Some Thoughts on the Prop 8 Ruling

In case you hadn’t noticed, there was a significant ruling in California yesterday.

A US federal judge has overturned California’s voter-approved ban on same-sex marriage.

The judge found it unconstitutionally discriminated against same-sex couples who sought to wed.

The state measure, known as Proposition 8, was passed by voters in 2008. It banned same-sex marriage, although the state offered same-sex civil unions.

Backers of the ban intend to appeal against the judge’s ruling. The case is likely to reach the US Supreme Court.

The measure was passed in a ballot referendum by a vote of 52% to 48%.

Currently, five states and Washington DC allow same-sex nuptials, though many states have enacted bans.

The ruling does not immediately allow California same-sex couples to marry, as US District Judge Vaughn Walker has delayed final entry of his judgement so he can hear arguments on whether to stay the ruling, pending appeal.

Kelvin Holdsworth has a good response for an Anglican revisionist this side of the Pond which gets down to the core of the argument.

Whilst Civil Partnership in this country once appeared quite progressive, it now does not seem to be so. A separate institution for gay couples seems far from satisfactory. Gradually in one place after another, the argument for Equal Marriage is being made and is being won.

And it moves me too. Even though I’ve long been convinced that people need to be treated equally under the law, when victories are won, it is often the words of the judges or politicians which move me even more than those folk who just want to get wed.

So what do I think? A few thoughts…

  1. The fact that the judge ruling in this case was himself gay is irrelevant. If you object to a gay judge ruling in a case about same-sex civil rights then what do you do when a man is accused of raping a woman? Ban a male judge because he might sympathise with the accused or ban a female judge because she might sympathise with the alleged victim? Of course not, and so the objections to Judge Walker being gay are facile (and homophobic).
  2. This ruling is not the end of the matter and there is no doubt that the matter will go to the Supreme Court of the USA via the regional Federal Appeals Court. This means that at some point in the next two years, the USA is going to settle once and for all the matter as to whether same-sex marriage is a federal right. Note though that even if the Supreme Court rules that it is not, that may not stop individual States legislating in favour of such a move. OF course, that is what the Defence of Marriage Act was introduced to avoid and why it caused so much controversy.
  3. The ruling by Judge Walker raises some interesting questions. The plaintiffs argued that Proposition 8 “prevents each plaintiff from marrying the person of his or her choice AND the choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice”. One might fairly ask whether the acceptance of such an argument (and this is what Judge Walker did, since his ruling which reads

    “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

    provides no grounds for rejecting an equal claim by a polygamist or someone wishing to enter a marriage that is disbarred by virtue of being incestuous. I would welcome a discussion below with someone who doesn’t think that this ruling opens the path for legalising such (currently illegal) marriages.

  4. The whole case rests around the relationship between the law and the judicial interpretation of the law and raises issues around jurisprudence and the place of morality within a legal framework. Defendants of Proposition 8 argue that if the will of the people is that gay marriage not be allowed, there is no place for a judge to over-rule such a decision (especially given the place of DOMA in the US legislative framework). Of course, judicial review exists not just to ensure that the law is not broken, but also to ensure that the law is fair. For example, you would expect and hope for judicial review to knock down any law that legalised the murder of Jews, even if it is was voted for by a majority in a state. The problem for Christians is that if we accept this general principle that a reviewing judiciary is a good thing, we have to be prepared to accept such a reviewing judiciary taking a different moral view to the Biblical one. This then raises issues for how Christians interact with a State which does not recognise their moral framework. As I argued last week on Premier Radio, Christians in this country need to accept the fact that we have de facto gay marriage already. Amongst the heathens therefore, what is our place?

Your thoughts?

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  • http://nojam75.blogspot.com Norm!

