New Prop 8 challenge from … Ted Olson?
posted at 10:12 am on May 27, 2009 by Ed Morrissey
After yesterday’s ruling from the California Supreme Court upholding Proposition 8′s ban on gay marriage but allowing the already-existing gay marriages to remain legal, I predicted that an inventive attorney would attack the judgment in federal court on equal-protection arguments arising from that Solomonic split. That challenge came more quickly than even I predicted, and from an unusual choice of attorneys. Byron York profiles Ted Olson’s decision to make a federal case out of Prop 8:
The suit argues that the state’s marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies — who argued against Olson in the Bush v. Gore case — will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.
The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided. …
I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. “It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution,” Olson said. “The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”
This gets us back to whether a ban on same-gender marriage is discriminatory. Opponents of same-sex marriage argue that each individual has the same rights as everyone else, since the state does not bar any man from marrying any woman, outside of consanguinuity, current marital status, and age of consent. Proponents, such as Olson, argue that it equates to the ban on interracial marriage, but that actually did treat people differently based on ethnicity rather than gender. It’s a specious argument, perhaps best demonstrated by the enormous opposition to gay marriage in the African-American community.
However, Olson may have a more limited equal-protection case with the limited class of relief the California Supreme Court created in its decision. In this case, we have 36,000 citizens in single-sex marriages recognized by the state, while refusing to recognize any others. The only delimiter is the date of the decision. A federal court might find that a violation of the equal-protection clause and overturn Proposition 8, or at least the ruling. The danger here for Olson is that a federal court might take action that invalidates those existing marriages rather than forcing California to recognize gay marriage altogether.
If I had to guess, I’d bet that the federal courts will punt on the matter entirely, leaving the California decision to stand on its own. They will have to recognize that the people of California amended their own Constitution to restore a definition of state-recognized marriage that was the norm for more than 200 years. They’re not going to be eager to invalidate an election, especially to force the same people to give government recognition to same-sex marriages when they’ve expressly mandated the opposite.
Having Ted Olson head this plaintiff’s legal team, along with David Boies, will certainly give some conservatives considerable pause. He’s been a hero to the Right, so much so that Rudy Giuliani tapped him for the presidential campaign to give himself credibility on judicial restraint. What happens to Olson’s standing now?
Blowback
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How do you arrive at that? One state declaring something legal doesn’t mean that it must be legalized in all states because of full faith and credit. Are medical marijuana card holders in California allowed to take their weed into other states? What about exotic pets that are allowed in one state but not another. The same argument of emotional attachment can be made for those people (and we know that many people consider their pets to be legitimate parts of their families).
Your argument doesn’t leave any room for any differences in state laws. You don’t really think that that is what full faith and credit says, do you?
And, by your own argument, the fact that gay marriage is illegal in almost all states means that, by full faith and credit, other states would not be allowed to legalize it.
progressoverpeace on May 27, 2009 at 11:25 AM
But you’re then saying that other states should be forced to recognize unions recognized by other states, ultimately putting that one state in the position of the federal government and denying a state’s right to approve specific unions.
But it does mean they have to recognize gay marriages. The difference is minor.
Esthier on May 27, 2009 at 11:25 AM
I don’t see how polygamy would change the contracts but gay marriage wouldn’t.
Further, since you are saying Incestuous couples and Polygamist couples would be free to sue a state for denying a marriage license, why don’t we just let the gays do the same? Why fight harder for them but stick it to the polygamists? Equal is equal.
Upstater85 on May 27, 2009 at 11:25 AM
If the federal government has no role in marriage, how can you use the federal Constitution to completely through out Prop. 8? Whether you want to admit it or not, the federal government will always be somewhat tied up in this. Further, the federal government has gotten involved in marriage in the past. I think they insisted that Utah ban polygamy. So were they wrong? Was this overstepping? If so, shouldn’t we let Utah have polygamy again?
Upstater85 on May 27, 2009 at 11:28 AM
I don’t know about other cases, but in the Pollard case, he had a severe disadvantage… his client was guilty as sin.
JohnGalt23 on May 27, 2009 at 11:29 AM
I’m going to have to read more. I thought this was already tested?
