Plantiff Files Prop 8 Brief For Supreme Court

[california boy]

A couple of weeks ago, we had a thread on the churches brief for supporting Prop 8, . Here is the brief.

From Smac, this is what he summerized the brief to be about.

A few thoughts/observations:

1. This case addresses the constitutionality of a state constitutional amendment which retains the "one man, one woman" definition of marriage. Since the issue is based on the federal constitution, the impact of the Supreme Court's decision on this case as to all state statutes and constitutional amendments defining marriage will be significant.

2. The U.S. Supreme Court has previously rejected the claim that the Federal Constitution prohibits a State from embracing the traditional gendered definition of marriage. Believe it or not, this decision, Baker v. Nelson, was decided in 1972.

3. Marriage has long been defined as the association of two people based on the attributes of those people, including A) gender (a man and a woman), B) number (two people), C) age (this one varies by jurisdiction a bit), D) mental capacity, E) consent (no coerced marriages), F) consanguinity and G) species (no human / non-human marriages). If the Supreme Court decides that the constitution mandates tossing out one attribute as a defining element of marriage (gender), then it would seem all of the others can be constitutionally tossed out as well.

We are living in interesting times.

Thoughts?

-Smac

Today those that oppose Prop 8 filed their brief.

Here is the brief

Here is a link to a video of a summary of that brief.

Here are some of the legal arguments against Prop 8

The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships-their love-of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right.

The Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relationship in life.

From the District Courts ruling, the brief notes"

Marriage has evolved in its definition of marriage by traditional and unbalanced gender roles. Instead, it's defined by commitment, partnership, cohesive family units, and the liberty of spouses. The court also found numerous benefits available only through marriage" psychological benefits, legal protection, and longer life: These are also benefits that flow to couples' children. In short, the District Court found that Prop 8 violates the Equal Protection Clause because it creates the Equal Protection clause because it unconstitutionally burdens the exercise of the fundamental rights of marriage. And second it violates the equal protection clause because it creates an irrational classification on the basis of sexual orientation. And it does these things without serving any governmental interest.

From the Ninth Circuit of Appeals, the brief notes

The proponents couldn't explain how rescinding marriage supported any government interest. It too ruled that Prop 8 was unconstitutional.

This is their argument.

1. The Proponents shouldn't even be able to bring this case before the supreme court. They have never claimed to be injured by the overturning of Prop 8

2. Proposition 8 violates the Due Process Clause because it denies gay men and lesbians their fundamental right to marry without furthering a legitimate-let alone compelling- state interest."

3. It also violates the Equal Protection Clause because it creates an unequal status for gay and lesbian couples.

4. Prop 8 cannot be squared with the pursuit principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America

What do you think of the two arguments? What are their strengths and weaknesses. How do you think the justices will see the arguments. Let's try and stay within the perimeters of the briefs themselves rather than talking about blind drivers and slippery slope arguments that won't be used in court.

[kenporay]

Three times the people of california defined marriage...and each time those who oppose the outcome of democracy turn to facism.

You are new so I will give you a warning. Using words like fascism to describe those you disagree with is cause to remove you from the thread.

[cdowis]

These arguments have been discussed extensively in the other thread.

There is no validity to the argument that gays are discriminated against. They have exactly the same right to marriage as anyone else. They have the exactly same restrictions in that marriage contract as anyone else. It is the nature of law is to govern and restrict choices and behaviour.

It is a matter for state law, and not a constitutional issue.

[wenglund]

Clearly, there are a number of different ways to inanely argue for perversion. However, this is rather telling:

The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships-their love-of the respect, and dignity and social acceptance, that heterosexual marriages enjoy.

What is telling about this is that California has long provided civil unions for same-sex couples, which provides the same legal rights to them as married couples. So, the case against Prop 8 isn't about equal rights. Rather, it is about equal "social acceptance." It is about creating a new moral equivalency between homo sex and hetero sex--morally equating evil with good. As much as it has been denied in the past, this is evidently what the gay movement in general, and the SSM cases in particular, have been all about. And, in the minds of an increasing number of Americans, it has been successful.

At least the once hidden agenda is now coming out of the closet (pun intended). Gay advocates here and elsewhere no longer have to pretend that this is about equal rights. The can now be straightforward (pun intended).

Thanks, -Wade Englund-

[kenporay]

Love, respect, dignity and social acceptance are not accomplished via leglislation.

[cdowis]

The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships-their love-of the respect, and dignity and social acceptance, that heterosexual marriages enjoy.

An admission that it is not an issue of discrimination, but one of respect and social acceptance of the gay lifestyle.

