Plantiff Files Prop 8 Brief For Supreme Court

[Zeta-Flux]

rockpond,

I personally think that homosexual relations are sinful, and should be avoided. I don't currently have an opinion on whether they should be illegal. I am not in favor of civil unions. I am all for extending inheritance benefits, hospital visition rights, etc... to any partnerships, regardless of number or gender. This is an issue independent of sexual interest.

I think that the Proposition 8 proponents believe that, at the very least, traditional marriages should differ from same-sex unions in the name. This, in part, differentiates between the two separate societal roles marriages and unions play.

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.

First, I think you are overemphasizing the fact that correlation does not imply causation. Yes, that is true. But more than that is true. See this xkcd comic (mouse over the comic for a hidden text, which expresses more truth).

At any rate, to prove any causalities would require us to "run the experiment" so to speak. And even if we did, we could never account for all the factors, and so people would still assert that we've just shown a high correlation, but no causation. And it wouldn't be ethical to run such an experiment given the possible negative outcomes. etc...

But, if you are not asking for what has been proven, but what the correlative data may suggest needs more study, there are a large number of negatives. Some include those listed by Ed Whelan, which you've read. Others include those listed in the Mark Regnerus study. On the other hand, if you mistakenly believe that correlation never suggests we should look for causal factors, then there is nothing I can say.

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

On polygamy:

I'm going to try one more time to try to explain something that just doesn't seem to be getting through.

I understand that you are not against polygamy. I understand that you claim to see a difference between the legal arguments in favor of one over the other. I have no doubt that in your mind you see a significant difference between the two cases.

What I'm saying is that you have yet to demonstrate to a neutral observer that those differences you see in the two situations are significant. For example, in your latest post you brought up the idea of ease of transition. First, you haven't convinced me that polygamy would have much, if any, more difficulty in transition. It is not hard to add a few lines to a legal document, for extra names.

But, much more importantly, I believe you would still be for SSM even if it took a significant amount of work to make the transition, would you not? So this is a non-issue. If difficulty of transition is not a roadblock in your support of SSM, then you are merely obfuscating the issue by bringing it up.

But, to repeat, I'm not delving into this to try and convince you that polygamy is something to be supported. Indeed, I don't support it, and I already believe you are not opposed to it. But I do believe that you are not appreciating the scope of your own arguments in favor of SSM if you don't recognize that they logically (at least as I see it) entail support of polygamy.

So, one more time, why is it that, in your opinion, SSM runs into 14th ammendment issues but polygamy does not?

[Zeta-Flux]

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

To clarify my point above, let me dissect this a little bit.

Point 1: Are you telling me that if SSM was not an existing legal right, you would be opposed to it? Because, as it currently stands, SSM is not an existing legal right in many states. Maybe I misunderstood. Are you okay with that?

Point 2: How is the distinction "number of participants" any more significant than "gender of the couple"? Why would it be okay for someone to look at a polygamous family and say "sorry, you have to many people" but it isn't okay to look at a couple and say "sorry, you don't have the right genders"? [And an answer of "because the numbers are different" doesn't tell me anything.]

[Daniel2]

On polygamy:

I'm going to try one more time to try to explain something that just doesn't seem to be getting through.

I understand that you are not against polygamy. I understand that you claim to see a difference between the legal arguments in favor of one over the other. I have no doubt that in your mind you see a significant difference between the two cases.

What I'm saying is that you have yet to demonstrate to a neutral observer that those differences you see in the two situations are significant. For example, in your latest post you brought up the idea of ease of transition. First, you haven't convinced me that polygamy would have much, if any, more difficulty in transition. It is not hard to add a few lines to a legal document, for extra names.

But, much more importantly, I believe you would still be for SSM even if it took a significant amount of work to make the transition, would you not? So this is a non-issue. If difficulty of transition is not a roadblock in your support of SSM, then you are merely obfuscating the issue by bringing it up.

But, to repeat, I'm not delving into this to try and convince you that polygamy is something to be supported. Indeed, I don't support it, and I already believe you are not opposed to it. But I do believe that you are not appreciating the scope of your own arguments in favor of SSM if you don't recognize that they logically (at least as I see it) entail support of polygamy.

So, one more time, why is it that, in your opinion, SSM runs into 14th ammendment issues but polygamy does not?

Zeta,

To a “neutral” observer, I would think that the differences between QUANTITY of spouses (moving from a civil marriage code that deals with “two spouses” to a civil marriage code that deals with “three or more spouses”) is CLEARLY different—and presents a HOST of new legal problems that need resolving in ways that the GENDER of spouses (while still maintaining an equal QUANTITY of spouses) does not.

I can think of a whole host of them immediately—the most obvious being with laws regarding the end of marriage. Meaning: many civil marriage laws are clearly in place to deal with death or dissolution of the marriage. Survivor benefits. Inheritance tax-breaks. Pensions. Social Security. Preserving and protecting child-parent-relationships.

Moving to a system of marriage equality with regards to the gender of spouses does not significantly alter any of those civil marriage provisions, when it comes to death or divorce, whether the spouses are of different or the same genders.

However, should polygamy be legalized, what happens in the event of a divorce, for example? What if “Spouse A” wants to get divorced from “Spouse B,” but doesn’t want to get divorced from “Spouse C”? Which parent’s parent-child-relationships are preserved? When “Spouse A” (who’s already married to “Spouse B”) decides to get married to “Spouse C,” does that mean that “Spouse B” and “Spouse C” are also legally married? Do they ALL get to split the costs of alimony and/or child support? In the event of the death of Spouse A, is the marriage of Spouse B and C also dissolved? Which of the two spouses gets custodial rights? What if Spouse B and C work, but Spouse A doesn’t? How does the government measure whether or not any of the spouses are eligible for good stamps/WIC/government assistance? Employers often subsidize single, married, and family benefits. Does a polygamous marriage count for an employer to be required to subsidize a family consisting of seven spouses and all their children, vs. an employee with one? How are such rates calculated? Do all the other employees health insurance premiums rise, because employers can’t/won’t shoulder the difference?

