Lds Church Files Friend Of The Court Brief W/ Scotus Re: Prop 8, Doma

[Daniel2]

Double post

Edited February 13, 2013 by Daniel2

[Daniel2]

I would not word it exactly that way, but, yes. Gays have the ability to marry someone of the opposite sex, it has been done many times. However, just as I do not want to marry someone of my same gender, most gays do not want to marry someone of the opposite gender. They have the same right, their right just does not fit what they want.

Let me see if this clarifies my point:

Pre-1967 "Traditional" Marriage Supporter

: "Blacks have the ability to marry someone of the same race, just like whites have the ability to marry someone of the right--I mean,

white

--race. It has been done many times. They have the same right to marry someone of the same race, just like the rest of us."

Post-1967 "Interracial" Marriage Supporter

: "The issue isn't that we all have 'the same right' to marry someone of the same race--the issue is that interracial couples didn't have the right to choose to marry spouses of other races."

Pre-1967 "Traditional" Marriage Supporter

: "But all races have the same right to marry someone of their

own

race."

Post-1967 "Interracial" Marriage Supporter

: "The issue isn't that all citizens have the right to marry someone of their own race--the issue is that

interracial

couples should have the same rights as

same

-race couples. That the government has no right to mandate that adult, consensual citizens cannot select their spouse of choice."

In the same fashion, the issue today is not that "all citizens can choose to marry someone of the opposite gender, so we all have the same right to an opposite-sex marriage," the issue is "same-sex couples should have the same right to choose their spouse that opposite-sex couples do."

I don't suppose this line of discussion will persuade anyone to support same-sex marriage-------my intent is merely to show that the argument that "we all have the same right to marry someone of the opposite gender" holds as little value to the discussion as the argument that prior to 1967, "all races had the same right to marry someone of the same race."

Daniel2

Edited February 13, 2013 by Daniel2

[T-Shirt]

Additionally, T-Shirt didn't quote all of the definitions in the dictionary links he posted, which include other definitions of the term "marriage."

In other words, yes, T-Shirt, a historical definition ("a"--as in, "one of many") includes gender--but as Rockpond pointed out, it's not The sole definition, nor the legal one--the point being that there isn't "one", all-encompassing, exclusive, historical legal definition of marriage mandating that the spouses (or even items) classified as "married" be of "opposite genders," as you insist.

Daniel2

What did I leave out?

[Kevin Kirkham]

KK - ...is infringed because they can marry someone of the opposite sex is little different than claiming that the religious rights of Christians in Saudi Arabia are denied because if they want to worship in public, they are free to attend a mosque like everyone else.

SM - It's a lot different...Apples and oranges. Religious observance and marital contracts are too dissimilar for an apt comparison. Nice try, tho!

KK - The principle is identical. In both cases, the popular majority passes laws that favor them and when the unpopular minority tries to obtain equal treatment, the majority claims that the minority are seeking special rights and are attempting to destroy the social order and violate God's laws. There is no substantive difference.

****************************

SM - Secular recognition of marriage is based on incentivizing procreation. Gay marriage does not, cannot, lead to procreation.

KK - If that were really the basis for marriage, the newlywed senior citizen couple in my ward wouldn't have been allowed to marry and the infertile couple would have their marriage license revoked. Neither was holding up their end of the bargain to procreate. The infertile couple have adopted 3 kids and are therefore performing a societal good. Many same-sex couples are doing the same and should likewise receive the benefits. Why are you wanting to harm the kids of same-sex couples by denying them the benefits and protections that their friends receive from having legally married parents? Why are you anti-child?

[Kevin Kirkham]

T-Shirt - It is not a matter of violating anyone's rights. As has been stated, gays have precisely the same rights as everyone else, there is not one bit of difference and, in my opinion, it is dishonest to say there is.

KK - You need to address my mosque analogy. CHristians in Saudi Arabia have the same rights as Muslims. Both are free to attend a mosque and read the Koran. They are treatyed the same...no discrimination at all.

[Kevin Kirkham]

CB - Nations that value liberty of it's citizens continue to support gay marriage. The truth is, if a nation values liberty, it will eventually support gay marriage. You can pretend that gays already have equal rights, but it is an argument that is not convincing the majority of Americans the courts, or any other nation that values liberty.

KK - What is happening is that the people are moving away from basing law on subjective morals..religious doctrine/tradition...and basing it more and more on equality under the law, even if the majority may not like it. They are moving toward outlawing acts based on objective/demonstratable harm rather than on subjective harm as defined by subjective morals.

