tag:blogger.com,1999:blog-7911788560018241640.post2858907389274968582..comments2023-10-21T11:37:50.732-04:00Comments on The Blackbook Legal Blog: Proposition 8's Legality to be TestedUnknownnoreply@blogger.comBlogger47125tag:blogger.com,1999:blog-7911788560018241640.post-8618277115504913652009-03-06T12:50:00.000-05:002009-03-06T12:50:00.000-05:00@ 9:56 --This is a very touchy subject where there...@ 9:56 --<BR/><BR/>This is a very touchy subject where there is a strong difference of opinion from one person to the next. You are entitled to your views, just as those on the other side of the debate are entitled to theirs. Nothing good will come of resorting to ad hominems, however, and your message tows the line of violating our Blog policy. Given the fact this is uncharted territory for us, we will not remove the post but we respectfully ask that, in the future, you articulate your (well-taken) views via reasoned (rather than bombastic) argumentation.<BR/><BR/>I encourage you to expand on your point regarding the incongruity between perception on divorce and perception on same-sex marriage; it's an interesting point.CRhttps://www.blogger.com/profile/06418939857753947421noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-82472501703722345502009-03-06T12:41:00.000-05:002009-03-06T12:41:00.000-05:00Good clarification 10.22, thanks.That being the ca...Good clarification 10.22, thanks.<BR/><BR/>That being the case, I agree with you that we need to make the switch and get government and religion separated in this realmAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-19643466310980197272009-03-06T10:42:00.000-05:002009-03-06T10:42:00.000-05:009:56--Wow, I can't believe it, you are right I am ...9:56--Wow, I can't believe it, you are right I am ignorant. And your line of reasoning and your angry tone, really have influenced my thinking. It is idiots like you that made the majority of California vote for Prop. 8.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-54193924383876995932009-03-06T10:22:00.000-05:002009-03-06T10:22:00.000-05:009:43 here. Apologies for claiming the reference as...9:43 here. Apologies for claiming the reference as Canada. It was UK. Same queen, different continent.<BR/><BR/>http://news.bbc.co.uk/1/hi/uk/7373302.stm<BR/><BR/>The argument is still valid, though. The government should get out of marriage and require civil unions for all, which would be recognized as holding the same civil rights as marriage for tax, housing, and employment purposes, etc. This partnership should be open to any adult couple, regardless of gender, blood relationship, or anything else. <BR/><BR/>As for the difference between "civil union" and "marriage", it depends on the way civil unions are set up in the particular jurisdiction. In some places the distinction is semantic to please conservatives. In other jurisdictions there are substantive differences. E.g. Vermont grants same-sex civil unions that are no different than marriages under state law. However federal law does not recognize those civil unions as equivalent to marriage. In Canada, marriage is marriage, same-sex or opposite-sex. It could just as easily be called "civil union" or "fish bowl" (the latter might be confusing), but substantive rights are no different.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-91191421357641814462009-03-05T23:02:00.000-05:002009-03-05T23:02:00.000-05:009:43: Can you elaborate on this Canadian case? I m...9:43: Can you elaborate on this Canadian case? I may be missing something, but I understood there to be a difference between "marriage" and "civil unions." I don't see why your couple would not, or should not, be able to qualify for civil unions but I do think it makes sense to ban them from marriage independent of religious reasons because marriage carries with it more than property-distribution, visitation rights, etc. It is a state-endorsement of a contractual union which cannot be breached and in some cases (as 10.22 said) could be punished during breaches.<BR/><BR/>I agree totally about the entanglement between church and state in marriages, but we're in a very small minority on this.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-80697310916571766542009-03-05T22:22:00.000-05:002009-03-05T22:22:00.000-05:00Hi "Polygamist guy" (sorry, don't know what else t...Hi "Polygamist guy" (sorry, don't know what else to refer as)<BR/><BR/>"I think this argument is rather weak--(1) in fact, if anything this might reduce the problems of the "spiritual" marriage. In applying for a marriage license all parties would have to give consent and state that they are entering into this of their own free will and choice. Additionally, verification of age would also take place. (2) Secondly, if someone wants to abuse the system, they will do what they are currently doing and do a "spiritual" marriage."