And most of the above scenarios only deal with three spouses. What happens when there are four? Or five? Or thirty-seven? Not to mention the fact that I'm not a family lawyer, and I'm sure I can't even begin to imagine the host of other issues that would come up, regarding polygamy that wouldn't come up, simply by changing the gender. As far as the government is concerned, it can't really even distinguish which spouse in a couple is what gender--but the government certainly would be able to distinguish between a family with two spouses vs. a family of multiple spouses.

Now… I consider myself rather libertarian, when it comes to the marriage issue… and I don’t believe polygamy should be illegal. I support the right of Fundamentalist (not a comprehensively accurate term, but I’ll use it for lack of a better word) LDS citizens to marry according to the dictates of their own conscience. And I’m not suggesting that provisions couldn’t be made to somehow handle all of those civil scenarios from a legal perspective that still strives to be equitable and protective of the rights of polygamous spouses and their children. My point is that, when it comes to civil marriage rights and responsibilities, legalizing MULTIPLE spouses is CLEARLY a FAR more legally complicated manner than merely allowing same-sex COUPLE the same rights as opposite-sex COUPLES. Anyone who can’t see or admit to that difference, IMO, would come across as deliberately trying to be obtuse about the matter.

Daniel2

[Zeta-Flux]

Daniel,

That was the kind of post I was looking for. Let's delve into that.

To a “neutral” observer, I would think that the differences between QUANTITY of spouses (moving from a civil marriage code that deals with “two spouses” to a civil marriage code that deals with “three or more spouses”) is CLEARLY different—and presents a HOST of new legal problems that need resolving in ways that the GENDER of spouses (while still maintaining an equal QUANTITY of spouses) does not.

I can think of a whole host of them immediately—the most obvious being with laws regarding the end of marriage. Meaning: many civil marriage laws are clearly in place to deal with death or dissolution of the marriage. Survivor benefits. Inheritance tax-breaks. Pensions. Social Security. Preserving and protecting child-parent-relationships.

First, just to clarify, are you saying that if there are "new legal problems" that the GENDER of the spouses raises, those should be taken into account, over and above any 14th ammendment considerations? Or are you of the opinion that 14th ammendment considerations trump any sort of "new legal problems" that would have to be dealt with? Because, otherwise, you would be obfuscating the issues again.

But, to progress the discussion, let me assume that you are saying that the 14th ammendment considerations should take a backseat to "new legal problems". Please tell me how any of the issues you bring up are new legal issues? Let me try to address each and every one you raise:

Survivor benefits go to each and every survivor in the relationship. (I already addressed this one above, by the way.) Each survivor stays in the marriage relationship. Similarly with inheritance tax-breaks. It is not a hard change to make.

Pensions continue to be paid until the last surviving member of the existing marriage relationship dies, just as it does now.

Some might argue that legalizing polygamy protects the child-parent relationships more because some of the parents in the relationship are not biological parents and are not currently protected by the law. (Indeed, this is the same argument used to support SSM.)

Moving to a system of marriage equality with regards to the gender of spouses does not significantly alter any of those civil marriage provisions, when it comes to death or divorce, whether the spouses are of different or the same genders.

Neither does it significantly alter any of those civil marriage provisions, when it comes to death or divorce, whether the spouses are a multitude. But again, are you saying that if I could come up with a "significant" alteration to divorce/death laws that SSM entails, would that somehow negate your 14th ammendment considerations. Are you suggesting that SSM should only be legal because it is only a minor change to the law?

And similarly, each and every other "new legal problem" you devise can be dealt with as it arises, can it not. Or should the way social security now runs be an obstacle in the way SSM is deployed? Because, suddenly, there is the potential for a huge cash drain, is there not?

However, should polygamy be legalized, what happens in the event of a divorce, for example? What if “Spouse A” wants to get divorced from “Spouse B,” but doesn’t want to get divorced from “Spouse C”?

Again, it doesn't seem that significant to me. They all divorce, and then A and C form a new union. They pay a small fee, and the government is happy to oblige. Or, we come up with some other solution, maybe any or all people in a marriage can leave at will. etc...

Which parent’s parent-child-relationships are preserved?

It seems to me that this same question could be asked of SSM. Could it not? And then, does it present an obstacle to the appropriateness of SSM?

When “Spouse A” (who’s already married to “Spouse B”) decides to get married to “Spouse C,” does that mean that “Spouse B” and “Spouse C” are also legally married?

What do we do currently when someone wants to marry someone else? They must divorce. So, spouses A and B could divorce, and then all three could remarry if they so desired. Or maybe something else. But does this get to the heart of why its okay to discriminate? Is it okay to be against polygamy merely because it complicates laws?

My point is that, when it comes to civil marriage rights and responsibilities, legalizing MULTIPLE spouses is CLEARLY a FAR more legally complicated manner than merely allowing same-sex COUPLE the same rights as opposite-sex COUPLES. Anyone who can’t see or admit to that difference, IMO, would come across as deliberately trying to be obtuse about the matter.

I agree. Now, do you agree with me that if it is okay to be against polygamy because it would complicate the laws, it is similarly rational to be against SSM because it complicates the law (perhaps not to the degree polygamy does, I admit, but it does complicate things)?

