Thursday, November 13, 2008

California's same-sex marriage case affects all of us

It forces us to consider why we have rights.
by Kermit Roosevelt
from the November 14, 2008
Christian Science Monitor

[Philadelphia] What now for California? In May, its Supreme Court announced a right to same-sex marriage. Gays and lesbians rushed to take advantage of the opportunity; by early November, 18,000 such marriages had been performed. But on Nov. 5, they stopped. By a 52-47 percent margin, California voters approved Proposition 8, an amendment to the state constitution prohibiting same-sex marriage.

Immediately, gay rights supporters filed lawsuits asking to overturn the ruling. Critics are calling Proposition 8 an illegal constitutional "revision," fundamentally altering the guarantee of equality – not a more limited "amendment."

This suit raises a serious question: When should a majority have the power to take away a constitutional right granted by a court?

It's a question that forces us to think about why we have constitutional rights in the first place, and why they are enforced by judges. But it is not simply a theoretical puzzle. All of us enjoy constitutional rights, and most of us are at some point in a minority. All of us could be affected.

American constitutional practice has generally been to expand rights over time, both by amendment and by judicial decision. Amendments to the federal Constitution, for example, gave women and minorities the right to vote. Judicial decisions have expanded the constitutional guarantee of equality to protect more and more groups. Some of these decisions remain intensely controversial, but none have been overruled by a federal amendment.

Of course, amending the federal Constitution is difficult. It requires approval by "supermajorities": two-thirds in the House and the Senate and three-quarters of state legislatures. Federal rights cannot be taken away by a simple majority vote.

Because of this requirement, judicial decisions enforcing the federal Constitution's equality guarantee have followed a relatively consistent pattern. At one point in time, a particular practice – say, the racial segregation of public schools or the exclusion of women from the practice of law – is so widely accepted that it seems beyond challenge. Judges are not likely to strike the practice down, and if they did, the backlash might well be strong enough to create a constitutional amendment.

Some time later, the practice becomes controversial. It still enjoys majority support – otherwise it would likely be undone through ordinary lawmaking – but it no longer has the allegiance of a supermajority. It is at this time that judges tend to act in order to protect the freedoms of the minority, striking down the practice as unjustified discrimination. The decision may be intensely controversial. It may even be the target of majority disapproval. But because there is no longer a supermajority, the decision is safe.

As attitudes evolve, the practice comes to seem outrageous. Almost no one, nowadays, would argue for racial segregation of schools or a ban on female lawyers. At this point, the judicial decision is no longer controversial.
If a majority could overrule a judicial decision, the process would frequently be stopped by that majority vote. Judicial interventions against discrimination would just not succeed.

Regardless of where you stand on same-sex marriage, what's troubling for US citizens in the California case is the idea that an equality guarantee could not be effectively enforced against the will of a majority. The point of such a guarantee is precisely to protect minorities from discrimination at the hands of a majority.

It would be somewhat surprising, then, if California allowed judicial decisions enforcing the state equality guarantee to be overruled by a simple majority vote. In fact, as the gay-rights supporters' suit indicates, it is not clear that it does. Under the California constitution, "amendments" can be approved by a simple majority vote.

But "revisions," which make substantial changes, require approval by a supermajority – two-thirds of both houses of the legislature – before being submitted to voters. Supporters framed the same-sex marriage ban as an amendment, when really it has the makings of a revision.

It makes sense to require supermajority support to overrule a judicial decision that grants rights to a minority. It shows that the judges were so out of step with society that they were probably wrong. But a simple majority does not show that, and the constitution would not afford meaningful protection if it could be overruled at the will of the majority.

As the opposition to same-sex marriage in California has shrunk, simple majorities should not be able to reverse decisions made in the name of equality.
This is not an argument that the California court was correct. The battle for public opinion goes on. But letting the court's decision stand against the disapproval of a simple majority is not only sensible, it protects the minority rights of future generations.

Unpopular decisions are the price of constitutional rights.

Kermit Roosevelt teaches law at the University of Pennsylvania's law school

55 comments:

Michael Ejercito said...

Having read up on this issue extensively, as well as the relevant case law, I would have to conclude that Proposition 8 is indeed a legitimate amendment.

Initiative constitutional amendments have been used to legalize Indian gaming, impose legislative term limits, forbid the state from engaging in racial or gender discrimination in employment, and even reinstate the death penalty.

The last two are especially relevant. An initiative amendment added Section 31 to the Declaration of Rights, forbidding the state from discriminating against "any individual or group on the basis of
race, sex, color, ethnicity, or national origin in the operation of
public employment, public education, or public contracting." In effect, it was an expansion of the scope of the equal protection clause. If revisions were necessary to affect the equal protection clause, then this section would be invalid and there would be no basis in the state constitution for equal protection in public employment, public education, or public housing.

