Anti-Prop 8 Wasn'T About "Civil Rights"

[rockpond]

I am sorry, but you persist in getting this exactly backwards. The traditional definition of marriage was implicit in the law since marital laws were first enacted in this country, and for centuries before then. and it was so obvious and unquestioned that it went without formally or explicitly saying. It was only because a few rogue clerks in San Fransisco in more recent times, who took it upon themselves to interpret the law however they wished, and because a few judges appeared as though they would do likewise, that the state determined to explicitly codify the longstanding and blatantly obvious implicit definition so as to avoid any possible confusion and prevent arbitrary and capricious redefining by usurpers of the law and activists judges. Prior to 2000, there was no need to explicitly define marriage because the definition was not really in dispute. It only became a matter of dispute when gay activist determined to fundamentally and radically change the legal definition. Got it straight now? (pun intended)

Thanks, -Wade Englund-

Centuries? Really? You wanna take that position and defend traditional marriage over the past centuries?

That'll derail.

Again, I know you feel it was obviously implicit. But what about my statement "...anti-gay-marriage advocates wanting to put language into CA law to define marriage to exclude gay couples" was factually incorrect? That's exactly what was done.

[rockpond]

Keep in mind that Judge Walker is a federal judge, and so his examination and ruling would be at the federal level rather than state. As explained to Daniel2 (and indirectly to california boy), the question I am addressing now in this thread is specific to the states, and not the federal level. However, since I hope to eventually examine federal issues, feel free to research Walkers ruling in advance to see if you can find mention of the "separate but equal" matter, and/or wait and we can look at what he said in relation to equal protection and due process, and whether that had any bearing on the circuit court ruling.

Thanks, -Wade Englund-

Yeah, the California supreme court ruled that Prop 8 was a correct application of California law. Meaning that the electorate followed the correct process to amend the state constitution. They didn't really have the jurisdiction to rule otherwise on a constitutional amendment.

So then we take a step back and look at why Prop 8 backers sought to amend the state constitution -- that leads us to Prop 22.

When Prop 22 was struck down by the California Supreme Court in 2008 they stated: "California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying."

[wenglund]

There is a very good reason why I have chosen to examine this issue at the state level separately from the federal level, and that is because the civil rights and benefits availed by the federal government are not governed by, and thus not relevant at, the state level.

Let me explain. In 1996, the Defense of Marriage Act (DOMA) was passed by a large margin by both houses of congress and signed into law by President Clinton. This federal act defined "marriage" for the federal and interstate governments, while leaving to the respective states to define marriage for themselves as they saw fit.

What this meant was that the federal definition of marriage was binding at the federal level but not at the state level, and that the respective state definitions were binding at the state level but not at the federal level. Likewise, the federal civil rights and benefits associated with the federal definition, were binding at the federal level and not binding or relevant at the state level, and vice versa.

So, the 1,138 federal rights, benefits, and privileges associated with marriage as defined by DOMA, had no logical bearing on and were not relevant to state laws and constitutions like California Prop 22 and Prop 8. This should have been made obvious when Prop 22 was struck down by the SCoC, which allowed a few months where so-called same-sex marriages were legal in California until later when the passage of Prop 8 closed that window. The federal rights and privileges and benefits for same-sex couples were no different after Prop 22 was struck down than before, and they were no different after Prop 8 was passed than before. Prop 22 and Prop 8 had zero impact on federal civil rights because they were irrelevant to those rights (which were controlled by the federal DOMA).

Logically, then, it was and still is demonstrably false for anyone to claim that Prop 8 denies people federal civil rights. It doesn't. And, as demonstrated in the early part of this thread, it is false for anyone to claim that Prop 8 denies people state civil rights, since domestic partnerships affectively guaranteed them equal rights. Therefore, in short, equal civil rights were not really an issue with Prop 8, and could not have validly been an issue, and it is demonstrably false for anyone to claim otherwise.

Thanks, -Wade Englund-

[wenglund]

Centuries? Really? You wanna take that position and defend traditional marriage over the past centuries?

That'll derail.