Or do you feel that "strict scrutiny" applies, and thus these issues are non-issues?

[rockpond]

rockpond,

I personally think that homosexual relations are sinful, and should be avoided. I don't currently have an opinion on whether they should be illegal. I am not in favor of civil unions. I am all for extending inheritance benefits, hospital visition rights, etc... to any partnerships, regardless of number or gender. This is an issue independent of sexual interest.

How would you suggest those legal benefits be conveyed if not through marriage or civil unions?

I think that the Proposition 8 proponents believe that, at the very least, traditional marriages should differ from same-sex unions in the name. This, in part, differentiates between the two separate societal roles marriages and unions play.

That is "separate but equal" and has been declared unconstitutional.

First, I think you are overemphasizing the fact that correlation does not imply causation. Yes, that is true. But more than that is true. See this xkcd comic (mouse over the comic for a hidden text, which expresses more truth).

I don't think that it can be overemphasized that correlation does not imply causation but that could be my stats degree talking.

At any rate, to prove any causalities would require us to "run the experiment" so to speak. And even if we did, we could never account for all the factors, and so people would still assert that we've just shown a high correlation, but no causation. And it wouldn't be ethical to run such an experiment given the possible negative outcomes. etc...

But, if you are not asking for what has been proven, but what the correlative data may suggest needs more study, there are a large number of negatives. Some include those listed by Ed Whelan, which you've read. Others include those listed in the Mark Regnerus study. On the other hand, if you mistakenly believe that correlation never suggests we should look for causal factors, then there is nothing I can say.

Definitely not asking you (nor them) to prove it. I'm seeking to understand the theory about how SSM would inhibit heterosexual people from marrying/procreating. Can you explain it? It's an oft cited argument. I didn't see the explanation in Whalen's articles.

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

On polygamy:

I'm going to try one more time to try to explain something that just doesn't seem to be getting through.

I understand that you are not against polygamy. I understand that you claim to see a difference between the legal arguments in favor of one over the other. I have no doubt that in your mind you see a significant difference between the two cases.

What I'm saying is that you have yet to demonstrate to a neutral observer that those differences you see in the two situations are significant. For example, in your latest post you brought up the idea of ease of transition. First, you haven't convinced me that polygamy would have much, if any, more difficulty in transition. It is not hard to add a few lines to a legal document, for extra names.

But, much more importantly, I believe you would still be for SSM even if it took a significant amount of work to make the transition, would you not? So this is a non-issue. If difficulty of transition is not a roadblock in your support of SSM, then you are merely obfuscating the issue by bringing it up.

I didn't mean to obfuscate. Not even sure how we got so deep into that subject. I don't think that transition ease/difficulty should factor into whether or not to legalize either SSM or polygamy. Although in your response to Daniel you make a fairly convincing argument for ease of transition.

But, to repeat, I'm not delving into this to try and convince you that polygamy is something to be supported. Indeed, I don't support it, and I already believe you are not opposed to it. But I do believe that you are not appreciating the scope of your own arguments in favor of SSM if you don't recognize that they logically (at least as I see it) entail support of polygamy.

I do think that some of my SSM arguments could be used to support legalized polygamy.

So, one more time, why is it that, in your opinion, SSM runs into 14th ammendment issues but polygamy does not?

Because marriage between two people already exists as a right under our laws. And I think it's wrong to discriminate by gender or orientation. For me, that is the 14th amendment issue.

The right to marry more than one person does not now exist for anyone. So I don't see it as a 14th amendment cause. I do, however, see it as a 1st amendment issue.

[rockpond]

To clarify my point above, let me dissect this a little bit.

Point 1: Are you telling me that if SSM was not an existing legal right, you would be opposed to it? Because, as it currently stands, SSM is not an existing legal right in many states. Maybe I misunderstood. Are you okay with that?

Point 2: How is the distinction "number of participants" any more significant than "gender of the couple"? Why would it be okay for someone to look at a polygamous family and say "sorry, you have to many people" but it isn't okay to look at a couple and say "sorry, you don't have the right genders"? [And an answer of "because the numbers are different" doesn't tell me anything.]

Good clarifying points...

Point 1: the existing legal right I was referring to is the right for two people to marry. That exists throughout the country and I think all should have access to it regardless of orientation.

Point 2: because the 14th amendment, for me, means that we don't restrict equal protection and due process based on gender or sexual orientation. Since nobody currently has the right to marry multiple people I don't see that as being an equal protection issue. Though I believe there are other reasons to legalize polygamy.

[Zeta-Flux]

How would you suggest those legal benefits be conveyed if not through marriage or civil unions?

My preferred method would be that they go to the local government center, have a judge/employee witness them signing a form, and they then pay a small fee.

That is "separate but equal" and has been declared unconstitutional.

No. Once again, it is separate and unequal. Which, at times, is perfectly constitutional.

I don't think that it can be overemphasized that correlation does not imply causation but that could be my stats degree talking.

That's fine. But one should also recognize that correlation can be a sign of causation, or a sign of a hidden variable cause that is equally troubling.

Definitely not asking you (nor them) to prove it. I'm seeking to understand the theory about how SSM would inhibit heterosexual people from marrying/procreating. Can you explain it? It's an oft cited argument. I didn't see the explanation in Whalen's articles.

Ed focused on "deinstitutionalization". The article I referred you to, by Mark Regnerus, looks at a wide variety of negative outcomes, including higher experimentation in homosexuality, etc... But perhaps the best way to put it is "mission creep". When the mission of an institution changes, the motivations for joining the institution change (and sometimes decrease). If I haven't given you enough to read, this article has more.

