Plantiff Files Prop 8 Brief For Supreme Court

[rockpond]

The question itself is about potential harms. To quote again (with my emphasis added): "never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry"

You need to reread Ed's article, where he points out the difference between the brief and the actual question the judge asked.

Agreed. But again, they were asked about potential harms. Correlation is not causation, but it does give quite a bit of information, and sufficient cause to stop and wait.

I don't see "potential" in the question. Would is a form of the word "will". Would is not a form of the word "could" (which expresses a conditional possibility).

[Zeta-Flux]

rockpond,

This is what I'm hearing from you. The Plaintiffs, in their brief, are faulting the Proponents for not proving that the potential harms they've listed must and will become reality. Is that correct? In other words, is it the case that you don't see them faulting the Proponents for coming up with possible harms, just that they haven't proven those harms must and will occur?

[rockpond]

rockpond,

This is what I'm hearing from you. The Plaintiffs, in their brief, are faulting the Proponents for not proving that the potential harms they've listed must and will become reality. Is that correct? In other words, is it the case that you don't see them faulting the Proponents for coming up with possible harms, just that they haven't proven those harms must and will occur?

No, I don't think it's possible to prove what will come to pass. I do, however, think that the Proponents failed to show reasonable cause for why their speculative outcomes could occur. That is why I indicated that I don't see the 9 points as being myths or distortions... just differing viewpoints.

I recognize and accept that Prop 8 Proponents generally believe that there will likely be harm done if marriage equality becomes the law of the land. I don't believe it is a distortion to respond to that by saying that those Proponents have not identified what the harm is other than speculation.

Likewise, I wouldn't say that a Prop 8 Proponent has put forward a "myth" nor a "distortion" by suggesting that same gender marriage does not fall under the due process and equal protection clause of the constitution. I firmly believe that it does but I recognize the opposite point of view is not someone offering up a myth or distortion.

I actually think that the two articles (with the 9 points) that you linked are good, quality responses (despite my personal disagreement). Ed Whalen has therein provided some of the best responses I've read. I'm just saying that I feel it would have been more appropriate to have not referred to the 9 points as myths and distortions.

[Zeta-Flux]

No, I don't think it's possible to prove what will come to pass. I do, however, think that the Proponents failed to show reasonable cause for why their speculative outcomes could occur. That is why I indicated that I don't see the 9 points as being myths or distortions... just differing viewpoints.

Thank you for clarifying. I think your reading of that single sentence, as given here, is reasonable and rational. To check if it makes sense in context of the surrounding material, I found a link to the brief. (The one on Ed's sight doesn't seem to be correct.)

The sentence before reads: "Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right." Besides being a questing-begging sentence ["Your honor, the accused hasn't put forth any justification for having beaten his wife!"] it leads the reader to the interpretation that the Proponents haven't presented any argument of rationality at all.

I actually think that the two articles (with the 9 points) that you linked are good, quality responses (despite my personal disagreement). Ed Whalen has therein provided some of the best responses I've read. I'm just saying that I feel it would have been more appropriate to have not referred to the 9 points as myths and distortions.

If you'd like, we can go through them a little more thoroughly.

[rockpond]

Thank you for clarifying. I think your reading of that single sentence, as given here, is reasonable and rational. To check if it makes sense in context of the surrounding material, I found a link to the brief. (The one on Ed's sight doesn't seem to be correct.)

The sentence before reads: "Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right." Besides being a questing-begging sentence ["Your honor, the accused hasn't put forth any justification for having beaten his wife!"] it leads the reader to the interpretation that the Proponents haven't presented any argument of rationality at all.

If you'd like, we can go through them a little more thoroughly.

I think the preceding sentence you just quoted has definitely got some spin on it. But I also would argue that it accurately represents their position: they don't feel that the Prop 8 Proponents have put forward any rational arguments. To be clear, though, I wouldn't defend that sentence as being more than their opinion. It is not a factually based statement.

I think we see those kinds of statements from both sides... even in amicus briefs. Wade Englund and I have discussed this topic on occasion and he has regularly told me that my argument amounts to "pop culture inanity". I disagree but that's his position and one that he faithfully defends.

If you would like to go through the 9 points, I'm game. But let's take one at a time... demands of family, work, and church make it difficult for me to keep up with lengthy posts.

[Zeta-Flux]

rockpond,

I think the preceding sentence you just quoted has definitely got some spin on it. But I also would argue that it accurately represents their position: they don't feel that the Prop 8 Proponents have put forward any rational arguments. To be clear, though, I wouldn't defend that sentence as being more than their opinion. It is not a factually based statement.

That just doesn't cut it. This is their official brief to the Supreme Court. They cannot make factual statements (and yes, what they said is a statement of fact even if [and I agree with you here] it is colored by their opinion) which are false, without seriously compromising their credibility.

