Prop 8, The Play

[Jaybear]

They are called "the men's room" and "the womens room"

Go tell someone that you are going to go use the "bathroom." Let me know if they ask you "which one."

If two men pair up and copulate, that isn't marriage.

So. If a man and woman pair up and copulate, that isn't a marriage either.

BTW, notice how comfortable you were using the term "copulate" which applies regardless of the sex of the couple? How much of a stretch is for you to use the word marriage to apply to both.

[Zeta-Flux]

I am not very familiar with what specifically you are talking about.

And I'm betting you would still not be familiar after the play. I'll try to educate you on this issue.

Are you saying that Walker ignored is precedents stating that homosexuals are not suspect class?

Yes. I am saying that.

Because this assertion was one of the main points of the lawsuit and the anti prop 8 lawyers made what judge Walker thought was a compelling legal case for making homosexuals a suspect class, Something that everyone acknowledges was not the case before the trial.

It is true homosexuals were not a suspect class before the trial. What Walker failed to acknowledge even though it was put into evidence at trial, and what people seem to misunderstand, is that not only was homosexuality not a suspect class but it had been ruled previously, by the 9th circuit, that they were *not* a suspect class. In other words, the standing precedent, at the level and court above Walker, was that they did not have a suspect classification.

The proponents cited the case law during Walker's trial. However, Walker ignored this precedent, and did not even cite it in his legal ruling.

The legal question was, what legal argument did the defendants have to support this assertion.

They didn't need to support that assertion, as it had been previously decided at the circuit level. Now that Walker ignored this fact and it is again at the circuit level, the Proponents have repeated the precedent and described more fully why this is the case. You can read their arguments in their initial appeal brief and follow-up brief.

As far Is Judge Walker was concerned, they did not make a compelling case that they were not a suspect class.

It depends on what you mean by "compelling". They cited the precedent. Usually that is found to be compelling. Walker found it uncompelling only by ignoring binding precedent. That's the important point.

Perhaps you could quote from the trial the defendents best argument for gays to not be a suspect classs other than in the past they have not been considered a suspect class. Obvious this ruling if it is allowed to stand will change that view of gays.

The best argument, at least at the district level, was that it had previously been decided, at the circuit level, they were not a suspect class. This should have been binding precedent on Walker.

I think the argument, at the circuit level, given in the proponents brief, is pretty strong. To be given suspect classification you need to meet some qualifications. One, which the GLTB group meets is to have been discriminated against. Nobody denies that is the case. Some others are (1) be politically powerless, which the gay community is not and (2) possess an immutable or highly visible trait, which homosexuality is not [as even witnessed by the plaintiff's witnesses]. For more evidence on these two claims, see the proponent's appellate briefs.

What I am really interested in is what you think the strongest legal argument supporting prop 8 was other than we have never allowed it before. After all, you could say that about most civil rights issues from women getting the right to vote, allowing blacks the right to a full vote or ending slavery, interatial marriage etc. If you don't want the law to change, you gotta put forth a strong legal case as to why it should remain as it is. Tradition is not a good enough legal argument.

Just a clarifying question. Are you asking what I feel is the strongest legal argument for why Prop. 8 is consistent with the Equal Protection clause? Because Prop. 8 wasn't passed using legal arguments. It was passed as a constitutional ammendment, by the people, for a number of reasons. And none of those reasons needs to be a legal one.

So your statement that if you want the law to change you need to put forth a strong legal case is simply wrong. You only need a strong legal case when the law is challenged.

And so, to answer the modified question: I think the strongest legal argument for why Prop. 8 is consistent with the Equal Protection clause is that it does not affect a suspect class, and the law is rationally based.

[Jaybear]

And I'm betting you would still not be familiar after the play. I'll try to educate you on this issue.

California Boy.

If you want a real education on the issue he addresses, you should also read read this brief. Its a game changer.

IF you have not already heard of or read that brief, seriously, you need to read it. You will thank me later.

[Jaybear]

And so, to answer the modified question: I think the strongest legal argument for why Prop. 8 is consistent with the Equal Protection clause is that it does not affect a suspect class, and the law is rationally based.