-----------

Now, to change gears a little:

Because marriage between two people already exists as a right under our laws. And I think it's wrong to discriminate by gender or orientation. For me, that is the 14th amendment issue.

The right to marry more than one person does not now exist for anyone. So I don't see it as a 14th amendment cause. I do, however, see it as a 1st amendment issue.

I believe I now understand a little better the disconnect I keep experiencing with you. I'm going to have to guess on a few things, but I think I now know what to say to help you understand what I've been trying to explain.

First, a minor point. I should point out that you depicted marriage in a way that was beneficial for your argument for SSM, but emphasized a negative for the other argument. This could be described as a dirty trick. When mentioning marriage you emphasized "two people" but de-emphasized "of opposite gender". One could have similarly de-emphasized "two people". Indeed, could a polygamist not similarly say: "Because marriage between people who love each other already exists as a right under our laws. And I think it's wrong to discriminate against such love. For me, that is the 14th amendment issue."?

But, that is a minor point. Now to the main point. The 14th amendment issues being raised are not about what you think is wrong to discriminate over. The 14th amendment does not say or imply that if the president, or a group of people, or the judge in the case, or even the majority of Americans, feel that a certain law is discriminatory and wrong, then that law is unconstitutional. So, for you to say to me "I think it's wrong to discriminate by gender or orientation. For me, that is the 14th amendment issue" is a non-sequitur.

I imagine you meant something similar to, "a group of people are being denied equal protections". This would at least be getting closer to the issue at hand. The counter-argument, which I'm sure you've heard many times (and which I personally accept) is that all have the same right, all are equal under the law, to marry someone of the opposite sex.

Here is where the counter-counter-argument comes in which impacts the 14th amendment. It appears to me, from how you've answered my questions, that your counter-argument would be one of "but its wrong to discriminate in this case". That is not a strong argument, and not the one being put forth by the Plaintiffs, and certainly doesn't address the rightness/wrongness of discriminating against polygamists either. So let's delve into what the Plaintiffs are asserting.

They assert that sexual orientation should be a suspect class. This is a technical term, invented by the Supreme Court, in limiting the scope of the 14th amendment. The 14th amendment, as you know, was passed in part to stop discrimination on the basis of race/color. But it was not passed to stop any and all discriminations/distinctions. So, for example, you keep bringing up "separate but equal". That argument is only relevant when it applies to those classes deemed "suspect" by the courts. Thus a blind man can be discriminated against with respect to driving, for example.

Now, with this information, you may change your answer to match this new terminology. You may say "sexual orientation" should be a suspect classification. Now, your personal feelings of "wrongness" to discriminate in this situation impact such a suspect classification, but only when framed in the language below (and independent of any personal value judgments you make). Here are the measures the courts use as to whether or not a class is given suspect status:

1. The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes

Clearly, homosexuality meets this first criteria. Both sides agree. But would you not also agree that polygamy also meets this first criteria?

2. They possess an immutable and/or highly visible trait.

Here, the two parties differ. This was one reason Ed Whelan spent so much time (in his myths 10-14 I believe) dealing with this topic. The Proponents claim that homosexuality is not immutable or highly visible. The Plaintiffs argue otherwise. Do you see a difference in the "immutability" of a person's desire for someone of the same gender vs. a person's desire for multiple partners? If not, then you are still not differentiating in your argument for suspect classification between polygamists and gays. If so, then you really need to delve into that difference. What makes one immutable and the other not?

3. They are powerless to protect themselves via the political process. (The group is a "discrete" and "insular" minority.)

Here, again the Proponents and Plaintiffs disagree. The Proponents argue they are not powerless (and I think recent events prove that point). The Plaintiffs argue otherwise. But I think you'd agree that polygamists are more powerless than SSM advocates!

4. The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society.

Here, the Proponents and Plaintiffs agree that the LGBT community contributes meaningfully to society. The disagree that they contribute meaningfully to marriage, for the Proponents feel that marriage is primarily about directing procreative powers towards the formation of children, etc... But I doubt you would argue that polygamists somehow differ from gays in how they contribute meaningfully to society.

You may find this wiki article useful.

[rockpond]

My preferred method would be that they go to the local government center, have a judge/employee witness them signing a form, and they then pay a small fee.

How is that different from a civil union?

No. Once again, it is separate and unequal. Which, at times, is perfectly constitutional.

When I asked you how Prop 8 Proponents thought gay unions should be "unequal" to straight marriages you said that "traditional marriages should differ from same-sex unions in the name". Having something differ in name only falls under "separate but equal". If you want to say that they should be unequal - then tell me how. You've told me that I can't just say something is different. I have to explain how it is different. So how do Prop 8 Proponents feel that gay unions should be unequal from their straight counterparts?

That's fine. But one should also recognize that correlation can be a sign of causation, or a sign of a hidden variable cause that is equally troubling.

Of course correlation *can* be a sign of causation but it does not have to be. And yes, there can be a hidden variable but there doesn't have to be.

Ed focused on "deinstitutionalization". The article I referred you to, by Mark Regnerus, looks at a wide variety of negative outcomes, including higher experimentation in homosexuality, etc... But perhaps the best way to put it is "mission creep". When the mission of an institution changes, the motivations for joining the institution change (and sometimes decrease). If I haven't given you enough to read, this article has more.

So, the way that legalized gay marriage would discourage heterosexuals from marrying is that when they see homosexual people get married they could have a decreased desire to get married themselves?

-----------

Now, to change gears a little:

I believe I now understand a little better the disconnect I keep experiencing with you. I'm going to have to guess on a few things, but I think I now know what to say to help you understand what I've been trying to explain.