[Kevin Kirkham]

T-Shirt - The bigger question is, is there any benefit to the State by changing the definition of marriage to include the union of members of the same gender? That, I believe, is the argument the gay community does not want to have.

KK - Sure there are -

Marriage causes the parties to settle down and form a partnership. This benefits society by promoting monogamy. This lessens STDs in the general population. Couples also turn to each other for support rather than the government. If a spouse loses a job, they are supported by the other spouse at least for a while. If they weren't married, the jobless person would go directly on the public dole. Marriage also fosters a more stable environment in which to raise kids. Pooled recources make it more affordable and having 2 people raise a kid is easier than on one's own. Society is benefitted by having kids. Being married also allows a partner to be a stay-at-home parent which is better for a kid. If the couple were just living together, there would be no insurance protection for the stay-at-home parent or the kid. The parent wouldn't have the luxury of alimony or child support or community property in case of a split. These protections benefit everyone by creating a more stable and nurturing environment.

The above applies to both gays and straights. All benefits that society accrues from straights marrying applies equally to gays.

[california boy]

I am not sure what you mean by, "the lengths some people go to". The whole point is that words have meaning and you seem to want to completely avoid the matter of the definition of a simple word.

Since when is trying to make a simple point on a message board equal to arguing before the Supreme Court?

I guess you forgot what this thread is about. Everyone has an opinion on gay marriage. But if that opinion is not one that will convince the court one way or the other on this issue, then it is irrelevant. I don't really see your arguments standing up very well in any court of law, do you?

The whole point is that, whether you care to admit it or not, gays have exactly the same right to marry as straights, period. I understand that gays do not like the fact that their rights do not include their wants, but the law does not look at wants and feelings. I am very sympathetic to the feelings of the gay community but the bottom line is that no rights are violated. If gay marriage is to become legitimate, the definition of marriage needs to change. Why is that such a bad thing? And, just to be clear, I do not think that allowing gay marriage will diminish anyone else's rights, that is not the point and it is not the only thing the State needs to consider. The bigger question is, is there any benefit to the State by changing the definition of marriage to include the union of members of the same gender? That, I believe, is the argument the gay community does not want to have.

Do you really think that having gays marry the opposite sex is a good idea? Do you have any idea how many times that turns out badly? Do you think having gays marry the opposite sex is really a benefit to the state?

Why do you think the gay community does not want to talk about the benefit to the State gay marriage will bring. Of course we want to have that discussion. Of course gay marriage benefits the State in every single way that straight marriages benefit the state. Gay marriage also strengtherns and stabalizes relationships. When children are involved, marriage is the best institution to raise children in. Do you really think it is better for the State to raise children outside the institution of marriage? And you do know that some gay couples choose to have children don't you? I have never figured out why any Christian would encourage a couple to live outside of marriage. It just seems morally wrong. But hey, that is just me.

[Kevin Kirkham]

T-Shirt - Since I am talking about the traditional definition of marriage, I'll start with the 1828 Webster's dictionary:

KK - Mirriam forgot to say that in 1828 it was illegal for couples of mixed race to marry and at that time, women were basically the property of the men and had no legal rights. Do you really want to return to the definition of marriage as it was then?

[rockpond]

The bigger question is, is there any benefit to the State by changing the definition of marriage to include the union of members of the same gender?

First, Prop 8 is what attempted to change the legal definition of marriage in the state of California. CA state law didn't restrict marriage to a man and a woman.

Second...

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Anything in there about first determining the "benefit to the state"?

[emarkp]

First, Prop 8 is what attempted to change the legal definition of marriage in the state of California. CA state law didn't restrict marriage to a man and a woman.

No, the English language did that.

Oh, and Prop 22.

[Cobalt-70]

Despite all the flowery rhetoric, the LDS Church brief on Prop. 8 is extraordinarily weak once you boil down to the actual legal arguments. Prop. 8 has to survive a "rational basis" test, and at the trial, the pro-8 side presented essentially no evidence. They just basically folded, because all the so-called "evidence" they could have presented would have been horribly offensive and hateful to LGBT people.

The LDS Church didn't run that trial, but now in their amicus brief they aren't doing much better than the trial team did. In their amicus brief, the LDS Church's arguments boiled down to four arguments: (1) same-sex couples make worse parents than mixed-sex couples, (2) opposite-sex marriages are the way it's usually been done in the past, (3) Prop. 8 is "congruent" with voters' "moral sense," and (4) mixed-sex married couples have a reliance interest in the right to discriminate against gay couples.