Further, they didn't say in that sentence that the Proponents haven't set forth any rational justifications. They said the Proponents haven't put forth any justifications, rational or not (emphasis theirs!). Yet the Proponents have put forth justifications for discriminating against same-sex couples. It then appears that the Plaintiffs just don't want to have to show these reasons are (as they suppose) irrational. More on this is contained in Ed's myths 10-14.

So, to sum up, I agree with you that people can have honest differences. But this doesn't mean we intentionally misrepresent the record. Unfortunately, it seems to me that the Plaintiffs' position is so weak that it is often the case that they cannot even try to address the actual arguments the Proponents have raised. Rather, they seek to portray the Proponents as idiots who cannot even muster any justification at all, let alone a rational one. If, as you suggest, they were merely trying to say "the Proponents justifications are irrational" they should have just said that. Instead, they have clouded the issue with their overreaching statements.

If you would like to go through the 9 points, I'm game. But let's take one at a time... demands of family, work, and church make it difficult for me to keep up with lengthy posts.

I think that's a good idea. Pick one and we'll talk about it. But pick one you believe does not represent a clear distortion of the record of the case.

[rockpond]

rockpond,

That just doesn't cut it. This is their official brief to the Supreme Court. They cannot make factual statements (and yes, what they said is a statement of fact even if [and I agree with you here] it is colored by their opinion) which are false, without seriously compromising their credibility.

Well, then I guess that the LDS Church has seriously compromised its credibility by the standard you just put forth. I submit for your consideration, these two quotes taken from the brief filed on behalf of our church by our lead counsel:

"Tens of millions of Americans are represented in the diverse group of faith communities that join in this brief. Despite their theological differences, these communities are united in declaring that the traditional institution of marriage is essential to the welfare of the American family and society. This brief is submitted out of a shared conviction..."

"Yet for us and our members, traditional marriage is also indispensable to the material welfare of children, families, society, and our republican form of government."

Those two statements are factually incorrect as there are a significant number of church members who are not united in that same conviction. Are you willing to declare this to also be a myth or distortion?

So, to sum up, I agree with you that people can have honest differences. But this doesn't mean we intentionally misrepresent the record. Unfortunately, it seems to me that the Plaintiffs' position is so weak that it is often the case that they cannot even try to address the actual arguments the Proponents have raised. Rather, they seek to portray the Proponents as idiots who cannot even muster any justification at all, let alone a rational one. If, as you suggest, they were merely trying to say "the Proponents justifications are irrational" they should have just said that. Instead, they have clouded the issue with their overreaching statements.

Okay, so they seek to portray the Proponents as "idiots" but the Proponents seek to portray them as liars who intentionally put forth myths in order to distort the true facts. And round and round we go. As I've demonstrated above -- our own church filed a brief with overreaching statements.

You just claimed that the anti-Prop 8 position is so weak that they "cannot even try to address the actual arguments the Proponents have raised". That is also an overreaching statement, and one that might also be called a distortion. Here for example is a very well thought out counter to the common arguments in favor of Prop 8 which happens to be written by an LDS attorney: http://www.nomorestrangers.org/prop-8-in-the-supreme-court-the-church-weighs-in/

(It's long... you may wish to scan down to the section header: "The Church's Amicus Brief" and begin there.)

I think that's a good idea. Pick one and we'll talk about it. But pick one you believe does not represent a clear distortion of the record of the case.

Alright, let me go through them again. But let me ask... are we going to discuss the merits of the individual argument or are we just going to discuss whether or not one side was distorting the other side's statements/positions? Because I don't really have much interest in the latter. As I've noted above, by the standards you are applying -- both sides are "distorting".

[Zeta-Flux]

Well, then I guess that the LDS Church has seriously compromised its credibility by the standard you just put forth. I submit for your consideration, these two quotes taken from the brief filed on behalf of our church by our lead counsel:

"Tens of millions of Americans are represented in the diverse group of faith communities that join in this brief. Despite their theological differences, these communities are united in declaring that the traditional institution of marriage is essential to the welfare of the American family and society. This brief is submitted out of a shared conviction..."

"Yet for us and our members, traditional marriage is also indispensable to the material welfare of children, families, society, and our republican form of government."

Those two statements are factually incorrect as there are a significant number of church members who are not united in that same conviction. Are you willing to declare this to also be a myth or distortion?

I think we read those sentences slightly differently. I don't read the "unity" as speaking of the faith communities being without dissent. I read it as speaking of the unity among the different faith communities (who are not united in theology), who are represented in the brief. Those "in the diverse group of faith communities that join in this brief" (emphasis added) are indeed united.

Okay, so they seek to portray the Proponents as "idiots" but the Proponents seek to portray them as liars who intentionally put forth myths in order to distort the true facts. And round and round we go. As I've demonstrated above -- our own church filed a brief with overreaching statements.