First, a minor point. I should point out that you depicted marriage in a way that was beneficial for your argument for SSM, but emphasized a negative for the other argument. This could be described as a dirty trick. When mentioning marriage you emphasized "two people" but de-emphasized "of opposite gender". One could have similarly de-emphasized "two people". Indeed, could a polygamist not similarly say: "Because marriage between people who love each other already exists as a right under our laws. And I think it's wrong to discriminate against such love. For me, that is the 14th amendment issue."?

No dirty trick intended. That's how I see marriage. And, yeah, a polygamist could say that.

But, that is a minor point. Now to the main point. The 14th amendment issues being raised are not about what you think is wrong to discriminate over. The 14th amendment does not say or imply that if the president, or a group of people, or the judge in the case, or even the majority of Americans, feel that a certain law is discriminatory and wrong, then that law is unconstitutional. So, for you to say to me "I think it's wrong to discriminate by gender or orientation. For me, that is the 14th amendment issue" is a non-sequitur.

I imagine you meant something similar to, "a group of people are being denied equal protections". This would at least be getting closer to the issue at hand. The counter-argument, which I'm sure you've heard many times (and which I personally accept) is that all have the same right, all are equal under the law, to marry someone of the opposite sex.

You are correct, my message there was that a group of people are being denied equal protections. And yes, they have the right to marry someone of the opposite sex. But that's relatively meaningless to them. For me, the equal protection being denied is that of legally recognized marriage to the person of their choosing (and all the inherent legal benefits that go along with that).

[Zeta-Flux]

How is that different from a civil union?

In that it is open to any kind of caregiver or friend (romantic or not). If you have a housekeeper who is essentially part of the family, you can sign a piece of paper and she now has inheritance rights, and hospital visitation rights, etc...

When I asked you how Prop 8 Proponents thought gay unions should be "unequal" to straight marriages you said that "traditional marriages should differ from same-sex unions in the name". Having something differ in name only falls under "separate but equal". If you want to say that they should be unequal - then tell me how. You've told me that I can't just say something is different. I have to explain how it is different. So how do Prop 8 Proponents feel that gay unions should be unequal from their straight counterparts?

The phrase "separate but equal" was refuted by the Supreme Court, not because it was, per se, unconstitutional. But because it was unworkable. It was an excuse. The separate facilities for blacks were not equal to those for whites. It was a false phrase.

The Prop 8 proponents, on the other hand, are not promoting a separate but equal system. They are promoting a separate and unequal system. That you see them as "equal" only means you have less to complain about. But I don't see them as equal, and neither do the Plaintiffs.

Of course correlation *can* be a sign of causation but it does not have to be. And yes, there can be a hidden variable but there doesn't have to be.

True. I think that the word "can" already implies the opposite possibility.

So, the way that legalized gay marriage would discourage heterosexuals from marrying is that when they see homosexual people get married they could have a decreased desire to get married themselves?

That's what you got from the Regnerus study and the link I provided? Wow. Just wow.

No dirty trick intended. That's how I see marriage. And, yeah, a polygamist could say that.

Then I suppose you must give equal credence to the view of someone who sees marriage as a primarily oppose-sex institution. Fair enough.

You are correct, my message there was that a group of people are being denied equal protections. And yes, they have the right to marry someone of the opposite sex. But that's relatively meaningless to them. For me, the equal protection being denied is that of legally recognized marriage to the person of their choosing (and all the inherent legal benefits that go along with that).

And as I explained, the 14th amendment comes in when deciding whether it is rational to restrict marriage to its traditional meaning, or whether a heightened standard should be applied. Your personal opinion (with which many people disagree) that marriage should be understood as a right to marry someone of one's choosing is irrelevant to the constitutionality of Prop 8, and whether the rest of the nation must agree with your understanding of marriage.

[rockpond]

In that it is open to any kind of caregiver or friend (romantic or not). If you have a housekeeper who is essentially part of the family, you can sign a piece of paper and she now has inheritance rights, and hospital visitation rights, etc...

I'm not sure what the "etc..." signifies. Inheritance rights and hospital visitation can already be accomplished be a quick meeting with an attorney or a visit to legalzoom.com. So should I read this as saying that your preferred method is what we currently have in all the states that do not recognize civil unions/gay marriage?

The phrase "separate but equal" was refuted by the Supreme Court, not because it was, per se, unconstitutional. But because it was unworkable. It was an excuse. The separate facilities for blacks were not equal to those for whites. It was a false phrase.

Right, and that's basically what was refuted by the CA supreme court with Prop 8. Judge Walker's decision said that you can't create something that identically mirrors all the rights of marriage but then refuse to allow it to be called marriage. It's an excuse.

The Prop 8 proponents, on the other hand, are not promoting a separate but equal system. They are promoting a separate and unequal system. That you see them as "equal" only means you have less to complain about. But I don't see them as equal, and neither do the Plaintiffs.

Then help me understand what inequalities Prop 8 Proponents desire. Because right now all you have stated is the different name.

That's what you got from the Regnerus study and the link I provided? Wow. Just wow.

No, I was restating the point you made so that I can make sure I understand it. Did I correctly interpret what you said?

Here's my restatement for your reference: "So, the way that legalized gay marriage would discourage heterosexuals from marrying is that when they see homosexual people get married they could have a decreased desire to get married themselves?"

And as I explained, the 14th amendment comes in when deciding whether it is rational to restrict marriage to its traditional meaning, or whether a heightened standard should be applied. Your personal opinion (with which many people disagree) that marriage should be understood as a right to marry someone of one's choosing is irrelevant to the constitutionality of Prop 8, and whether the rest of the nation must agree with your understanding of marriage.

