Church, Politics & Prop 8

[_Rollo Tomasi]

There is no constitutional provision anywhere (until Prop 8) providing as a civil right the right to marry. It is a judically-created doctrine.

It was a judicially-interpreted right under equal protection. Do you disagree that the right to marry is a fundamental right? Even for heterosexuals? Do you disagree with the analysis in Loving v. Virginia?

The civil right associated with marriage has been a qualified one.

Only to the extent that every other civil and fundamental right is "qualified" in terms of the gov't having a damn good reason to discriminate (i.e., compelling state interest, rational basis, etc.). Are you arguing for greater qualification?

One qualification -- same race marriage -- was eliminated for Californians in 1948 by Perez v. Sharp.

But such qualification (and others) were eliminated under the U.S. Constitution in the 1967 decision of Loving v. Virginia.

Gender was eliminated as a qualification in May 2008 and restored in November 2008, for Californians.

Prop. 8 has nothing to do with gender (it's not disputeed that a man is a man or a woman is a woman), it has everything to do with sexual orientation, which the CA Supreme Court found to be a suspect class under the CA state constitution. And Prop. 8 won't survive Section 7(b) of Article 1 of the Declaration of Rights. Do you agree?

No federal decision has ever held that marriage is an unqualified right, and no federal decision has ever held that gays are denied equal protection if they are not allowed to marry.

No fundamental right is unqualified, as you well know, counselor (again, under the "compelling state interest, etc." test). Plently of state decisions have held that bans on gay marriage violate equal protection, and the feds will jump on the bandwagon eventually, because it's a no-brainer.

The fact that you keep saying, over and over again, that that will change as soon as a federal court gets it is kinda like saying that there is certainly evidence for horses in MesoAmerican because an absence of evidence implies evidence. Sure.

C'mon, dear counselor, you know how it works (or at least you should). There has to be the right test case (as occurred in Loving v. Virginia, Brown v. Board of Education, etc.). That's the way our judicial system works. So stop being coy. Face it, you're on the wrong side on this one (even though you like to tell us what a great trial lawyer you, which I seriously doubt in light of your utter ignorance as to why Prop. 8 cannot and will not pass constitutional muster, no matter how bigoted and homophobic Californians may be).

[_Rollo Tomasi]

Well, I think rc pretty much settled this here, as far as the legal fundamentals, but I should still remark that I didn't ask Rollo for article and section from Loving v. Virginia but from the Constitution of the United States.

He has declined to provide such.

Read Virginia v. Loving and you'll see. But in case you can't, I refer you to the 14th Amendment and its inclusion of equal protection under law.

[_Rollo Tomasi]

No it isn't. Loving v. Virginia does not provide that marriage is an unqualified civil right or that same gender marriage is within that civil right.

More wordplay. I guess that's what we should expect from a lawyer who has nothing else to hang his hat on. Loving clearly states that the right to marry is a fundamental civil right of all citizens. Can there be qualifications? Of course there can, as with any fundamental right (for example: screaming "fire" in a crowded theater probably is not protected free speech), but that qualification (i.e., the government's damn good reason to discriminate) is only established by proof of a compelling state interest, and that is where Prop. 8 has and will fail.

I can understand the argument that racial discrimination is the same as sexual orientation discrimination because the California Supreme Court made that connection, but no federal decision has ever done so.

It will when it gets the proper test case. You know how it works, counselor.

To argue that the Supreme Court will protect same-sex marriage as a civil right, where it never has done so, is like arguing that some day the Supreme Court will uphold as a civil right the playing of face cards. The absence of a ruling does not imply the opposite, that a ruling will some day occur.

Good thing that attitude wasn't taken when Thurgood Marshall was about to take the Brown v. Board of Education case to the U.S. Supreme Court, or when the attorney was about to take the Loving v. Virginia case to the same court. We'd never get anywhere unless we believe an injustice has been done and we seek an adjudication from the highest court in the land. I have complete confidence that the U.S. Supreme Court will right the wrongs against gay couples (such as Prop. 8, if the CA Supreme Court doesn't fix it first) -- we just have to get the right case in front of them.

[_rcrocket]

There you go. Arguing the lack of something is evidence that something will occur.

