prop 8 update

[enders-shadow.livejournal.com]

I don't know who has been following the Prop 8 trial out in California, but here's an update.

The judge has issued a series of questions to both sides. The questions are here:

http://www.scribd.com/doc/32724803/Doc-677

I welcome your responses to any/all of the questions. My two cents is in regards to:

"What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition?"

Loaded question; it implies A) marriage has historically been limited to a man and a woman [I would argue it's often been multiple wives, and in some places even multiple husbands; to say it has historically been limited to a man and a woman, well, it's cherry picking history] B) the limitation has enjoyed constitutional recognition [I don't know where in the constitution marriage rights are specifically enumerated on{if it turns out they are somewhere, please inform me so I can say: FML...}]

Then, even if we accept A as true:

History is full of mistakes and we are all willing to admit that; nobody can deny that in certain places/times ritual killings were the historical norm. We cannot infer from history showing a trend of behavior that the behavior was the only correct way to act.

Then, even if we accept B as true:

To suppose a constitutional limitation on the liberty of citizens derived from the discriminatory dislike of a sub-group that wants nothing more than equal protection under the law--it goes against the spirit of the constitution if not the letter. The 9th amendment to the bill of rights states:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The right of marriage is not enumerated in the constitution, but that doesn't mean it doesn't exist. The limitation on same-sex marriages has vanished in a number of states of the Union--there is no reason to believe that those states have violated the constitution of the United States; they have in fact enacted the spirit of the constitution--a constitution designed to protect the rights of the citizens of this great country. Thank you.


That's clearly not worthy of the judges consideration; but you aren't the judge in the real trial; what do you, oh internet judges, think of those questions and my response?

Comments

[steve-potocin.livejournal.com]

The govermment should have no say in marriage.....all attempts to legislate marriage by the government should be resisted and rejected..

[enders-shadow.livejournal.com]

So you want to get rid of DOMA too, huh?

[rasilio.livejournal.com]

I suspect his answer is yes.

Most libertarians and many conservatives even recognize that the problem with the gay marriage issue is not gay marriages but rather government sanctioning of ANY marriage to begin with and offering special privileges based on that institution.

Government should be banned from all laws regarding marriage and then people are free to call whatever they want a marriage.

[spaz-own-joo.livejournal.com]

In letting the Christian Right dictate these issues for the Republican party in exchange for their help in promoting fiscal conservatism, d'you ever feel like you guys are making a deal with the devil?

[mrbogey.livejournal.com]

I don't see an overriding issue with DOMA other than the silly name.

Defense? Pff.

When the courts get wanderlust the legislature has to be strict in its language. Stating that federal laws governing marriage refer to a specific arrangement keeps courts from broadening that on whim.

Of course, I take a slightly different view on the issue than some on the right. I view it just as another arrangement that the state allows. Akin to incorporation. Ergo it's only a matter of what arrangements they allow. If a state votes to allow marriage to consist of a single polar arrangement between a man and a woman, or two men, or two women, or two women and a man... it really doesn't bother me. All gripes I have with the issue of marriage and what it means is who is deciding what it means. Ultimately, the choice is up to the people.

When my state votes on it, I'll vote my beliefs based on the written issue. When another state votes on it, I won't care.

[the-rukh.livejournal.com]

If I didn't know this was a verbatim libertarian canned response, I'd think that you might have rational thoughts once in a while.

[enders-shadow.livejournal.com]

Hence my inquiry to him about DOMA.

[spaz-own-joo.livejournal.com]

Come on Steve, respond with a situation-specific insight and prove to all of these guys that you are a sentient creature who can interpret concepts and synthesize conclusions from them!

Consider this a form of political CAPTCHA.

[underlankers.livejournal.com]

The problem is that marriage was not an issue at all for most people in the Latin-Rite world for the entirety of the 1,000 year span from the death of Constantine to the Black Death. It was only something for rich people and even then they more often used civil weddings than church weddings, and even *then* the object was usually to get a very handsome dowry as opposed to something more serious.

Marriage for everyone is a 19th Century Bourgeois conceit, as is the idea that women should be inside the home shielded from the harsher realities of life. And of course marriage was not only polygynous, but in say, Tibet the traditional pattern was for a single women to be married to many, many men. Polyandry is vastly rarer than monogamy, serial monogamy, or polygyny, but still.....