Yes, both of our personal opinions are irrelevant to constitutionality. And many disagree with your opinion as well. I imagine the constitutionality of marriage equality will be debated for many decades to come. Polls seem to show that the tide is turning in favor of marriage equality.

The CA supreme court and the 9th circuit seemed to agree with my opinion. SCOTUS will now make the final call and I suppose those who agree with their decision will declare it "constitutional". Those who disagree with the Supreme Court's decision might call it judicial activism. That seems to be the way these things go. For example, has the constitutionality of abortion ever been truly "decided"?

[Daniel2]

Results of the latest polls:

Gay marriage support hits new high in Post-ABC poll

Posted by Jon Cohen on March 18, 2013 at 2:00 pm

Public support for gay marriage has hit a new high as Americans increasingly see homosexuality not as a choice but as a way some people are, according to a new Washington Post-ABC News poll.

The poll shows that 58 percent of Americans now believe it should be legal for gay and lesbian couples to get married; 36 percent say it should be illegal. Public attitudes toward gay marriage are a mirror image of what they were a decade ago: in 2003, 37 percent favored gay nuptials, and 55 percent opposed them.

The Supreme Court takes up the issue of gay marriage next week, and nearly two-thirds of all Americans say the matter should be decided for all states on the basis of the U.S. Constitution, not with each state making its own laws.

Among young adults age 18 to 29, support for gay marriage is overwhelming, hitting a record high of 81 percent in the new poll. Support has also been increasing among older adults, but those aged 65 years old and up remain opposed, on balance: 44 percent say same-sex marriage should be legal; 50 percent say illegal.

A slim majority of Republicans and GOP-leaning independents under 50 years old now support gay marriage. Nearly seven in 10 of those aged 65 and up oppose it, although that is down from more than eight in 10 just four years ago.

There has been a related movement in public opinion about homosexuality. Fully 62 percent of Americans now say being gay is just the way some people are, not something people choose to be. About 20 years ago, fewer than half of the public said so.

In the current data, about three-quarters of those who do not see homosexuality as a choice support gay marriage, with most supporting it “strongly.” More than two-thirds of those who see it as a choice oppose gay marriage, with almost all intensely against it.

Currently, gay marriage is legal in only nine states and the District of Columbia, but public views are more similar than not across state lines. In the states that allow gay marriage, 68 percent say such same-sex marriages should be legal, but so too do 56 percent of those in states where the practice is not legal.

Intensity on the matter is, however, different in those states. In places where gay marriage is legal, 52 percent feel strongly that it should be. That falls to 39 percent feeling strongly that it should be legal in states where it currently is not.

The Washington Post-ABC News poll was conducted March 7 to 10, among a random national sample of 1,001 adults. The margin of sampling error for the full survey is plus or minus 3.5 percentage points.

Cohen is director of polling at Capital Insight, the independent polling group of Washington Post Media. Pollsters Peyton M. Craighill and Scott Clement contributed to this report.

http://www.washingtonpost.com/blogs/the-fix/wp/2013/03/18/gay-marriage-support-hits-new-high-in-post-abc-poll/

Bold added.

I've never understood why some assert that this should be a "state issue," (left up to each state to decide), instead of a nation-wide constitutional one. I've never heard a compelling argument in favor of the "states-rights" view. It's good to see a large majority of Americans agree this is a constitutional issue, as well.

Daniel2

[Zeta-Flux]

I've never understood why some assert that this should be a "state issue," (left up to each state to decide), instead of a nation-wide constitutional one. I've never heard a compelling argument in favor of the "states-rights" view. It's good to see a large majority of Americans agree this is a constitutional issue, as well.

What arguments have you seen? Have you read the Proponent's brief? Do they address this issue?

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

Do you know what percentage of Americans support "no-fault" divorce?

[Daniel2]

What arguments have you seen? Have you read the Proponent's brief? Do they address this issue?

I haven't seen any arguments. Are you aware of any? I'd love to hear them.

Do you know what percentage of Americans support "no-fault" divorce?

Nope. Google didn't reveal much on that matter. How do you see that as relevant to the topic at hand?

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

I have heard a lot of opponents of gay marriage say that if the Supreme Court rules in favor of same-sex marriage, It will cause so much social division that it will become what they call "another Roe v. Wade." They seem to suggest that the country will be so socially divided that the court should avoid imposing marriage equality altogether, or the country will be forever divided.

However, that analogy ignores public opinion polling a much more similar ruling on marriage equality itself--Loving v. Virginia, who's original public polls saw far greater opposition than same-sex couples the year after SCOTUS ruling. Here's an article from 2010 (when the polling on same-sex marriage didn't show as much support as the 58% support it has today):

In 1968, the year after the “activist” Supremes legalized interracial marriage in its decision on Loving vs. Virginia, a Gallup poll found that the vast majority of Americans still opposed the idea that blacks and whites could marry — 72 percent to 20 percent. Just 10 years earlier, in the wake of a California Supreme Court decision that overturned newly minted anti-interracial marriage laws in the state, Gallup found that 94 percent of Americans opposed mixed-race marriages.

As meager as support for gay marriage is now — 49 percent in WashPost, 44 percent in CNN, 42 percent in the Times/CBS and 38 percent in Qunnipiac — it is still about double the 20-percent approval for interracial marriage in the country a few months after mixed marriages became legal. (The average of support in the four new polls is 43.25 percent.)

In fact, it wasn’t until 1991, almost a quarter century after Loving, that opinion flipped on interracial marriage, 48 percent to 42 percent.

And yet, one would be hard pressed to find anyone willing to suggest that SCOTUS's ruling was wrong, today.