An initiative amendment added Section 27 to the Declaration of Rights, which constitutionalized the death penalty. It was added after the Supreme Court had ruled "that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state." In that same decision, it reiterated that "The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority." It is noted that the cruel and unusual punishment clause applies to all persons subject to California law; the only dispute in questions over cruel and unusual punishment is whether the punishment is cruel or unusual. Section 27 was challenged as an illegitimate revision in People v. Frierson , the Court rejected that challenge. Thus, a fundamental right found in the state constitution's Declaration of Rights was affected by an initiative amendment.

The decision Raven v. Deukmejian did invalidate an initiative amendment- but the amendment placed drastic limits on state courts' ability to interpret the rights of criminal defendants, limiting state interpretation of state constitutional protections to the U.S. Supreme Court's interpretation of analogous U.S. constitutional protections. By contrast, Prop. 8 is extremely limited in scope- it only defines one word. State courts continue to have the power to apply equal protection on the basis of sexual preference and orientation, including whether same-sex couples, including those who got "married" before Prop. 8's passing, are constitutionally entitled to tax, inheritance, power-of-attorney, hospital visitation, and other benefits married couples enjoy. They could even rule on whether or not divorce laws apply to same-sex couples- Prop. 8 did not define divorce.

To rule Prop. 8 as a revision would effectively state that a revision is required to define marriage, but an amendment is sufficient to define the applicability of cruel and unusual punishment over the death penalty- a life or death issue.

And this does not even address the political considerations.

Stuart said...

My friend Michael wrote this. I think it's beautiful:


What I Believe (After Prop 8)

I believe that we will have legal same-sex marriage in this country for one reason: I believe in one Almighty God.

The God who endowed every human being with “inalienable rights to life, liberty and the pursuit of happiness.”

The God who inspired Thomas Jefferson to write those words, the Founders of this Nation to adopt those words, and the citizens who followed them to fight for those words.

The God who freed America’s slaves, despite the unmistakable teaching of the Bible: “Servants, obey in all things your masters according to the flesh; not with eye-service, as men-pleasers; but in singleness of heart, fearing God” (Colossians 3:22) and again “Slaves, obey your earthly masters with fear, trembling, and sincerity, as when you obey the Messiah.” (Ephesians 6:5)

The same God who said that Mildred Dolores Jeter and Richard Perry Loving had every right to marry, despite the pronouncement of the Virginia Court that “Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”

The God who made salt for Mohandas K. Gandhi.

The God who seated Rosa Parks.

The God who walked before M.L. King.

The God who inspired the Justices to declare that Separate but Equal was a lie.

The God who marched on Birmingham, Selma and Washington.

The God who has married 16,000 same-sex couples in California and made their children dance with joy.

The same God who gives courage to the divorced to love and marry again, and who leads sixty-year old women and eighty-year old men to the altar, despite their barrenness.

For the spiritual children of Sarah and Abraham include and far surpass in numbers their physical progeny. This is the God who can raise up children from the very stones and give them to whomever is pleasing to nourish, educate and love them.

This is the God who gave the Babe to an unmarried girl.

We sinned against God when we created Jim Crow and we sinned again when we named men and women Sodomites, when we killed them, when we threw them into prison or sent them to the madhouse, when we shocked their brains and lobotomized them to keep them silent.

We sinned when we said they could not teach our children, serve our country, nor speak out loud.

We still sin every single time we called them “faggot,” “dyke,” “lezzie” and “queer,” as if these were not holy things, and as if their unions were anything less than marriage.

Every law will be made to bow before this God, whose name is Justice, Mercy and Love. And every heart in which this God lives shall be blessed.

And I believe that no other God exists nor any other worth worshipping.

Michael Ejercito said...

Stuart,

It seems you worship a different god than that worshipped in the Vatican.

We do have freedom of religion in some places.

john said...

"By contrast, Prop. 8 is extremely limited in scope- it only defines one word."

Thereby taking away a fundamental right from hundreds of thousands, perhaps millions of people.

And remember, per the decision in Marriage Cases, enactments which target homosexuals must be subjected to strict scrutiny. That portion of the opinion is still in force.

john said...

"Stuart,

It seems you worship a different god than that worshipped in the Vatican."

I should certainly hope so.

"From the tyranny of the Bishop of Rome and all his detestable enormities, Good Lord deliver us."

Michael Ejercito said...

And remember, per the decision in Marriage Cases, enactments which target homosexuals must be subjected to strict scrutiny. That portion of the opinion is still in force.
Under strict scrutiny, a law or executive policy may only discriminate against a suspect class if there is a compelling government interest, it is narrowly tailored, and it is the least restrictive means.

Prop. 8 gives the state a compelling interest to define marriage as between one man and one woman- following the constitution is as compelling an interest as any.

However, a law that would, for example, refuse to recognize inheritance or hospital visitation benefits for same-sex couples while recognizing those benefits for married couples is unlikely to be upheld under current case law.

uffda51 said...

Prop 8 defined one word, but poorly.

Why was there no concern expressed by the Mormons and Catholics about the fact that cousins can legally marry in some states (Texas) but not others (California)?