    "…One might fairly ask whether the acceptance of such an argument .. provides no grounds for rejecting an equal claim by a polygamist or someone wishing to enter a marriage that is disbarred by virtue of being incestuous. I would welcome a discussion below with someone who doesn’t think that this ruling opens the path for legalising such (currently illegal) marriages…"

    Okay. I'll bite. Although I admit it is a little tired to hear the weak comparison of same-sex marriage to plural marriage, incest, and (eventually) bestiality. That said, I have also wondered why, to my knowledge, plural marriage advocates have not joined gay marriage legal challenges to pursue government-recognition of their families. My guess is that many who adhere to plural marriage are religiously conservative and are also opposed to gay marriage.

    I would argue that plural marriage is a different type of relationship than a two-person marriage. Legally, the government recognizes two-person marriage as the partnering of two consenting individuals with equal rights. Plural marriage has unique dynamics involving multiple relationships that are not comparable to two-person marriage. Even if a plural marriage were to claim that all partners were equal (which doesn't seem to be the case in the plural marriages I've heard of), plural marriages could have situations that cannot be found in two-person marriages and would require the government to establish new rights different than two-person marriages. For example, should the government recognize the right of a majority of plural marriage partners to deny the will of a minority partners by vote? Should the government recognize and facility the right of plural marriages to expel partners or merge with other plural marriages? Government recognition of plural marriages would seem to be more comparable to business partnerships than two-person marriage.

    Incestuous siblings may have a better chance of arguing for the right to marry using the Walker excerpt above. The main argument I hear against sibling marriage is the risk of genetic defect in their offspring; however, I'm not certain if that is proven riskier than other non-incestuous birth risks. There may be an argument that the government has an interest in encouraging greater community involvement outside of one's birth family, but that seems somewhat murky.

    To my knowledge though, plural marriage, incestuous marriage and bestiality marriage right activists have not organized or fought to protect their civil rights, so these hypothetical arguments are not relevant to the Walker decision. These hypothetical comparison are usually invoked to argue that gay marriage should be denied to avoid even more offensive relationships.

    • http://www.peter-ould.net Peter Ould

      The problem isn't that very few people are advocating for these kind of relationships to be legalised, the problem is that Walker's ruling can be equally applied to such relationships. As WC rightly pointed out, 50 years ago *no-one* would have thought we would have gay marriage at the start of the 21st Century.

      Your argument about polygamous marriage being a new right to multi-person marriage is exactly the argument the Prop 8 supporters used against gay marriage, that marriage of two people of the same sex was a new right.

      I'm not convinced you've done anything to dissuade me from my view that this is a flawed judgement, not because it allows gay marriage, but because it does so in a way that opens up other "marriage" possibilities.

      • http://nojam75.blogspot.com Norm!

        "…Your argument about polygamous marriage being a new right to multi-person marriage is exactly the argument the Prop 8 supporters used against gay marriage, that marriage of two people of the same sex was a new right…"

        Not quite exactly. In what even gay marriage opponents must admit was a poorly argued case, the Prop 8 supporters failed to rationally show that same sex marriage was a new right. According to the decision:

        "…Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages…."

        Plural marriage is not numerically the same as two-person marriage which is a different relationship. Hypothetical plural marriage advocates would need to argue for numerical equality ("1+3=2"). The differences between same-sex and opposite-sex marriages mainly relate to gender. Like race, the government no longer treats married partners differently based on gender. As Walker recognizes, the government "has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants."

        "I’m not convinced you’ve done anything to dissuade me from my view that this is a flawed judgement, not because it allows gay marriage, but because it does so in a way that opens up other “marriage” possibilities."

        Isn't your objection really with the 14th Amendment which Walker's decision is based on? There are numerous decisions that were unforeseen when the 14th Amendment was adopted 142 years ago (Roe v. Wade, Brown v. Board of Education, Griswold v. Connecticut, Loving v. Virginia, Bush v. Gore). Your slippery slope concern of hypothetical future decisions regarding polygamy and incest seems to be more about fear-mongering than rationally objecting to Walker's specific decision.

        • http://www.peter-ould.net Peter Ould

          I don't think I have any problem with the 14th Amendment (though as a British subject I obviously have problems with the whole constitution being there in the first place!) but rather Walker's flawed interpretation in this case. The issue is how one handles this section:

          No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

          Now I read that as protecting citizens from individual States removing privileges that are granted at a Federal level. But if that is so, there is no federal privilege to marry whoever you want. Polygamists cannot marry the people they want. Siblings cannot marry who they want (same sex or other sex). Foreign nationals cannot automatically marry who they want. Minors cannot automatically marry who they want.