Daniel2

[Zeta-Flux]

I haven't seen any arguments. Are you aware of any? I'd love to hear them.

I don't recall if such arguments appear in the Prop. 8 Proponents' brief or not. If it interests you, I'm sure you could do a quick search for "state" in the document, to see if they mention it.

Nope. Google didn't reveal much on that matter. How do you see that as relevant to the topic at hand?

Only that polls/support do not necessarily correlate to goodness.

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

I have heard a lot of opponents of gay marriage say that if the Supreme Court rules in favor of same-sex marriage, It will cause so much social division that it will become what they call "another Roe v. Wade." They seem to suggest that the country will be so socially divided that the court should avoid imposing marriage equality altogether, or the country will be forever divided.

Yeah, I think that is overblown too. While I would disagree with such a ruling, it wouldn't cause the end of the nation by any means.

[Stone holm]

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-

Seems like you argued in another thread that establishment of religion was not an issue in this case and that you had read the briefs and could assert that it was not, however, it is very clear that the writer of the amicus brief is very clearly trying to deflect that argument. The argument in the amicus brief is not particularly strong or convincing, but there is precedent for the Court to hang their hat on obtuse cultural arguments. It is a little ironic that we of all people would be stretching for the cultural argument that was used against us in U.S. v Reynolds

[california boy]

A very good non bias analysis of both the

before the Supreme Court.

SCOTUSblog founder Tom Goldstein, partner at Goldstein & Russell, PC, offers an engaging preview of next week's marriage arguments before the Supreme Court with Bloomberg Law's Lee Pacchia, explaining which justices are the ones to watch:

Goldstein says he's particularly interested in watching Justice Kagan and Chief Justice Roberts during arguments as they both could play pivotal roles in deciding these cases.

Goldstein is also asked how he thinks the justices might come down.

[Stone holm]

Interesting, have now read the opponents brief and the proponents brief. It is interesting that the opponents of Prop 8 never brought up the religious issue in their brief, but the proponents defended on the issue anyway. Giving the proponents the benefit of the doubt, they pose an interesting question about what America views the purpose of marriage as being. They argue that opponents believe that marriage is about the expression of establishing a status between two adults, and the proponents that marriage is about the establishing of families with procreation and children always in mind. The proponents then say that this latter view is essential to our society and that if you adopt the first view and not the second society essentially will collapse.

Well, I guess society is probably always on the verge of collapse as has been established by a thorough reading of history -- at least always in the minds of the people living in any particular era -- except possibly the 1950's and then we thought the world might soon be destroyed through a nuclear exchange. So I pretty much tossed that part of the argument aside. We somehow miraculously survived the Beatles and mini-skirts -- the birth control pill has been a struggle though.

I think that the proponents are just a bit out of date in their statement about the two concepts of marriage and which is the prevailing view. I think if you were to do a poll, and somebody probably has, as to whether marriage was more about the relationship between two people or about the establishment of a family -- that America would be found to say it was about two people with benefits if the two people are young enough. There are just too many blended families and old people getting married for the second to be the dominant theme.

[Zeta-Flux]

Interesting, have now read the opponents brief and the proponents brief. It is interesting that the opponents of Prop 8 never brought up the religious issue in their brief, but the proponents defended on the issue anyway. Giving the proponents the benefit of the doubt, they pose an interesting question about what America views the purpose of marriage as being. They argue that opponents believe that marriage is about the expression of establishing a status between two adults, and the proponents that marriage is about the establishing of families with procreation and children always in mind. The proponents then say that this latter view is essential to our society and that if you adopt the first view and not the second society essentially will collapse.

I thought you did a very good job of summarizing the positions, until that last sentence. They don't think that "society will essentially collapse". They merely think that the change will be a highly negative one, just as it was for no-fault divorce. Civilization did not cease, but numerous families and children were harmed from the change.

[Stone holm]

I thought you did a very good job of summarizing the positions, until that last sentence. They don't think that "society will essentially collapse". They merely think that the change will be a highly negative one, just as it was for no-fault divorce. Civilization did not cease, but numerous families and children were harmed from the change.

Yeah they do kind of indicate that our democracy depends on traditional heterosexual marriage. There was a bit of flag waving hyperbole to the argument. But their case is not the strongest and a little such hyperbole is to be expected. They may even win, I agree it is too close to call.

[california boy]

I thought you did a very good job of summarizing the positions, until that last sentence. They don't think that "society will essentially collapse". They merely think that the change will be a highly negative one, just as it was for no-fault divorce. Civilization did not cease, but numerous families and children were harmed from the change.

I have read enough of your post about no fault divorce to know that you feel this issue is what has caused so many marriages to fail since it became law. But don't you think that the increase of divorce is more likely because women are far less financially dependent on their husbands than in past decades? It seemed like before no fault divorce, if a couple wanted to divorce, they always found a legal reason to do so. I can not remember anyone staying together because even though they wanted to get a divorce, they couldn't persuade the judge that they had a good enough reason to dissolve the marriage. It seems to me that the only thing that no fault divorce did was to cut down the legal costs and try to unclog the court system by avoiding lengthy hearings. Love to have your thoughts on this.

[california boy]

Interesting, have now read the opponents brief and the proponents brief. It is interesting that the opponents of Prop 8 never brought up the religious issue in their brief, but the proponents defended on the issue anyway. Giving the proponents the benefit of the doubt, they pose an interesting question about what America views the purpose of marriage as being. They argue that opponents believe that marriage is about the expression of establishing a status between two adults, and the proponents that marriage is about the establishing of families with procreation and children always in mind. The proponents then say that this latter view is essential to our society and that if you adopt the first view and not the second society essentially will collapse.