You right about it derailing, but the word "traditional" should hopefully clue you in about how long it has been enforce throughout the past, though I am fine if it doesn't.

Again, I know you feel it was obviously implicit. But what about my statement "...anti-gay-marriage advocates wanting to put language into CA law to define marriage to exclude gay couples" was factually incorrect? That's exactly what was done.

No. The language of the law was already implicitly there. How could it not have been since the creation of domestic partnerships made that self evident--i.e. there would have been no need to create domestic partnerships if the language of the marital law didn't exclude same-sex couples?

Really, this is so seemingly obvious and uncontroversial I can't understand your persistent resistance, but as you noted, this is a topic for another day. To each their own.

Thanks, -Wade Englund-

[rockpond]

You right about it derailing, but the word "traditional" should hopefully clue you in about how long it has been enforce throughout the past, though I am fine if it doesn't.

No. The language of the law was already implicitly there. How could it not have been since the creation of domestic partnerships made that self evident--i.e. there would have been no need to create domestic partnerships if the language of the marital law didn't exclude same-sex couples?

Really, this is so seemingly obvious and uncontroversial I can't understand your persistent resistance, but as you noted, this is a topic for another day. To each their own.

Thanks, -Wade Englund-

You continue to say that it was obvious, uncontroversial, and implicit. But please, just answer this question did Prop 22 put language into CA law to define marriage to exclude gay couples?

And, did Prop 8 put language into the CA constitution to define marriage to exclude gay couples?

[rockpond]

There is a very good reason why I have chosen to examine this issue at the state level separately from the federal level, and that is because the civil rights and benefits availed by the federal government are not governed by, and thus not relevant at, the state level.

Let me explain. In 1996, the Defense of Marriage Act (DOMA) was passed by a large margin by both houses of congress and signed into law by President Clinton. This federal act defined "marriage" for the federal and interstate governments, while leaving to the respective states to define marriage for themselves as they saw fit.

What this meant was that the federal definition of marriage was binding at the federal level but not at the state level, and that the respective state definitions were binding at the state level but not at the federal level. Likewise, the federal civil rights and benefits associated with the federal definition, were binding at the federal level and not binding or relevant at the state level, and vice versa.

So, the 1,138 federal rights, benefits, and privileges associated with marriage as defined by DOMA, had no logical bearing on and were not relevant to state laws and constitutions like California Prop 22 and Prop 8. This should have been made obvious when Prop 22 was struck down by the SCoC, which allowed a few months where so-called same-sex marriages were legal in California until later when the passage of Prop 8 closed that window. The federal rights and privileges and benefits for same-sex couples were no different after Prop 22 was struck down than before, and they were no different after Prop 8 was passed than before. Prop 22 and Prop 8 had zero impact on federal civil rights because they were irrelevant to those rights (which were controlled by the federal DOMA).

Logically, then, it was and still is demonstrably false for anyone to claim that Prop 8 denies people federal civil rights. It doesn't. And, as demonstrated in the early part of this thread, it is false for anyone to claim that Prop 8 denies people state civil rights, since domestic partnerships affectively guaranteed them equal rights. Therefore, in short, equal civil rights were not really an issue with Prop 8, and could not have validly been an issue, and it is demonstrably false for anyone to claim otherwise.

Thanks, -Wade Englund-

But gay couples had to first achieve marriage equality in the states in order to move toward appealing the federal DOMA legistlation. They can't go to the federal level and seek legal recognition of their marriages prior to those marriages being acknowledged by the states.

[wenglund]

Yeah, the California supreme court ruled that Prop 8 was a correct application of California law. Meaning that the electorate followed the correct process to amend the state constitution. They didn't really have the jurisdiction to rule otherwise on a constitutional amendment.

So then we take a step back and look at why Prop 8 backers sought to amend the state constitution -- that leads us to Prop 22.

When Prop 22 was struck down by the California Supreme Court in 2008 they stated: "California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying."

Please see my explanation above (post #28) for why it is logical to examine this issue at the state level separate from the federal level, and the irrelevance of federal rights and privileges and benefits to state laws and constitutions.