That is a conclusion, not an argument.

[Zeta-Flux]

I wasn't sure what the fine was for. I heard that it was because the church did not declair all of the in kind donations on the campaign. A lawsuite was filed against the church for failing to report all of the donations in kind that was used to pass prop 8. Evidently they failed to report work done by people in Salt Lake working on the campaign. I found this article. It is not quite as innocent as zeta wants it to be. It wasn't until after the lawsuit and investigation that the church agreed to pay the fine. I am not accusing the church of anything. I am just stating more clearly the order of events that led up to the lawsuit. Here is a more complete explaination of what the fine was about.

Here is the link to the article.

I looked up more information. Here is the full story.

All of the church's donations were in-kind donations. http://newsroom.lds.org/article/media-reports-on-proposition-8-filing-uninformed All of these donations were reported. The mistake the church made, which is what led to the $5538 fine, was that near the end of the election cycle (i.e., during the last two weeks) the reporting requirement changes and they failed to make a daily report, instead they put the total on a later filing. http://newsroom.lds.org/article/statement-regarding-fppc-settlement The total late reporting was for $36,928, an almost laughable amount of in-kind donations in terms of the total $40 million raised by the Prop. 8 campaign.

So, the church never failed to declare their contributions. This was proved in the investigation. They only mistakenly failed to do so in a timely manner, for a very small amount of donations, for a very short period of time, when the rules for reporting changed. They then paid the assessed fine for their mistake.

Your claim that it "wasn't until after the lawsuit and investigation that the church agreed to pay the fine" misses the point that there was no fine before the investigation. Of course they didn't pay anything before the fine was assessed. When it was assessed, they quickly paid it and thanked the commission for understanding the small mistake.

I hope you can now admit that it *was* quite as innocent as I portrayed it.

[Zeta-Flux]

California Boy.

If you want a real education on the issue he addresses, you should also read read this brief. Its a game changer.

IF you have not already heard of or read that brief, seriously, you need to read it. You will thank me later.

california boy,

I also hope you will read this. In particular, note that the third paragraph of the summary of argument begins "Although binding authority holds that rational basis review applies..."

That should have been sufficient for Walker. Or at least he should have dealt with that fact, instead of ignoring it.

----

This brief presents arguments for granting strict scrutiny, the proponents brief presents arguments against it. Ultimately, it will be the Supreme Court which decides. But I think we can all agree that Walker did not deal with the fact of precedent.

[Jaybear]

I also hope you will read this. In particular, note that the third paragraph of the summary of argument begins "Although binding authority holds that rational basis review applies..."

That should have been sufficient for Walker. Or at least he should have dealt with that fact, instead of ignoring it.

From Walker's ruling:

PROPOSITION 8 DOES NOT SURVIVE RATIONAL BASIS

Proposition 8 cannot withstand any level of scrutiny

under the Equal Protection Clause, as excluding same-sex couples

from marriage is simply not rationally related to a legitimate

state interest.

This brief presents arguments for granting strict scrutiny, the proponents brief presents arguments against it. Ultimately, it will be the Supreme Court which decides. But I think we can all agree that Walker did not deal with the fact of precedent.

He had no need to address the issue you raise.

[Zeta-Flux]

Jaybear,

You are right. He didn't. We might disagree whether or not Prop. 8 passes rational review, but if his ruling had only dealt with that issue then strict scrutiny would have been a dead issue.

But Walker didn't leave it at that, and still ruled that they were a suspect class, contra binding precedent (without citing said precedent).

I'm only responding now, since apparently I didn't make it clear earlier. I'm done discussing this issue with you. I will not reply to any further comments or questions.

[Jaybear]

Jaybear,

But Walker didn't leave it at that, and still ruled that they were a suspect class, contra binding precedent (without citing said precedent).

Walker knew exactly what he was doing. By so ruling, he gave the appellate court, which is not bound by the precedent you cite, an alternative ground to uphold his ruling.