You just claimed that the anti-Prop 8 position is so weak that they "cannot even try to address the actual arguments the Proponents have raised". That is also an overreaching statement, and one that might also be called a distortion. Here for example is a very well thought out counter to the common arguments in favor of Prop 8 which happens to be written by an LDS attorney: http://www.nomorestrangers.org/prop-8-in-the-supreme-court-the-church-weighs-in/

(It's long... you may wish to scan down to the section header: "The Church's Amicus Brief" and begin there.)

rockpond, I think there is a slight disconnect here between us. When I say "it seems to me that...." this is not in any way a distortion or myth. It is indeed what I believe. That belief may be foolish. It may be wrongheaded. It may be downright bigoted (hopefully not!). But, unless I'm being dishonest, it is neither a distortion nor a myth.

On the other hand, when a brief is filed with the Supreme Court, claiming that their opponents have not made "any justifications" for their position (emphasis theirs), this is false statement of fact. It is a distortion of the record on hand, and can be refuted simply by citing some of the justifications that the opposition used. It is no longer a mere matter of opinion.

If we cannot agree on this point, or at least delve a little more deeply into why we don't seem to be seeing eye to eye on it, I'm not sure further conversation will help.

Alright, let me go through them again. But let me ask... are we going to discuss the merits of the individual argument or are we just going to discuss whether or not one side was distorting the other side's statements/positions? Because I don't really have much interest in the latter. I know I brought up the point that the 9 points are not, IMO, myths/distortions but I'm not that heavily invested in that statement. It was just a remark that I made suggesting that while Whalen did a good job with that article, I think he revealed a lack of objectivity by using the terms myths/distortions.

That seems fair to me. Let's talk about the merits. I'll start with point #1, unless another point strikes you more.

Does it have merit to interpret the previous rulings of the Supreme Court as to speak of marriage as an institution outside of an opposite-gender pairing institution? I think Ed did a fairly good job of putting some of the quotations in context. I suppose the strongest argument I would make trying to support that position would be that the Supreme Court was speaking of the current social construct, and thus we should interpret what they said as speaking to our day and how we currently view marriage, which does have a meaning outside the context of opposite-gender pairing.

The counter-argument here is that some of the quotations being used in this (and other) ways, seem to clearly refer to the procreative nature of the marriage relationship. Something would have to be said about those.

[rockpond]

I think we read those sentences slightly differently. I don't read the "unity" as speaking of the faith communities being without dissent. I read it as speaking of the unity among the different faith communities (who are not united in theology), who are represented in the brief. Those "in the diverse group of faith communities that join in this brief" (emphasis added) are indeed united.

rockpond, I think there is a slight disconnect here between us. When I say "it seems to me that...." this is not in any way a distortion or myth. It is indeed what I believe. That belief may be foolish. It may be wrongheaded. It may be downright bigoted (hopefully not!). But, unless I'm being dishonest, it is neither a distortion nor a myth.

On the other hand, when a brief is filed with the Supreme Court, claiming that their opponents have not made "any justifications" for their position (emphasis theirs), this is false statement of fact. It is a distortion of the record on hand, and can be refuted simply by citing some of the justifications that the opposition used. It is no longer a mere matter of opinion.

If we cannot agree on this point, or at least delve a little more deeply into why we don't seem to be seeing eye to eye on it, I'm not sure further conversation will help.

That seems fair to me. Let's talk about the merits. I'll start with point #1, unless another point strikes you more.

Does it have merit to interpret the previous rulings of the Supreme Court as to speak of marriage as an institution outside of an opposite-gender pairing institution? I think Ed did a fairly good job of putting some of the quotations in context. I suppose the strongest argument I would make trying to support that position would be that the Supreme Court was speaking of the current social construct, and thus we should interpret what they said as speaking to our day and how we currently view marriage, which does have a meaning outside the context of opposite-gender pairing.

The counter-argument here is that some of the quotations being used in this (and other) ways, seem to clearly refer to the procreative nature of the marriage relationship. Something would have to be said about those.

But, see, you are applying qualifiers to what was written in the brief. Unity is a lack of dissent. There is dissent among those faith communities and they are saying that there is not. You might be able to qualify it to make it true... but, in the same way, you can qualify the statement that Prop 8 Proponents have not put forward any justifications. If you are going to call one a distortion than you must call the other a distortion as well. I'm not willing to call either of them distortions as an amicus brief is an argument put forward to convince the court of one's position.

Regarding point #1: I do think that Whalen did a good job of putting those quotes in context. And I think it is fair to say that the court, in those past rulings, had male-female relationships in mind. Same gender marriages were not something that had been raised as a social issue and not likely on their radar.

However, I also think it is fair to say that those rulings established marriage (and in some instances, marriage to the person of one's choosing) as a fundamental civil right.

So, I agree with Whalen that SCOTUS has not yet ruled on marriage as an institution "outside of an opposite-gender pairing" but I do think that past SCOTUS rulings have built a foundation for marriage as a civil right. This leads to it being protected under the 14th amendment but that, of course, is the decision they get to face this summer.

[Zeta-Flux]

Minor things first.

But, see, you are applying qualifiers to what was written in the brief.