[_Rollo Tomasi]

There you go. Arguing the lack of something is evidence that something will occur.

Not at all. I'm simply offering foresight.

[_rcrocket]

(even though you like to tell us what a great trial lawyer you, which I seriously doubt in light of your utter ignorance as to why Prop. 8 cannot and will not pass constitutional muster, no matter how bigoted and homophobic Californians may be).

Well, prior posts have mocked my ecclesiastical title, and now my ability in my profession (I deny ever claiming to be a great trial lawyer; I have not). Now, how exactly does that help your posts except with idiots?

Nonetheless, I continue to point out that your posts ignore the reality -- the overwhelming number of states ban gay marriage and those courts which have addressed it, overwhelmingly, support that ban. Yes, there are exceptions. The California Supreme Court's Marriage Cases is certainly one, but right now it is in the ash heap.

But, I find solace in the reasoning of one federal court, Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D. Cal. 2005).

"The Court does not accept Plaintiffs' Loving analogy . . . ." (Id. at p. 876.) "[T]here is nothing in Loving that suggests an extension of the definition of the fundamental right." (Id., at p. 879.) This means that this federal court did not think that Loving v. Virgina could be employed to create an equal protection argument for gay marriage.

"It is undisputed there is a fundamental right to marry." (Id., at p. 876.) But, what does that mean? "The Court holds that, for defining the fundamental right, marriage historically has been a heterosexual institution." (Id., at p. 878 n.22.) Thus, there is a fundamental right to marry, but only as between heterosexuals. "The history and tradition of the last fifty years have not shown the definition of marriage to include a union of two people regardless of their sex." (Id., at 878.)

"The Court concludes the fundamental due process right to marry does not include a fundamental right to same-sex marriage or Plaintiffs' right to marry each other." Id, at p. 879. This court employed the rational basis test. "Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest. Encouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government. The argument is not legally helpful that children raised by same-sex couples may also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-sex couples. It is for Congress, not the Court, to weigh the evidence. By excluding same-sex couples from the federal rights and responsibilities of marriage, and by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance. Congress could plausibly have believed sending this message makes it more likely people will enter into opposite-sex unions, and encourages those relationships." (Id. at p. 880.)

This decision was affirmed in the Ninth Circuit, but the merits decision discussed above was vacated on the ground that the same-sex plaintiffs lacked standing to challenge the Defense of Marriage Act until they were actually married by some state; essentially, the Ninth Circuit upheld the District Court but for different reasons in Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006).

But, at least we see the proper argument articulated by one federal court, and Judge Gary Taylor was highly respected (I have, indeed, tried a case before him) and was considered somewhat of a liberal before he retired.

So, I have precedent on my side. You have speculation. Oh yeah, and name-calling and personal invective as well. What next, comparing me to Hitler?

[_GoodK]

Brother Crocket reminds me of Hitler.

[_truth dancer]

Not being an expert in Constitutional Law (smile), seems to me the Constitution/State says basically, every adult can marry, (and children if they are older than a certain age...children should NOT be able to marry in my opinion but this is another topic), but the state/court sets limits on whom they will allow people to marry.

As far as I know, limits include, close relatives, children, and those of the same sex. Thankfully, the court no longer considers race, class, or skin color a determining factor... one of these days I suppose they will stop worrying about the body parts one has or does not have.

For all the lawyer types... does the court have any specific rules for genetic or chromosomal abnormalities for instance a person with XYY, XXY, XXYY, XO or another rather ambiguous sexual definition? Can they marry whomever they want? What about transgendered folk? Do they have similar limits on whom they can marry as do homosexuals? What if a man and woman get married and one changes sex so that they become a SS couple.. then what?

I still do not understand why SS marriage is such an issue for so many people... just like I do not understand why the laws would not allow different races to marry. It makes no sense to me. Totally do not get it.

Oh well.

:-)

~td~

[_Rollo Tomasi]

The California Supreme Court's Marriage Cases is certainly one, but right now it is in the ash heap.

Nope. No court has reversed it. It's good law. And it remains to be seen whether Prop. 8 will survive Section 7(b) of Article I of the Declaration of Rights.

But, I find solace in the reasoning of one federal court, Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D. Cal. 2005).

