Same-sex, whole-milk marriage: 50 Shades of Gay

[Lidless]

Just read the whole thing. An excellent deconstruction of the defence's arguments and indeed the lack of defence.

[Voronwë the Faithful]

I'm impressed, Lidless. Did you really read the whole 130 plus pages? I skimmed some of the parts, but I did read most of it. And I agree with your summation.

[Dave_LF]

The decision is eminently quotable. Here's one:

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

Just read the whole thing. An excellent deconstruction of the defence's arguments and indeed the lack of defence.

Indeed. The defense registered a number of expert witnesses, then declined to call most of them, claiming they were concerned for their personal safety. "The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated." But the plantiffs went ahead and entered ealier testimony from 2 of them anyway, because it supported their case. As for the 4 expert witnesses the defense did call, 3 were dismissed as unqualified (one at length in particuarly harsh terms*), and another "sought to rebut only a limited aspect of the plaintiffs'...claim". The defence really comes off looking like a bunch of bumbling fools.

*"His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered." That's almost British.

[Ellienor]

i thought it was worth cutting and pasting a USA Today article on the decision:

The ruling says:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

Walker also writes,

Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

He cites the California constitution that...

[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

The 2008 campaign to ban gay marriage through Proposition 8, volunteers such asRichie Beanan from Los Angeles, show here with a bus sign, promoted traditional marriage. A federal judge has overturned Prop. 8. His ruling says it has no impact on the lives and rights of supporters of traditional marriage.
CAPTIONBy Steve Yeater, APWalker examines about how several major religious groups -- Catholics, Mormons, conservative evangelicals such as the South Baptist Convention, Lutheran Church-Missouri Synod -- condemn either homosexual identity or behavior or both, citing documents from the Vatican to denominational resolutions.

But he spells out in all capital letters in the decision:

A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION...

California's obligation is to treat its citizens equally, not to "mandate [its] own moral code."

http://content.usatoday.com/communities ... titialskip

[River]

Just goes to show that, except for when you're decorating yourself or your living space, "I just don't like it" is a very weak argument.

[Primula Baggins]

This clear separation of civil law regarding marriage from religious preferences regarding marriage is the wedge that's going to make marriage equality happen, I think. Much of the opposition is based on religious principles or the baseless fear that churches will be forced to marry gay couples. Judge Walker appears to have shined a bright light on the fact that these concerns are irrelevant to civil law.

Much of it, of course, is based on some people's fear that if being gay becomes as ordinary as being Presbyterian or Irish-American, they and their children will have to live and work (or more likely, acknowledge that they already live and work) around gay people. My kids have friends who grew up with gay parents and I would defy anyone to find any difference, for better or worse, in how they've turned out now that they're young adults. Maybe as people with prejudices see this for themselves, they'll start to question their firm belief in the impossibility that a family headed by a gay couple is in fact a family.

[vison]

Among other things, Judge Walker is a very good writer. He writes clearly in simple, understandable English.

While there are those who will disagree with his opinion, no one can say they don't quite "get" what he's saying, or that it has been "misinterpreted" or made to mean something else.

[Inanna]

Among other things, Judge Walker is a very good writer. He writes clearly in simple, understandable English.

While there are those who will disagree with his opinion, no one can say they don't quite "get" what he's saying, or that it has been "misinterpreted" or made to mean something else.

That's a very good point, vison, and its very important for such far-reaching judgments.

[Ellienor]

My five year old's best friend is a boy being raised by lesbian parents (both college professors, BTW). My son's friend is far better adjusted than my own son, I have to admit.....

[Dave_LF]

The decision also gives a thorough treatment to previous redefinitions of marriage and does an impressive job of placing this one in that context:

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.
...
The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.
...
The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

I can't say I often (ever) read judicial decisions so I don't know if this is typical, but it's almost beautiful the way he builds his argument up and tears the opposing one down one thoroughly-documented piece at a time.

[Cenedril_Gildinaur]

What surprises me is Obama.

There was a time when the conservative position was marriage for heteros only, the progressive position was civil unions, and the extreme position was gay marriage. Fortunately we've advanced enough so that the progressive position is gay marriage, the conservative position is civil unions (realizing they've lost but trying to preserve the word), and the extreme position is marriage for heteros only.

So why is Obama taking the conservative position?

http://www.washingtonpost.com/wp-dyn/co ... 02211.html

[Lidless]

I'm impressed, Lidless. Did you really read the whole 130 plus pages? I skimmed some of the parts, but I did read most of it. And I agree with your summation.

Yes, I did. It's the last major bastion of prejudice - dominated mainly by religious types. Hence the particular interest on two fronts.

Nice, almost gratifying, to see that J. Walker's opinion, the overwhelming plaintiff's evidence and what passed as a defence, closely mirror the debate of the pros and cons we had on the boards a few years ago.

Ain't we a clever bunch.

[axordil]

An analysis piece in the NYT suggests the opinion was structured specifically with SCOTUS in mind. Any thoughts on that idea?

[Frelga]

I assumed he did.

So what options does the Supreme Court have?

[Frelga]

Meanwhile in Mexico City:

Mexico court upholds gay marriage law

Mexico's supreme court on Thursday upheld a landmark law that allows gay marriage in the capital city, bucking a challenge raised by the conservative government of President Felipe Calderon.

This year, Mexico City became the first capital in mainly Catholic Latin America to pass a law allowing gay couples the same marriage and adoption rights as heterosexuals.

But Calderon's government and his right-wing National Action Party, or PAN, argued the law was unconstitutional on grounds it would be destructive to families. The powerful Catholic hierarchy in Mexico calls gay marriage immoral.

[Inanna]

But Calderon's government and his right-wing National Action Party, or PAN, argued the law was unconstitutional on grounds it would be destructive to families. The powerful Catholic hierarchy in Mexico calls gay marriage immoral.

Sounds familiar.

In India, the same arguments are made about heterosexual inter-caste marriages.

[Voronwë the Faithful]

An analysis piece in the NYT suggests the opinion was structured specifically with SCOTUS in mind. Any thoughts on that idea?

It was structured more specifically than that. It was structured specifically with Justice Kennedy in mind. Walker was careful to cite cases with opinion written by Kennedy, and to use reasoning that would appeal to Kennedy. Which of course makes sense, because there is a reasonably good chance that Kennedy will be the deciding factor in this case, as he so often is.

I will also go out on a limb and say that if the SCOTUS upholds this decision, Elena Kagan (who of course was confirmed to the court today) will have a signficant role in convincing Kennedy (and possibly others in the conservative wing) to vote that way.

[Dave_LF]

But Calderon's government and his right-wing National Action Party, or PAN, argued the law was unconstitutional on grounds it would be destructive to families. The powerful Catholic hierarchy in Mexico calls gay marriage immoral.

Sounds familiar.

In India, the same arguments are made about heterosexual inter-caste marriages.

Yup. And in his opinion, Walker showed how the exact same crowd once made the exact same arguments regarding inter-racial marriage and gender equality in marriage, and points out that the arguments were rejected then and the predictions didn't come true.

[Voronwë the Faithful]

I split the discussion of Religion and Discriminationinto a separate thread.

[ToshoftheWuffingas]

It was structured more specifically than that. It was structured specifically with Justice Kennedy in mind. Walker was careful to cite cases with opinion written by Kennedy, and to use reasoning that would appeal to Kennedy.

That fellow is a bright cookie.