I'm only responding now, since apparently I didn't make it clear earlier. I'm done discussing this issue with you. I will not reply to any further comments or questions.

Very wise decision on your part.

[frankenstein]

what binding authority has there ever been in the United States dealing with a right being taken away due largely to animus? There isn't binding authority, as no case has addressed the issue of gay marriage being legal, then popular vote takes away that right.

and for all you who feel so inclined please spare the dishonest "there was no right"

[california boy]

And I'm betting you would still not be familiar after the play. I'll try to educate you on this issue.

Yes. I am saying that.

It is true homosexuals were not a suspect class before the trial. What Walker failed to acknowledge even though it was put into evidence at trial, and what people seem to misunderstand, is that not only was homosexuality not a suspect class but it had been ruled previously, by the 9th circuit, that they were *not* a suspect class. In other words, the standing precedent, at the level and court above Walker, was that they did not have a suspect classification.

The proponents cited the case law during Walker's trial. However, Walker ignored this precedent, and did not even cite it in his legal ruling.

They didn't need to support that assertion, as it had been previously decided at the circuit level. Now that Walker ignored this fact and it is again at the circuit level, the Proponents have repeated the precedent and described more fully why this is the case. You can read their arguments in their initial appeal brief and follow-up brief.

It depends on what you mean by "compelling". They cited the precedent. Usually that is found to be compelling. Walker found it uncompelling only by ignoring binding precedent. That's the important point.

The best argument, at least at the district level, was that it had previously been decided, at the circuit level, they were not a suspect class. This should have been binding precedent on Walker.

I think the argument, at the circuit level, given in the proponents brief, is pretty strong. To be given suspect classification you need to meet some qualifications. One, which the GLTB group meets is to have been discriminated against. Nobody denies that is the case. Some others are (1) be politically powerless, which the gay community is not and (2) possess an immutable or highly visible trait, which homosexuality is not [as even witnessed by the plaintiff's witnesses]. For more evidence on these two claims, see the proponent's appellate briefs.

Just a clarifying question. Are you asking what I feel is the strongest legal argument for why Prop. 8 is consistent with the Equal Protection clause? Because Prop. 8 wasn't passed using legal arguments. It was passed as a constitutional ammendment, by the people, for a number of reasons. And none of those reasons needs to be a legal one.

So your statement that if you want the law to change you need to put forth a strong legal case is simply wrong. You only need a strong legal case when the law is challenged.

And so, to answer the modified question: I think the strongest legal argument for why Prop. 8 is consistent with the Equal Protection clause is that it does not affect a suspect class, and the law is rationally based.

Thanks for your clarification. I guess this issue is the core of what this case is about. Are gays a suspect class and do they have protection under the Equal Protection clause. I get that before the trial gays were not a protected class. And I also understand there were past rulings on this issue. But to say that prop 8 defendants didn't have to make a case to keep the status as it is seems a bit naive on how law works. If a previous case is challenged in court as it was in this case, the defendants have to make a case why things should stay as they are. It sounds like they were unable to make such a case. So now the case is before the 9th circuit. They will decide if previous rulings are compelling enough to keep things the way they are or if the evidence against keeping the rulings as they are are more compelling. Personally, I think there is a pretty strong argument to change the status. And I think the defendants failed to make a case to keep them like they currently are. The play will probably explore the arguments on this subject and the case made by each side to support their position.

[Mordecai]

The New York Court of Appeals ruled in 2006 that it's rational to reserve the word marriage for the union of a man and a woman as a means to promote the presence of both a father and a mother in the home. It's impossible to rationally discriminate, as that is an oxymoron. There are no laws against passing rational laws, seeing as that would be irrational and by definition, unjust. Obviously it's impossible to predict the future, so obviously, the law can't demand proof of what will happen in the future. Only reason to pass such a law, which we have.

Similarly, the burden of proof would be on proponents of "gay marriage," to prove that the gov't adopting such propaganda is rational and just. Of course, it's not rational and therefore unjust, since gay unions and real marriages are profoundly different. More so, it fails to promote the presence of both sexes in the home, which is not promoting the general welfare of society, as the Constitution mandates.

