldn't produce a single psychologist or sociologist to argue the contrary opinion. I guess the plaintiffs were just able to tear this testimony up, probably using statistics or the fact that gay couples can already adopt/live together/etc, so keeping them un-licensed isn't doing anything to protect the "family", even if we take it as true that homosexual couples are less able to raise children or stay together.

    It will be interesting to see how it holds on appeal, because of the arbitrary nature of rational-basis interpretation. These are the easiest sort of equal protection cases to overturn, and appeals courts typically approach them cautiously and skeptically out of a concern that everyone and everything could become a "protected class".
  8. Aug 5, 2010 #7
    This is a very unorthodox view for someone who's not straight and thus might one day use this. (then again, I don't plan on marrying) but I don't think this has anything to do with 'equality'.

    Can people engage in polygamous or poly-amorous legal unions? No. Can people marry objects? No. Can people marry their first degree relatives? Nope, and so on...

    There are a thousand other groups who have 'unconventional' romantic and/or sexual orientations and these are still not catered to, and catering to some of them might still seriously offend some group of society. This has nothing to do with 'equality' and it's very hard to deny that indeed, a marriage between a man and a woman and a marriage between two people of same sex is different because they can't have children. One of the reasons marriage was originally there, though that function is some-what deteriorated is to provide a stable platform to raise children, though it could very well be argued that it is in fact more unstable than just living together. Marriages are sometimes very 'unhappy', living together has less of that effect.

    The only discrimination I see here is tax cuts that a woman and a woman who live in the same house can receive by just letting the government attach a label to that living together.

    I once raised the reductio ad absurdum, say I have a flatmate at my university, we can get married then, my country allows same sex marriages, we then get a tax cut. The point is that when we get married, we can still sleep with other people, the law allows that, basically nothing changed, especially if we marry on separate financial terms. But we still get a tax cut. What stops me from just finding a random person of any sex, get married, and get that tax advantage?

    This is why I believe that marriage should really not be the business of the state. People should be free to call their relationship with whomever as they please without the state giving it any legal sanction. Please, why would the state officially recognise my union to another person? I don't see what it ads, as long as I recognise it, that other person does, and maybe some of our mutual friends.

    All the judge has done with this ruling is basically say that he personally does not consider same sex unions as 'weird' as poly-amorous unions or people being married to siblings or the Eiffel Tower, that's it. This has nothing to do with equality.
  9. Aug 5, 2010 #8
    If somebody can come up with a plan to make this work legally, I'd have no problem with this.

    Objects neither have the ability to consent nor do they have civil rights. Objects don't have the ability to inherit wealth, don't have the ability to visit their spouse in the emergency room, and so on. I find it hard to believe you're making this argument with a straight face.

    I'd be ok with this too, though being directly related already provides some of the same benefits of marriage.

    No, it would be seen as a step in the right direction. Otherwise, it's an "all or nothing" fallacy.

    Should we ban marriage for people 65 and older? Should we ban marriage for infertile people? We already allow people who can't have children to get married. Additionally, same sex couples can adopt, and lesbian couples can get artificial insemination.

    I live with a lesbian couple with a 6 year old son. Why should they not be allowed to marry, if marriage is supposed to help with that?

    Then you're not looking hard enough. There are inheritance law, hospital visitation rights, and health insurance to name three off the top of my head. There are more.

    You can do that RIGHT NOW if you want. It's perfectly legal to marry somebody and have sex with others. To use your own example against you, why should somebody of the opposite sex be able to marry your flatmate for tax incentives along with the other incentives I mentioned, but you cannot? That's sex discrimination against you and everybody the same sex as your flatmate.

    While I agree with you, that's another topic that isn't being discussed here. Whether or not there OUGHT to be government-sanctioned marriage, there IS. Since government has decided to have marriage, and it's not going anywhere anytime soon, it must be equal and not discriminatory based on gender.

    The issue of poly couples was not being addressed here. You know how you can get in trouble for making off-topic posts here? Well, it's even worse in a court of law. The judge can't just go off making up rules about whatever he wants when this lawsuit was SPECIFICALLY about Proposition 8 in California, which was specifically about same sex marriage.