          Remember, Walker's reasoning is that gay couples simply want what straight couples want – to marry the person they love. But if that is true, what possible reason would you have to disbar a brother from marrying his sister if they love each other? You might say that there a societal reasons not to permit such a marriage, but then I might say to you that there are good societal reasons for two men or two women not to marry. Why should your societal reasons be valid but not mine?

          Walker's line of reasoning seems to be that the 14th Amendment permits any action. But really, if you read the whole ruling Walker says very little about 14th Amendment rights and loads about how the traditional view is simply bigoted and prejudiced. This is what makes the ruling REALLY weak – Walker arbitrarily decides that a particular moral framework (sexual revisionism) is to be viewed as the national moral norm and that any deviation from it is abhorrent.

          All this despite the fact the DOMA is still on the statute book. Here is section three:

          Section 3. Definition of 'marriage' and 'spouse':

          In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

          One could easily argue that DOMA sets up a Federal standard for the moral framework within the Union. It states that a gay marriage in one State doesn't have to be recognised in another and in doing so clearly states that the two (gay marriage and straight marriage) do not have civil equivalence in the Union, since straight marriage MUST be recognised in other States.

          Do you not see why I think this is a bad bit of law – it's not because Walker ruled that Prop 8 should be wiped, it's that he did so in such a flawed manner.

          • Philip Cole

            Peter

            I think that you are right to focus the issue on DOMA and I suspect (although I have no real knowledge of the USA Constitution) that the issue in the States will come down to the constitutionality of DOMA. FWIW, here's my two-penny-worth:

            The USA Constitution was originally written within a Judeo-Christian framework of natural law (moral law if you prefer) as the basis for legal systems, in common with most European and North American (E&NA) legal systems. Indeed, through the dubious processes of imperial conquest, Judeo-Christian natural law remains the basis for many legal systems worldwide.

            Within this framework it was not necessary to spell out marriage as being a committed, faithful and life-long relationship between a husband and wife. Natural law, based on the principles of creation and covenant between God and His people, was the moral basis for life. It is important to note that the natural law basis of E&NA legal systems was essentially uncontested until very recently.

            It is only really in the last few decades that serious attempts have been made in E&NA to redefine marriage away from its natural law base. And, in my view, that is why DOMA was enacted in the USA during the 1990s. While natural law held common consent by the people as the basis for all legal systems, there was simply no need to define marriage tightly. The moral framework for marriage was clear and uncontested.

            However, realising that gay activist groups were gearing up for challenges to the natural law basis of marriage, defenders of orthodox marriage succeeded in getting DOMA onto the statute books. And a very important piece of legislation it is too!

            FWIW, it is here that I think the main efforts in the defence of marriage should be focused – on the defence of DOMA. As I posted earlier, I think it is a rearguard action in E&NA, given that most E&NA people these days do not have a clear understanding of natural law and its moral benefits through history. However, the rearguard action will have the benefits of witnessing to the culture about the need for any strong society to have a clear moral law framework.

            Norm, I find it revealing that your arguments against polygamous or incestuous marriage revolve around either rights to equal treatment in a polygamous marriage or the interests of the state in preventing an incestuous marriage. I think that you have pointed out the inherent deficiancies of a human rights based legal system. I have posted before that, without a natural law framework, legal arguments are essentially reduced to balances and trade-offs between competing rights. And, in the end, such arguments come down to a value judgement over which rights are more important. And, also in the end, someone has to make that value based judgement. As you point out, Norm, without a natural law framework that judgement is made by the state. And, IMHO, the history of the C20 shows us that the state is not very good at deciding which values are to be permitted 'parity of esteem'!

  • http://godknowsibelieve.blogspot.com/ Beleiver

    Points 1, 2 and 4 I can only agree with (as far as they go.)