[Jaybear]

The New York Court of Appeals ruled in 2006 that it's rational to reserve the word marriage for the union of a man and a woman as a means to promote the presence of both a father and a mother in the home.

How does denying gays the right to marry "promote the presence of both a father and a mother in the home."

Sorry, but that makes no rational sense. What rational reason would a couple, who would otherwise marry and have children choose to either not marry or break up, simply because gays ... who may already live together, enter into a civil union, fly to DC to get married in a ceremony recognized by the State of New York ... can get married in NY without leaving the state?

You are going to have to explain the thought process of this alleged heterosexual couple, because I just don't get it. My BS meter is going off with this one.

Moreover, if you are genuinely interested in promoting the presense of a mother and father in a home, then just run a PSA telling heterosexual couples that they should stay together.

It's impossible to rationally discriminate, as that is an oxymoron. There are no laws against passing rational laws, seeing as that would be irrational and by definition, unjust. Obviously it's impossible to predict the future, so obviously, the law can't demand proof of what will happen in the future. Only reason to pass such a law, which we have.

Not asking for proof of what will happen, just a rational connection between the law, and the claimed goal, taking into account common sense and REALITY. That is not too much to ask?

Similarly, the burden of proof would be on proponents of "gay marriage," to prove that the gov't adopting such propaganda is rational and just. Of course, it's not rational and therefore unjust, since gay unions and real marriages are profoundly different. More so, it fails to promote the presence of both sexes in the home, which is not promoting the general welfare of society, as the Constitution mandates.

Aside from notions of liberty, equality, and respect here are some rational reasons for allowing gay marriage:

Gay marriage would promote fidelity in the gay community.

Gay marriage would promote stability in gay families raising children.

Gay marriage would bring tax revenue into the economy.

Gay marriages would bring families together.

You are correct, gay marriage does not promote the presence of both sexes in the home, nor does it cure cancer, or solve the debt crisis.

[Jeff K.]

Aside from notions of liberty, equality, and respect here are some rational reasons for allowing gay marriage:

Gay marriage would promote fidelity in the gay community.

Gay marriage would promote stability in gay families raising children.

Gay marriage would bring tax revenue into the economy.

Gay marriages would bring families together.

Amazing. Changing a definition creates a societal change? Fidelity does not exist because of marriage. If the gay community wants marriage, let them prove it by generations of fidelity versus the present overwhelming trend in existence for the past five decades of changing partners like people change clothes.

Gay marriage does not promote stability since it will change the definition of marriage to include a group notorious for their lack of stability, and therefore further undermine marriage.

Gay marriage does not promote tax revenue as far as I can see. I am sure the same person would posit the argument that accepting pederasts or pedophiles would also increase revenue. What a positive that would be.

Gay marriages would bring families together? Does the person believe court orders do such things? They haven't convinced the people, certianly not here in California, it required a court order to "bring families together". No, it hasn't done any of the things mentioned. Marriage will simply deteriorate and the disengenuous with their false arguments will continue to toss out the false bait, and then continue to hide the reality of their own cultural lifestyle.

[Jaybear]

Amazing. Changing a definition creates a societal change?

I am not advocated that the definition of marriage changed, but that gay couples be permitted to marry. Would that bring about a sociatal change ...yes.

Fidelity does not exist because of marriage. If the gay community wants marriage, let them prove it by generations of fidelity versus the present overwhelming trend in existence for the past five decades of changing partners like people change clothes.

Please stay on point. Follow the argument and tell me where you disagree:

1. Fidelity is good for society.

2. Marriage promotes fidelity.

3. Gay marriage will promote fidelity.

Your side denies gays the right to marry, opposes civil unions, then complains that when they don't settle down with one partner.

Gay marriage does not promote stability since it will change the definition of marriage to include a group notorious for their lack of stability, and therefore further undermine marriage.

That is not coherent argument.

Try this one.