<BR/><BR/>--after thinking about it I agree with you, but I think my first point would be the objection you're most likely to get because non-consensual polygamist marriages on compounds are notorious in our society (think Big Love). Obviously, these marriages would not be recognized by the state so I guess the point's moot.<BR/><BR/>"simple piece of legislation would fix this. Again, if you are arguing from the moral standpoint that in terms of marriage, two (or in this case more than two) law abiding citizens have the right to get married regardless if it is two men, two women or a man and a woman--then it would be hard to argue that "property difficulties" should stand in the way of someone's "right."<BR/><BR/>--also a good point after thinking about it. I don't really have a response.<BR/><BR/>"First, sex with multiple partners is not illegal. I don't know if there are still adultery laws on the books, but if they are they are not enforced. I think we are well past the days of the government telling you who you can and cannot have sexual relations with (obviously if it is with consenting adults). I would actually laugh if that held something like this up. Is swinging illegal?"<BR/><BR/>--not enforced, sure. But it is illegal, and can be enforced at any time. If i remember correctly, the law enforced in Lawrence v. Texas had basically never been used recently either. The same in Griswold v. Connecticut. Without a supreme court decision extending to cover this, there could be problems.<BR/><BR/>overall I think you raise a good point. I support same-sex marriage, and would not be 100% against my belief being extended to polygamy but I doubt everyone feels the same was especially since polygamists are very against same-sex marirage.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-65450195921475517992009-03-05T21:43:00.000-05:002009-03-05T21:43:00.000-05:00I tend to agree with Master Shake, the government ...I tend to agree with Master Shake, the government has no business in marriage. But it works the other way too...why do we let clergy officiate in a marriage contract that controls certain civil rights? This is a major area where there is no separation of church and state and that is why this is such a big issue.<BR/><BR/>At the risk of sounding like a flaming liberal, I'm going to suggest that French have at least one thing right. To get married in France, you must go to city hall in your town of residence and be married in a civil ceremony, usually by the deputy mayor. Following that ceremony, the entire wedding party then crosses the street to the church and get married by the priest. The state does not recognize the religious rite and the church does not recognize the civil ceremony. <BR/><BR/>Would that be so tough here? Require all couples to have civil unions by government officials in order to benefit from the full civil rights associated with marriage. Then those couples can be free to celebrate that union with whichever social or religious group accepts them. Government out of the church and the church out of the government. <BR/><BR/>Second, same-sex marriage doesn't go far enough. Canada legalized same-sex marriage in 2005. Now there is a case before the courts in Manitoba where two octogenarian spinster sisters who have lived together their entire lives are claiming the law unfairly discriminates against them being able to get married civilly. Their relationship is not incestuous in any way, just co-dependent. They have built their lives together. Why shouldn't they be able to designate each other as their next of kin? <BR/><BR/>Civil union laws should be akin to a buddy system - you can select one other adult person, no qualifications as to romantic feelings or biological identity, to be your life partner. You just have to be committed to that person. Let social and religious groups make their own rules.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-18229146722543776842009-03-05T18:49:00.000-05:002009-03-05T18:49:00.000-05:00Polygamist guy back--Obviously not a central part ...Polygamist guy back--<BR/><BR/>Obviously not a central part of the debate, but I really think it carries some weight and I find it very interesting. Proponents of polygamy are obviously limited in number and even more limited in political clout. It would be interesting to hear if proponents of gay marriage would support proponents of polygamy or if they would take a stand against it, much like the stand that is being taken against them.