Also, assuming the quote is correct and comes from the SCoC, the so-called "constitutional rights" invented by the SCoC when it struck down Prop 22, cannot logically be considered as "civil rights" since, as already demonstrated, that same court considered CA domestic partnerships to be equal in civil rights to civil unions and marriages. Otherwise, we are faced with double-speak and contradictions. Rather, it was merely a legal right to equal designation conferred dubiously by judicial fiat (not unlike the temporary right to same-sex marriage granted by that same rouge court).

Said another way, the SCoC was logically incorrect in their conclusion--which is easy to do when trying to shoehorn the square peg of pop cultural thinking into the round hole of the California constitution and the rational body of marital laws.

Thanks, -Wade Englund-

[rockpond]

Please see my explanation above (post #28) for why it is logical to examine this issue at the state level separate from the federal level, and the irrelevance of federal rights and privileges and benefits to state laws and constitutions.

Also, assuming the quote is correct and comes from the SCoC, the so-called "constitutional rights" invented by the SCoC when it struck down Prop 22, cannot logically be considered as "civil rights" since, as already demonstrated, that same court considered CA domestic partnerships to be equal in civil rights to civil unions and marriages. Otherwise, we are faced with double-speak and contradictions. Rather, it was merely a legal right to equal designation conferred dubiously by judicial fiat (not unlike the temporary right to same-sex marriage granted by that same rouge court).

Said another way, the SCoC was logically incorrect in their conclusion--which is easy to do when trying to shoehorn the square peg of pop cultural thinking into the round hole of the California constitution and the rational body of marital laws.

Thanks, -Wade Englund-

Yes, civil unions in CA recreated the same set of rights as marriage.

But, marriage IS the civil right that CA law was failing to recognize for gay couples.

[thesometimesaint]

Found this interesting.

[wenglund]

You continue to say that it was obvious, uncontroversial, and implicit.

That is because it is seemingly obvious, uncontroversial, and implicit. Why you can't see it, is a mystery to me.

But please, just answer this question did Prop 22 put language into CA law to define marriage to exclude gay couples?

Yes, though it was tantamount to repeating the language that was already in the CA law for years--i.e. always. The obvious principle that you seem not able to get, is that Prop 22 didn't essentially change the definition of marriage, it simply reinforced, through explicit and clear repetition. what had traditionally always been there, both in term of the legal definition and the general accepted definition. Do you get it now?

And, did Prop 8 put language into the CA constitution to define marriage to exclude gay couples?

Yes...in the same respect as Prop 22 (see above),

Thanks, -Wade Englund-

[cdowis]

Those crazy gay advocates, when are they gonna get to work on radically altering the definition of marriage?

The reason they did not put anything on a ballot is because they knew they would LOSE. Instead, they depend on the fiats of the courts, rather than the ballot, to alter the definition of marriage.

The gay advocates are "getting to work" right now, with their lawyers, to claim phoney "civil rights" violations.

[semlogo]

Wade, these arguments were stale back when they were used to try to keep black people from using white drinking fountains. They have not improved with age.

[semlogo]

The reason they did not put anything on a ballot is because they knew they would LOSE. Instead, they depend on the fiats of the courts, rather than the ballot, to alter the definition of marriage.

The gay advocates are "getting to work" right now, with their lawyers, to claim phoney "civil rights" violations.

Now that a majority of Americans are in favor of gay marriage rights, it is now the anti-gay crowd that is appealing to the courts.

[wenglund]

But gay couples had to first achieve marriage equality in the states in order to move toward appealing the federal DOMA legistlation. They can't go to the federal level and seek legal recognition of their marriages prior to those marriages being acknowledged by the states.

Since the federal DOMA is a separate issue from the state laws, the federal DOMA can and has been challenged separate from the state laws. It has been challenged on its own merits, and repeatedly upheld. It is once again being challenged during the current Supreme Court session, though separate from the challenges to certain state laws. This is not to say that conflicting state laws can't be used advantageously in challenging the federal DOMA. They can. But, that is a different issue than the challenges to state laws under consideration in this thread.