    Point 3 – The ruling may well open up the issue of polygamy again. There is a feeling in certain quarters that this has been on the way for a while and will eventually happen. In the case of incest I suspect not. The key phrase from you quote from the plaintiff's case is that their choice of marriage partner "is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice”. Unwarranted. The judge often refers in the ruling to the notion that a law may infringe on a right if there is a legitimate reason. I suspect that a legitimate (medical) reason could be found for maintaining a ban on incestuous marriages.

    Over to you

  • Si

    Hopefully google will only pay their cohabiting gay employees the few days in August where they haven't been able to marry their partners and get all the benefits from the state the extra pay that they got was to cover (they didn't give to cohabiting heterosexual couples, but did to all gay cohabiting couples, which seems a bit unfair – any of those couples could have had a marriage ceremony – and be issued with a certificate, it's just that the state wouldn't have recognised it as such if it was same sex).

  • Beth Routledge

    This then raises issues for how Christians interact with a State which does not recognise their moral framework.

    If a person of any religion, including Christianity, considers same-sex marriage to be immoral, then they are under no legal obligation to get married to someone of the same sex. The State has not said that adults are required to enter into same-sex marriage or that religious institutions are required to perform same-sex marriage, and, until it does, it hasn't stopped respecting the moral framework of (some) Christians. It's just started respecting the moral framework of LGBT couples, individuals, and allies who believe in the importance of marriage and family life. It can do both at the same time. It's a glorious demonstration of what it means to live in a society that accepts more than one idea.

    • http://www.peter-ould.net Peter Ould

      None of that has any baring on whether the State should accept that marriage to someone of the same-sex is a fundamental right. The State can happily respect same-sex relationships, even create Civil Unions or their like in order to recognise them within the statutory framework, but that doesn't necessarily mean that there is a fundamental right to same-sex marriage.

    • sue

      It is also then a state which respects the moral framework of the very many Christians who accept and support same sex marriage.

      • Philip Cole

        Point taken, Sue! And I accept your statement of the 'very many Christians who accept and support same sex marriage' as being a true reflection of Europe and North America (E&NA). And that is of course relevant as countries make their own laws which often differ greatly depending on the culture and context.

        But the church is a very different sort of institution and, as Christ's ambassadors on earth, rightly so! I think I'm probably correct in claiming that, in global terms at least, the proportion of Christians that take the revisionist position that same-sex marriage is scripturally justifiable is very small. And as the worldwide church (or at least most of it) is both catholic and orthodox on homosexual activity being sinful, then any church that seriously claims to be part of the worldwide Christian fellowship cannot bless same-sex relationships until the worldwide church catholic has come to this position. And, IWHS, that time is a long time away!

        • sue

          I wasn't really making a point about whether the church as a whole should agree to bless same sex unions, I was just pointing out that for many Christians ( certainly in the UK) a ruling in favour of same sex marriage is a good and moral one. Peter did write his article to read as though "Christian" automatically equalled being horrified by Walker's ruling. It doesn't. It is true, of course, that that is much more the case in the UK, than say, for example, in Uganda. But all that will change, it will change.

          • http://www.peter-ould.net Peter Ould

            Peter did write his article to read as though “Christian” automatically equalled being horrified by Walker’s ruling

            Not so – The first three bullets present my individual response to the facts of the ruling, My fourth bullet point is where I being to talk about Christians in a generic sense, and at that point I am focussing not on the ruling itself but rather the general principles of how Christians should interact with a state in relation to jurisprudence and a non-Christian moral framework.

          • Philip Cole

            Sue

            >>>But all that will change, it will change.<<<

            I hope that this point isn't a repetition of the standard secular left argument that, given development and increasing education and incomes, the two-thirds world will gradually assume left-liberal social attitudes. Just because this is what has happened in Europe and North America (E&NA) as these countries have sunk deeper into philosophical relativism, it doesn't make it true for the rest of the world.

            Indeed, I would argue that the opposite is true and that as the evangelical and charismatic churches (ECC) of the two-thirds world become progressively stronger and more influential, their societies are becoming more biblically based: socially conservative and economically radical. Obviously this is a very long term process but I think that the trends can be clearly seen.