<BR/><BR/>In response to 4:21<BR/><BR/>-Likelihood of polygamist marriages to be entered into against will, i.e. non-consenting<BR/> <BR/> --I think this argument is rather weak--(1) in fact, if anything this might reduce the problems of the "spiritual" marriage. In applying for a marriage license all parties would have to give consent and state that they are entering into this of their own free will and choice. Additionally, verification of age would also take place. (2) Secondly, if someone wants to abuse the system, they will do what they are currently doing and do a "spiritual" marriage. <BR/><BR/><BR/>-Difficulty regarding property disputes, divorces and the like when there are more than two spouses in volved<BR/><BR/> --simple piece of legislation would fix this. Again, if you are arguing from the moral standpoint that in terms of marriage, two (or in this case more than two) law abiding citizens have the right to get married regardless if it is two men, two women or a man and a woman--then it would be hard to argue that "property difficulties" should stand in the way of someone's "right."<BR/><BR/>-The fact that a right to polygamist sexual interaction has not been established, at least explicitly, while a right to homosexual relations has.<BR/><BR/><BR/> --First, sex with multiple partners is not illegal. I don't know if there are still adultery laws on the books, but if they are they are not enforced. I think we are well past the days of the government telling you who you can and cannot have sexual relations with (obviously if it is with consenting adults). I would actually laugh if that held something like this up. Is swinging illegal?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-13864883593063007552009-03-05T18:22:00.000-05:002009-03-05T18:22:00.000-05:00Ah, good find Mark. Very interesting.Ah, good find Mark. Very interesting.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-58531926855239612982009-03-05T18:21:00.000-05:002009-03-05T18:21:00.000-05:00The link appears to be to the product of an effort...The link appears to be to the product of an effort to get it all down as it happened, but not a "transcript" as such. I'll keep looking.<BR/><BR/>In the meantime, however, according to the text provided by Law Dork, 2.0, Kennard said: "Prop 8 ... did not eliminate the suspect classification holding [in In re Marriage Cases]." This appears to be a significant statement, especially if all the justices agree.Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-25248538065883763592009-03-05T18:20:00.000-05:002009-03-05T18:20:00.000-05:00This comment has been removed by the author.Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-85941896676330857412009-03-05T18:14:00.000-05:002009-03-05T18:14:00.000-05:00::Climbing up the soap box::Personally, I find the...::Climbing up the soap box::<BR/><BR/>Personally, I find the concept that marriage of any variety be it 'traditional' or 'gay' is a governmental interest to be reprehensible. What business does the gov't, state or federal have in creating wholly arbitrary distinctions? None, if you ask me. I think the time may be coming where people will stop embracing government as the answer and start to realize that it is the root of nearly all the problems we as a People face today.<BR/><BR/>::Climbing off the soap box::<BR/><BR/>As a practical matter, however, I am interested in seeing how the Cal. S. Ct. uses a 'procrustean' (sp?) method to come to the same conclusion it did last year. Anyone who thinks that California is NOT getting gay marriage back, regardless of their political/moral biases, is just myopic.Fred Bastiathttps://www.blogger.com/profile/13521418879469327375noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-90809023975246474982009-03-05T18:03:00.000-05:002009-03-05T18:03:00.000-05:00My apologies, that was me immediately above.And le...My apologies, that was me immediately above.<BR/><BR/>And let me see if I can get a hyperlink.<BR/><BR/>http://www.lawdork.wordpress.com/2009/03/05/liveblogging-prop-8-cases-petitioners-and-ag/<BR/><BR/>Hopefully that works.CRhttps://www.blogger.com/profile/06418939857753947421noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-82289244819162516052009-03-05T18:02:00.000-05:002009-03-05T18:02:00.000-05:00Mark,Glad to have had you; thanks for sharing your...Mark,<BR/><BR/>Glad to have had you; thanks for sharing your insights with us all.<BR/><BR/>Here's a link to the oral argument transcript: <BR/><BR/>http://lawdork.wordpress.com/2009/03/05/liveblogging-prop-8-cases-petitioners-and-ag/Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-71150562598034120292009-03-05T17:56:00.000-05:002009-03-05T17:56:00.000-05:00Has anyone found a transcript of the arguments? I ...Has anyone found a transcript of the arguments? I was able to connect for about 15 minutes and then lost the connection (too much traffic, not enough bandwidth).Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-45392621475271720362009-03-05T17:48:00.000-05:002009-03-05T17:48:00.000-05:00Well at least the Supreme Court doesn't seem to th...Well at least the Supreme Court doesn't seem to think this unconstitutional ban was retroactive......<BR/><BR/>"Justice Carol Corrigan asked whether people don't have a right to expect to be able to rely on the law at the time when they were married? That's when Starr replied with the no-fault divorce argument, since obviously many couples who expected to have a hard time divorcing suddenly saw a change in rules.<BR/><BR/>But both Justice Joyce Kennard and Chief Justice Ronald George questioned whether voters saw Proposition 8 as retroactive. George asked why a retroactivity clause wasn't built into the initiative, if that was the intention."<BR/><BR/>http://opinion.latimes.com/opinionla/2009/03/proposition-8-w.htmlAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-27598790630946837772009-03-05T17:46:00.000-05:002009-03-05T17:46:00.000-05:00Hey editors: Thanks for the opportunity to partici...Hey editors: Thanks for the opportunity to participate in this discussion. Now, we wait for the decision! Do good work!Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-13607353071900466922009-03-05T17:43:00.000-05:002009-03-05T17:43:00.000-05:00The Attorney General argued that Prop 8 should be ...The Attorney General argued that Prop 8 should be invalidated because it abrogates fundamental interests protected by Article I of the California Constitution without a compelling interest. See http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168047-answer-response-petition.pdf at pp 75 et seq.Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-39418850187885105352009-03-05T17:09:00.000-05:002009-03-05T17:09:00.000-05:00So much has been said here that it's almost hard t...So much has been said here that it's almost hard to formulate a response.<BR/><BR/>Let me start by echoing what Josh (Borden) said, and thanking all of you for taking the time to share your thoughts. I also agree with him that it is important to, to the extent we are discussing this issue, separate "legal" arguments from "moral" arguments.<BR/><BR/>My intention, of course, was not to spark any arguments at all. Rather, I wanted to share what was happening with our readers. That said, I'm glad a diversity of different views have manifested themselves in response to several commenters who have made slippery slope arguments because it contributes to the general conversation.<BR/><BR/>In that vein, I'll briefly note the following:<BR/><BR/>1) I think Mark In Irvine puts forth a strong argument in favor of same-sex marriage--be it on a federal, or state scale. It is important to remember, however, that in the present context the question is whether this was an "amendment" or a "revision." It's the latter if it modified California's articulation of equal protection from In re Marriage Cases. In short, this is a narrow inquiry; we're not addressing the constitutional propriety of this under California equal protection as a general matter--we're addressing it with the retrospective insight that California may have amended their constitution. If it was, in fact, an amendment then the equal protection argument in favor of same-sex marriage--insofar as it relates to California law--holds no water. <BR/><BR/>The federal equal protection argument is obviously another story, and my personal view is roughly aligned with what Josh (at 3:49) said regarding Lawrence. Whether we base it on substantive due process, equal protection or something else, I think ultimately the Court will hold that there is a right to same-sex marriage because precedent seems to command it.<BR/><BR/>2) I find the slippery slope arguments to be rather silly, although the polygamist issue gives me greater pause than the other slippery slopes along those lines.<BR/><BR/>3) Although Mark in Irvine's point at 3:43 is kind of besides the point insofar as it relates to the disposition of Proposition 8 *at this point*, I think it is something proponents should think long and hard about when articulating the MORAL (and, perhaps, legal) justifications for the provision.CRhttps://www.blogger.com/profile/06418939857753947421noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-89506658060991551462009-03-05T17:03:00.000-05:002009-03-05T17:03:00.000-05:00The California Supreme Court in "In re: Marriage C...The California Supreme Court in "In re: Marriage Cases" has already stated that gender discrimination/sexual preference/whatever they called it IS a suspect classification. <BR/><BR/>The California Supreme Court in "In re: Marriage Cases" has already stated that individual's right with respect to bonding / personal relationship etc is "fundamental".