AnninCA on May 27, 2009 at 11:30 AM
In Loving the Court’s decision relied little if at all on the ancillary effects of miscegenation laws. Instead, it emphatically identified marriage as a right that individuals possess.
dedalus on May 27, 2009 at 11:31 AM
For those of you toting around the 4th Article’s 1st Clause, how would you feel if Alaska legalized incest and amended their constitution so that it was a right?
Upstater85 on May 27, 2009 at 11:32 AM
Married, sure. But that is a separate issue from having the government recognize that marriage and provide goodies based on that recognition (completely aside from the redefining what a marriage is).
Count to 10 on May 27, 2009 at 11:34 AM
In your dreams, Ed. One, many people say the 18,000 couples is an over estimate and most are from out of state. Two, this is hardly the first time a law was amended/revoked/overruled thereby excluding others subsequently. Three, they are not equal in that they got married when it was legal and the others did not.
Blake on May 27, 2009 at 11:35 AM
You can apply this equal-protection clause in a lot of cases. I will use my state of Illinois as an example and assume the income tax is raised from 3% to 4.5% this year.
Could a 22 year-old sue the state since his income will be taxed at 4.5% over his working life while a 65 year-old had his income taxed at 3% over his working life? Why is the 22 year old being discriminated against? Because of his date of birth?
Obviously this case would get thrown out, and so should the case Olson is representing.
WashJeff on May 27, 2009 at 11:35 AM
Just to be clear, there will definitely be a full faith and credit test that will have to be made over gay marriage, but your idea that that means that legalizing it in one state demands that other states must recognize it is untrue.
progressoverpeace on May 27, 2009 at 11:36 AM
What is the compelling state interest that would allow a state to ban incestuous marriages? What if the couple agreed only to adopt children and followed up with voluntary sterilization? Would that eliminate the compelling interest?
sdd on May 27, 2009 at 11:37 AM
Good point.
Count to 10 on May 27, 2009 at 11:38 AM
It would seem that the compelling state interest may in fact be a societal norm…
Upstater85 on May 27, 2009 at 11:38 AM
btw Thanks, Est, for your comments on the headline thread from last night. They didn’t go unnoticed.
What I’m saying is that no state has the authority to not recognize a marriage performed in any other state. In a sense, a marriage license is akin to a driver’s license…my Connecticut driver’s license can’t, by any means, be considered invalid by any state I drive in.
JetBoy on May 27, 2009 at 11:40 AM
I would think that the real question then is how many societal norms do we abrogate before there are no societal norms left?
sdd on May 27, 2009 at 11:41 AM
This proposition was not a ban! It was an affirmation of the people’s wishes in the State of California that the sanctity of marriage is STILL only valid between one man and one woman instead of what a liberal court decided. Big difference!
Rovin on May 27, 2009 at 11:41 AM
Then if Utah allows polygamy, you with your state of Connecticut will recognize that, right?
Upstater85 on May 27, 2009 at 11:42 AM
Fallacies do not cease to be fallacies because they become fashions. ~Chesterton.
And immorality does not cease to be immorality even if the Supreme Court were to say so.
pannw on May 27, 2009 at 11:43 AM
The gays are suing the states. Evidently, Olson and Boies are two of their lawyers.
States should change the law legislatively to provide equal civil unions. It would put them in better position when defending against lawsuits.
Today my wife can divorce me. Changes in no-fault divorce affected my marriage. Depending on the state I live in she could leave me to marry a man or a woman, or just divorce for any reason. However, polygamy rights would allow her to marry someone in addition to me. That adds a layer of legal liability to my arrangement with my wife. At least with divorce our assets are divided. Without divorce a third-party might gain access to jointly-held property.
dedalus on May 27, 2009 at 11:43 AM
If we as you say abrogate one, I’d say it’s only fair to throw them all out. What is the standard for keeping one but not another? Perhaps the question that should be asked is if the government should have the power to throw out or preserve social norms…
Upstater85 on May 27, 2009 at 11:43 AM
Because for the simple reason the voters of the state deem it so. I for one believe that founders wanted the States have broad powers with VERY little federal restrictions. To make my point, I believe the states can restrict and prohibit gun ownership if the citizens of the state deem it necessary or appropriate (I would advocate the complete opposite).
WashJeff on May 27, 2009 at 11:44 AM
They have no case for equal protection, unfortunately.