I agree that I'm applying qualifiers to what was written in the brief. In the case at hand, however, those qualifiers actually occur in the written brief. The words themselves say "in the diverse group of faith communities that join in this brief" (emphasis added). Thus those who belong to the faith communities, but don't join in the brief, seem to be explicitly excluded. In context, it appears to me that they emphasize unity as a point in contrast to their theological differences.

Major thing second

Regarding point #1: I do think that Whalen did a good job of putting those quotes in context. And I think it is fair to say that the court, in those past rulings, had male-female relationships in mind. Same gender marriages were not something that had been raised as a social issue and not likely on their radar.

However, I also think it is fair to say that those rulings established marriage (and in some instances, marriage to the person of one's choosing) as a fundamental civil right.

So, I agree with Whalen that SCOTUS has not yet ruled on marriage as an institution "outside of an opposite-gender pairing" but I do think that past SCOTUS rulings have built a foundation for marriage as a civil right. This leads to it being protected under the 14th amendment but that, of course, is the decision they get to face this summer.

I agree with all of this, and I think that the Proponents of Prop 8 also agree. The disagreement apparently comes when the Plaintiffs try to define this civil right in terms apart from the opposite-gendered definition.

[rockpond]

Minor things first.

I agree that I'm applying qualifiers to what was written in the brief. In the case at hand, however, those qualifiers actually occur in the written brief. The words themselves say "in the diverse group of faith communities that join in this brief" (emphasis added). Thus those who belong to the faith communities, but don't join in the brief, seem to be explicitly excluded. In context, it appears to me that they emphasize unity as a point in contrast to their theological differences.

Major thing second

I agree with all of this, and I think that the Proponents of Prop 8 also agree. The disagreement apparently comes when the Plaintiffs try to define this civil right in terms apart from the opposite-gendered definition.

But by putting the name of my faith community on the brief they are saying that my faith community is in unity both within and with other communities and that it shares in the conviction that Prop 8 should be upheld. How can our church be in unity with other churches if we are not in unity within our own church membership?

The divergent faith communities named in the brief are not in unity. No matter how you slice it.

Back to the major point...

Following up on your final sentence -- do we then agree that one side sees marriage as a civil right for opposite gender couples only while the other side sees it as a civil right for all couples?

[Zeta-Flux]

The divergent faith communities named in the brief are not in unity. No matter how you slice it.

I disagree.

Following up on your final sentence -- do we then agree that one side sees marriage as a civil right for opposite gender couples only while the other side sees it as a civil right for all couples?

Yes, with the caveat that many on the SSM side don't see it as necessarily limited to couples.

[rockpond]

I disagree.

So let's say two families decide to go out to dinner together. Half the members of one family want to get pizza, the other half want Chinese. But the Moms in each family talk and decide to take everyone out to pizza. Are the two families in unity?

Yes, with the caveat that many on the SSM side don't see it as necessarily limited to couples.

There are "many" SSM supporters out there who also advocate for polygamy?

[Zeta-Flux]

There are "many" SSM supporters out there who also advocate for polygamy?

Nearly every advocate I've communicated with, from the U.S., who supports SSM also has admitted to me that their reasons for supporting it similarly lead them to support all forms of polyamorous relations. My understanding is that they support SSM because, fundamentally, they feel that same-sex attraction is a fundamental aspect of a person's character, and thus deserves the protections of the law. They then often agree with me when I point out that it also seems a fundamental aspect of some humans to desire multiple partners. Indeed, some claim to be bisexual and want both genders for partners; is it fair to discriminate against them desiring both types of partners? Doesn't monogamy force them to deny a part of themselves?

[rockpond]

Nearly every advocate I've communicated with, from the U.S., who supports SSM also has admitted to me that their reasons for supporting it similarly lead them to support all forms of polyamorous relations. My understanding is that they support SSM because, fundamentally, they feel that same-sex attraction is a fundamental aspect of a person's character, and thus deserves the protections of the law. They then often agree with me when I point out that it also seems a fundamental aspect of some humans to desire multiple partners. Indeed, some claim to be bisexual and want both genders for partners; is it fair to discriminate against them desiring both types of partners? Doesn't monogamy force them to deny a part of themselves?

Well you can count me among the marriage equality advocates who fails to see such a connection.

For me, changing the number of people in a marriage is fundamentally different than changing the genders. Allowing more than two people in a marriage would require the laws to be rewritten. For example, how do spousal inheritance rights work when there are multiple spouses? Joint tax filing?

But that said, are you a member of the church? And if so, why would you be opposed to legalizing polygamy?

And if you want to go down the slippery slope... I'll ask this: if it is okay to deny the civil right of marriage based on gender, what other civil rights can also be similarly denied?

[Zeta-Flux]

Well you can count me among the marriage equality advocates who fails to see such a connection.

Let's explore this. What, in your opinion, justifies denying people who are naturally attracted to multiple spouses the chance to legally join with those partners? Then, after you've thought of such reasons, explain why they don't apply to same-sex marriages.

For me, changing the number of people in a marriage is fundamentally different than changing the genders.