The Supreme Court (Turner v. Safley, 482 U.S. 78) found that even prisoners have a fundamental right in marriage. This wasn't the first time that the court had recognized that marriage is a fundamental right. As the Turner decision states, two other Supreme court cases, Loving v. Virginia and Zablocki v. Redhail stated unequivocally that marriage is a fundamental right.

Prop 8 was not about clarifying the definition of marriage, but rather denying the benefits of marriage to a specific “suspect class,” based on prejudice. There is no compelling government interest here. Appeasing the beliefs of religious conservatives has no place in the constitution of California. This is unjust, no matter what tortured legalese is used to justify it.

As Martin Luther King wrote in his Letter from a Birmingham Jail: “Will we be extremists for hate or will we be extremists for love? Will we be extremists for the preservation of injustice--or will we be extremists for the cause of justice?”

Michael Ejercito said...

But there are limits to the right to marry.

See Reynolds v. the United States (1879).

john said...

"Prop. 8 gives the state a compelling interest to define marriage as between one man and one woman- following the constitution is as compelling an interest as any."

I suppose so, if you think discrimination against homosexuals for its own sake is a compelling interest. It seems to me, though, that the CA Supreme Court AND the U.S. Supreme Court have already said it isn't.

john said...

"But there are limits to the right to marry.

See Reynolds v. the United States (1879)."

Comment on Reynolds in light of Loving, why don't you?

Reynolds, for those who aren't familiar with it, is a case which held that a claimed duty to marry multiple wives wasn't a defense against a charge of bigamy.

Paul B said...

John, here is the money phrase in Loving: Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888).

The Supremes were obviously talking about the right of any man to marry any woman, and vice versa. The survival of the human race rests in the quaint idea that marriage and procreation are intertwined and that there should be minimal impediments to allowing men and women to marry the person of their choice.

How does this apply at all to gay marriage?

SUSAN RUSSELL said...

paul b -- the same way it applies to post-menopausal marriage, post-vascectomy marriage, or infertile couple marriage.

It's "life, liberty and the pursuit of happiness" paul ... not "life, liberty and the pursuit of procreation."

Paul B said...

Susan, the right to life, liberty, and the pursuit of happiness appears no where in the US Constitution.

Read the Fourteenth Amendment.

The Loving decision does mention the pursuit of happiness, but in the context, once again, of the right of a man to marry any woman he chooses, regardless of race.

john said...

Paul b,

What Susan said.

Are you an Episcopalian? Do you believe that our church teaches that the sole purpose of and justification for marriage is procreation?

Paul B said...

John, no I am not Episcopalian.

But, I do know the Episcopal church teaches that marriage is between a man and a woman.

Do you follow that teaching of your church?

john said...

Paul b, ask Susan+, not all Episcopal churches are as wedded to primitive bigotry as some are.

john said...

"Read the Fourteenth Amendment."

Paul b, you read the opinion in the Marriage Cases, which discusses at some length the California due process and equal protection clauses. They, not the XIV amendment to the Federal constitution apply here.

SUSAN RUSSELL said...

thanks, paul.

knew that.

"liberty and justice for all" isn't in the Constitution either ... (it's in the Pledge of Allegience, in case you need to check)

the point is, the Constitution is designed to protect the fundamental liberties our founding fathers applied in their creation of this land conceived in liberty and dedicated to the proposition that all "men" are created equal. (Gettysburg Address ... ALSO "not in the Constitution)

it took us as a nation a shamefully long time to move from interpreting that "men" to mean "white men" and then to expand it from gender specific to citizen specific.

and we are engaged in the same struggle now over the issue du jour: equal protection for ALL Americans, regardless of sexual orientation or gender identity

and ... we will prevail

that arc of history bends toward inclusion and it will NOT be swayed by the ignorance and bigotry still waiting to be expunged from the American soul, yearning to breathe free (Statue of Liberty: not the Constitution)
and live into the full stature of all that is best, brighest and most extrordinary about this American Experiment called Democracy.

so get on the bus or get out of the way ... because whatever WE are Marching to Zion!

Paul B said...

John, the fourteenth amendment remark addressed Susan's remark about "life, liberty..."

I'll take your other answer to mean you don't follow the teaching of your church.

----

Susan, our fundamental disagreement is on the status of gay people as a protected minority. I don't believe that gay people are/should be a protected group, because the group is identified by activity, not an immutable characteristic. I know you disagree with that as well.

So, if we take religion out of the mix, and just talk about this in the civil realm, isn't marriage a societal construct, then? As a public declaration, the right to privacy (Lawrence v Texas) doesn't apply.

So, does society as a whole get to decide what the definition of the societal construct of marriage is? Why or why not?

While Tyranny of the Majority is something that is antithetical to liberty, isn't Tyranny of the Minority just as bad? What is the middle ground in this case?

uffda51 said...

The survival of the human race depends on procreation?