This is clearly not a constitutional issue, but whether it is a "reasonable" restriction -- an issue that resides with the state legislature.

[california boy]

Clearly, there are a number of different ways to inanely argue for perversion. However, this is rather telling:

What is telling about this is that California has long provided civil unions for same-sex couples, which provides the same legal rights to them as married couples. So, the case against Prop 8 isn't about equal rights. Rather, it is about equal "social acceptance." It is about creating a new moral equivalency between homo sex and hetero sex--morally equating evil with good. As much as it has been denied in the past, this is evidently what the gay movement in general, and the SSM cases in particular, have been all about. And, in the minds of an increasing number of Americans, it has been successful.

At least the once hidden agenda is now coming out of the closet (pun intended). Gay advocates here and elsewhere no longer have to pretend that this is about equal rights. The can now be straightforward (pun intended).

Thanks, -Wade Englund-

There is certainly a pushback from the seperate but equal situation that civil partnerships vs marriage provides. Blacks could still ride on the bus, but because they were black they were not legually allowed to sit in the front. Hence they argued that this law impinged on their dignity and social acceptance. I think this is what the legal argument is addressing. So yes, it is about equal rights. Your response is a distortion of what legal rights actually means at least to those supporting gay marriage. Both the district and federal courts disagreed with your opinion. It is a major reason why they ruled against Prop 8. The Prop 8 defenders will have to make the case that separate but equal is ok under US law. Do you think the Supreme Court will go along with that legal argument?

It is about creating a new moral equivalency between homo sex and hetero sex--morally equating evil with good

While this is the Mormon Churches view on homosexual behavior, the majority of Americans do not have this religious view of homosexuality. This is strictly a religious view of homosexuality. I am not sure how successful the defense will be in convincing the court that they should have a religious view of homosexuality. I don't think it will be a consideration on how this case is decided.

[california boy]

These arguments have been discussed extensively in the other thread.

There is no validity to the argument that gays are discriminated against. They have exactly the same right to marriage as anyone else. They have the exactly same restrictions in that marriage contract as anyone else. It is the nature of law is to govern and restrict choices and behaviour.

It is a matter for state law, and not a constitutional issue.

This seems to be a popular view of many that are against gay marriage. Oddily enough, it was not an argument used in the defenses brief they presented to the court. Do you have an opinion why they left this concept out of their arguments?

[california boy]

Three times the people of california defined marriage...and each time those who oppose the outcome of democracy turn to facism.

Can you tell me wny you define Supreme Court rulings as facism? Do you not believe that one of the cornerstones of the courts is to uphold the civil rights of the minority? You may disagree that this is a civil rights issue, but the courts ruled that it was a civil rights issue.

[cdowis]

This seems to be a popular view of many that are against gay marriage. Oddily enough, it was not an argument used in the defenses brief they presented to the court. Do you have an opinion why they left this concept out of their arguments?

They did not have someone like myself on the team. Like a political pundit I can safely sit on the sidelines and give my thoughts without the pressure of being out on the battlefield.

Basically they are pursuing a potentially losing strategy. Perhaps panic has set in, but I do not have any inside information.

[webbles]

Correct me if I'm wrong but from what I read of the District's ruling on Prop 8, it was extremely limited. Basically, since the California Supreme Court ruled that same-sex marriage should be allowed, Prop 8 was removing a right that the state had given and so it was unconstitutional by the Due Process clause. But it only affects California because its supreme court had ruled before Prop 8 was voted on. It sounds like the plaintiffs are trying to extend that ruling to affect the whole country which I don't think is legitimate.

I sometimes wonder if Proposition 8 had been before Proposition 22 how that would have effected all this. It was because of Proposition 22 that the California Supreme Court made its ruling. And because of that ruling, Prop 8 was voted on. And because of both the ruling, Prop 8 was deemed unconstitutional by the district court.

[kenporay]

I ont know yet how quote a post on my nook...

I consider the courts job to rule whether a law is constitutional. Not to create a new law. Calif code was changed to explictly state what the intent already was and was known as. That started people suing and having it put before citizens for votes.

Democracy is one thing. Facism is strict govt control by a few over the many.

[california boy]

Correct me if I'm wrong but from what I read of the District's ruling on Prop 8, it was extremely limited. Basically, since the California Supreme Court ruled that same-sex marriage should be allowed, Prop 8 was removing a right that the state had given and so it was unconstitutional by the Due Process clause. But it only affects California because its supreme court had ruled before Prop 8 was voted on. It sounds like the plaintiffs are trying to extend that ruling to affect the whole country which I don't think is legitimate.