            According to Wikipedia, the largest religion in the world by numbers of adherents is Christianity with 2.1 billion followed by Islam with 1.5 billion. Figures from Operation World, a leading Christian mission organisation, show that Islam is catching up Christianity overall with a growth rate of 2.1% pa compared to 1.5% pa (2006 figures). Evangelical Christianity is the fastest growing major religion in the world, with a growth rate of 4.7% pa, but this growth is overwhelmingly in the two-thirds world.

            As a result, the percentage of Christians in Europe and North America (E&NA) has fallen from around 63% in 1960 to around 40% in 2000. Changes in the proportions of evangelicals in E&NA have fallen even more drastically, from around 67% in 1960 to around 27% in 2000.

            However, religious belief, especially in ECC, is exploding in the two-thirds world, including in countries that are developing rapidly, taking a greater share of the world economy and where per capita incomes are rising.

            A case in point is China where, under severe persecution, the number of Christians has risen from almost nothing at the time of the Communist take over in 1949 to more than 91.5 million in 2006 (7% of the population) growing at more than 7% pa. In other words there are more than 6.6 million new Christians in China alone every year, around 7 times more than attend the Church of England every week. Makes you think doesn't it?

  • Wicked conservative

    You're right, Peter. There are many unanswered questions at the heart of this ruling, and one of the most pressing is this: if it is arbitrary and unjust to restrict marriage to one man and one woman, why is it not arbitrary and unjust to restrict marriage to only two people?

    If gender is irrelevant, why are numbers not irrelevant?

    If marriage has no fixed and unchanging teleology, and can be redefined as social mores change, why is polygamous marriage unacceptable? If you think that it is, then fine, but if you don’t, how do we answer the question?

    And it is no good just saying that polyamory is not a deep-seated or intrinsic orientation. Fifty years ago we thought that about homosexuality.

    I speak, BTW, as a tentative supporter of gay civil marriage who freely admits that he cannot answer the polygamy question in any satisfactory way.

    I would bet good money that by the middle of this century most Western governments will recognise some form of polyamorous marriage.

  • Philip Cole

    Peter

    I like the new site look, especially the quotes that pop up! The space for comments however is tiny, so that I can't easily review what I'm writing! (Hush you at the back there, yelling: 'It's not worth reviewing!')

    FWIW I think that this case (the defence of Proposition 8) will be lost on appeal to the US Supreme Court in about two years time. 'Western' or at least European and North American (E&NA) culture has largely rejected the orthodox Christian basis for marriage. I genuinely think that for most couples now marriage is based upon romantic love and a hope that this will be sufficient to carry them through tough times. And if it isn't, then divorce due to 'incompatibility' is an option, even with a realisation of the hurt caused all round.

    In my view, we underestimate the damage that 'No Fault' divorce has done to the orthodox Christian view of marriage. And, quite frankly, the E&NA Church has been ineffective for decades in proclaiming a high view of marriage, inspired by Christ's love for His Church and based on the love, self-sacrifice and commitment that only the Holy Spirit can produce in our sinful nature.

    And in the absence of a marriage based upon these principals within the culture, society inevitably resorts to a human-rights based legal framework for marriage, as that is all that it has to go on. And that means that gay marriage will get passed.

    But I think that you and WC are correct that the legalisation of gay mariage will also lead, sooner or later, to the legalisation of polygamous, polyamorous and incestuous marriage. Modern human rights law is essentially based upon full support for adult consent based (ACB) activities unless they hurt others. And I can see an argument being made for such ACB marriages. Indeed, you can already find it on the wilder shores of the web!

    So, be it short or be it long, I think that this one is lost. Unless massive, Holy Spirit revival breaks out over E&NA and people are brought to their knees in repentance (may it be so Lord!)