In order for equal protection to be viable, two similar parties have to be treated differently under the same law. Gay marriage was legal, and now it’s not. The law itself changed (a constitutional law, no less), and is no longer the same. Thus, there is no claim for equal protection.
If gay marriage was still legal, and people couldn’t get married, then yes–equal protection would be viable.
Enoxo on May 27, 2009 at 11:45 AM
That is incorrect, and has been specifically addressed by many states. They all either amended their constitution, or wrote law that specifically denies same sex partners from being accepted as married in their state, no matter what other states do.
Vashta.Nerada on May 27, 2009 at 11:46 AM
Yes, they are suing. Then you go on to say that there should be equal civil unions (legislated by the state). If this is the answer, why not give civil unions to polygamists, practitioners of incest, and bisexuals? Yes, you agreed that gays can sue just like the other categories, but you didn’t explain why they should be given, er, more equal protection – other than the lawsuit issue… Don’t see how that changes depending on what group you belong to.
This is would still deny your wife’s equal protection rights… It doesn’t matter if polygamists make your life inconvenient. They should still be given the same amount of protection as gays and straights.
Upstater85 on May 27, 2009 at 11:49 AM
It might. Fertility genetic treatments might one day eliminate the disease risk. The other question the state would advance is the effect incestuous marriages would have on families–would it lead to instability between siblings within a home and sexual molestation of underage girls?
Incestuous couples can already bring a case against the state. As long as the couple is of different genders they wouldn’t be much affected by the gay marriage issue.
dedalus on May 27, 2009 at 11:50 AM
You mean if CA gives their citizens the right to smoke pot, NY doesn’t have to recognize this right when CAers come to visit?
Yes, trivializing things, but different states have different laws and standards as you pointed out.
Upstater85 on May 27, 2009 at 11:51 AM
Since when do state constitutions trump the federal constitution?
JetBoy on May 27, 2009 at 11:52 AM
Brown vs Board
Loving vs Virginia
strangelet on May 27, 2009 at 11:53 AM
Doesn’t matter. If it did, then you could have some people arguing that straight marriage with it’s high divorce rate is actually detrimental to the family (I believe we hear that daily from the gay rights lobby). Also, staunch traditionalist could make an argument that gay marriage is detrimental to the family.
Upstater85 on May 27, 2009 at 11:53 AM
Are you asking when we moved from a predominately states rights country to a centralized government?
Upstater85 on May 27, 2009 at 11:54 AM
A few reasons. One is that it puts the state in a better position to win in court. If the Iowa court can rule 7-0 to change the state law, how many other states are subject to having their laws changed?
dedalus on May 27, 2009 at 11:55 AM
Government exists to preseve social order. Absent government, we have anarchy. Absent all social norms, there is anarchy. Which social norms can be, for lack of a better term, “safely” abrogated? What unintended and unforseen long term consequences might result from what seems to be so simple a proposition? I can certainly see a scenario resulting from this that could result in the dissolution of all social norms especially when we loosly throw around terms like “individual Consitutional rights.”
I believe there is a need to be very, very cautious here.
sdd on May 27, 2009 at 11:55 AM
Reynolds vs United States
Upstater85 on May 27, 2009 at 11:56 AM
It doesn’t relly matter, Ed.
Tactical win in Cali, but strategically oppo to SSM is still doomed.
You aren’t playing a long game, so you will lose.
Eventually.
My demographic is just waiting for yours to die off.
All your children will be atheists…at least the smart ones and the beautiful ones. You can keep the rest.
Selection of the brightest and the prettiest.
strangelet on May 27, 2009 at 11:57 AM
That’s a purely pragmatic reason. Further, I’d say in the near future, many states better adopt Polygamist rights or they may find themselves at the losing end of a lawsuit – since we put our pragmatic goggles on.
Upstater85 on May 27, 2009 at 11:57 AM
As much as I can sympathize with what you are saying, it would appear that it’s the governing class that is trampling over some of the social standards that many people hold close.
Upstater85 on May 27, 2009 at 11:59 AM
They can make that argument. It doesn’t appear to be a winning one so far in court.
dedalus on May 27, 2009 at 11:59 AM
Since the Bill of Rights was attached to it.