And of course if one is trying to put the *Biblical* version it's a safe bet they're not going to try to resurrect Levirate Marriage.

[spaz-own-joo.livejournal.com]

Oh come on now. Levirate marriage is a relic from a part of the Old Testament which I have capriciously decided no longer applies, even though I can't adequately explain why Jesus made that part obsolete but not any of the parts which dovetail more conveniently with my values.

[a-new-machine.livejournal.com]

Also the bit about homos still applies, because I like it.

[badlydrawnjeff.livejournal.com]

The right of marriage is not enumerated in the constitution, but that doesn't mean it doesn't exist.

Two people have the right to be married, yes. They don't necessarily have the right to have the government recognize it as such.

[spaz-own-joo.livejournal.com]

'Have the right' can be read in two ways. Are you speaking normatively, or descriptively?

[a-new-machine.livejournal.com]

Interesting. Does marriage have a meaning, in the rights sense, absent government recognition?

[badlydrawnjeff.livejournal.com]

I don't see why it wouldn't any more than, say "health care" or "candy." The 9th isn't some sort of governmental guarantee that the fed will provide anything as much as a guarantee that, just because the Bill of Rights notes that such rights exist and cannot be dismissed by the government, the rights not listed still exist.

[enders-shadow.livejournal.com]

what rights do you think are not-listed but still exist? i would be interested to hear what you have to say on the matter.

and lets ignore right to privacy as SCOTUS covered that; what other non-enumerated rights do you believe, we the people, hold?

[a-new-machine.livejournal.com]

Well, marriage is different from health care or candy. Neither of those are recognized legal states. I'd say it's very hard to be married in any meaningful sense if the law refuses to allow you to be legally married.

[enders-shadow.livejournal.com]

?? please expand on that

[eracerhead.livejournal.com]

Both sides are against prop 8?

[a-new-machine.livejournal.com]

...do... do you even know what the arguments in Loving were? Because generally they responded to the equal protection claim on totally different grounds. These guys are just saying "Rational basis, bitches." Loving said "Hey it's not discrimination because the punishment applies equally to whites and blacks."

[eracerhead.livejournal.com]

The court is asking for legal precedent, not opinion. Reviewing the questions can often give an indication of what the court is looking for both in support of and against a given opinion that the court will produce. From the questions it appears to me that the are looking for more justification from the defendants which may or may not be a good sign.

[a-new-machine.livejournal.com]

Marriage is generally posited as a due process right under Loving v. Virginia, but that's of shaky precedent value - that decision was based in the equal protection clause, but did contain strong due process language. It looks like the court is trying to decide whether this is a due process rights case (and thus meriting of strict scrutiny) or an equal protection case, and if it's an equal protection case, which class is targeted by the law - gender or sexual orientation. Gender would get "heightened" (not quite strict, not quite rational basis) scrutiny, and sexual orientation would get rational basis.

BTW, quick rundown of the applicable tests:
Rational basis: The law must be rationally related to a legitimate government objective. Whether it's overinclusive, underinclusive, does too much or too little to really meet that is not the issue - just whether some rational person could have found that it was related to a legit objective. In this case, the government objective is probably fostering good childrearing or stable families or something like that.
Heightened scrutiny: Also called "intermediate scrutiny," this requires that the law furthers an important government interest, and that it is substantially related to that interest. Incredibly flexible, as what's "important" and "substantially related" can often shift based on the justice.
Strict scrutiny: To pass strict scrutiny, a law must be narrowly tailored to a compelling government interest. This is really hard to satisfy - you have to prove that the law was passed in the least-invasive way possible that still serves an interest that is more than just important, but instead vital or compelling.

In any event, the entire thing will turn on whether the judge casts marriage as a due process right, which merits strict scrutiny, or an equal protection issue. Even if they get "intermediate" scrutiny on the equal protection claim, I doubt that will pass muster. Still, this case has been all about appeals anyway. It's cherry-picked for the circuit appeals and perhaps SCOTUS (though they may not want to touch this one with a ten-foot pole).

[dreadfulpenny81.livejournal.com]

Um...I couldn't even see the documents. Do you have another link?