#1 was thoroughly disproven at trial, and the LDS Church doesn't get to re-litigate that on appeal. #2 is not a "rational basis" consistent with the 14th Amendment. After all Jim Crow was a traditional practice too, as were bans against mixed-race marriages. #3 is absurd: "moral sense," or some other kind of fuzzy moral preference, is not a rational basis. Taking away people's rights can not be justified by some vague moral feeling, presented as an argument only on appeal, that contradicts the scientific and statistical evidence presented at trial. #4 is even more absurd. It's like saying that white people have a reliance interest in the right to ride in the front of the bus, and that the state has a rational basis to protect that interest of white people.

Edited February 14, 2013 by Cobalt-70

[Damien the Leper]

Amen Cobalt!

[cdowis]

. It's like saying that white people have a reliance interest in the right to ride in the front of the bus, and that the state has a rational basis to protect that interest of white people.

This is a false analogy. There is no question on the license application.asking whether you are homosexual.

There are several qualifying issues, including relationship between the parties. Gays have the right to apply for a marriage license as long as they follow the law. Yor argument of discrimination collapses upon itself with the slightest investigation of protected classes. You are attempting to create a NEW, an ADDITIONAL such classification.

Edited February 14, 2013 by cdowis

[rockpond]

No, the English language did that.

Oh, and Prop 22.

Yes, Prop 22 successfully inserted the "one man, one woman" definition of marriage into CA state law. But, It was eventually overturned as unconstitutional. Without the Prop 22 language in state law, California had marriage equality and gay couples began legally tying the knot. (Did you catch that? What changes to the law were required to permit gay marriage in California? None. Prop 22 attempted to prevent gay marriage by inserting a definition into state law.)

So, Prop 8 was initiated and it sought to change the CA state constitution by inserting the "one man, one woman" definition of marriage.

Edited February 14, 2013 by rockpond

[Daniel2]

This is a false analogy. There is no question on the license application.asking whether you are homosexual.

There are several qualifying issues, including relationship between the parties. Gays have the right to apply for a marriage license as long as they follow the law. Yor argument of discrimination collapses upon itself with the slightest investigation of protected classes. You are attempting to create a NEW, an ADDITIONAL such classification.

I suppose you could try to make an arguemrnt that in one sense, you're semantically correct--technically, a gay man and a lesbian woman CAN legally marry each other. According to that logic, the terms "same-sex marriage" or "same-gender marriage" would be more accurate than "gay marriage."

However, I think you'd be hard pressed to find many who support that as public policy that promotes the good of society OR the stability of the family unit (especially for children of such couples).

Additionally, even using that approach regarding that one aspect, the immutable trait that is being discriminated against ISN'T sexual orientation, per se--but the immutable trait of gender..

However, even then, again, I think you'd be hard pressed to find anyone who views that approach as a legally viable one, given the verbiage of the various State Supreme Courts' and Appelate Courts' rulings so far. The rulings have been awfully clear that so-called "traditional marriage" supporters really seem more concerned about prohibiting state recognition of homosexual behavior/relationships, so that whole type of argument seems mute.

Ironically, the fact that you are correct about that aspect signifies that your other point--that the analogy similar to race is unfounded--isn't correct. After all, gender is as immutable as race, and just as it was unjust for black people to have to sit at the back of the bus (or have separate drinking fountains, bathrooms, schools, and the like) based on the color of their skin, it's similarly unjust to deny civil marriage licenses to same-sex couples based on their gender (whether they're straight or gay same-sex couples). The classification of "separate but equal" for blacks wasn't truly equal when it came to racial segregation; nor is "separate but equal" truly equal for same-sex couples when it comes to civil unions/domestic partnerships/no legal recognition.

Daniel2

Edited February 14, 2013 by Daniel2

[california boy]

This is a false analogy. There is no question on the license application.asking whether you are homosexual.

There are several qualifying issues, including relationship between the parties. Gays have the right to apply for a marriage license as long as they follow the law. Yor argument of discrimination collapses upon itself with the slightest investigation of protected classes. You are attempting to create a NEW, an ADDITIONAL such classification.

When I hear answers like this, I am more and more confident that the justices will throw out prop 8. The question to me seems to be how far will they rule on this issue, not whether they will agree with both state and federal courts in throwing out prop 8. I can't wait for the ruling.