I sometimes wonder if Proposition 8 had been before Proposition 22 how that would have effected all this. It was because of Proposition 22 that the California Supreme Court made its ruling. And because of that ruling, Prop 8 was voted on. And because of both the ruling, Prop 8 was deemed unconstitutional by the district court.

You are somewhat right. As I understand it, the District Court ruling was quite broad. When this case went to the Federal Court their ruling against Prop 8 was much more narrow and for somewhat different reasons. The Supreme Court can rule on Prop 8 a number of ways. One would be to just rule on Prop 8 as it effects California. This could simply be on the basis of standing. In that case gay marriage would once again be valid in California. If they rule against Prop 8 for different reasons like equal protection, then gay marriage may be legal throughout the U. S. since that is a federal constitutional law. Most think that is less likely, given the conservative nature of this particular court. for that broad of ruling. Of course the third option might be that the Supreme Court rules in favor of Prop 8 which would mean that this issue would probably be on the California ballot next time around and likely would pass anyway.

[california boy]

I ont know yet how quote a post on my nook...

I consider the courts job to rule whether a law is constitutional. Not to create a new law. Calif code was changed to explictly state what the intent already was and was known as. That started people suing and having it put before citizens for votes.

Democracy is one thing. Facism is strict govt control by a few over the many.

Thanks for your answer. Do you think the government is acting facist by controling whether gays can enter into marriage or not?

I was hoping you would address the second half of the question as well.

Do you not believe that one of the cornerstones of the courts is to uphold the civil rights of the minority? You may disagree that this is a civil rights issue, but the courts ruled that it was a civil rights issue.

[Ron Beron]

2. Proposition 8 violates the Due Process Clause because it denies gay men and lesbians their fundamental right to marry without furthering a legitimate-let alone compelling- state interest."

It might be argued that marriage is not a legal function of the state, but a social function and therefore, outside their purview. The state can only act on the legal aspects of a marriage which in California they have.

[canard78]

Three times the people of california defined marriage...and each time those who oppose the outcome of democracy turn to facism.

yawn

[EllenMaksoud]

Would someone give me a quick update about what Prop 8 was? I get from LDS sources that we did not wish to be marrying same sex couples in our churches. Is that the issue? I have made my own personal choices, so I simply do not wish anyone force others to make ones they do not wish to make. Right now, I am thinking if these people want civil contracts for insurance and other purposes, I suppose they could have them.

I won't ever marry again, having done it once, I've had enough.

[wenglund]

There is certainly a pushback from the seperate but equal situation that civil partnerships vs marriage provides. Blacks could still ride on the bus, but because they were black they were not legually allowed to sit in the front. Hence they argued that this law impinged on their dignity and social acceptance.

So, now the civil rights movement wasn't about civil rights, but about dignity and social acceptance?

Really, is their no extent to which even you would think the comparison is absurd? Evidently not.

The thing is, you don't have to keep plying the absurd comparisons. There have been enough people snookered by the propaganda that you will likely get your way. You can now be open and honest and come out of the political closet and stop pretending this is about equal rights and be honest about your real intents. Some people might resent being manipulated, but why would you care since you got what you want and it likely can't be taken away, and this all wasn't about doing what is right and best for all parties anyway. Narcissism has gained sway and evil behavior has become good in in the eyes of the majority. Time to celebrate.

Thanks, -Wade Englund-

[Stargazer]

Would someone give me a quick update about what Prop 8 was? I get from LDS sources that we did not wish to be marrying same sex couples in our churches. Is that the issue? I have made my own personal choices, so I simply do not wish anyone force others to make ones they do not wish to make. Right now, I am thinking if these people want civil contracts for insurance and other purposes, I suppose they could have them.

I won't ever marry again, having done it once, I've had enough.

Proposition 8 in California set marriage to be strictly between one man / one woman. The California supreme court had previously created a "right" for people to marry someone of the same sex, so the ooponents of Prop 8 are attempting to argue that the people of California are violating a constitutionally protected right. Now the US Supreme Court will decide if Prop 8 can stand, or must be declared unconsititutional.

At least that is my understanding.

[Stargazer]

So, now the civil rights movement wasn't about civil rights, but about dignity and social acceptance?

Really, is their no extent to which even you would think the comparison is absurd? Evidently not.

The thing is, you don't have to keep plying the absurd comparisons. There have been enough people snookered by the propaganda that you will likely get your way. You can now be open and honest and come out of the political closet and stop pretending this is about equal rights and be honest about your real intents. Some people might resent being manipulated, but why would you care since you got what you want and it likely can't be taken away, and this all wasn't about doing what is right and best for all parties anyway. Narcissism has gained sway and evil behavior has become good in in the eyes of the majority. Time to celebrate.

