Are gay rights, including gay marriage, evolving?

Pentax D-FA* 70-200mm f/2.8 ED DC AW

07/13/2010 02:42:43 PM · #4926

Probably the next little debate about whatever should just start a new thread with a new title.

K3Master

Pentax K-3

07/13/2010 03:13:23 PM · #4927

Originally posted by Mousie:

This thread was a lot more interesting when the good doctor had something to say. That ended about half a year ago, IMO. I stopped pushing shortly afterwards. Maybe other people could take a little break from the gamesmanship and proving people wrong about pointless details. You're not gaining any ground.

Like, why even ENGAGE him on 'how much' bad stuff religion is responsible for? You're only discounting the validity of religion itself (not discussing how religion and homosexuality are at odds) so you can dismiss it as wrong and win by default.

Frankly, it has me pretty depressed seeing what this conversation has done to DrAchoo's presentation style over time. If this is what I can expect from the opposition, I have a hard time remaining positive about the future.

I'll just keep posting my legal updates. Hopefully I don't take the bait and can ignore the rest of the non-debate going forward.

I'd rather listen to Jason speak and debate and argue than a couple of the other lifers in these threads that are supposedly on the side of gay marriage :P

07/13/2010 04:26:37 PM · #4928

Originally posted by K10DGuy:

I'd rather listen to Jason speak and debate and argue than a couple of the other lifers in these threads that are supposedly on the side of gay marriage :P

<---- calculates all the possible ways to interpret that statement before taking it as a compliment. ;D

08/04/2010 05:35:56 PM · #4929

Back with another legal update, and if I might be biased for a moment, a REALLY GOOD one!!!

Judge strikes down Prop. 8, allows gay marriage in California

The federal court for the Northern district of California has just ruled Prop 8 unconstitutional on two counts. A judge appointed by Bush, no less! It violates both the due-process and equal-protection clauses. The defense;s strategy was so miserable (they basically wound up being forced to support the challenge to Prop 8 in their presentation of facts) that I'm actually very excited about the possibility they'll appeal and repeat the same process at the SCOTUS.

The conclusion:

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

The remedies:

"Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same- sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings."

â��Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.â��

(Emphasis mine)

Apparently, my marriage is slightly less complicated and edge-case today than it was yesterday! I'm looking forward to more people joining the 18000 of us homosexuals already married by the state, soon. Maybe even today! :)

So. Can we try to stick to how gay rights are evolving instead of an irrelevant religious debatestorm this time around? We know fathiests disagree with gay marriage on moral grounds, and we know people's position on morality rarely changes over short periods of time. At it's heart, this is a secular, legal issue, not a religious one. It only becomes religiously entangled when people use their faith to bolster their prejudices by inappropriately enshrining it in law. You'd think they'd eventually learn to stop wasting 40 million dollars on losing battles.

Also: Neener neener! ;)

Message edited by author 2010-08-04 17:36:54.

sfalice

Canon PowerShot SX60 HS

08/04/2010 05:45:38 PM · #4930

Yea! I just read the news too,

Mousie.
Wonderful step forward.

08/04/2010 05:57:15 PM · #4931

You should see the heads exploding at Free Republic.

The bile on display is so very telling. :)

Nullix

Canon EF 17-40mm f/4.0L USM

08/04/2010 06:04:03 PM · #4932

Looks like it'll be appealed up the chain to the US Supreme Court. This will be a big decision to make. California is a big state; usually what happens legally in California, spreads around.

But in post #4880, I thought it was up to the states to define marriage.

Now that California has Constitutionally defined marriage (Prop 8), how can this ruling happen. What ever happened to the 10th Amendment?

GeneralE

Canon PowerShot S3 IS

Canon 12x IS USM (S3 IS built-in Lens) -- 36-432mm (35mm EQ)

08/04/2010 08:00:17 PM · #4933

Originally posted by Nullix:

What ever happened to the 10th Amendment?

Perhaps it was trumped by the Fourteenth which requires the law to treat everyone equally without a compelling reason to do otherwise, and a religious prohibition on certain behaviors just isn't good enough.

Message edited by author 2010-08-04 20:00:38.

Leica 35mm f/1.4 Summilux M Aspherical MF - Black

08/04/2010 08:18:52 PM · #4934

Originally posted by GeneralE:

Originally posted by Nullix:
What ever happened to the 10th Amendment?

Perhaps it was trumped by the Fourteenth which requires the law to treat everyone equally without a compelling reason to do otherwise, and a religious prohibition on certain behaviors just isn't good enough.

I think what Nullix is referring to is the recent Boston court ruling that the DOMA unfairly meddled in state affairs by having a federal ruling of marriage when the states should be able to decide for themselves what constituted marriage.

This case is almost the opposite with the US Federal Court overturning the California Supreme Court ruling as unconstitutional. In other words, what Nullix is pointing out is this seems to be a case where the federal court is meddling with a state's decision.