Why is that argument valid for you, but not valid for traditional marriage proponents? I'm sure you've heard them say the same thing.

Allowing more than two people in a marriage would require the laws to be rewritten.

Ditto with same-gender marriages.

For example, how do spousal inheritance rights work when there are multiple spouses? Joint tax filing?

The same as with just two spouses. The ones who continue to live remain married, and receive all the inheriance jointly.

But that said, are you a member of the church? And if so, why would you be opposed to legalizing polygamy?

I am indeed a member of the church. And I am opposed to legalizing polygamy. And, I agree with you that requires an explanation to answer the call of hypocrisy. We can address that if you like, but it seems a bit off the topic of this thread.

And if you want to go down the slippery slope... I'll ask this: if it is okay to deny the civil right of marriage based on gender, what other civil rights can also be similarly denied?

My position is that I don't deny any civil right of marriage based on the gender of a participant. I am for denying it to a couple based on whether they are of the same gender. The reason is simple enough, but I'll look at the Proponents brief to find some quotations which put it better than I could. I have to head to work now, so it may be a while before I can post again.

[rockpond]

Let's explore this. What, in your opinion, justifies denying people who are naturally attracted to multiple spouses the chance to legally join with those partners? Then, after you've thought of such reasons, explain why they don't apply to same-sex marriages.

I said that I fail to see the connection between legalizing SSM and legalizing Polygamy. Two entirely different arguments, IMO. But I would not be opposed to legalizing polygamy. Especially for religious purposes.

Why is that argument valid for you, but not valid for traditional marriage proponents? I'm sure you've heard them say the same thing.

Because, as noted below, the changes required to the law itself.

Ditto with same-gender marriages.

Actually, it is those who wish to prohibit same gender marriages who are re-writing laws. Case in point: Prop 8. Also Federal DOMA.

The same as with just two spouses. The ones who continue to live remain married, and receive all the inheriance jointly.

I don't think it's quite that simple. If two women are married to the same man but not to each other, and if one of those women has children while the other worked outside of the home, how is the estate split? How is custody granted? Do those two women retain any marital connection to each other?

I am indeed a member of the church. And I am opposed to legalizing polygamy. And, I agree with you that requires an explanation to answer the call of hypocrisy. We can address that if you like, but it seems a bit off the topic of this thread.

I am (generally) interested in how fellow members justify being opposed to legalized polygamy but, you're right, it would derail.

My position is that I don't deny any civil right of marriage based on the gender of a participant. I am for denying it to a couple based on whether they are of the same gender.

I don't think that you position in this regard is unique. But I struggle to see the distinction.

The reason is simple enough, but I'll look at the Proponents brief to find some quotations which put it better than I could. I have to head to work now, so it may be a while before I can post again.

Fair enough. Take your time, we all have more important things to do than this board.

[Zeta-Flux]

First, a few quotes from the Proponents brief:

"By reaffirming the traditional definition of marriage, the People of California have not even discouraged, let alone criminalized, any private behavior or personal relationship. Rather, California has simply reserved a special form of recognition and support to those relationships that have long been thought to uniquely further vital societal interests. And it has done so while at the same time providing substantial recognition and support to same-sex couples and their families through expansive domestic partnership laws. This Court has long recognized that “[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.”"

"More important still, the institution of marriage has also always been understood to owe its very existence to society’s vital interests in responsibly creating and nurturing the next generation. As this Court has aptly put it, marriage is “fundamental to our very existence and survival.” Loving, 388 U.S. at 12. Marriage is thus inextricably linked to the objective biological fact that opposite-sex couples, and only such couples, are capable of creating new life together and, therefore, are capable of furthering, or threatening, society’s existential interests in responsible procreation and childrearing. That fact alone is dispositive of Respondents’ equal protection claim, for this Court’s precedents make clear that a classification will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 383 (1974). Indeed, it was only by “undervalu[ing] the State’s interest,” Planned Parenthood v. Casey, 505 U.S. 833, 873, 875 (1992) (plurality), in the traditional definition and purposes of marriage that the Ninth Circuit and the district court were able to conclude that Proposition 8 is unconstitutional."

--------------------

I said that I fail to see the connection between legalizing SSM and legalizing Polygamy. Two entirely different arguments, IMO. But I would not be opposed to legalizing polygamy. Especially for religious purposes.

Let me then repeat the argument. Same-sex marriage proponents are not satisfied with limiting marriage to opposite-gendered relationships, because it prevents them from marrying the one they are naturally attracted to. It unfairly makes them choose to deny a part of themselves if they want to participate. Polygamist proponents are not satisfied with limiting marriage to couples, because it prevents them from marrying others they are naturally attracted to. It unfairly makes them choose to deny a part of themselves if they want to participate.

It isn't a "religious" purpose. It is the same argument being employed by the SSM advocates.

Because, as noted below, the changes required to the law itself.

....

Actually, it is those who wish to prohibit same gender marriages who are re-writing laws. Case in point: Prop 8. Also Federal DOMA.