[Cobalt-70]

This is a false analogy. There is no question on the license application.asking whether you are homosexual.

There are several qualifying issues, including relationship between the parties. Gays have the right to apply for a marriage license as long as they follow the law. Yor argument of discrimination collapses upon itself with the slightest investigation of protected classes. You are attempting to create a NEW, an ADDITIONAL such classification.

"As long as they follow the law," meaning, as long as they enter a sham marriage with someone of the opposite sex. So likewise, perhaps you would agree that in the era of miscegenation laws, a black man had a perfect right to marry, as long as he "followed the law" by not marrying a white woman.

And likewise, I suppose you would support the constitutionality of a state law that were to ban opposite-sex marriages, so that a straight man would have every right to get a marriage license, as long as he "obeys the law" by marrying only another man.

Prop. 8 violates the Equal Protection clause of the 14th Amendment for two reasons: (1) it discriminates on the basis of sexual orientation by prohibiting gay or lesbian couples from marrying, and (2) it took away a previously-existing right of gay and lesbian couples to use the term "marriage" to describe their otherwise-equivalent domestic partnership status, with the sole intent and effect of lessening the status and human dignity of gays and lesbians in California.

Of these two rationales, the second one is the most narrow, and it was the primary basis for the 9th circuit striking down Prop. 8. The Ninth Circuit struck down Proposition 8 because, given the circumstances of its enactment and the existing California domestic partnership laws, the evidence at trial demonstrated that Proposition 8 was enacted solely for, and had no effect other than, lessening the status and human dignity of gays and lesbians in California by denying them the right to use the word "marriage" to describe their legal domestic bond. All the other "justifications" for Prop. 8 fall away when you consider that even if Prop. 8 is allowed to stand, same-sex couples would have all the same rights as married couples anyway, other than the right to say that they are "married." So all the arguments about who makes better parents, etc., and about "promoting procreation," are totally irrelevant.

Thus, the Supreme Court's opinion could be a narrow ruling that applies only to states, like California, that have chosen to give same-sex partherships full marital rights, while undermining their status and human dignity by denying them the right to use the term "marriage" to apply to their otherwise-equivalent legal bond. The broader issue of whether same-sex marital rights can be denied same-sex couples could be left for another day.

Edited February 14, 2013 by Cobalt-70

[emarkp]

Yes, Prop 22 successfully inserted the "one man, one woman" definition of marriage into CA state law. But, It was eventually overturned as unconstitutional. Without the Prop 22 language in state law, California had marriage equality and gay couples began legally tying the knot. (Did you catch that? What changes to the law were required to permit gay marriage in California? None. Prop 22 attempted to prevent gay marriage by inserting a definition into state law.)

It required people to change the definition of the word "marriage". Prop 22 inserted the definition of the word for people who had apparently decided to call a tail a leg.

[rockpond]

It required people to change the definition of the word "marriage". Prop 22 inserted the definition of the word for people who had apparently decided to call a tail a leg.

Nope. People can continue to use whatever definition they would like (just as we LDS use a different definition than most). But yes, Prop 22 and Prop 8 both attempted to change the California state legal definition be restricting it to a "one man, one woman" definition.

And I would hope that the irony of our church supporting such a definition is apparent.

[cdowis]

I suppose you could try to make an arguemrnt that in one sense, you're semantically correct--technically, a gay man and a lesbian woman CAN legally marry each other. According to that logic, the terms "same-sex marriage" or "same-gender marriage" would be more accurate than "gay marriage."

Correct.

However, I think you'd be hard pressed to find many who support that as public policy that promotes the good of society OR the stability of the family unit (especially for children of such couples)

OK, and again, it then becomes an issue of whether it is a "reasonable" restriction, rather than a constitutional one. Denying a driver's license to a blind person is reasonable, and not a constitutional issue. That then makes it a state legislative issue.

Additionally, even using that approach regarding that one aspect, the immutable trait that is being discriminated against ISN'T sexual orientation, per se--but the immutable trait of gender..

Mixed vs single gender, which is not a protected class.

However, even then, again, I think you'd be hard pressed to find anyone who views that approach as a legally viable one, given the verbiage of the various State Supreme Courts' and Appelate Courts' rulings so far. The rulings have been awfully clear that so-called "traditional marriage" supporters really seem more concerned about prohibiting state recognition of homosexual behavior/relationships, so that whole type of argument seems mute.

I assume you mean "moot". Our discussion here is indeed moot, but entertaining.