Vashta.Nerada on May 27, 2009 at 12:00 PM
That they can. It might change. Society might evolve. We might better accept Incest in the future. Who are we as people to deny true love?
Upstater85 on May 27, 2009 at 12:00 PM
One could make a pragmatic case if polygamous marriage was polling 40% or if 60+% favored full legal rights for polygamous families. The pragmatic case isn’t there for polygamy or incest.
dedalus on May 27, 2009 at 12:01 PM
What happens to Ted Olson now is that his standing goes way down among conservatives. If the Republicans were to reclaim the White House and the Congress, Olson cannot now be considered a candidate for a U.S. Supreme Court nomination that conservatives would want.
Olson’s argument is what a liberal such as David Boies would argue, but never, ever, what a conservative strict constructionist would argue.
A conservative strict constructionist would not stand in the way of the People voting to amend a Constitution to recognize gay marriage; however, a conservative strict constructionist would never, ever, assert that based on the general language of the federal due process and equal protection clauses, the People cannot prohibit gay marriage in a Constitution.
Phil Byler on May 27, 2009 at 12:02 PM
Specifically the tenth amendment
Vashta.Nerada on May 27, 2009 at 12:02 PM
Ah… I forgot how often atheists produce… A stunning 1 child per straight pair is it? I think the only way to get more people to join the atheists would be to 1) force them, and 2) mandatory abortions to non-atheists… that should fix it.
Upstater85 on May 27, 2009 at 12:03 PM
Not if it denies me the ability to enter into an exclusive contract with my wife. In that sense the polygamists would take my marriage right away. The gays don’t effect a change on the state of my marriage.
dedalus on May 27, 2009 at 12:04 PM
Ah… my bad. Clearly the later one wouldn’t necessarily give the atheists more. It would just give them less competition. Survival of the Fittest, baby!
Upstater85 on May 27, 2009 at 12:04 PM
To be fair to you… you could have a special contract that specified that your wife (while married to you under this specific contract) couldn’t marry anyone else. It would be like a pre-nup.
Upstater85 on May 27, 2009 at 12:06 PM
He’s already too old to be picked. Last time Bush had a pick he went for Harriet Meyers over Olson. Even when the GOP reclaims the White House, Ted probably won’t be waiting by the phone for a SCOTUS call.
dedalus on May 27, 2009 at 12:07 PM
I suppose we could also have marriage contracts that would forbid cheating — the punishment for such infidelity, would be working at one of the Moral Authority’s Camps…
Upstater85 on May 27, 2009 at 12:07 PM
To Jet Boy re 11:52 AM post: It is not a matter of the U.S. Constitution trumping a State Constitution. It is a matter that the general language of the due process and equal protection clauses of the U.S. Constitution cannot rationally be read to include a specific right to gay marriage so as to trump a prohibition of gay marriage in the State Constitution. If you do so anyway, then you are engaging in the very kind of decision making that is condemned by sconservative strict constructionists and that is contrary to popular sovereignty and reflects a imperial judiciary certainly not intended by the Founding Fathers.
If you could ask a Founding Father about whether the general language of the due process and equal protection clauses of the U.S. Constitution are to be read to include a right to gay marriage, you would be looked at as a nut. The U.S. Constitution was not written to cover matters such as marriage; they were local for the states. The Civil War Amendments did not change that.
Phil Byler on May 27, 2009 at 12:10 PM
Anytime, sincerely.
That’s true, and yet, when you move to another state, you have to get a new license and cannot keep your old one, new restrictions might apply.
Esthier on May 27, 2009 at 12:13 PM
Sure, and I can have a pre-nup that allows me a polygamous relationship with asset distribution too. State polygamy would likely require two separate marriage definition, or require the majority of people to handle the additional contract work on their own. There would likely be a lawsuit claiming that it created too high a financial barrier to traditional marriage.
dedalus on May 27, 2009 at 12:13 PM
To dedalus re post on May 27, 2009 at 12:07 PM: Fair enough to say that Olson is now too old anyway. But he once was a contender for nomination to the SCOTUS. My larger point is that the GOP cannot consider anyone taking the position that Olson has on this issue.