Your second point refutes your first point, and supports my comment. When the early Mormons started practicing polygamy, those who wished to prohibit polygamy were the ones re-writing laws. It appears to me that you still have not pointed out a significant difference between the two cases.

I don't think it's quite that simple. If two women are married to the same man but not to each other, and if one of those women has children while the other worked outside of the home, how is the estate split? How is custody granted? Do those two women retain any marital connection to each other?

Let me clarify the form of polyamorous relations being proposed. All parties would form a legal contract with all others, just as couples do now. All would be full partners in the endeavor, just as couples are now. The estate would go to the remaining partners, just as it does now. Custody would pass to the remaining partners, just as it does now. Yes, the two women would retain marital connections.

[rockpond]

First, a few quotes from the Proponents brief:

"By reaffirming the traditional definition of marriage, the People of California have not even discouraged, let alone criminalized, any private behavior or personal relationship. Rather, California has simply reserved a special form of recognition and support to those relationships that have long been thought to uniquely further vital societal interests. And it has done so while at the same time providing substantial recognition and support to same-sex couples and their families through expansive domestic partnership laws. This Court has long recognized that “[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.”"

I think that the "separate but equal" argument has already been shot down by SCOTUS.

"More important still, the institution of marriage has also always been understood to owe its very existence to society’s vital interests in responsibly creating and nurturing the next generation. As this Court has aptly put it, marriage is “fundamental to our very existence and survival.” Loving, 388 U.S. at 12. Marriage is thus inextricably linked to the objective biological fact that opposite-sex couples, and only such couples, are capable of creating new life together and, therefore, are capable of furthering, or threatening, society’s existential interests in responsible procreation and childrearing. That fact alone is dispositive of Respondents’ equal protection claim, for this Court’s precedents make clear that a classification will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 383 (1974). Indeed, it was only by “undervalu[ing] the State’s interest,” Planned Parenthood v. Casey, 505 U.S. 833, 873, 875 (1992) (plurality), in the traditional definition and purposes of marriage that the Ninth Circuit and the district court were able to conclude that Proposition 8 is unconstitutional."

Is someone arguing that we should end heterosexual marriages? This quote seems to be taking that position that allowing legal recognition of same sex marriages will someone limit our ability to encourage heterosexual marriages.

Let me then repeat the argument. Same-sex marriage proponents are not satisfied with limiting marriage to opposite-gendered relationships, because it prevents them from marrying the one they are naturally attracted to. It unfairly makes them choose to deny a part of themselves if they want to participate. Polygamist proponents are not satisfied with limiting marriage to couples, because it prevents them from marrying others they are naturally attracted to. It unfairly makes them choose to deny a part of themselves if they want to participate.

It isn't a "religious" purpose. It is the same argument being employed by the SSM advocates.

I'm just saying that I see a clear legal difference between the right to marry the person of your choosing vs. the right to marry the people of your choosing.

Your second point refutes your first point, and supports my comment. When the early Mormons started practicing polygamy, those who wished to prohibit polygamy were the ones re-writing laws. It appears to me that you still have not pointed out a significant difference between the two cases.

Right. Polygamy or polyandrous relationships would require rewriting laws. Agreed. But I don't see how I have refuted my first point. Allowing for same gender marriages does not require a rewriting of laws. Allowing for legal recognition of polyandrous relationships would require rewriting laws. The marriage license itself would have to be recreated with additional signature lines.

Let me clarify the form of polyamorous relations being proposed. All parties would form a legal contract with all others, just as couples do now. All would be full partners in the endeavor, just as couples are now. The estate would go to the remaining partners, just as it does now. Custody would pass to the remaining partners, just as it does now. Yes, the two women would retain marital connections.

Okay. So I, personally, have not heard of anyone actually making a case for this type of legal relationship. I'm open to considering it. But this seems like it might be off topic.

[Zeta-Flux]

I think that the "separate but equal" argument has already been shot down by SCOTUS.

I believe you misunderstood their argument. They were not arguing for separate but equal. They were arguing separate and unequal, but we'll make it as equal as we can because we believe their relationships serve a different, but valuable, purpose in society.

Is someone arguing that we should end heterosexual marriages? This quote seems to be taking that position that allowing legal recognition of same sex marriages will someone limit our ability to encourage heterosexual marriages.

End them, no. Will SSM discourage heterosexual marriage? Yes that is indeed one of their arguments.

I'm just saying that I see a clear legal difference between the right to marry the person of your choosing vs. the right to marry the people of your choosing.

And similarly, traditional marriage activists say they see a clear legal difference between the right to marry a person of the opposite sex vs. the right to marry anyone of your choosing.

Once again you are making the same arguments against polygamy that traditionalists make against your position.

Right. Polygamy or polyandrous relationships would require rewriting laws. Agreed. But I don't see how I have refuted my first point. Allowing for same gender marriages does not require a rewriting of laws. Allowing for legal recognition of polyandrous relationships would require rewriting laws. The marriage license itself would have to be recreated with additional signature lines.