We have been so successful at procreation that we may soon render our planet uninhabitable. We are now at 6.7 billion souls and counting. If we are willing to fight wars over oil we will certainly wars over water. Procreation is a bigger threat to our marriage than any of the thousands of gay marriages since June.

Do we follow the teachings of our church?

The Anglican Communion once owned slaves. The abolitionist members of the AC went against the teachings of their church. Orthodoxy changes over time. Tradition changes over time. Doctrine changes over time. Our understanding of the Bible and of science changes over time.

Denial of these changes is hardly sufficient reason to continue to exclude the LGBT community from marriage.

john said...

"I'll take your other answer to mean you don't follow the teaching of your church. "

Not when they're wrong. Although my (small c) church blesses same-sex couples and has for some years now.

What is your Church, by the way?

john said...

"Susan, our fundamental disagreement is on the status of gay people as a protected minority. I don't believe that gay people are/should be a protected group, because the group is identified by activity, not an immutable characteristic. I know you disagree with that as well."

I've had the good fortune to know Susan+ for over a decade now and I can assure you, when it comes down to science vs. superstition, she comes down squarely on the side of science. Evidently, you do not.

john said...

"While Tyranny of the Majority is something that is antithetical to liberty, isn't Tyranny of the Minority just as bad? What is the middle ground in this case?"

"Tyranny of the Minority"? Hogwash! Let me know the very instant anyone tries to force you to marry someone else of the same gender or attempts to deny you the right to marry the person you love.

Paul B said...

Uffda said "Orthodoxy changes over time. Tradition changes over time. Doctrine changes over time. Our understanding of the Bible and of science changes over time.

Denial of these changes is hardly sufficient reason to continue to exclude the LGBT community from marriage."


Tradition changes over time? How could that be? Tradition is a body of knowledge and practices exercised over time. You can't change the past, so you have to abandon tradition and start a new tradition. You need a compelling reason to do that.

Doctrine only changes over time if you let it. Changing or not changing is neither good nor bad.

Why are these changes good other than the fact you want them to change?

john said...

"Tradition changes over time? How could that be? "

Human beings grow intellectually and spiritually and eventually come to realize that tradition is sometimes simply a manifestation of prejudice.

You really ought to read VA's brief in Loving sometime.

IT said...

I'm so tired about the canard about "traditional marriage". The only thing traditional is that the "tradition" changes regularly.

From E.J.Graff's book,What is marriage for?:
"Naturally, conservatives are dragging out the rhetoric that has been hurled against every marriage change, as we've seen. Allowing same-sex marriage would be like allowing married women to own property, 'virtually destroying the moral and social efficacy of the marriage institution.' Or it would be like legalizing contraception, which ' is not what the God of nature and grace, in His Divine wisdom, ordained marriage to be; but the lustful indulgence of man and woman ...Religion shudders at the wild orgy of atheism and immortality the situation forebodes.' Or it would be like recognizing marriage between the races, a concept so 'revolting, disgraceful, and almost bestial' that it would lead directly to 'the father living with his daughter, the son with the mother, the brother with his sister, in lawful wedlock'—and bring forth children who would be 'sickly, effeminate, into a mere civil contract ...striking at the root of those divinely ordained principles upon which is built the superstructure of society.' Or, it would be like allowing divorce, 'tantamount to polygamy,' thereby throwing "the whole community...into a general prostitution,' making us all loathsome, abandoned wretches, and the offspring of Sodom and Gomorrah.'"

"Such warnings are usually based on the idea that changing a given rule changes the very definition of marriage. And of course, they're right: define marriage as a lifetime commitment and divorce flouts its very definition. Define marriage as a vehicle for legitimate procreation, and contraception violates that definition. Define marriage as a complete union of economic interests, and allowing women to own property divides the family into warring and immoral bits. Define marriage as a bond between one man and one woman, and same-sex marriage is absurd. But define marriage as a commitment to live up to the rigorous demands of love, to care for each other as best you humanly can, then all these possibilities—divorce, contraception, feminism, marriage between [different races or religions or] two women or two men—are necessary to respect the human spirit."

"That's the reason that same-sex marriage is being accepted or actively debated in almost every postindustrial country. The law follows rather than leads, trying to catch up with the contemporary social realities. Today's civil courts are already forced to adjudicate disputes about same-sex couples, over all the same questions that the adjudicate with different-sex pairs: custody and inheritance, pensions and divorce settlements."

"And yet same-sex marriage does make even more visible a difficult fact of contemporary life: that every commitment—to job, spouse, community, religion, and more—must be invented from the inside out, tested, and confirmed as we go. Making lesbians and gay men more legally visible will neither solve nor complicate anyone else's daily commitments. And yet it will insist on something that is quite unnerving to acknowledge: that we must each pay rigorous attention to—and believe in—each individual spirit."

Paul B said...

John, you've already stated that you don't worship my God.

I'll summarize my responses to all of your posts.

Since you abandon anything that you don't believe is true (tradition, law, canons, doctrine) what DO you believe?

And if you can pull your own truth out of thin air, disregarding anything you don't agree with, why can't I?

john said...