Again, let me re-emphasize what has been thus far demonstrated. Since federal marital civil rights are irrelevant to state marital laws and constitutions, and since California domestic partnership legislation granted equal civil rights to same-sex couples as married heterosexual couples, then the equal civil rights was really a non issue in relation to Prop 8, and it would have logically been, and still is, false to claim that Prop 8 denied civil rights to same-sex couples.

Thanks, -Wade Englund-

[wenglund]

Yes, civil unions in CA recreated the same set of rights as marriage.

But, marriage IS the civil right that CA law was failing to recognize for gay couples.

Great...you are half way there. Now that you are on board that Prop 8 didn't deny homosexual couples the same set of civil rights as marriage, we can then proceed in examining how and why "marriage" is, itself, a civil right, and whether same-sex couples are being denied that civil right. I will do so in the next several posts when I get the time.

Thanks, -Wade Englund-

[wenglund]

Wade, these arguments were stale back when they were used to try to keep black people from using white drinking fountains. They have not improved with age.

Your absurd comparison and flippant remarks are off-topic. Please try and stay on point.

Thanks, -Wade Englund-

[rockpond]

Since the federal DOMA is a separate issue from the state laws, the federal DOMA can and has been challenged separate from the state laws. It has been challenged on its own merits, and repeatedly upheld. It is once again being challenged during the current Supreme Court session, though separate from the challenges to certain state laws. This is not to say that conflicting state laws can't be used advantageously in challenging the federal DOMA. They can. But, that is a different issue than the challenges to state laws under consideration in this thread.

Again, let me re-emphasize what has been thus far demonstrated. Since federal marital civil rights are irrelevant to state marital laws and constitutions, and since California domestic partnership legislation granted equal civil rights to same-sex couples as married heterosexual couples, then the equal civil rights was really a non issue in relation to Prop 8, and it would have logically been, and still is, false to claim that Prop 8 denied civil rights to same-sex couples.

Thanks, -Wade Englund-

Federal DOMA has been "repeatedly upheld"? Section 3 (dealing with recognition of same sex marriages) has been found unconstitutional in eight federal courts and has now been appealed to SCOTUS.

And let me again re-emphasize that Marriage IS the civil right in dispute. You can keep saying that it's not about civil rights because they had all the same rights but they lack the civil right of marriage.

[wenglund]

Now that a majority of Americans are in favor of gay marriage rights, it is now the anti-gay crowd that is appealing to the courts.

This dubious comment is off-topic. Please try and stay on point.

Thanks, -Wade Englund-

[wenglund]

Federal DOMA has been "repeatedly upheld"? Section 3 (dealing with recognition of same sex marriages) has been found unconstitutional in eight federal courts and has now been appealed to SCOTUS.

Yes...you need to go back further in your reading than the last couple of years.

And let me again re-emphasize that Marriage IS the civil right in dispute. You can keep saying that it's not about civil rights because they had all the same rights but they lack the civil right of marriage.

See my post #40 above.

Thanks, -Wade Englund-

[Walden]

As promised in a thread in which I am now banned, here is evidence that objections to California's Prop 8 weren't really about equal civil rights, and really couldn't have been about equal civil rights.

This evidence also applies to certain other states that have had civil unions and domestic partnerships, but where objections have been raised against laws in those states restricting marriage to between a man and a woman.

Let's put the evidence in a proper historical context. In 1999, California legalized domestic partnerships. According to Wikipedia: California Domestic Partnerships:

As you can see from the bolded portion above, prior to Prop 22 (a statute enacted in 2000 in California by popular vote, which restricted marriage to only opposite-sex couple), or at least by 2005, when the Domestic Partner Rights and Responsibilities Act went into affect, domestic partnerships in California had the same civil rights as marriages.

As indicated above, California DP's were/are functionally equivalent to civil unions enacted in other states (such as Vermont, Connecticut, New Jersey, etc.). And, civil unions, by definition, are considered equal in rights to marriages. In fact, "Civil Unions are often viewed by same-sex marriage supporters as "separate but equal." (ibid)

DP's in other states (like Maine, Colorado, New Jersey, Oregon, Washington), likewise have equal civil rights as marriages.