Ironically, the fact that you are correct about that aspect signifies that your other point--that the analogy similar to race is unfounded--isn't correct. After all, gender is as immutable as race, and just as it was unjust for black people to have to sit at the back of the bus (or have separate drinking fountains, bathrooms, schools, and the like) based on the color of their skin, it's similarly unjust to deny civil marriage licenses to same-sex couples based on their gender (whether they're straight or gay same-sex couples). The classification of "separate but equal" for blacks wasn't truly equal when it came to racial segregation; nor is "separate but equal" truly equal for same-sex couples when it comes to civil unions/domestic partnerships/no legal recognition.

See my comment above on "mixed vs same gender". The example of bus restriction on blacks vs white does not apply to our discussion, since race and perhaps gender are protected classes, but not a relationship. But your post is thoughtful but mistaken.

Daniel2

Edited February 15, 2013 by cdowis

[cdowis]

"As long as they follow the law," meaning, as long as they enter a sham marriage with someone of the opposite sex. So likewise, perhaps you would agree that in the era of miscegenation laws, a black man had a perfect right to marry, as long as he "followed the law" by not marrying a white woman.

I agree that was a bad thing, like many other things, but the argument, "I cut off one arm, so I'll just cut off the leg as well" is not sound reasoning. The one does not lead to the other.

And likewise, I suppose you would support the constitutionality of a state law that were to ban opposite-sex marriages, so that a straight man would have every right to get a marriage license, as long as he "obeys the law" by marrying only another man.

I would oppose it because it contradicts the wisdom of tens of thousands of years of precedence, universally accepted in every culture. It would change the fundamental purpose and meaning of marriage within the context of society -- progeny and providing both a father and mother for their children. In my mind, the tag then wags the dog, and it would have to walk hindquarters forward.

That would not make sense to me.

Prop. 8 violates the Equal Protection clause of the 14th Amendment for two reasons: (1) it discriminates on the basis of sexual orientation by prohibiting gay or lesbian couples from marrying,

I guess if you keep repeating it, it will become magically a fact. But the courts have indeed made such silly decisions, such as the Dred Scott decision, legalizing the concept that slaves are the property of the slaveholders.

and (2) it took away a previously-existing right of gay and lesbian couples to use the term "marriage" to describe their otherwise-equivalent domestic partnership status, with the sole intent and effect of lessening the status and human dignity of gays and lesbians in California.

Of all the arguments for SSM, this vacuous argument is probably the silliest.

Of these two rationales, the second one is the most narrow, and it was the primary basis for the 9th circuit striking down Prop. 8. The Ninth Circuit struck down Proposition 8 because, given the circumstances of its enactment and the existing California domestic partnership laws, the evidence at trial demonstrated that Proposition 8 was enacted solely for, and had no effect other than, lessening the status and human dignity of gays and lesbians in California by denying them the right to use the word "marriage" to describe their legal domestic bond. All the other "justifications" for Prop. 8 fall away when you consider that even if Prop. 8 is allowed to stand, same-sex couples would have all the same rights as married couples anyway, other than the right to say that they are "married." So all the arguments about who makes better parents, etc., and about "promoting procreation," are totally irrelevant.

The issue is the instituion of marriage, to the purpose of marriage and its role in society. Not whether someone will have their feeling hurt. The fact that close blood relatives are forbidden to marry demonstrates that family and procreation is a fundamental aspect of marriage.

.

Edited February 15, 2013 by cdowis

[cdowis]

A question for SSM advocates. (just curious, will not debate your answer)

Will two blood brothers or sisters, father and son, be allowed to marry under SSM, but blood relatives still not allowed in mixed gender marriages?

Edited February 15, 2013 by cdowis

[rockpond]

A question for SSM advocates. (just curious, will not debate your answer)

Will two blood brothers or sisters, father and son, be allowed to marry under SSM, but blood relatives still not allowed in mixed gender marriages?

We have a number of states in this country (as well as a number of other countries) which have marriage equality for homosexual couples. I am not aware of that marriage equality having altered any existing laws about marrying blood relatives. But it is also not something I have studied.

[california boy]

OK, and again, it then becomes an issue of whether it is a "reasonable" restriction, rather than a constitutional one. Denying a driver's license to a blind person is reasonable, and not a constitutional issue. That then makes it a state legislative issue.

This is probably the strongest reason why prop 8 will be overturned. It is easy to explain why a blind man would physically harm others by being allowed to drive. It is impossible to explain why gay marriage would harm anyone. Many have tried. All have failed.