1. Marriage promotes family stability.

2. Gays have families.

3. Allowing gays couples to marry will promote the stability of their family.

Even the prop 8 expert was forced to admit under oath that children raised by gay couple were better off if their parents were allowed tomorrow.

Gay marriage does not promote tax revenue as far as I can see.

Wow. I think is my cue to bow out. If won't even acknowlege that gay weddings bring money into the local economy, there is no point in have a discussion with you.

[Jeff K.]

Quote

Fidelity does not exist because of marriage. If the gay community wants marriage, let them prove it by generations of fidelity versus the present overwhelming trend in existence for the past five decades of changing partners like people change clothes.

Please stay on point. Follow the argument and tell me where you disagree:

1. Fidelity is good for society.

2. Marriage promotes fidelity.

3. Gay marriage will promote fidelity.

Your side denies gays the right to marry, opposes civil unions, then complains that when they don't settle down with one partner.

Gay marriage does not promote fidelity. Gay men have no history of fidelity. Marriage alone does not create fidelity. Your entire premise is flawed.

As to the lie regarding the opposition of civil unions. No one has denied that. It existed in California, with all the rights and privleges that go along with marriage. But we know, just like the definition of a mens room is not the same as a women's room, that civil union is not marriage. Unfortunately it isn't about rights, just typical petulance of spoiled people wanting what someone else has.

So I suggest you drop the whole civil unions charge it is just another dishonest argument you have tossed before us.

Gay people will continue to "take breaks" from their relationships and have parties and multiple partners and then still call it marriage. Nothing will be promoted, but marriage will of course be denigrated.

I do find your logic interesting.

1. Fidelity is good for society.

2. Marriage promotes fidelity.

3. Gay marriage will promote fidelity.

Lets add this...

1. Fidelity is good for society.

2. Gay people do not practice fidelity

3. Gay people are bad for society

There see where your logic takes you.

[Jeff K.]

Quote

Gay marriage does not promote tax revenue as far as I can see.

Wow. I think is my cue to bow out. If won't even acknowlege that gay weddings bring money into the local economy, there is no point in have a discussion with you.

That canard should have been put to bed long ago. They don't bring money into the local economy anymore than drive through weddings do in Las Vegas.

[california boy]

Gay marriage does not promote fidelity. Gay men have no history of fidelity. Marriage alone does not create fidelity. Your entire premise is flawed.

As to the lie regarding the opposition of civil unions. No one has denied that. It existed in California, with all the rights and privleges that go along with marriage. But we know, just like the definition of a mens room is not the same as a women's room, that civil union is not marriage. Unfortunately it isn't about rights, just typical petulance of spoiled people wanting what someone else has.

So I suggest you drop the whole civil unions charge it is just another dishonest argument you have tossed before us.

Gay people will continue to "take breaks" from their relationships and have parties and multiple partners and then still call it marriage. Nothing will be promoted, but marriage will of course be denigrated.

I do find your logic interesting.

Lets add this...

1. Fidelity is good for society.

2. Gay people do not practice fidelity

3. Gay people are bad for society

There see where your logic takes you.

That is a pretty ugly post jeff. Last time I checked, heterosexuals living outside of marriage don't have a real strong record for fidelity either.

[Jeff K.]

It will not help, extending or changing the definition of marriage to another group that lacks fidelity.

And yes, the reality of the gay lifestyle and culture is pretty ugly and anti family.

[Zeta-Flux]

Thanks for your clarification. I guess this issue is the core of what this case is about. Are gays a suspect class and do they have protection under the Equal Protection clause. I get that before the trial gays were not a protected class. And I also understand there were past rulings on this issue. But to say that prop 8 defendants didn't have to make a case to keep the status as it is seems a bit naive on how law works. If a previous case is challenged in court as it was in this case, the defendants have to make a case why things should stay as they are. It sounds like they were unable to make such a case. So now the case is before the 9th circuit. They will decide if previous rulings are compelling enough to keep things the way they are or if the evidence against keeping the rulings as they are are more compelling. Personally, I think there is a pretty strong argument to change the status. And I think the defendants failed to make a case to keep them like they currently are. The play will probably explore the arguments on this subject and the case made by each side to support their position.

california boy,

It seems like the goal post keeps getting moved. The relevant question regarding *Walker's* ruling was whether it was appropriate for him to rule contrary to binding precedent at the court above himself? And to do so without even mentioning said precedent.