I may be wrong though and I admit to being somewhat confused when I see "unconstitutional" in the ruling. Does it mean US Constitution or California Constitution? Did this appeal now cross into federal jurisdiction? When it makes it to the SCOTUS, will they rule on whether California has the right to decide for themselves how to define marriage or whether the US Constitution has something to say about it first? And if so, can you see how that's on a collision course with the Boston ruling?

Message edited by author 2010-08-04 20:19:56.

scarbrd

Leica M10

08/04/2010 08:41:33 PM · #4935

Originally posted by DrAchoo:

Originally posted by GeneralE:

Originally posted by Nullix:
What ever happened to the 10th Amendment?

Perhaps it was trumped by the Fourteenth which requires the law to treat everyone equally without a compelling reason to do otherwise, and a religious prohibition on certain behaviors just isn't good enough.

I think what Nullix is referring to is the recent Boston court ruling that the DOMA unfairly meddled in state affairs by having a federal ruling of marriage when the states should be able to decide for themselves what constituted marriage.

This case is almost the opposite with the US Federal Court overturning the California Supreme Court ruling as unconstitutional. In other words, what Nullix is pointing out is this seems to be a case where the federal court is meddling with a state's decision.

I may be wrong though and I admit to being somewhat confused when I see "unconstitutional" in the ruling. Does it mean US Constitution or California Constitution? Did this appeal now cross into federal jurisdiction? When it makes it to the SCOTUS, will they rule on whether California has the right to decide for themselves how to define marriage or whether the US Constitution has something to say about it first? And if so, can you see how that's on a collision course with the Boston ruling?

Legally speaking, the easiest path for the SCOTUS would be to declare any law banning gay marriage is unconstitutional. If they do that, it doesn't matter what the states do.

If they say it is a state decision, then they'll have to deal with the law that says marriages in one state must be recognized by all states. A little trickier there. If they rule that marriages must be recognized from state to state, then all it would take is one state to legalize gay marriage and everyone would just go there to get married. If they rule that states don't have to recognize other states marriages, then it opens up a whole new mess of interstate issues.

Canon 12x IS USM (S3 IS built-in Lens) -- 36-432mm (35mm EQ)

08/04/2010 08:44:13 PM · #4936

Originally posted by DrAchoo:

I may be wrong though and I admit to being somewhat confused when I see "unconstitutional" in the ruling. Does it mean US Constitution or California Constitution? Did this appeal now cross into federal jurisdiction? When it makes it to the SCOTUS, will they rule on whether California has the right to decide for themselves how to define marriage or whether the US Constitution has something to say about it first? And if so, can you see how that's on a collision course with the Boston ruling?

This is the kind of discussion I'm hoping for here! :)

But fundamentally, this is not about the right of a state to define marriage, it's about whether the definition itself violates the due-process and equal-protection clauses of the 14th amendment and is unconstitutional on it's face. States can't write laws that violate the federal constitution even when granted rights to legislate in a particular area.

Message edited by author 2010-08-04 20:46:44.

GeneralE

Canon PowerShot S3 IS

08/04/2010 09:01:39 PM · #4937

Originally posted by DrAchoo:

The case itself was in Federal (District) Court, and based on the US Constitution's pre-eminence over state law.

08/04/2010 09:06:20 PM · #4938

Originally posted by Mousie:

Originally posted by DrAchoo:
I may be wrong though and I admit to being somewhat confused when I see "unconstitutional" in the ruling. Does it mean US Constitution or California Constitution? Did this appeal now cross into federal jurisdiction? When it makes it to the SCOTUS, will they rule on whether California has the right to decide for themselves how to define marriage or whether the US Constitution has something to say about it first? And if so, can you see how that's on a collision course with the Boston ruling?

This is the kind of discussion I'm hoping for here! :)

But fundamentally, this is not about the right of a state to define marriage, it's about whether the definition itself violates the due-process and equal-protection clauses of the 14th amendment and is unconstitutional on it's face. States can't write laws that violate the federal constitution even when granted rights to legislate in a particular area.

But you must understand that when the Boston ruling came out you applauded that as well (at least I remember it that way). So either the Federal Court system (and the US Constitution) has or does not have the right to meddle with State rights to define marriage. You can't have it both ways just because the outcomes happens to be ones you agree with.

If the SCOTUS overturns everything, then so let it be written and so let it be done. It always takes so long though. It's probably a 2011 decision at the earliest.

Canon 12x IS USM (S3 IS built-in Lens) -- 36-432mm (35mm EQ)

08/04/2010 09:09:13 PM · #4939

Originally posted by GeneralE:

"This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state."

Tauro drew on history in his ruling, writing that the states have set their own marriage since before the American Revolution and that marriage laws were considered "such an essential element of state power" that the subject was even broached at the time of the framing of the Constitution. Tauro noted that laws barring interracial marriage were once at least as contentious as the current battle over gay marriage.

â��But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states,â�� Tauro wrote. â��That says something. And this court is convinced that the federal governmentâ��s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.â��

Message edited by author 2010-08-04 21:10:07.