<BR/><BR/>If you start to flesh out the "compelling state interest" I think it necessarily focuses on children, and when you examine what the interest is and how to further and protect it, the Prop 8 ban over-includes people and leaves out some against whom protection arguably is appropriate.<BR/><BR/>Gay people can procreate: there is artificial as well as natural insemination; and some adults personally affected by Prop 8's ban already have children?<BR/><BR/>Straight people who either choose not to reproduce or are incapable of reproduction are not prevented from marrying other straight people.<BR/><BR/>In the Prop 8 cases/controversy, we're talking about California law under the California constitution, not federal law. Federal law may come up when we get to the discussion of application of the federal constitutional "full faith and credit" clause and the "Defense of Marriage Act", a challenge to which apparently was filed this week.Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-61567947367611562922009-03-05T17:02:00.000-05:002009-03-05T17:02:00.000-05:00This comment has been removed by the author.Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-64475930528271927902009-03-05T16:48:00.000-05:002009-03-05T16:48:00.000-05:00This is a very interested thread. I really enjoy ...This is a very interested thread. I really enjoy that there are commenters on each side- that has led to a great discussion.<BR/><BR/>I have a couple of things to add.<BR/><BR/>First, some appear to be arguing on a purely moral ground. I think it is necessary to point out that although a decision may be morally reprehensible, it may be legally correct. Just because a court holds a law constitutional does not mean that the law is morally correct. A court would merely be leaving the decision to the political powers, and it would then be in the people's hands to act "morally." <BR/><BR/>Secondly, I think Mark In Irvine makes some great legal arguments as to why such a ban on gay marriage is unconstitutional. But- to be fair to the other side- (and I'm not taking one side or the other) there are also some convincing arguments that such a ban is constitutional. <BR/> - This isn't a suspect classification. At most, it's a quasi-suspect classification under federal law and would, thus, be subjected to intermediate scrutiny. <BR/> - You frame the right at issue rather broadly, and while framed that particular way is is a fundamental right, I question whether the Court would frame it that narrowly.<BR/> - Is there not a compelling government interest? Justice Scalia would surely argue that morality is one. Also, procreation may be another.Joshua Bordenhttps://www.blogger.com/profile/04909742408710829739noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-63403642545334754562009-03-05T16:43:00.000-05:002009-03-05T16:43:00.000-05:00Mark...how far are we willing to take the definiti...Mark...how far are we willing to take the definition of "suspect classification?"Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-51712510591952856962009-03-05T16:41:00.000-05:002009-03-05T16:41:00.000-05:00Anon wrote: "please enlighten me"comments, enlight...Anon wrote: "please enlighten me"<BR/><BR/>comments, enlightening or not:<BR/><BR/>"#2: ... homosexuals [as a] suspect classification under equal protection":<BR/><BR/>The Marriage Cases decision states that this is a "suspect classification";<BR/><BR/>"#3: More of an establishment/excessive entanglement":<BR/><BR/>Press proponents of Prop 8 and their ilk, and they'll eventually resort to arguments about the immorality of same-gender couplings, which characterization comes from religious texts.<BR/><BR/>Proponents will also appeal to "tradition" in support of the ban, but this does not address the "compelling governmental interest" requirement and ignores the "least restrictive means" requirement.Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.comtag:blogger.com,1999:blog-7911788560018241640.post-21438107009839645882009-03-05T16:32:00.000-05:002009-03-05T16:32:00.000-05:00The only conceivably valid "compelling governmenta...The only conceivably valid "compelling governmental interest" would have something to do with protection of children: <BR/><BR/>- infertility and refusal to reproduce are not legal impediments to m/f marriages;<BR/><BR/>- some same-gender unions provide environments for children that are as safe as and, in some cases safer than, some m/f unions;Mark In Irvinehttps://www.blogger.com/profile/01614659771194841374noreply@blogger.com