You got it backwards in your second sentence. The laws were rewritten to prevent polygamy in response to the Mormon practice of the times. Similarly, the laws currently are being rewritten today to prevent so-called same-sex marriage. The two are parallel.

To now allow for legal recognition of polyandrous relationships would indeed require rewriting laws. But so would allowing for legal recognition of same-sex marriages. And for the very same reason: laws have been passed outlawing both (in some states).

Regarding the idea that the marriage license itself "would have to be recreated" is the same not true for SSM? There would no longer be a groom/bridge distinction. An easy enough change in both situations.

Okay. So I, personally, have not heard of anyone actually making a case for this type of legal relationship. I'm open to considering it. But this seems like it might be off topic.

The way it becomes on-topic is when pointing out the hypocrisy some people have when using the same arguments against polygamy that they despise when employed against SSM. To give one example, I find it incredibly ironic that you felt it important to bring up changing the marriage license in the context of legalizing polygamy, without similarly realizing similar changes would have to be made if SSM is legalized.

[CASteinman]

I wish this were not the case but I "feel" like with all the arguments that fly around, this will just be an exercise where the justices can go with their preconceived notions and pick the argument that they like.

I think its supposed to be different, but with all the heat and fuss, I think that is how it will go. Maybe I am too much a cynic.

[TAO]

CA, I think you'll be right. That's the way we usually all pick things =p.

[rockpond]

I believe you misunderstood their argument. They were not arguing for separate but equal. They were arguing separate and unequal, but we'll make it as equal as we can because we believe their relationships serve a different, but valuable, purpose in society.

Okay... so in what ways should same gender unions be unequal to opposite gender unions?

End them, no. Will SSM discourage heterosexual marriage? Yes that is indeed one of their arguments.

In what way(s) will SSM discourage heterosexual marriage? I'm not asking in what ways there might possibly exist a correlation in the Netherlands. I'm asking for the rational basis of how marriage quality would discourage heterosexuals from marrying.

And similarly, traditional marriage activists say they see a clear legal difference between the right to marry a person of the opposite sex vs. the right to marry anyone of your choosing.

Once again you are making the same arguments against polygamy that traditionalists make against your position.

Except that I am not arguing against polygamy. I am okay with it being legalized. I am just identifying what I see as distinct legal cases. But I do see some similar arguments, as you noted. I also see similar arguments in those used by "traditionalists" against marriage equality to the arguments used by those who argued against certain civil rights for Blacks.

You got it backwards in your second sentence. The laws were rewritten to prevent polygamy in response to the Mormon practice of the times. Similarly, the laws currently are being rewritten today to prevent so-called same-sex marriage. The two are parallel.

Okay... and both are travesties. Are you suggesting that Edmunds-Tucker and other anti-bigamy laws of the time were good?

Regarding the idea that the marriage license itself "would have to be recreated" is the same not true for SSM? There would no longer be a groom/bridge distinction. An easy enough change in both situations.

I'm not aware of any legal significance to the bride/groom designations on marriage licenses. But, changes for all the various forms of polyandry would be vastly more significant.

The way it becomes on-topic is when pointing out the hypocrisy some people have when using the same arguments against polygamy that they despise when employed against SSM. To give one example, I find it incredibly ironic that you felt it important to bring up changing the marriage license in the context of legalizing polygamy, without similarly realizing similar changes would have to be made if SSM is legalized.

Again, I am not arguing against polygamy. I don't despise the arguments employed. I just differentiate between them.

As noted, changes for SSM are minor and in many cases, not even necessary. California jumped right into legally recognized gay marriages as soon as Prop 22 was overturned in 2008. Apparently, all it took was the removal of the language that anti-gay-marriage advocates had put into law.

[Zeta-Flux]

Okay... so in what ways should same gender unions be unequal to opposite gender unions?

Are you asking me, personally, how I think the unions should differ? Or how the Prop. 8 Proponents think they should differ?

In what way(s) will SSM discourage heterosexual marriage? I'm not asking in what ways there might possibly exist a correlation in the Netherlands. I'm asking for the rational basis of how marriage quality would discourage heterosexuals from marrying.

By "rational basis" do you mean the type of rational basis a court would accept, or a basis which you personally find rational? Because, as I understand it, a court would find a correlation a rational reason for proceeding with caution. It certainly is not irrational.

Except that I am not arguing against polygamy. I am okay with it being legalized. I am just identifying what I see as distinct legal cases. But I do see some similar arguments, as you noted. I also see similar arguments in those used by "traditionalists" against marriage equality to the arguments used by those who argued against certain civil rights for Blacks.

And, to repeat myself one more time, I understand that you see them as distinct. I'm just pointing out that you have yet to actually demonstrate the distinction you see.

For example, just recently your distinction was that you believed legalizing polygamy would change the law and legalizing gay marriage would not. This is simply incorrect. Both require a rewriting of the law (at least in some places). etc...