Phil Byler on May 27, 2009 at 12:13 PM
Slavery wasn’t unconstitutional when the constitution was first written. Slavery was not even mentioned. It became unconstitutional after the constitution was changed by the 13th amendment. In like manner, marriage is not a constitutional concept, unless you are an activist judge. Marriage is a union between a human man and a human woman that has its roots in the biblical religious concept of propagating the human race (i.e., being fruitful and multiplying). Historically, it has never had any connection with the unions of anyone or anything else. Other animals and plants propagate, but their sexual unions are not covered by marriage. In general, homosexual unions have a different purpose than unions between heterosexuals. Bastardizing the definition of marriage provides no additional legal benefits and is a clear corruption of a time-honored religious concept. If homosexuals want something to describe their type of union, they should create some other term to describe it rather than spitting in the face of religious Americans who want marriage to remain as it has been historically revered and practiced.
NuclearPhysicist on May 27, 2009 at 12:16 PM
Marriage is different from a driving a car. Marriage is an institution that the People have a right to protect for the sake of society in terms of social stability and the raising of children. The People have a right to see marriage as essential in those ways and not accept the liberal blather to the contrary.
Phil Byler on May 27, 2009 at 12:17 PM
And I agree. The framers of the Constitution intentionally made it difficult to amend. They, in their wisdom understood more than many today, that change based on the emotion of the moment can be disastrous. An activist judiciary, a compliant Congress and well organized minorities have found ways to bypass the Constitution by insisting that it is a “living, breathing” document. The 14th Amendment, adopted in the shadow of the bloodiest and most divisive war in our history and obviously intended by the writers to undue the great wrongs of slavery has been and is being usurped to justify abortion, homosexual marriages and any other number of “social” issues that those in power want it to be used for. All enforced by the heavy hand of the national government upon the states and its citizens. That is the proverbial slippery slope.
sdd on May 27, 2009 at 12:17 PM
Ah… but Olson would have to strengthen his “Love, Love, Love” argument to show that this somehow discriminated against polygamists… Further, pre-nups aren’t mandatory. Heterosexual couples that now want pre-nups could sue because it costs them money. This doesn’t mean they are being denied the right to call their LOVE a marriage…
Everyone could sue, sue, sue… Actually, that’s kind of why we have the system we have.
Fair is fair. Gotta throw in the Polygamy if you throw in the gay marriage. Actually, I think you’d have to throw in couch-humping marriage at that…
Upstater85 on May 27, 2009 at 12:17 PM
Why should it anymore than homosexuality will lead to sexual molestation of younger boys or younger girls?
In your own eyes, at least.
That’s illogical. She cannot take away your rights. A polygamist cannot take away the rights of any spouse. Any law would have to be made without denying the rights of another.
If she’s going to marry someone else, you either need to be on board or divorce.
Esthier on May 27, 2009 at 12:18 PM
And it must be noted that our nation’s immigration policy is tied to marriage and our definition of “family”. Redefining marriage affects a lot more than people usually talk about.
progressoverpeace on May 27, 2009 at 12:19 PM
And when you can’t bypass the Constitution, just ignore it… It’s only convenient when it agrees with you, right? ;)
Upstater85 on May 27, 2009 at 12:19 PM
I disagree. A marriage between two people is a contract between the two of you to remain faithful to one another. Should one or both of you desire that contract to change, that’s when the paperwork would be required.
Just because something is made legal, it doesn’t mean a person can trample your rights with it.
Esthier on May 27, 2009 at 12:20 PM
Marriage has its roots in the Bible? Certainly there is evidence of marriage in cultures that existed before the Bible was written or influenced them.
dedalus on May 27, 2009 at 12:23 PM
In those other cultures there’s also evidence of Polygamy and Prostitution… Even in the Bible…
Upstater85 on May 27, 2009 at 12:25 PM
Why didn’t changes in divorce laws or interracial marriage laws necessitate legal recognition of couch-humping. A rationale where one change requires all would have produced that slippery slope.
dedalus on May 27, 2009 at 12:25 PM
hehe, no!
We just steal your reps when they get to college.
;)
strangelet on May 27, 2009 at 12:27 PM
Ah… why didn’t they necessitate legal recognition of gay marriage. If LOVE = MARRIAGE, then I think the previous court rulings may have been wrong. They weren’t encompassing enough.