That said, I agree with you it will likely come down to whether the GLBTQ crowd achieve suspect class status. And the decision will likely be 5-4, along ideological lines (which is too bad). Since you personally feel there are strong arguments to change the status, let's explore that. First, let's get on the same base. One of the factors that judges look for when deciding if a group has suspect classification is whether "they possess an immutable and/or highly visible trait." I imagine that the trait you feel qualifies is something like homosexuality, but I want us to start on the same page.

(1) What exactly is the class that should receive suspect classification? (2) What is the immutable and/or highly visible trait? (3) How does one decide if someone has this trait? What are the measures you would use to tell me whether Joe (my neighbor) has this trait?

[california boy]

Amazing. Changing a definition creates a societal change? Fidelity does not exist because of marriage. If the gay community wants marriage, let them prove it by generations of fidelity versus the present overwhelming trend in existence for the past five decades of changing partners like people change clothes.

Gay marriage does not promote stability since it will change the definition of marriage to include a group notorious for their lack of stability, and therefore further undermine marriage.

Gay marriage does not promote tax revenue as far as I can see. I am sure the same person would posit the argument that accepting pederasts or pedophiles would also increase revenue. What a positive that would be.

Gay marriages would bring families together? Does the person believe court orders do such things? They haven't convinced the people, certianly not here in California, it required a court order to "bring families together". No, it hasn't done any of the things mentioned. Marriage will simply deteriorate and the disengenuous with their false arguments will continue to toss out the false bait, and then continue to hide the reality of their own cultural lifestyle.

This is how these kinds of arguments are holding up under scrutiny by the US Congress. Doesn't look good for your mudslinging jeff.

[california boy]

california boy,

It seems like the goal post keeps getting moved. The relevant question regarding *Walker's* ruling was whether it was appropriate for him to rule contrary to binding precedent at the court above himself? And to do so without even mentioning said precedent.

That said, I agree with you it will likely come down to whether the GLBTQ crowd achieve suspect class status. And the decision will likely be 5-4, along ideological lines (which is too bad). Since you personally feel there are strong arguments to change the status, let's explore that. First, let's get on the same base. One of the factors that judges look for when deciding if a group has suspect classification is whether "they possess an immutable and/or highly visible trait." I imagine that the trait you feel qualifies is something like homosexuality, but I want us to start on the same page.

(1) What exactly is the class that should receive suspect classification? (2) What is the immutable and/or highly visible trait? (3) How does one decide if someone has this trait? What are the measures you would use to tell me whether Joe (my neighbor) has this trait?

Sorry, if you think I am an expert in legal issues. I am not. To answer your question, I would refer you to the brief that Judge Walker made on this very issue. I think a judge has more credibility in answering those questions than I do. His ruling was very clear as to why he ruled that gays are a suspect class. I happen to agree with his arguments. The plaintiff just seemed to have a much better case. Evidently you do not think so. So we will see how the appeal process goes.

As far as my original question, I was asking you what you felt was the defendants strongest argument against gay marriage. I think if I am reading your answers correctly you are saying it is because gays are not currently a suspect class. Interesting position. That position rises or falls on whether the testimony in the trial can justify that position or not.

I hope I haven't mischaracterized your position. If I have, I apologize and hope you will correct me.

[Daniel2]

This is how these kinds of arguments are holding up under scrutiny by the US Congress. Doesn't look good for your mudslinging jeff.

What an excellent and inspiring video--I hadn't seen it previously. Thanks for sharing, California Boy!

Daniel2

[Zeta-Flux]

Sorry, if you think I am an expert in legal issues. I am not. To answer your question, I would refer you to the brief that Judge Walker made on this very issue. I think a judge has more credibility in answering those questions than I do. His ruling was very clear as to why he ruled that gays are a suspect class. I happen to agree with his arguments. The plaintiff just seemed to have a much better case. Evidently you do not think so. So we will see how the appeal process goes.