Thanks, -Wade Englund-

Well, it might work out just fine in the end. This whole thing is going to be used as a stalking horse to bring back legal polygamy, and that might not be a bad thing. I've rethought it, and I think I could use two more wives, so I can have two more women telling me how to run my life. One is clearly insufficient, given the current results. If my wife had two more sister-wives, they could tag-team me into becoming the kind of husband they deserve and want.

Or would that be "nag-team"?

[EllenMaksoud]

Proposition 8 in California set marriage to be strictly between one man / one woman. The California supreme court had previously created a "right" for people to marry someone of the same sex, so the ooponents of Prop 8 are attempting to argue that the people of California are violating a constitutionally protected right. Now the US Supreme Court will decide if Prop 8 can stand, or must be declared unconsititutional.

At least that is my understanding.

I'm torn, and thankful that I will have no role in the controversy. One one hand if two women want to live together and enjoy rights to insurance and such, I do not feel like I have the authority to prohibit that. In my opinion, Heavenly Father does not need my help. However, it just seems that those same two women doing anything in one of our Temples would just be repulsive. Of course, some of my feelings about this issue are a product of my own experiences.

While I am opposed to abortion, there were times in my life when I wished I had been aborted. I think the LDS church does a better job of administering some of these things than others I have experience.

[EllenMaksoud]

Well, it might work out just fine in the end. This whole thing is going to be used as a stalking horse to bring back legal polygamy, and that might not be a bad thing. I've rethought it, and I think I could use two more wives, so I can have two more women telling me how to run my life. One is clearly insufficient, given the current results. If my wife had two more sister-wives, they could tag-team me into becoming the kind of husband they deserve and want.

Or would that be "nag-team"?

LOL, Some of us never got to nag, we were ordered.

I know of a couple families where polygamy is not practiced but the family is extended to 4 generations in the same house out of economic necessity. I could see a "sort" of polygamous arrangement practiced where a woman with tiny children would live with another family, though I hae never met another woman who would be agreeable to sharing her husband with anyone.

While Muslim I met two different women who were 2nd or 3rd wives and neither liked it. However, in the Qur'an the husbands think they are given the right. And, on careful reading of the correct section of the Qur'an, you find that Allah's SWT first choice is for the man to have one wife. The weaker men who can not control themselves may have up to 4.

None of the Muslim men I knew seemed to realize what a put down before Allah SWT more than one wife was. LOL

[wenglund]

On the one hand if two women want to live together and enjoy rights to insurance and such, I do not feel like I have the authority to prohibit that.

They have had that right in California for years by way of civil unions. Again, this isn't what the Prop 8 controversy was about. As previously indicated, the issue wasn't about civil rights, but about legal definitions. The gays weren't satisfied with having all the rights. They wanted to bastardize the legal definition of marriage to include same-sex couples, and Prop 8 prevented that from happening,. The California Supreme Court couldn't legitimately over turn it (since Prop * amended the state's constitution), and so gay advocates took it to the federal courts where it has been twice over-turned for differing reasons, and is now on appeal to the SCOTUS.

I realize that you may have been told differently, but this is the demonstrable truth.

Thanks, -Wade Englund-

[EllenMaksoud]

They have had that right in California for years by way of civil unions. Again, that isn't what the prop * controversy was about. The issue wasn't about civil rights, but about legal definitions. The gays weren't satisfied with having all the rights but having their relationships call "civil unions." They wanted to bastardize the legal definition of marriage to include same-sex couples, and Prop 8 prevented that from happening.

I realize that you may have been told differently, but this is the demonstrable truth.

Thanks, -Wade Englund-

I've had some rather close associations in the GBLT community as some incorrectly think I am part of it. In my opinion, some of them have massive persecution complexes. I have often wondered if subconsciously some believe that if they can get everything legal then their consciences will trouble them less.

I can't be to hard on any of them because of how harshly treated I was by people who thought they knew how to run my life.

[wenglund]

I've had some rather close associations in the GBLT community as some incorrectly think I am part of it. In my opinion, some of them have massive persecution complexes. I have often wondered if subconsciously some believe that if they can get everything legal then their consciences will trouble them less.

I can't be to hard on any of them because of how harshly treated I was by people who thought they knew how to run my life.

Yes...some people think the government in general, and the courts in particular, are the solution to their problem (emotional, social, and otherwise). Given enough time, they may come to learn differently. However, by then it may be too late. We, as a society, seem far more concerned with people's feeling rather than doing what is right and what works best for one and all. What can you do?

Thanks, -Wade Englund-