Upstater85 on May 27, 2009 at 12:28 PM
That seems to imply that the poly contract would differ from the exclusive one. It isn’t a question of giving them access to something that already exists but inventing something legally new.
dedalus on May 27, 2009 at 12:29 PM
If the argument is that a person should be able to marry whomever he/she pleases, then that would necessitate legal recognition of a person’s ability to marry whomever he/she pleases.
Esthier on May 27, 2009 at 12:29 PM
I don’t remember the atheist clubs being very popular in college… I do remember the Secular Alliance, but I think their membership paled in comparison to Newman and IVCF. Even you have to admit that most lazy college students are not going to want to religiously attend clubs that are supposedly anti-religious.
Upstater85 on May 27, 2009 at 12:30 PM
The ability to form a union with someone of your same gender and give it the benefits of marriage is also something legally new.
Esthier on May 27, 2009 at 12:32 PM
Ahh, but I can get a new driver’s license…I cannot get a state marriage license (as per gay marriage).
JetBoy on May 27, 2009 at 12:32 PM
I believe Hitler had similar selective ideas about humanity.
Rovin on May 27, 2009 at 12:32 PM
Yeah, cause kids don’t change after college.
Esthier on May 27, 2009 at 12:33 PM
Ah… yes, it is new… Further, to imply that somehow the poly contract is too complex is a strange approach. What about rich people with pre-nups? You could argue that their marriages are too complex.
Upstater85 on May 27, 2009 at 12:34 PM
Yes, but to do so, you must meet their criteria for obtaining a license.
Esthier on May 27, 2009 at 12:34 PM
You can’t get a concealed carry license, either, and you’re not allowed to carry your gun over state lines, even though you might really need your gun for protection. And the right to keep and bear arms is in the Constitution, itself, unlike gay marriage.
progressoverpeace on May 27, 2009 at 12:35 PM
Exactly my feelings. This is isn’t a team-changer for Ted. My heart will always belong to Barbara, and since they were soulmates, I know that he’s not going wobbly, just wrong on this issue.
Now if he was representing terrorists, that would be a game changer.
thebrokenrattle on May 27, 2009 at 12:35 PM
Not at all. The Constitution should never be bypassed nor should it be “contorted” by judicial fiat. I find that most of what I disagree with in the Constitution is not actually in the Constitution…if that makes sense. What I really disagree with is some judge’s interpretation of what he or she opines the Constitution says. When that opinion is skewed by some outrageous political dogma that is obviously contrary to the context and intent of the framers I don’t ignore it…I may not like it, but I can’t ignore it.
On a side note…thanks for the intellectual discussion. It’s very easy to get side tracked into shouting matches here.
sdd on May 27, 2009 at 12:35 PM
The courts believe that gay people are inherently unable to successfully participate in marriage as it now stands. Polygamists aren’t inherently more attracted to multiple spouses, nor are they denied from having their first marriage recognized. The equal protection claim is not as strong.
dedalus on May 27, 2009 at 12:36 PM
I’m not sure that Ted Olson recovered from talking on the phone to his wife while she was certain to die.
I doubt that anybody could recover from such horror.
This is what can happen to survivors of terrorist activities – a mind is severely damaged but the damage is not obvious until much later.
platypus on May 27, 2009 at 12:37 PM
Heads up: even if the state formally recognizes this thing you want to call marriage, it still won’t be a marriage. Whatever itch you’re hoping it will scratch won’t go away.
Marriage is about one man and one woman becoming one flesh. It is mystical, it is practical and it will forever be out of your reach. No matter how much you howl or thrash or tantrum till you’re blue faced, no matter how many hallowed institutions lie at your feet, the essential disconnect between what you want and what is will continue to stare you in the face.
spmat on May 27, 2009 at 12:38 PM
No problem. Just so you know, I probably agree with most of what you are saying. Even if I don’t, I appreciate your logic and reasoning.
I do not like it when people Cherry Pick the Constitution for the results that they want, but then don’t care about the “inconvenient” issues.
Upstater85 on May 27, 2009 at 12:38 PM
Yes, but of their own making, which is think is a key difference in dedalus’s argument.
If we now have either multiple or single partner options, then a couple might need to sign paperwork before marriage stating their’s is a two person marriage, which would impose on their marriage something that wasn’t previously put on it.