"John, you've already stated that you don't worship my God."

And I don't. I wouldn't worship any god whose proponents favored checking one's brains at the church door.

Why don't you just go over to Godhatesfags.com? You'll find lots of new friends there, assuming you aren't already a member.

Paul B said...

Nice, John.

God really does loves you.

uffda51 said...

Paul, church doctrine was used to justify slavery, segregation, and apartheid. It was used to argue against women’s suffrage and mixed marriage. The Catholic Church used to torture “heretics.” The Mormons kept blacks out of their priesthood from 1848 until 1978. In each case the church came out on the wrong side of the issue and doctrine changed because enough people said “no more.” How about for a “compelling” reason? And you would call these changes neither good nor bad?

The reasons these changes are “good” is self-evident. The question is, why did conservatives oppose each one of these changes?

As Christians, are we called to recognize the humanity in all human beings, or deny the humanity of some human beings? We have demonized and scapegoated the LGBT community for thousands of years. What is the compelling reason to continue to do so?

Michael Ejercito said...

We have demonized and scapegoated the LGBT community for thousands of years.
Funny how the California Supreme Court, in In Re Marriage Cases , refused to extend equal protection to bigamists, citing that past judicial decisions found that our nation's culture found that bigamous relationships are "inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry."

Apparently to the court, equal protection does not apply to the "B" in LGBT.

john said...

I know God loves me, Paul. It's people like you I'm worried about.

john said...

"We have demonized and scapegoated the LGBT community for thousands of years.
Funny how the California Supreme Court, in In Re Marriage Cases , refused to extend equal protection to bigamists,"

Are you a lawyer? Have you even taken a class in an accredited law school and passed it?

There's nothing funny about it because the Court wasn't ASKED for its opinion about bigamists.

That's the first response. The second is that the Court explained why it distinguished bigamy in the passage you quoted, but apparently did not understand. What the Court is saying is that there is a basis for discriminating that stands up even to the "compelling reason" test.

Finally, what does bigamy have to do with bisexual(ity) other than the fact that they both begin with a "b"?

Let me rephrase my first question, have you even learned to read and reason?

IT said...

michael,
generally most of us consider it wise to keep our mouths shut when we don't understand something, rather than open our mouths to expose our ignorance.

the "b" in GLBT refers to "bisexual", not "bigamist".

To be "bisexual" does not mean "bigamist", it doesn't mean "two simultaneous partners".

It simply means being able to respond to either men or women.

You're a guy, apparently.

It's like finding both blondes and Redheads attractive. It doesn't mean you want to sleep with both at once.

On the other hand, me being a lesbian and all, my experience of men is that many of you find that an attractive idea.

But as for the bi's I know, they are perfectly able and capable of having faithful monogamous relationships with the blonde OR the redhead.

Honestly is it too much to ask that you conservatives know what it is you are criticizing before you stick your feet in it?

IT

Paul B said...

I know God loves me, Paul. It's people like you I'm worried about.

John, are you saying that no one that disagrees with you could possibly love you?

That's very narrow minded view, isn't it?

Ill tell you, that's the number one thing this "movement" needs to address. I think you've already turned all of the people who don't want to be called "hateful bigots".

Now, saying that everyone who disagrees with you on either a religious level or a public policy level is a homophobic hateful bigot just more firmly entrenches your opposition, and is starting to turn some of your straight supporters to either neutrality or support for the other side.

People who disagree with you can be motivated by things other than hate.

Michael Ejercito said...

What the Court is saying is that there is a basis for discriminating that stands up even to the "compelling reason" test.

The problem is, citing that a finding by our nation's culture (which is basically cultural attitudes) is a compelling reason runs counter to the rest of the decision.

If our nation's culture were to ever find, rightly or wrongly, that homosexually is inimical to mutually supportive and healthy family relationships, is that a compelling reason for discrimination?

john said...

Paul, I simply know a queer-hater when I see one and I see one in your every post.

I don't hate all people who disagree with me, I just don't have any more respect for you personally than I have for dog crap on the sidewalk.

uffda51 said...

Marriage at our church is a sacrament which publicly joins two consenting, loving adults in a lifelong mutual commitment, recognized by both their faith community and the state.

Polygamy, the “marriage” of multiple underage girls to one man, is about power, child abuse, and patriarchy.

Bigamy is about marrying multiple partners with out their knowledge. In other words, lying.

Neither has anything to do with marriage equality.

“And if you can pull your own truth out of thin air, disregarding anything you don't agree with, why can't I?”

Who is pulling their own truth out of thin air? Centuries of biblical scholarship, and a century of medical research are readily available to anyone. The voices of witness of the LGBT faithful, their families, and supporters, are also readily available.

None of us chose our parents, our shoe size, our height, our skin color, or our sexual orientation. The notion that homosexuals chose their “lifestyle,” and are therefore simply heterosexuals misbehaving, is an idea pulled from thin air, with no basis in fact.

Paul B said...

