03 November 2008

Prop 8 - A Legality Discussion

From a conversation that ensued on someone's status on a popular networking site.
(31 October - 2 November)

Nick loves the new prop 8 ad. http://www.youtube.com/watch?v=Oj-0xMrsyxE. Yay for Samuel L Jackson and No on 8!!! 12:00pm

Steve at 1:01pm October 31
Except that gays have never had a right to marry, so how could this be a "fundamental" right? And I don't think you want to argue that it's a natural right, do you?

David at 1:15pm October 31
I love that one too. I also love the one with Senator Feinstein. I think I have a crush on her now. :P

Nick at 1:20pm October 31
True... I don't really buy the whole fundamental right argument. I don't really think there is a fundamental right to marriage for heterosexuals or homosexuals. I would argue for same-sex marriage on the basis of equal protection. I think this quote from Brown v. Bd of Education could easily be applied to this debate:

"To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal."

So on that note, I prefer the line they used in their older ads: "regardless of how you feel about marriage, it's wrong to treat people differently under the law."

O-Mo J at 1:21pm October 31
So by that logic, when blacks had never had the right to own their own property or vote, it wasn't a fundamental right. And women never should have gained the right to divorce. Or vote. Or receive equal pay. Those are just bonuses we allow them out of the vast magnanimity of our hearts? Or maybe you need to reword your argument? I'm not saying your opinion is necessarily wrong if you don't believe marriage IS a fundamental civil right. Jury's still out on that one for me. It's just that basing that belief on the fact that they've never had it is inconsequential.

Nick at 1:22pm October 31
Aside from that criticism, I really like the ad because it highlights the fact that prop 8 is trying to write discrimination into the constitution.

O-Mo at 1:22pm October 31
Sorry, I started my comment after Steve's, then came back to it and posted after David and Nick.

Steve at 1:54pm October 31
O-Mo, I would say that the right of blacks to own property is a natural (and not necessarily fundamental--it depends on what jurisdiction we're talking about) right, just as it is for everyone else to own property. So no, the right to own property--for anyone--isn't a fundamental right, it's a natural right, or a right you should have just because you are a person, or a god-given right, if you will. And as far as Prop. 8 writing discrimination into the constitution, it's not: I don't have the right to marry a man either. Deciding that marriage is between a man and a woman is no more discriminatory than deciding that kids can't drive until they're 16, or that you must pay a certain percentage in taxes to the government depending on how much money you make. Also, be careful about comparing race and sexual orientation. So what I'm saying, O-Mo, is that gay marriage is neither a fundamental, nor a natural right, but the right of blacks to own property is a natural right.

O-Mo at 2:07pm October 31
Pardon my ignorance on the jargon. Your argument involves more intricate legal semantics than I'm familiar with (fundamental vs. natural rights is new language to me). So I think I underestimated the foundation of your argument. Thanks for the clarification, though. An article on Wikipedia (the fount of all that is true and right *cough*) includes the right to marry as a generally accepted "fundamental" or "natural human" right. Is it more disputable than the author makes it out to be?

Steve at 2:19pm October 31
I would say that the right to marry is a fundamental and a natural right, but that there is no fundamental or natural right for a man to marry a man, or a woman to marry a woman. That is why these amendments focus on the definition of marriage, or "to marry." Marriage has, since the dawn of time, been between one man and one woman. That's why marriage between a man and a woman is a fundamental right. There's no history of gay marriage, thus gay marriage is not a fundamental right. So the only argument left for supporters of gay marriage to make is that it is a natural right--a god-given or inherent right. I don't think that argument would fly with a lot of people. I think that if we get right down to it, most people would agree that marriage between a man and a woman is more natural (for obvious physical and reproductive reasons, and for less obvious religious (god-says-so) reasons) than gay marriage. So yes, marriage as a fundamental/natural right turns on the definition of marriage.

Christine at 3:21pm October 31
I shouldn't even get into this argument, both because I don't know you and because I'm sick of arguing about this issue. However...

You say that, since the dawn of time, [marriage has] been between one man and one woman. This premise is fundamentally untrue. Same-sex couplings, whether sanctioned socially or legally, occurred in such diverse groups as the Greeks and Romans in Europe to several Native American tribes here in (what is now) the U.S. Additionally, polygamous marriages are or were common in cultures stretching from the Middle East to Africa and Asia; ancient Judaism, Islam, and Mormonism are but a few of the religions to accept or even condone the practice.