But even in that case, I don’t understand why a check box on the marriage certificate couldn’t suffice.
Esthier on May 27, 2009 at 12:38 PM
The change isn’t structural. It is just a matter of who participates.
dedalus on May 27, 2009 at 12:39 PM
This is false. By definition, Polygamists are attracted to multiple spouses… They might even argue that God wants this. So then, by not recognizing it, you are not only rejecting their equal protection claim, you might be infringing on their religious beliefs.
Upstater85 on May 27, 2009 at 12:41 PM
Exactly! SSM supporters will never respond to this argument head on. They refuse to take their argument to it’s logical conclusion (ie. incest, polygamy, etc. should be ok too) because they know it will hurt their cause in the court of popular opinion. On one hand they say that the majority has no right to force it’s morality on a minority when it comes to SSM, but then they are perfectly willing to say that incest and polygamy are out because as a society we have decided they are unhealthy. So which is it? Does society have a right to define marriage based on a consensus as to what’s best for society as a whole? Or does each individual have a right to define it on their own? Will any SSM supporter answer that narrow question…who decides, the individual or society in general?
frank63 on May 27, 2009 at 12:41 PM
That’s funny, because they lived with it the way it is for millenia.
Says who? A guy says that he loves two women and must have both as his wives, otherwise he’ll be depressed for the rest of his life. I can see that. And maybe they consider it part of their religion, which is even more compelling.
Nor are gays denied from marrying someone of the opposite sex.
The equal protection argument is exactly the same, and it’s stupid in both cases.
progressoverpeace on May 27, 2009 at 12:41 PM
If another person has already made this point then forgive me for repeating it. Why are the words ban and denied even being used here? What right or benefit is being banned or denied when the state does not use the term marriage to describe a same sex union? None. Domestic Partnerships are equal to marriage in the eyes of the state and the law in CA. Even if they were refusing something how is it relevant? Doesn’t the government routinely give tax benefits to different businesses and indiviuals all the time? The logical conclusion for a federal court is to state that the ammendment was clear and had only one function which was that the state can only refer to the union of a man and a woman as marriage. When the union was registered with the state is irreverent to what the state calls it at any given time. The state must stop referring to same-sex unions as marriage. The state could pass an amendment tomorrow which states that from now on all unions will be defined as Domestic Partnerships and when some old married couple files there taxes they will be listed as a Domestic Partnership. Using a different word to describe something in now way invalidates it.
Rocks on May 27, 2009 at 12:41 PM
Absolutely. And as it stands, one can make their straight marriage as complicated as they so wish… I don’t see how this would somehow drastically change after Polygamists were granted the right to have legally recognized marriages.
Upstater85 on May 27, 2009 at 12:42 PM
How can the courts answer a question science is baffled by?
Polygamy is just a matter of how many participate.
Esthier on May 27, 2009 at 12:43 PM
OK, I’m out… But keep up the polygamy iff ssm argument…
Don’t forget the Incestuous and Bisexuals… AND Couch-humpers.
Upstater85 on May 27, 2009 at 12:45 PM
A friend of mine told me stories of her grandfather, a Mormon who believed in polygamy. The man had a second “wife” only she never received legal recognition. Apparently he would often rail against this evil country because it wasn’t allowing him to fulfill what he considered a religious right.
Esthier on May 27, 2009 at 12:46 PM
nd never forget that gay marriage has no history, at all, while polygamy has a long history in just about every culture. If either of these two arrangements has more legitimacy, it is heterosexual polygamy, by a longshot.
progressoverpeace on May 27, 2009 at 12:48 PM
But really, let’s just give bi-sexual polygamy a shot and call it a compromise.
Esthier on May 27, 2009 at 12:49 PM
You would probably be challenged to a duel.
BobMbx on May 27, 2009 at 12:51 PM
Heh.
progressoverpeace on May 27, 2009 at 12:51 PM
Every married guy I know is attracted to other women. This isn’t scientific. Maybe I just know a bunch of letches.
Religious imperatives to take certain actions was addressed a while ago by SCOTUS. I believe you cited Reynolds above.
dedalus on May 27, 2009 at 12:54 PM
That’s going back a while! ;)
He got screwed, too. Great man, though…
OldManC on May 27, 2009 at 12:54 PM
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