John said: I don't hate all people who disagree with me, I just don't have any more respect for you personally than I have for dog crap on the sidewalk.

Oh, the irony.

I'm just going to let your hatred and hetrophobia stand on it's own.

Paul B said...

uffda51 said:
Who is pulling their own truth out of thin air? Centuries of biblical scholarship, and a century of medical research are readily available to anyone.


I was referring to the fact that you disregard that which you do not agree with, as you said further up the thread. doctrine get in your way? Change it! Tradition doesn't allow you to do what you want? Abandon it!

I was wondering what your source of truth is. Because it's just as valid for me to say that tradition is what I want to follow, and I do.

The notion that homosexuals chose their “lifestyle,” and are therefore simply heterosexuals misbehaving, is an idea pulled from thin air, with no basis in fact.

I've never said this, never once.

john said...

Paul, I have nothing against heterosexuals. Indeed, my family and the vast majority of my friends are heterosexual.

But I do despise bigots like you.

john said...

"The problem is, citing that a finding by our nation's culture (which is basically cultural attitudes) is a compelling reason runs counter to the rest of the decision."

The Court's opinion in the Marriage Cases addressed this matter at some length. Even though you aren't a lawyer (or at least I hope to God you're not), the opinion is clear and well-written so even the novice should be able to grasp what the Court was saying.

Michael Ejercito said...


Polygamy, the “marriage” of multiple underage girls to one man, is about power, child abuse, and patriarchy.

So all cases of polygamy involve underage girls and child abuse?

Funny how that sounds a lot like people saying that homosexuals are after our kids and that all homosexuals are child molesters.

uffda51 said...

"I don't believe that gay people are/should be a protected group, because the group is identified by activity, not an immutable characteristic."

Paul, these are your words, not mine. You define gays by their activity or "lifestyle," something chosen, rather than by their sexual orientation, which is immutable. I assume your sexual orietation is immutable as well. Or could you change your sexual orientation after some "therapy?"

uffda51 said...

Paul, the United States changed its position on slavery and segregation, did it not? The Catholic Church changed its stance on married priests, on Galileo, on the Jews and the crucifixion, did it not? Didn’t Martin Luther and Martin Luther King, Jr. break with tradition? And weren’t they opposed every step of the way? To use a 12-step phrase, in each case a “group conscience” determined that the current state of affairs (“tradition”) must change. These changes happen slowly over time and always face vehement opposition. Are you suggesting that traditions never change, or that the above changes should be reversed for the sake of “tradition?”

In California, in 2000, the gay marriage question was decided 62%-38% against. This year it was 52% to 48%. From 24 points down to 4. People have come to understand that we can’t base public policy on what the writers of Leviticus knew about human sexuality. Nor can we send spacecraft to Mars based on the scientific and technological knowledge displayed in the Old Testament.

As I said, centuries of biblical scholarship, and a century of medical research are readily available to anyone. The voices of witness of the LGBT faithful, their families, and supporters, are also readily available. We believe that the Holy Spirit is constantly at work in the world leading us toward truth.

We can ignore the cultural, historical and linguistic context of the Bible, the medical evidence on human sexuality, and the witness of the LBGT faithful, and continue the tradition of demonizing and scapegoating those we see as “the other.” We can focus our attention on the 6-7 Bible verses which James Dobson is so confused about. Or we could take a look at the other 31,000+ verses. By the way, it’s interesting that James Dobson has had to lay off more than 200 of his staff because he spent so much money fighting Prop 8. What a lovely Christmas gift for those families.

Again, quoting MLK, “Will we be extremists for the preservation of injustice--or will we be extremists for the cause of justice?”

Paul B said...

Uffda51 said, "Paul, these are your words, not mine. You define gays by their activity or "lifestyle," something chosen, rather than by their sexual orientation, which is immutable. I assume your sexual orientation is immutable as well. Or could you change your sexual orientation after some "therapy?"

I don't really think that sexual orientation is immutable, no. Ask Gene Robinson. He was married with a wife and kids. Would he have said he was gay if you asked him then? Probably not. Ask Geoff Farrow, the former Catholic priest who resigned a few months ago in Fresno. He started the year not identified as a gay person, and then he decided to be a gay person.

There are a number of people who started the year 'not gay' and are ending the year 'gay', and there are a number of people who started the year 'gay' who are ending it 'straight'.

Sexual orientation seems fluid for a number of people, doesn't it?

Every black person today was a black person at the beginning of this year. Immutable. Can't change.

That's where I'm coming from?

IT said...

what nonsense, paul b.

Really you and michael ejercito need to read more and talk less.

First of all, if you had ever read anything Bp Robinson had said, he clearly stated that he was aware of his orientation but uncomfortable with it, so he tried to be straight. As indeed so many gay people who have tried hard to "act" straight will attest. Being gay doesn't mean you can't "perform" straight, but it is only a performance--living a lie.