    I am increasingly of the view that the most important thing is now, in E&NA at least, for the counter-cultural witness of orthodox Christian marriage to be preserved and increased. So I think its a good thing to have state registration of partnerships in order to facilitate legal rights and responsibilities, while churches retain the blessing and solemnising of Christian marriage with no compulsion to do the same for gay relationships, or any other that they do not agree with. And may the Lord bless the fruit of orthodox Christian marriages, both in the children that they produce and the witness that they give.

    • http://www.peter-ould.net Peter Ould

      I like the new site look, especially the quotes that pop up! The space for comments however is tiny, so that I can’t easily review what I’m writing!

      You can fix that by dragging the comment box from the bottom right hand corner.

      • Philip Cole

        Duh! Thank you for that useful advice to a not-very-interweb literate commenter!

  • http://dodgyliberal.blogspot.com Justin Brett

    There's a bit of an apple v. orange comparison going on here, isn't there? If you are looking at this from a legal point of view, in my opinion the commentators who have pointed out the intrinsic difference between plural marriage (polygamous or polyandrous) and marriage between two people (same sex or not) are quite correct. The two cannot be legally equivalent and require different legal structures – therefore one part of the slippery slope sort of argument falls. It is not inconsistent to be in favour of same-sex unions but to resist polyamorous ones.

    Secondly, there has been surprisingly little talk about consent. Philip raises it just above, but doesn't quite follow through. The point about being able to contract a marriage with your pet or a minor is that neither of them is legally able to consent to the union, so again it does not necessarily follow that supporters of same sex marriage are being inconsistent if they resist this sort of union.

    Consensual incest, however, poses more of a problem. Although I would like to be able to come up with a reason why it is legally different, I am not sure that I can. In practical terms, however, there is the fact that in most modern legal systems even incestuous relationships that are demonstrably consensual are still illegal, which in effect puts them in the same category as bestiality or relationships where one partner is under age.

    (Incidentally, it might amuse people that the first word in the captcha for this post was 'anathema')

    • http://www.peter-ould.net Peter Ould

      Consensual incest, however, poses more of a problem. Although I would like to be able to come up with a reason why it is legally different, I am not sure that I can. In practical terms, however, there is the fact that in most modern legal systems even incestuous relationships that are demonstrably consensual are still illegal…

      But that just leads us in the same direction, because 50 years ago homosexual acts, while consensual, were illegal in the US and in the UK. If one act that is consensual can be accepted, why not the other.

      I am preaching to the converted though I think. And I agree with you on the consent front (eg animals / minors). Some of the arguments against Walker's ruling are specious indeed.

  • Andrew

    I find the ruling procedurally bizarre. A law that has, in one form or another, been on the books for hundreds of years, and was clearly not disapproved of by those who wrote or first voted for the constitution, has *become* unconstitutional? Regardless of the facts, ethics, or practicality of the particular law, this strikes me as philosophically bizarre. It strikes me as moving into "living document" territory, which is often a euphemism for "means whatever I want it to mean".

    And the hundreds of pages of citations about whether SSM is a good thing strikes me as irrelevant, or, if anything, usurping the role of government. Governments should be considering this information and enacting laws (although the California case has a twist in that the law was elected by a vote of all citizens); one main effect of the US constitution is to create a contract between the citizens and the government that prevents the government from usurping rights from the citizens. However, it's hard to argue that reinstating law that has existed hundreds of years is usurping granted rights.

    It strikes me that the correct judicial response in this would be "go away, win the population to your cause, and re-vote", not "I think this is a bad law, so I'm going to declare it unconstitutional". The judiciary should primarily be arbitrating the legality of lawmaking, not the content. And while there's certainly an argument that novel situations require judgement calls (hence, "is it fair?"), this hardly counts as a "novel" law.

    That said, Christians need to get used to the idea that "Christian" countries aren't. This doesn't mean abandoning a social justice agenda at the political level, but we must accept that ours is one voice* among many and that we must – as many Christians do in nations all over the world and throughout history – work outward from our own organisations rather than expect the government to help with the heavy lifting (whether spiritual or moral).

    * (or many voices; Christians can and do disagree about many social justice issues)

  • http://nojam75.blogspot.com Norm!