Okay... and both are travesties. Are you suggesting that Edmunds-Tucker and other anti-bigamy laws of the time were good?

No, I'm saying that your supposed distinction between SSM and polygamy is non-existent. Both have laws against them, and both would need to rewrite those laws to make them legal.

I'm not aware of any legal significance to the bride/groom designations on marriage licenses. But, changes for all the various forms of polyandry would be vastly more significant.

How so? You keep asserting some sort of significant distinction. I don't see it.

As noted, changes for SSM are minor and in many cases, not even necessary.

And polygamists would claim the same thing for their cause.

California jumped right into legally recognized gay marriages as soon as Prop 22 was overturned in 2008.

No, it didn't. A few clerks jumped right into legally recognizing gay marriages, but the majority vote of California quickly overturned the aberrant decision of a few judges, when the vote passed Prop 8.

Apparently, all it took was the removal of the language that anti-gay-marriage advocates had put into law.

Ditto for polygamy.

Get specific. No more "but I see a significant difference". Point it out. Explain the significance of the difference (and make sure there really is a difference!). [Edited to add: What you should really do is get down to the basics. You are not for SSM because it would be easy to accomplish, and require little rewriting of the laws. You are for it because you think prohibitions against SSM conflict with the 14th ammendment. What you really need to do is show how polygamy differs from SSM in not running afoul of the 14th ammendment.]

[rockpond]

Are you asking me, personally, how I think the unions should differ? Or how the Prop. 8 Proponents think they should differ?

Both.

By "rational basis" do you mean the type of rational basis a court would accept, or a basis which you personally find rational? Because, as I understand it, a court would find a correlation a rational reason for proceeding with caution. It certainly is not irrational.

I wasn't trying to invoke a legal term. Just looking to understand what you (or Prop 8 Proponents) believe to be a causative fact. Not simply a correlation.

And, to repeat myself one more time, I understand that you see them as distinct. I'm just pointing out that you have yet to actually demonstrate the distinction you see.

The distinction is in the number of people. That was my original argument. Somehow we got onto the subject of laws that would need to be rewritten. There currently exists a civil right for two people to marry (but the legality of that union is dependent on gender of the participants). There does not currently exist a right (within the U.S.) to marry multiple people. That's the distinction I am referring to.

For example, just recently your distinction was that you believed legalizing polygamy would change the law and legalizing gay marriage would not. This is simply incorrect. Both require a rewriting of the law (at least in some places). etc...

I stand by that belief. What I saw in California is that marriage equality was easily implemented after Prop 22 was struck down. It seemed to be easily implemented. I am not aware of any new laws being passed.

No, I'm saying that your supposed distinction between SSM and polygamy is non-existent. Both have laws against them, and both would need to rewrite those laws to make them legal.

The distinction is number of participants and an existing legal right as noted above.

But to clarify on the "rewriting of laws" issue that has come up... I don't see SSM as requiring new laws. I didn't see that it did in CA but you can correct me if I am wrong. The LDS-style of polygamy (one man having distinct marriages to multiple women) might only require the removal of the anti-bigamy laws. Although, again, I'm not sure how you would handle things like joint filing of taxes under the existing laws. Then, going one step further to the types of polyandrous marriages that you put forward, wherein multiple people are in a single marriage, I don't see how you could make that happen without a few new laws on the books.

More importantly, I'm not sure I see the point you wish to make with this. I am not opposed to SSM. I am not opposed to LDS-style polygamy (sorry, I don't have a better word for it). I would welcome a discussion on the types of polyandrous relationships you are describing but it would have to be with someone who actually had a reason for wanting one. I don't think you even remotely want them to be legal so I can't figure out where we are going with this.

How so? You keep asserting some sort of significant distinction. I don't see it.

Number of participants & the existing civil right.

And polygamists would claim the same thing for their cause.

Good. Let them.

No, it didn't. A few clerks jumped right into legally recognizing gay marriages, but the majority vote of California quickly overturned the aberrant decision of a few judges, when the vote passed Prop 8.

A few clerks? In the first three months over 11,000 gay marriages were performed. (Reference here.)

Get specific. No more "but I see a significant difference". Point it out. Explain the significance of the difference (and make sure there really is a difference!). [Edited to add: What you should really do is get down to the basics. You are not for SSM because it would be easy to accomplish, and require little rewriting of the laws. You are for it because you think prohibitions against SSM conflict with the 14th ammendment. What you really need to do is show how polygamy differs from SSM in not running afoul of the 14th ammendment.]

I'm not sure where you got the idea that I was against polygamy. I've said all along that I am not opposed to it. I see a difference in the legal arguments in favor of both and I've tried to clarify that for you in my response.

I feel like we've derailed here. My first two questions above ("how unequal?" and "how would SSM discourage hetero marriages?") are the ones that seem relevant to our discussion of Whalen's Point #1. But, I'll try to keep clarifying my position regarding polygamous/polyandrous marriages if you want.