And while we're at it, let me stress the point that it's not about sex, and I am not defined solely by sex any more than you are. Sexual contact is only a very small part of my relationship with my wife and I get tired of you conservative sex-fiends implying otherwise, as though we are nothing but sex.

Second, your sense of your straight orientation -- how rigid is that? the thought of having a loving sexual relationship with a man pretty revolting, eh? having another man touch your skin tenderly, longingly--makes you shudder? That's exactly how I feel, as a lesbian. I can be friends with men, but romantic? UGH. Revolting.

I didn't choose this, who would want to choose this, with the vicious opprobrium and vile behavior from ignorant people like you attacking me and my life. That's what you people never seem to be able to specify, why we would choose this?

If you think it's so easy to "choose" then you can practicing "choosing" to be gay and see how far it gets you. The failures of the ex-gay movement bear cruel witness to this.

Science is quite clear that there is a genetic as well as environmental component to sexuality, and that it is more complicated than the binary black/white in which conservatives like to view the world. But like most conservatives when it comes to the science you stick your fingers in your ear and say "la la la" loudly because it disagrees with your 2000 year old theology. Which, as uffda pointed out, has changed more than once on many issues.

And all you want to do is attack, attack, attack and rip up our license simply because I don't have the same religious values that you do. You want to force me to live by your religion in the secular sphere.

You just have no grasp of how hateful and violent this is, do you?

uffda51 said...

Gene Robinson’s story is well known.

He was a seventh-grader outside Lexington, Ky., in the 1950s when he realized he had a secret to keep. He and friends were paging through a smuggled copy of Playboy.

"There are two things that I remember like it was yesterday," Robinson said. "I could tell my reaction to the pictures was different, and absolutely simultaneously, I knew that I had better pretend otherwise."

Why would anyone pretend to be what there are not? Ridicule, taunting, beatings, discrimination, condemnation, death threats, murder, perhaps?

And yet we have a recent Republican presidential candidate, Mike Huckabee, who said just yesterday that the level of violence against gays does not meet the threshold endured by blacks during the civil rights era. I’m sure that’s a comfort to the families of Matthew Shepard and Lawrence King.

All of my gay friends have told me that they knew VERY early in life that they were gay. Doesn’t this correspond to the experience of your gay friends, Paul?

Paul B said...

IT, you entirely missed the point of post. Totally.

Forget any religious arguments. Just talk public policy.

The currently protected federal classes are race, national origin, color, age, sex, disability, or veteran status. These are all facts that can be proven. I can't hide my race, someone from Russia can prove that is where they are from. Our age is on a bunch of documents. These are characteristics that we don't decide. They aren't based on activity.

My point is that creating a protected class for freely associating people (even for an allegedly good reason) is bad public policy.

In my examples, which you confirm, people for a time could refuse to become a member of this group. Some spend their whole lives without "coming out". Some associate with the group and then decide not to. It's all about a personal decision to associate oneself with the group. That's a problem for me from a simple public policy point of view.

Of course, you will google protected classes and find religious affiliation as a federally protected class.

Hmmm. Let me think about that. Don't pile on, I'm serious.

By the way, a CA Supreme Court ruling is out.

IT said...

I do not concede the point, Paul b, because I disagree that a homosexual is defined merely by an act of sex. Yes, most GLBT can "pass" (not all). So can pale-skinned blacks, or a Russian who speaks fluent English, a lot of 20-something actors who play teenagers, or a disabled person whose disability is not visible. SO WHAT. I was celibate for many years; does that mean I wasn't gay enough? That I couldn't be discriminated against just because I chose not to be sexually active? (Trust me, it doesn't, and I was.)

But for the sake of argument:

How would you feel about an amendment denying marriage to Catholics.

We also protect the rights of people to practice the religion of their choice. We do not mandate a state religion, and we outlaw religious tests or limits for office. Even if we find their religion personally distasteful.

This means that you have the free right to exercise your beliefs without state interference. You, a Catholic, are not forced to recognize divorce or your church marry divorced couples. You can eat fish on Fridays if you are old fashioned that way, put ashes on your forehead on Ash Wednesday, and any number of other things not shared by non-Catholics.

Except right now, your rights to practice your religion have been used to deny me my rights and de facto force ME to practice your religion.

I'm not trying to force you to be gay, or marry a gay person. I *GET* that you can't stand us and don't want us near your church. Fine. I don't want to force my association on you either. Frankly I wish you'd just leave us alone to get on with our lives as free and equal citizens. But you won't, because simply by BEING we offend you so much that you won't let us be equal citizens.

But we ARE, Paul B. I'm still married to my wife, even if you break into our house and rip up the license (and believe me, that's how violated I feel). I still have her picture on my desktop in my office, where my students see it. I'm not hiding away. Maybe we'll sit next to you at a high school soccer game. Maybe my handsome stepson will ask your daughter out on a date. You might see us hold hands at a restaurant on our anniversary. All of this apparently offends you, simply by our being. So you punish us by attacking our marriage and making it about you.

And you think God approves.

No wonder I'm an atheist.

IT

Paul B said...