    "…Now I read that as protecting citizens from individual States removing privileges that are granted at a Federal level. But if that is so, there is no federal privilege to marry whoever you want…"

    I don't agree with your interpretation of the 14th Amendment's Due Process Clause and the Equal Protection Clause — especially considering the Federal government does not usually issue marriage licenses. Fortunately, the US Supreme Court did not take your narrow view in Loving v. Virginia which Walker did heavily rely on in his decision:

    "…Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State…."

    "…There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy…"

    You say, "Remember, Walker’s reasoning is that gay couples simply want what straight couples want – to marry the person they love. But if that is true, what possible reason would you have to disbar a brother from marrying his sister if they love each other? You might say that there a societal reasons not to permit such a marriage, but then I might say to you that there are good societal reasons for two men or two women not to marry. Why should your societal reasons be valid but not mine?"

    Again, I don't agree with your translation of Walker's decision to mean 'marry anyone you want'. Walker reviewed the specific government reasons gay marriages should not be treated the same as opposite-sex marriage. Polygamous and incestuous marriage supporters would have to argue their case which I don't believe is the same. Your scare tactic that gay marriage will lead to polygamist marriage, incestuous marriage, and bestiality has yet to be successfully argued in court.

    I think you are being disingenuous as I don't believe your arguments against gay marriage would somehow allow for incestuous marriage — although it could be argued that there is a biblical precedent for incestuous marriage and polygamous marriage. (Fortunately, and contrary to some conservative Christian revisionists, the Bible is not an American founding document). Regardless, arguments against gay marriage were made in court and Walker addressed those concerns, so it can't be said that those opposed to gay marriage were not given an opportunity to have their view considered.

    "…One could easily argue that DOMA sets up a Federal standard for the moral framework within the Union. …"

    DOMA is merely one law and does not override the 14th Amendment. Some courts have rule parts of it to be unconstitutional, so it is unlikely to be relied upon as precedent.

    "…Do you not see why I think this is a bad bit of law – it’s not because Walker ruled that Prop 8 should be wiped, it’s that he did so in such a flawed manner."

    I see that you disagree with Walker's ruling and that you desperately want to convince others that his ruling will lead to incest, polygamy, etc. Do you not see that your own bias against same-sex marriage and the 14th Amendment would also call for the repeal of Loving v. Virginia and numerous other precedents?

    • http://www.peter-ould.net Peter Ould

      Do you not see that your own bias against same-sex marriage and the 14th Amendment would also call for the repeal of Loving v. Virginia and numerous other precedents?

      No, because all Loving vs Virginia does is show that a black person can marry a white person of the opposite sex just like two people of the same race can. Loving vs Virginia cannot be used to establish the fact that you can marry anyone you want. It could only do that if (a) you could demonstrate to the court that sexual orientation is fixed and uncontrolled by the person in question like race is and (b) you establish a separate ruling that says that marriage to someone of the same sex (which no-one at the moment can do) is somehow an inalienable right.

      Interesting that the link you gave highlights a case in New York in 2006 that makes exactly this second case:

      [T]he historical background of Loving is different from the history underlying this case. [...] But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

      • http://nojam75.blogspot.com Norm!

        "No, because all Loving vs Virginia does is show that a black person can marry a white person of the opposite sex just like two people of the same race can. …"

        It seems to me that Loving vs. Virginia did more than strike down anti-miscegenation laws. Loving established that laws prohibiting same-sex marriage must have legitimate overriding purpose, must stand on their own justification, and must not subvert of the principle of equality. Prop 8 supporters failed to argue that their law treating gay and lesbian couples differently than straight couples met such criteria. I do think government not recognizing plural and incestuous marriages can be shown to have an overriding purpose and withstand justification.

    • Andrew

      It would also be worth asking what "Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival" means. Is it talking about an emotional connection? A social building block? An economic contract with the government. Defining "marriage" as the starting point for "family" as the building block for the propagation of society will lead to very different conclusions that if it is seen primarily as a ceremony recognising the "togetherness" of a pair(?) of adults.