The anti-same-sex-marriage campaign prefers to focus on the Western European tradition of state- and church-sanctioned marriage beginning in the Middle Ages. That, however, is certainly not what has been practiced "since the dawn of time."

Larry at 3:36pm October 31
How do I go about proposing a state constitutional amendment to ban religion? Anyone? Because that's totally not a fundamental right. Allowing people to practice religion is kind of like letting 16 year-olds get a license.

O-Mo at 3:52pm October 31
OK. So the definition argument comes down to one side saying ...sorry, Nick, if I'm totally hijacking your comment for my own education... that SINCE marriage was always culturally understood to be an institution, between a man and a woman, and was (they argue) initially meant to be a foundation for procreation and the rearing of children (regardless of whether that intent has been eroded by excessively casual treatment of the institution), that's what the definition is or should be, vs. the other side saying marriage is a contract granted to two people committing to each other, not a man-woman pairing (because what distinguishes a marriage from shacking up is not who's involved but the legal arrangements and contractual commitment), so the parties are (or should be) irrelevant, aside from being citizens with rights? Is that a fair summary?

Steve at 4:40pm October 31
Christine, in our jursprudential tradition then (from the foundation of our country and British rule of law, which we have adopted a large portion of our jurisprudence from) gay marriage has never been recognized, so it is not a fundamental right. Luke, the US Constitution's First Amendment explicitly gives us a freedom of religion, but says nothing about anyone being allowed to marry someone of the same sex. Of course, it says nothing about marriage at all, but that's precisely why we want the amendments in state constitutions that define marriage: we want to protect our traditional definition of marriage.

Steve at 4:52pm October 31
O-Mo, I'd summarize it this way, but yes you are right too: The supporters of Prop. 8 want to change the California Constitution so that it defines marriage as what it has always been, between a man and a woman, so that the traditional institution of marriage is preserved. The opponents of Prop. 8 think that they already have a constitutional right to marry someone of the same sex, even though no one has ever had that right, straight or gay. If gay marriage is legal, what's to stop me from entering into a union with some friend down the street that gives me all the same rights that married people have? What would be the point to government recognizing marriage at all then, if it was just a contract between two parties?

O-Mo at 5:42pm October 31
So someone who rejects religious or social bases for seeing marriage as a necessarily heterosexual union might ask how marriage having always been between a man and a woman defines it anymore than voting having always been exclusively a man's right before women's suffrage. What is your basis for asserting that it's a completely different animal?

As I see it, to most who support prop 8, they're simply clarifying what marriage has always been. But to most who oppose it, they're saying we as a society arbitrarily based it on biases, and those who would amend the constitution are the ones actually changing the definition to defend their views. I don't know whether one argument is more correct than the other, so I think at some point people have to stop treating each other abusively and shrug and say, "because that's what I believe" instead of "you're wrong and a tyrant."

O-Mo at 5:43pm October 31
Incidentally, there's nothing stopping you from entering into a marriage agreement with a female friend down the street. I know people who've done it. And I don't condone it, but I fail to see how gay marriage would change anything on that front.

Jonathan at 9:58am November 2
I'll jump into the fire 3 days later. I actually buy the fundamental right argument (and the equal protection one too...hell, the more claims for the gays the better! jk).

Here is my first problem: "There's no history of gay marriage, thus gay marriage is not a fundamental right." -

What is your legal source for this? With all due respect, this conclusion is completely wrong. The CA Supreme Court was very explicit about the fact that history is not determinative in deciding the scope of a state constitutional guarantee. I agree with you that we do have to be careful with comparisons between race and sexual orientation, but I think that it is completely appropriate to conclude that by solely looking to history to determine fundamental rights that interracial marriages would still be banned in CA - laws prohibiting interracial marriage existed in the United States since colonial times. The CA Supreme Court bought this argument and I think that it's right.

Jonathan at 10:16am November 2
Here is my second problem: I don't think that the state should be embracing any source that justifies rights on "God's" word. I'm not dissing religion (I think that religion is important) - but this is a simple matter of church and state separation.

At the same time, I think that it's okay for states to conclude that there are certain rights that are so central to an individual's liberty that they warrant noninterference by the state. Marriage is one of these rights - the underlying substantive guarantees that come along with marriage (the right to form a family with the protection of the state that is equally recognized by the state) is one of those things. Any two consenting adults have the right to choose to love one another and start a regardless of sexual orientation.

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