However, in 2008, the California Supreme Court struck down Prop. 22,, not because there was a disparity in civil rights between marriages and domestic partnerships. In fact, the court said:

Rather, it was struck down because of different legal designations:

In other words, the issue wasn't about disparate civil rights (the court essentially granted that domestic partnerships were afforded "all the significant legal rights and obligation" as marriages--i.e. they had equal civil rights), but because the legal union of homosexual couples were called something different than the legal unions of heterosexual couples. It all came down to the legal definition of "marriage."

California's Prop 8 came in response to the court's action, essentially rendering it moot by amending the state's constitution to define marriage as between a man and a woman.

In other words, Prop 8 wasn't enacted, nor was it objected to, on the basis of denied civil rights, and this because homosexual couples already had the same or equal civil rights in California (and other states) as opposite sex couples. It was objected to because homosexual couples wanted the legal designation of "marriage" just like heterosexual couples. Gay advocates wanted to radically alter the longstanding definition of "marriage" to include same-sex couples. Simple as that.

Thanks, -Wade Englund-

While I support gay marriage, and I find it courious that you choose to focus solely on the states rights issue versus federal rights issue (which certainly bolsters your particular argument and allows you to ignore the hundreds of protectections and benefits provided by the feds to married couples), I will play along with your line of thought and attempt to respond to your original argument, which states, "the issue wasn't about disparate civil rights (the court essentially granted that domestic partnerships were afforded "all the significant legal rights and obligation" as marriages--i.e. they had equal civil rights), but because the legal union of homosexual couples were called something different than the legal unions of heterosexual couples. It all came down to the legal definition of "marriage."

As we both know, the role of language and terminolgy in our society does have a great affect on the perceptions of the citizenry. Thus, the argument does not come down to the "legal definition of marriage", but rather, the public perception of the term "marriage."

In discussing the merits of the use of terminology of the word "marriage" versus "civil union", I agree with Brad Sears, executive director of the Williams Project on Sexual Orientation Law at UCLA, who argues:

"civil unions do not go far enough. First, they do not provide gay couples with access to the over 1,000 federal rights and obligations provided for by federal law. Second, they do not provide gay couples with the social recognition and support that the institution of marriage provides.

Finally, adopting civil unions places a stamp of inferiority on the relationships of gay men and lesbians just like the Jim Crow laws and segregation policies that kept African-Americans separate and (arguably) equal. If society can give gay couples most of the rights of marriage through civil unions, why can't it allow them to marry? Only because it believes that gay people are not worthy of the same dignity and respect as heterosexuals. Those who are advocates for civil unions but not marriage are stating a position of prejudice, pure and simple.

[wenglund]

Hey, rockpond,

I am enjoying the reasoned exchange, and I hope it continues.

However, I think it may be wise to make a minor note for clarification so as to avoid confusion going forward. There is an important plural/singular distinction between "civil rights" and "civil right." It is the former that I have thus far been discussing (i.e "civil rights"), and it is the later that I will yet be discussing ("civil right") with you. Make sense?

Thanks, -Wade Englund-

[Damien the Leper]

Maybe a better solution would be for federal and state governments to stop handing out marriage licenses and no longer recognize religious union ceremonies and granting special rights based on such.

[semlogo]

Your absurd comparison and flippant remarks are off-topic. Please try and stay on point.

Thanks, -Wade Englund-

They are exactly on topic, as your reasoning is exactly the same as the separate but equal crowd from the darker days of the union.

http://en.wikipedia.org/wiki/Separate_but_equal

[semlogo]

Maybe a better solution would be for federal and state governments to stop handing out marriage licenses and no longer recognize religious union ceremonies and granting special rights based on such.

It's never going to happen. What is going to happen is equal marriage rights for gay Americans. It's inevitable.

[semlogo]

This dubious comment is off-topic. Please try and stay on point.

Thanks, -Wade Englund-

It is no more off topic than cdowis' comment, to which I was responding. You seem to have confused "off-topic" with "statements I disagree with."

I hope this clears up your obvious confusion.