    In a way, it is gender discrimination. I'm allowed to marry one of my roommates, but her girlfriend cannot. The only reason she cannot is because of her gender. That's gender discrimination.
  10. Aug 5, 2010 #9
    Neither do I, but it's not going to happen, and it's not going to happen under the equal protection clause for sure. People will find excuses just as they found excuses for same sex marriage in the past.

    'equality' is a theoretically unattainable idea. You have to at one point discriminate one group to help another.

    And this is pretty much why I think this is hypocrite. At various points in time the majority consensus was that black people or women did not have such attributes either.

    That people have believed with a straight face the certainty of such things leaves me cautious to conclude such things that easily. If 300 years back all people in the US about believed that people that weren't white had no rights, no ability to do logical deduction, no civil rights and were not people at all. I find it not too unlikely that the current perception in that way of let us say, animals, is similarly misguided.

    I'm okay with it too, but you'll agree that it will take some time before it becomes protected under constitutional precedent.

    Yet you argued against a marriage to objects.

    You cannot deny the reality that some people are indeed in love with objects and feel a level of distress for not being able to marry such objects.

    What I'm trying to point at is that the same judge who ruled this because of 'equality' would likely rule against the marriage to first degree relatives, while surely the same 'equality' applied.

    The judge didn't rule from equality, simply from accepting same sex unions.

    These are often the arguments I put forth against banning marriage for this reason and why I think it's hypocrite. I'm just pointing out that at least one variable is different.

    Of course, I agree, you can't have both, if you say that marriage is solely to provide a stable incubator for children, you would have to ban infertile people from marrying too.

    Some children do not like the idea of being adopted.

    Then again, some children would love the idea if they have a rocky relationship with their parents.

    To make matters more interesting, my flatmate's a lesbian paedophile. Yap, a pretty 20 year old girl who just happens to have a sexual attraction towards prepubescent young girls, I guess most people don't think of that when you say 'paedophile' but of course it happens just as often.

    In my country at least, those are waived if you marry under financial provisions. You can effectively select and tick boxes, and one of those boxes really comes down to nothing more than the label.

    And why couldn't you tick those boxes without the marriage label? Say I want a friend of mine to inherit my money, I can do that, I can also give said hospital vistiation rights et cetera.

    And I do believe that all those rights and all should be irrespective of gender or age and I don't see what it has to do with marriage specifically.

    Also, I should be able to bequeath my fortune to the Eiffel tower to ensure it receives proper care, right?

    I think you read more in this than you think, also, same sex marriages are legal here.

    I'm just pointing out how meaningless 'marriage', and how stupid it is that people get tax cuts from it.

    But marriage is not and has never been discriminatory based on gender. People of either sex can marry.

    The point is that laws are discriminatory based on whom and what you can marry, and gender is just a small island in all the discriminatory laws therein.

    I'm just pointing out why the judge didn't rule from 'equal protection' here but rather from 'I'm personally okay with same sex marriage'.

    The same judge 50 years back would have probable not ruled the same, because it was less accepted. THis has nothing to do with 'equality', this has to do with homosexuality (thankfully) becoming more and more accepted, and the same people who advocate in favour now would have most likely advocated against 50 years back.
  11. Aug 5, 2010 #10
    At no point in human history did humans ever believe that women didn't have the ability to inherit wealth or consent. They didn't believe women had the RIGHT to inherit wealth or consent. They said nothing about the ABILITY.

    OBJECTS ARE NOT SENTIENT. That you are arguing otherwise... I can't say anything further without getting an infraction. I don't know what to say to that.
  12. Aug 5, 2010 #11


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    Well, there's the obvious (legislative) fix for that problem.
  13. Aug 5, 2010 #12


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    To the contrary, it is only when the debate is essentially over that one can argue the existence of a rational basis (either for or against). If the current state of the science is inconclusive, there there is, by definition, no rational basis (against blah).

    I think the onus should be on those that wish to deny a right to demonstrate the existence of a well-established scientific position (i.e., saying "this is debatable" is not strong enough grounds to argue for the elimination of a freedom). This argument probably has little legal strength. Legally, I imagine the onus is on the side that wishes to overturn precedent (or somesuch), if such a clear identification can be made.
    Last edited: Aug 5, 2010
  14. Aug 5, 2010 #13

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    In response to Jack, I disagree that this is gender discrimination. Gender discrimination usually involves the favoring of one gender over another. However, gay men are just as discriminated against as lesbian women. It's not their gender that's being discriminated against, but their orientation.