GeneralE

Canon PowerShot S3 IS

08/04/2010 09:26:22 PM · #4940

This decision doesn't determine the state's right to define marriage per se, only requiring that such laws must be applied equally to all citizens regardless of their race or gender.

The state can restrict marriage to any two consenting, competent, unmarried persons, but can't restrict the personal choice of partner in the areas of race or gender, or for that matter income, religion, political party, or any other non-germane characteristic.

Given that there is absolutely no proof of harm to either persons or the state caused by the existence of same-sex marriages, to forbid them would be arbitrary discrimination and unconstitutional.

At its core, this situation actually a case of ordinary sex discrimination, not really about sexual orientation. If someone can't marry a certain person simply because they are a (wo)man, it's just as illegal as if an emplyer said the person couldn't have a job or open a bank account or ride a bus for the same reason. Placing all the emphasis on some mythological "homosexual lifestyle" is merely inflammatory.

08/04/2010 09:35:55 PM · #4941

I think Tauro would disagree with you Paul if he noted that the Federal government did not interfere on the issue of interracial marriage...

At the end, the SCOTUS obviously needs to weigh in because there is a clear contradiction here.

08/04/2010 09:58:56 PM · #4942

Again, this is not about questioning the right of a state to define marriage for itself, but the constitutionality of the definition itself.

It can be within a state's rights to determine what they consider marriage, while at the same time the federal government can make sure those decisions pass constitutional muster. I see little conflict. It's not mutually exclusive.

Added: An analysis from my favorite gay blog.

Message edited by author 2010-08-04 22:00:16.

scalvert

08/04/2010 10:07:57 PM · #4943

Originally posted by Nullix:

What ever happened to the 10th Amendment?

According to the judge: the fact that Prop 8 passed as a voter initiative was irrelevant as "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections."

Originally posted by DrAchoo:

I think Tauro would disagree with you Paul if he noted that the Federal government did not interfere on the issue of interracial marriage...

a federal judge in Massachusetts ruled that the federal Defense of Marriage Act (DOMA), which defines marriage as one man and one woman, was also unconstitutional.

These are not contradictory. States can define marriage, but they cannot discriminate on the basis of race, sex, etc, and the decisions in California and Massachusetts both rely on that premise. "Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect," Walker ruled. "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."

Message edited by author 2010-08-04 22:09:29.

08/04/2010 10:35:04 PM · #4944

Two facts I didn't know before:

1) The ruling was 136-pages long. Probably more in there than covered by the news.
2) The judge was gay?

RayEthier

Canon EF-S 18-55mm f/3.5-5.6 USM

08/04/2010 10:40:26 PM · #4945

Viewed from an outsider, I truly find it remarkable that this is still an issue of discussion in the USA. That matter has been resolved in Canada for many years and no one seems worse for wear because of it.

Ray

RayEthier

Canon EF-S 18-55mm f/3.5-5.6 USM

08/04/2010 10:44:12 PM · #4946

Originally posted by klkitchens:

Not sure what you're talking about. But God ordained marriage as one man and one woman. That is the definition for America and there is no need to change it to give SPECIAL rights to a self-selected and unverifiable group.

Pure, unadulterated, bovine excrement. :O)

Ray

scalvert

Canon EF 17-40mm f/4.0L USM

08/04/2010 11:01:41 PM · #4947

Originally posted by DrAchoo:

1) The ruling was 136-pages long. Probably more in there than covered by the news.

Yep. There's a bit more detail on the key findings toward the end of this report. My favorite line was "Proposition 8 fails to possess even a rational basis," and that is ultimately what will doom the efforts of gay marriage opponents. The defendants couldn't articulate a single rational reason to deny the fundamental right of people to marry whomever they choose. The defense is not about to admit hatred or fear, which leaves them grasping for excuses... and they couldn't demonstrate harm to traditional marriage any more than their counterparts in this tread (because there isn't any). Charles Cooper leaned heavily on the social impact of codifying gay marriage, arguing that "marriage is to channel the sexual behavior between men and women into a procreative union," but since the elderly and sterile couples can obviously enjoy state-recognized marriages without issue, such an argument is easily dismissed.

Originally posted by DrAchoo:

2) The judge was gay?

Apparently true, but also irrelevant. Judges frequently have to set aside their personal views, religious teaching and potential impact on friends and family when rendering a ruling based on constitutional mandates, and ironically Walker nearly lost his nomination due to claims he was anti-gay.

david_c

Canon EOS-7D

08/04/2010 11:10:54 PM · #4948

Originally posted by RayEthier:

That matter has been resolved in Canada for many years and no one seems worse for wear because of it.

You sure about that, Ray? I mean, after all www.godhatescanada.com.

scalvert

08/04/2010 11:15:32 PM · #4949

Originally posted by david_c:

You sure about that, Ray? I mean, after all www.godhatescanada.com.

Note their sister site: "AmericaisDoomed.com- Builds the airtight case that america is not only cursed of God, but that this curse is irreversible." Cue the cuckoo.

RayEthier