As far as my original question, I was asking you what you felt was the defendants strongest argument against gay marriage. I think if I am reading your answers correctly you are saying it is because gays are not currently a suspect class. Interesting position. That position rises or falls on whether the testimony in the trial can justify that position or not.

I hope I haven't mischaracterized your position. If I have, I apologize and hope you will correct me.

california boy,

I'm not an expert on legal issues either. I've just read a lot on this subject, and so am self-taught. That means I'm in that scary place where I know just enough to be dangerous, but not enough to know it. At least I know that I don't know it. LOL.

So when you said "Personally, I think there is a pretty strong argument to change the status." what you really meant is that you are not familiar with the arguments, but believe they exist, and believe they are strong? Also, you cannot defend them if pressed?

If so, fair enough. I would have liked to delve into those arguments, but that's okay.

Just know that then I can make the counter-claim: there are what I believe to be stronger arguments for not granting a change in status. If you can get to the point where you feel comfortable answering those three questions in my last post, we can discuss the issue further.

---

Anyway, I've tied to make another issue clear a number of times now, and it just seems to not be getting across let me try one more time. Most judges, when ruling on an issue that has already been ruled upon, at a level above themselves, either (1) abide by the ruling (even while expressing dissenting feelings on the matter), or (2) state what they believe are overriding rulings in the meantime. In the brief linked by Jaybear, the DOJ offers option #2 to the judge that will look at their case. While clearly stating what the precedent is, they also point to another ruling which they believe overrides that precedent.

That is why precedent is called binding.

With that understanding, now look at the Walker case. It doesn't matter if he gives compelling reasons for *initially* classifying them as a suspect class. That was already decided, that decision was pointed out during the trial, and Walker should have dealt with that fact. Is that clear?

The funny thing is that, in some sense, this point that I've tried to convey for the last few days is irrelevant (as are Walker's reasons for granting suspect classification). If the Prop. 8 proponents are granted standing, the issue will be decided by the circuit court. And in that case, the Proponents do have to present more than precedent, since a court can overturn its own precedent (and as it stands, the precedent sits at the circuit level). If you read their briefs, you will see that they have done so. On the other hand, if the Proponents are not granted standing, the issue will likely be resolved by the DOJ suit.

------

You asked what I felt was the defendant's "strongest argument against gay marriage". Are you asking this in the sense of "rational review"? Or in some other sense?

[Mordecai]

How does denying gays the right to marry "promote the presence of both a father and a mother in the home."

Since I've explained this numerous times, perhaps you should ask the New York Court of Appeals. Notice how similar they sound to me. Shocking, huh? Just a simple English major can see through the anti-Christian propaganda:

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. We approach plaintiffs' claims by first considering, in section III below, whether the challenged limitation can be defended as a rational legislative decision.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally [*4]offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their{**7 NY3d at 360} mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.

Plaintiffs, and amici supporting them, argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise.

To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children. Some opponents of same-sex marriage criticize these studies, but we need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.

Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home. (See Goodridge, 440 Mass at 358-359, 798 NE2d at 979-980 [sosman, J., dissenting].) And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households.

In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice—if we agreed with plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial{**7 NY3d at 361} marriage that was plainly "designed to maintain White Supremacy" (id. at 11)—we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.

But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries—at first by a few people, and later by many more—as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. [*5]

It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind.

The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05239.htm

Anyway, I've explained this a million times, but it seems it has all disappeared from your memory. Not sure what the deal is with that. I talk about recognition, and you immediately revert back to, "They're not allowed to marry!" which is just propaganda. That implies they can't have a ceremony and can't live together, which is false. It implies that all people with traditional values are fighting against fundamental rights, which is profoundly insulting and represents hate-mongering, really. Anyone with traditional values would be fools to adopt this propaganda or tolerate having the government adopt it, as it will make them and their children targets of persecution and ultimately will result in unjust laws against Christians for their "hate" and "intolerance."