    It's not who you are, it's whom you're attracted to.

    So, I would call this homophobia, not sexism.
  15. Aug 5, 2010 #14
    I bet if the people who protest against gay marriage were suddenly denied the right to marry, they'd flip out. They're selfish. If people protested the right of blacks to get married, everyone would be shocked. But this is the same kind of bigotry and it's accepted and even encouraged. What business is it of anyone else if gays get married?

    Look at the people with signs, adamant against gay marriage. They want to be the only ones allowed to get married and have children. Yes, the world is in dire need of more of those people.
  16. Aug 5, 2010 #15

    I think you misunderstand.

    He doesn't argues that objects are sentient. He points out that there are humans who suffer from rare forms of atypical brains who have become infatuate and in-love with objects. From their perspective, those objects have more value than a flash and blood sentient of whatever sex you want. There are cases where said persons will call the object "husband" or "wife".

    You will understand that your typical perception of reality can constitute a serious offense to a person with atypical brain. An atypical brain may consier an object sentient, and there is nothing *you* can do about it, same way you cant to **** if a man only sleeps with other man, that's it, is gay. They are both atypical. The fact the one loves sentinets, one dogs, other cadavers, other objects should be irrelevant.
  17. Aug 5, 2010 #16


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    I don't have any lesbian relatives (huh?) but I have two gay first-cousins and a gay nephew on my wife's side. To some extent, they can come out and express themselves with regard to their sexual attraction (though one has not). I don't see the issue as being as much about when the state can get involved and confer tax advantages or force private companies to grant spousal privileges like shared health insurance. Instead, I see the push for the recognition of same-sex marriages as a push for social equality. If my nephew was in an accident and was in intensive care, would his partner have the right to visit him in the hospital? Could he be denied visitation rights by my nephew's family based on the state's definition of next-of-kin? If my nephew died, could his family swoop in and try to claim his estate, leaving his partner out in the cold? The rights of joint ownership, visitation, and next-of-kin status for same-sex partners are at stake - not just a piece of paper from the state that says you're married.
  18. Aug 5, 2010 #17
    I don't understand people who bring up different forms of relationships asking whether those should now get marriage status (polyamory, incest, bestiality, dendrophilia, furries, etc.) as if that's an argument against allowing gay marriage. They seem to be missing the point entirely. The slippery slope already exists - it is the rational examination of our traditions to separate the beneficial from the prejudicial, and is a debate that we should be having regardless of gay marriage. If there is no rational reason for some discriminatory practice, why on earth should we continue to do so? Just because it's what we've been doing? That is a fallacious argument.
  19. Aug 5, 2010 #18
    Marriage has nothing to do with love, but rather with certain rights, benefits and privileges gained by the partner. An object cannot inherit an estate. An object can't be granted visitation rights in a hospital. An object doesn't gain health insurance benefits. An object cannot consent to marriage. An object can't sign the papers.

    I'm annoyed at myself that I'm drawn into even debating this red herring, but this is two people now insisting that "what about people that want to marry inanimate objects?" is a valid argument.
  20. Aug 5, 2010 #19
    Because some of those are good examples of variances But one must be careful IMO what examples you use here, since marriage is a "consensual union". So regardless of the reality perception of a person who wishes to marry an object or a plant, it remains a simple problem of consent. None of those can express consent.

    Humans are afraid of change, of individuals different than typical social member, and are most infatuated with their-selves, thinking they are righteous and the different one must be struck down like a rabid dog. In their holy mission against progress and change, they often relay on religious believes and on corrupt churches.
  21. Aug 5, 2010 #20
    Laws and customs change. Marriage with an object is out of question because marriage requires consent, but what you miss completely is that a person who has an atypical brain may perceive what majority see as "normal" as extremely flawed and discriminatory.

    Our mission should be to cater to the needs of as many variations in the society without disrupting it. Not to adhere to rigid standards.

    And another thing. To be honest, man marrying another man is for me as alien as a man wanting to marry an object. I simply cannot comprehend either. But Ill just let both live , and do whatever floats their boat. They are no danger to me.
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