Paul B (me) said "Of course, you will google protected classes and find religious affiliation as a federally protected class.

Hmmm. Let me think about that. Don't pile on, I'm serious."


Okay, here it is.

The Mormons originally believed in plural marriage. It was essential for men to get to wherever it is Mormons go when they die, and woman could only get there by being married.

The US government, and state governments, continually tell the Mormons that even though they have religious freedom, a marriage is between 1 man and 1 woman. This is apparently not religious discrimination because the government/society believes that the number or people in a marriage can't be changed. This caused the Mormons to somehow change their theology about salvation. No religious freedom there at all.

Now, IT and others, you are coming along and saying that, while the number (1) can't be changed, the genders involved can be changed. How could that possibly be? How is that equal protection under the law?

The Mormons don't even get domestic partnerships for plural arrangements.

This is it. Explain how one protected class (the Mormons) get screwed in the marriage definition and the gay people shouldn't.

IT said...

I'm done with you, Paul B. I'm tired of the worn out argument that SSM is akin to polygamy. I'm tired of hearing the utterly indefensible argument that MY marriage which involves only me, impacts YOUR civil rights, and YOUR rights obligate you to discriminate against me, and force me to live under your religion which I don't share.

I'm tired of pointing out that every argument you make about the "redefinition" of marriage was made by those opposed to inter-racial marriage. Every single one.

I'm tired of being screwed. And thanks for that, by the way. Screw the gays. How sweet. How Christian. Do you feel Christ's loving hand patting you on the back for that one? Oh yeah, maybe you'll get some days off purgatory too. Christ loves a zinger, for sure.

I'm tired of being an object in this discussion. I am a person, married to another person, the love of my life, and people are turning us into some sort of clinical example. It is not only dehumanizing, it is also intensely violating. I have spent the last 12 hours in tears over the prospect of a bunch of bigots like you arguing to void my marriage as though we don't exist.

Go read my comments at friends-of-jake.blogspot.com and see if you have any residual humanity left under that self-righteous sanctimony.

I doubt it.

IT

Michael Ejercito said...

I'm tired of the worn out argument that SSM is akin to polygamy.
We are tired of the argument that SSM is akin to interracial marriage.

Paul B said...

I'm done with you, Paul B. I'm tired of the worn out argument that SSM is akin to polygamy. I'm tired of hearing the utterly indefensible argument that MY marriage which involves only me, impacts YOUR civil rights, and YOUR rights obligate you to discriminate against me, and force me to live under your religion which I don't share.

Well, I understand that you can not accept any argument against SSM. You have made your decision and are completely close minded about it. For you, this is all about getting people to agree with you. My mind is open, for the very reason that you stated - it doesn't personally involve me.

Last night I went to bed thinking that there was only a religious argument against SSM. I was trying to process how to deal with that.

This morning though, I did think about the Mormons.

Traditional marriage is one man and one woman. Two components - number and gender. The government - the people - have consistently refused to change one of the components - the number. Please, tell me why, if the number can't be changed, the genders can.

----

Yes, I actually do stop by Friends of Jake occasionally, although I don't post. I am sorry you are hurting. When you are not calling me names you have given me a lot to think about.

IT said...

I thank you, Paul B, for at last recognizing the pain. You see, I *AM* married, legally so-- for now. We are not talking about a technicality nicety. We are talking about eliminating an existing right, and forcibly annulling 18,000 marriages....including mine. Yes, this is intensely personal.

I will not continue here in this dying thread but will leave you with pointers to other places.

RE. polygamy, better minds than mine (and quite conservative ones to boot) have clearly addressed it, e.g., here:
"If anyone wants to argue in favor of polygamy – and for the present such advocates still remain either imaginary or well out of the political mainstream – they will have a lot more questions to answer than advocates for same-sex marriage do. That is because of a very simple reason. Same-sex marriage has the arithmetic on its side. It is mutual, binary, and fully capable of being subject of all existing laws related to marriage.

Polygamy would require a genuine rethinking of marriage.....This difference between same-sex marriage and polygamy can serve as at least one sound basis to argue that same-sex marriage is consistent with marriage as we understand it in today’s world, but polygamous marriage is not."


I also commend to you Andrew Sullivan's latest:
Catholics, for example, accept the word marriage to describe civil marriages that are second marriages, even though their own faith teaches them that those marriages don't actually exist as such. But most Catholics are able to set theological beliefs to one side and accept a theological untruth as a civil fact. ....And yet Catholics can tolerate fellow citizens who are not Catholic calling their non-marriages marriages - because Catholics have already accepted a civil-religious distinction. They can wear both hats in the public square.

Rod believes that accepting my civil marriage as equal to his somehow erases the meaning of his own union. But it doesn't. He is free as a person of faith to regard my civil marriage as substantively void and his as substantively meaningful; he is simply required as a member of this disenchanted polis to accept my civil marriage as legally valid. That's all. Is that so hard? We can find a way forward to accommodate both our marriages in a public setting.