You shouldn't -- the case was vacated on the part you now rely.

"The Court does not accept Plaintiffs' Loving analogy . . . ." (Id. at p. 876.)

You fail to note that the Court also rejected the government's use of Loving -- the "lack of discriminatory intent" argument. Id. at 876. Moreover, your quote comes from the part of the decision discussing "sex-based classification," not sexual orientation, which is the real issue here.

"[T]here is nothing in Loving that suggests an extension of the definition of the fundamental right." (Id., at p. 879.)

The Court discusses this in the context of a due process right to marry, not equal protection.

This means that this federal court did not think that Loving v. Virgina could be employed to create an equal protection argument for gay marriage.

Wrong. The Court also said that in "Loving, the Court defined the fundamental right as the right to marry, not the right to interracial marriage." Id. at 878 (emphasis added).

"It is undisputed there is a fundamental right to marry." (Id., at p. 876.) But, what does that mean? "The Court holds that, for defining the fundamental right, marriage historically has been a heterosexual institution." (Id., at p. 878 n.22.) Thus, there is a fundamental right to marry, but only as between heterosexuals. "The history and tradition of the last fifty years have not shown the definition of marriage to include a union of two people regardless of their sex." (Id., at 878.)

But this discussion occurred within the Court's due process analysis, NOT equal protection. That makes a big difference.

"The Court concludes the fundamental due process right to marry does not include a fundamental right to same-sex marriage or Plaintiffs' right to marry each other." Id, at p. 879.

Again, this statement occurs within the context of due process, not equal protection.

This court employed the rational basis test. "Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest. Encouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government. The argument is not legally helpful that children raised by same-sex couples may also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-sex couples. It is for Congress, not the Court, to weigh the evidence. By excluding same-sex couples from the federal rights and responsibilities of marriage, and by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance. Congress could plausibly have believed sending this message makes it more likely people will enter into opposite-sex unions, and encourages those relationships." (Id. at p. 880.)

This is where your buddy blew it. Most people laugh at the "procreation" reason to ban gay marriage, since so many folks who are sterile, too old, or just don't want children, are allowed to marry.

This decision was affirmed in the Ninth Circuit ....

The Ninth Circuit only affirmed the abstention and lack of standing parts of the lower court's opinion. This has nothing to do with the greater debate about gay marriage.

... but the merits decision discussed above was vacated on the ground that the same-sex plaintiffs lacked standing to challenge the Defense of Marriage Act until they were actually married by some state ....

That's right -- all the quotes you have relied on were, on appeal, vacated "regarding the merits," which means it's gone and has no precedential value today.

... essentially, the Ninth Circuit upheld the District Court but for different reasons in Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006).

Completely wrong. All the stuff you quoted and relied on was vacated on appeal -- therefore, it's as if it never existed (or has about as much value as the stuff you write on this bb).

But, at least we see the proper argument articulated by one federal court ....

How so? It was vacated, counselor.

So, I have precedent on my side.

You have a vacated opinion without any precedential value at all "on your side." The only parts of the opinion upheld dealt with abstention and standing. Would you actually go into a court of law and claim with a straight face that you have precedent when you know the part you want to use was vacated "regarding the merits"?

[_rcrocket]

You have a vacated opinion without any precedential value at all "on your side." The only parts of the opinion upheld dealt with abstention and standing. Would you actually go into a court of law and claim with a straight face that you have precedent when you know the part you want to use was vacated "regarding the merits"?

Didn't I say it was vacated? Didn't I plainly explain that I agreed with the reasoning of the vacated opinion? Judge Taylor's opinion was not reversed on the merits. It was affirmed on procedure.

And, yet, you mock my personal attributes yet again?

Judge Taylor's opinion presents a correctly reasoned view of the relationship between the Constitution and gay marriage.

And, as far as the California Supreme Court's decision, you say:

"Nope. No court has reversed it. It's good law. And it remains to be seen whether Prop. 8 will survive Section 7(b) of Article I of the Declaration of Rights."

Oh, gee, I guess the fact that the state stopped issuing gay marriage licenses immediately means nothing?

In any event, the California Supreme Court has ordered Jerry Brown to file a response tomorrow, and so we'll hear something soon.