      I find it sadly amusing that modern capitalism and 20C socialism are fundamentally alike in an important way: people are primarily viewed as "workers", economic contributors.

    • Wicked conservative

      You say that you don't believe the polygamy case is the same as that for gay marriage. But why not? You've accused Peter of "desperately" wanting to convince people that this ruling will lead to polygamy, but not actually refuted the argument. You haven't provided an answer to the question "if it is arbitrary and unjust to restrict marriage to one man and one woman, why is it not arbitrary and unjust to restrict marriage to two people?". If male and female-ness isn't intrinsic to marriage, then what reason is there to think that two-ness is?

      • http://nojam75.blogspot.com Norm!

        Hi Wicked Conservative,

        "…You haven’t provided an answer to the question 'if it is arbitrary and unjust to restrict marriage to one man and one woman, why is it not arbitrary and unjust to restrict marriage to two people? If male and female-ness isn’t intrinsic to marriage, then what reason is there to think that two-ness is?'.."

        As I've already argued above in my first reply, "…Plural marriage has unique dynamics involving multiple relationships that are not comparable to two-person marriage…" The rights and responsibilities the government grants to straight married couples can unquestionably be transferred to same-sex couples since the government no longer designates privileges on spouses based on gender. However, it cannot be argued that two-person marriage rights can be easily applied to plural marriages without the government creating an entirely new type of relationship separate from two-person marriage. The same cannot be said of government recognition of gay and lesbian marriage.

        Since you seem to argue that if the government recognizes same-sex marriage then it must recognize plural marriage, please answer how two-person marriages can be applied to plural marriages: How are deceased spouse(s)' property distributed to the surviving spouses? What spouse(s) have decision-making and visitation rights for incapacitated spouse(s)? Can a majority of spouses overrule spouse(s) in the minority? I don't believe there is any way to transfer two-person marriage rights to plural marriage without having the government intrusively define the nature of plural marriages — which seem far from having uniform characteristics.

  • David

    Sorry to come in late on this, but noone seems to have pointed out the obvious *fact* that, since men and women are *different types of human being* (physically, obviously, but also biologically and mentally) then a committed partnership between one man and one woman MUST be fundamentally different from a committed partnership between two men or between two women.

    So, two men or two women CAN'T form a married partnership in the classical sense.

    If society wants to form one legally recognized form of committed relationship then it needs to widen the definition anyway, so what's wrong with just legally calling all recognized partnerships "Civil Partnerships" (whether marriage or gay) and avoiding the argument about what constitutes a marriage?

    ps I notice that the most revent figures for CPs show that after several years, only about 4% of gay people have decided to form one… 96% have voted against with their feet! Discuss!!

    • http://nojam75.blogspot.com Norm!

      Hi David,

      "Sorry to come in late on this, but noone seems to have pointed out the obvious *fact* that, since men and women are *different types of human being* …"

      I'm pretty sure men and women are the same species and have far more in common than different. Regardless, the legal argument the Prop 8 proponents failed to make is that government has a constitutionally-valid basis to differentiate between the gender composition of relationships.

      "…So, two men or two women CAN’T form a married partnership in the classical sense…."

      What 'classical sense' are you referring to? The notion of marriage being a voluntary relationship between two consenting adults with equal legal rights is relatively new. It wasn't long ago that classical marriage referred to a property transaction in which wives had no right to own property, divorce was an unrealistic option, and women had little opportunities outside of marriage.

      "…what’s wrong with just legally calling all recognized partnerships “Civil Partnerships” (whether marriage or gay) and avoiding the argument about what constitutes a marriage?…

      I tend to agree, but that is not the relevant legal question. The Prop 8 ruling had to do with whether voters have the constitutional right to arbitrarily discriminate and limit the constitutional rights of a minority.

      "…only about 4% of gay people have decided to form one…"

      I'm not sure what stats you refer to, but they are not relevant. The legal issue at hand is whether the government should discriminate against the rights of one gay or lesbian couple as represented in the couples that filed the lawsuit. Besides, if anything the high American divorce rate suggests heterosexual couple have voted against marriage as well.

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