Well, I guess society is probably always on the verge of collapse as has been established by a thorough reading of history -- at least always in the minds of the people living in any particular era -- except possibly the 1950's and then we thought the world might soon be destroyed through a nuclear exchange. So I pretty much tossed that part of the argument aside. We somehow miraculously survived the Beatles and mini-skirts -- the birth control pill has been a struggle though.

I think that the proponents are just a bit out of date in their statement about the two concepts of marriage and which is the prevailing view. I think if you were to do a poll, and somebody probably has, as to whether marriage was more about the relationship between two people or about the establishment of a family -- that America would be found to say it was about two people with benefits if the two people are young enough. There are just too many blended families and old people getting married for the second to be the dominant theme.

I agree with your summation. Do you realize that according to the census less that 25% of the population live in a home with a mother and a father and children present. That means over 3/4 of Americans do not live in a home like the one being defended by the prop 8 advocates. Pretty week position to push some kind of damage to socienty if gays are allowed to participate.

[Stone holm]

I agree with your summation. Do you realize that according to the census less that 25% of the population live in a home with a mother and a father and children present. That means over 3/4 of Americans do not live in a home like the one being defended by the prop 8 advocates. Pretty week position to push some kind of damage to socienty if gays are allowed to participate.

Well there are lots of weaknesses in the argument, I found the brief a little unconvincing in other ways as well. But they didn't have a lot to work with because the secular reasons that normally they might resort to had already been closed because the State had already legislated to the contrary. So if the SCOTUS upholds the law, which may well do, then it is going to have to go to some kind of obtuse cultural argument like that presented. Unfortunately such opinions tend to be very unpopular, the Court is in kind of a tight pinch here because Prop 8 is a very blatant attempt at trying to legislate a religious based definition. In reading the proponents brief, I kept asking myself, are they really trying to win this case or are they just trying to set up a theological defense so that when they lose either before the Court or in the legislatures then they can raise the religion clause as a defense against intrusive later cases. When viewed as an attempt to win the case, the brief seems weak and a bit questionable in its logic and even appears to be fending off arguments not made by the opposition. However, when viewed as attempting to set up a future defense it makes considerable sense. So if that was the aim, then I feel better about the Church's continued involvement in the case because I have absolutely no qualms about the Church taking steps to protect itself against future intrusions because homosexual behavior when acted out in its ultimate sense is and is likely to always remain considered sinful to us Mormons because it is contrary to our structural understanding of the Hereafter

[california boy]

I agree that the church has a right to defend itself from being forced to marry gay couples, and I would fight with the church to protect them from being forced to do so. But quite frankly I think it is more likely that the church itself MAY some day allow gay marriage. I know many completely disagree with that statement. But here is my rational for thinking that. First, in all of history,no church has been forced to marry anyone. If there was a time when a church would be forced to marry someone against its will, it would have been in the 60's when the church barred black members from temple marriage. There was never a hint that such a forced marriage would be asked of the church. At the same time, secular laws allowing interracial marriage did occur just like what is currently happening toward gay couples.

On the other hand,the law of chastity has fundamentally been based on sex outside of marriage. The church COULD consider the same standard for its gay members. All of the scriptures are silent on this issue. The Bible scriptures that condemn homosexuality are very similar to the scriptures that condemn heterosexual sex outside of marriage. Another generation and people which may include a majority of members will have a completely different view on gay marriage. Think of a world where gay marriage has been the law of the land for decades and members have seen positive results of gay couples forming more stable marital relationships. The states that are the most pro marriage are the ones that gay marriage has been legal for the longest time.

I guess it is not unreasonable that God has a place somewhere in the Celestial Kingdom for his gay children that does not include forcing them to marry a woman for eternity. I also think that at some point the church will want to stop most of its gay members from leaving the church. I am not saying that the church will allow gay marriage, I am only saying that it is more likely that the church itself will allow gay marriage then it is for the government to force the church to marry gays.

[Zeta-Flux]

I have read enough of your post about no fault divorce to know that you feel this issue is what has caused so many marriages to fail since it became law. But don't you think that the increase of divorce is more likely because women are far less financially dependent on their husbands than in past decades? It seemed like before no fault divorce, if a couple wanted to divorce, they always found a legal reason to do so. I can not remember anyone staying together because even though they wanted to get a divorce, they couldn't persuade the judge that they had a good enough reason to dissolve the marriage. It seems to me that the only thing that no fault divorce did was to cut down the legal costs and try to unclog the court system by avoiding lengthy hearings. Love to have your thoughts on this.

Part of the reason that women are far less financially dependent on their husbands, is that marriage rates have also declined (due to no-fault divorce, in part, and due to other reasons as well). This in turn has led to an increase in female poverty.

Your point that if a couple wanted a divorce they could get it is debatable [by the people who *support* no-fault divorce], but the trouble is that the laws changed how easily one could get divorced. Before the change it took work to show fault, and so people found it took less effort to try and make their marriage work than to get divorced.

I'm basing my view of no-fault divorce on the research literature, which has shown a definite problems tied to the change.

I hope that helps.

[Zeta-Flux]

Yeah they do kind of indicate that our democracy depends on traditional heterosexual marriage. There was a bit of flag waving hyperbole to the argument. But their case is not the strongest and a little such hyperbole is to be expected. They may even win, I agree it is too close to call.

My impression was somewhat the opposite, with my view of the Plaintiffs as extremely hyperbolic.

But I'm open to being shown that the Proponents are also playing that game. Can you show me where in their brief they actually say that "society essentially will collapse"? Or was that your use of hyperbole? (Consider this an official call for reference. Thanks.)