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Closing Arguments in Prop 8 Trial
June 16, 2010 8:58 AM   Subscribe

A federal judge in California will hear closing arguments today in the landmark legal case that will determine the constitutionality of California's same-sex marriage ban , first approved by voters as Proposition 8 in November 2008. Previously. also Previously.
Among the questions Walker asked Olson and Boise to address in their closing arguments is whether voters who believe "genuinely but without evidence" in legitimate reasons for restricting marriage to opposite-sex couples are infringing on constitutional rights. The plaintiffs are also asked to provide evidence that recognizing same-sex marriages would reduce discrimination about gays and lesbians and provide benefits to the state.

Walker asks Pugno and supporters of the marriage ban to provide concrete evidence that allowing same-sex weddings would harm the institution of marriage itself. He also asks, among other things, how banning the marriages would improve the chances of a child being raised by both a mom and dad given that the state already permits same-sex couples to adopt children.
MarriageTrial.com plans to post their reenactment of closing arguments as soon as transcripts are available, and wants to stream the ruling announcement live as soon as it is made.

Related: Study shows voters not swayed on same-sex propositions by campaign rhetoric
posted by hippybear (173 comments total) 16 users marked this as a favorite

 
I believe Prop 8 Trial Tracker is planning to live-blog the proceedings.
posted by Blue Jello Elf at 9:02 AM on June 16, 2010


Even though any conclusion will be escallated to the supreme court, I can't wait to hear how this goes. The anti-8 side has logic, but the pro-8 side has innertia.
posted by mccarty.tim at 9:02 AM on June 16, 2010


Looks like Firedoglake will be liveblogging as well. Previously Prop 8 Trial Tracker had more editorializing and Firedoglake was more of a direct-if-rushed transcript.
posted by Blue Jello Elf at 9:06 AM on June 16, 2010


So, correct me if I'm right. If this goes to the supreme court and the anti-8 side wins, does this mean the entire country gets gay marriage, like Loving v. Virginia? And what's the worst case scenario for marriage rights if this backfires?
posted by mccarty.tim at 9:07 AM on June 16, 2010


The Prop 8 backers are also asking the judge to revoke recognition of the marriages performed in the 6-ish months prior to Prop 8's passage. One of those is my marriage. I've already been annulled once by the state. I do not want to be annulled again.

You know what it feels like to have the state send you a form that tells you you're not married anymore? It feels like shit.
posted by rtha at 9:10 AM on June 16, 2010 [140 favorites]


The plaintiffs are also asked to provide evidence that recognizing same-sex marriages would reduce discrimination about gays and lesbians

Then demonstrate how not shooting people in the face will reduce the cost of healthcare!
posted by Pope Guilty at 9:11 AM on June 16, 2010 [8 favorites]


MarriageTrial.com plans to post their reenactment of closing arguments as soon as transcripts are available, and wants to stream the ruling announcement live as soon as it is made.

Will it be with people, people with mustaches, or ... LEGO minfigs? I want things to go well, but realize they may not. In either case, humor would make the positive news more uplifting, and the sad news just a little less crushing.
posted by filthy light thief at 9:11 AM on June 16, 2010


On preview, what rtha said.

One of the last things I and my partner did before we left California was get married -- at Topanga State Beach, while strangers passed by and waved and wished us congratulations. Prop 8 supporters can take their request to invalidate my marriage and shove it where the sun doesn't shine.

I hope Obama doesn't go on the air in the event of a final ruling against Prop 8 and make some solemn national address about the sanctity of marriage the way Bush did in 2004.
posted by blucevalo at 9:12 AM on June 16, 2010 [2 favorites]


So, correct me if I'm right. If this goes to the supreme court and the anti-8 side wins, does this mean the entire country gets gay marriage, like Loving v. Virginia?

No. Loving v Virginia was nationwide because it was decided by the Supreme Court.
posted by Pope Guilty at 9:12 AM on June 16, 2010


Also? A gigantic FUCK. YOU. to the supporters of Prop 8.
posted by rtha at 9:14 AM on June 16, 2010 [27 favorites]


In addition to Prop 8 Trial Tracker and Firedoglake coverage of today's proceedings, there's also the American Foundation for Equal Rights live coverage.
posted by ericb at 9:16 AM on June 16, 2010


The plaintiffs are also asked to provide evidence that recognizing same-sex marriages would reduce discrimination about gays and lesbians

What? Since when are issues of practicality or whatever important to the court? Shouldn't the decision be based on, y'know, the fact that peoples' Constitutional Fucking Rights are being violated?
posted by shakespeherian at 9:16 AM on June 16, 2010 [2 favorites]


These are the questions the judge asked both sides to address in their closings.
posted by rtha at 9:18 AM on June 16, 2010 [5 favorites]


"Historic marriage has its roots in pairing a man to a woman and has served as the foundation of the family and society as a whole," wrote Pugno in a recent blog post. "To change the definition of marriage... would result in such a profound change to the structure and public meaning of marriage as to severely damage society, possibly beyond repair."

I'm confused. Would "historic marriage" permit Rush Limbo to get married four times?
posted by three blind mice at 9:20 AM on June 16, 2010 [4 favorites]


Thank you for posting this, hippybear. I didn't realize this was happening today.
posted by zarq at 9:20 AM on June 16, 2010 [1 favorite]


The anti-8 side has logic, but the pro-8 side has innertia.

The pro-8 side has a conservative activist Supreme Court on it's side. Ultimately, sadly, this will decide our fate.
posted by Blazecock Pileon at 9:21 AM on June 16, 2010 [2 favorites]


Correct me if I'm right? Did you mean to do that?
posted by Daddy-O at 9:22 AM on June 16, 2010


Judge Walker sent both sides 11 pages of questions he wants addressed in the arguments. You can ead their responses here and here.
posted by ericb at 9:22 AM on June 16, 2010 [3 favorites]


Yes, three blind mice. All four times at once, actually.
posted by mccarty.tim at 9:22 AM on June 16, 2010 [1 favorite]


Whoa, I hope that "believe genuinely but without evidence" flies because that would be hella useful in a multitude of cases from religion to abstinence education.
posted by DU at 9:23 AM on June 16, 2010


Since when are issues of practicality or whatever important to the court?

Fifty-odd years now. Social science research on the effects of segregated schools on black children was an important part of proving to the Court that even a segregated school that was equal or superior in every measurable way to its whites-only counterpart could never be actually equal because segregation inherently creates inequality.
posted by ROU_Xenophobe at 9:23 AM on June 16, 2010 [5 favorites]


I wrote that before lunch. I was hungry and confused, Daddy-O. Can we get an edit pony up in this thread?
posted by mccarty.tim at 9:23 AM on June 16, 2010


Lots of Prop 8 news all at once. Just a few days ago, the Mormon church agreed to pay a $5,000 fine for grossly underreporting their contributions to the Prop 8 campaign and then lying about it when they were challenged initially.

$5,000 seems like pocket change. It's pretty symbolic that California is fining them at all, though. First time they've done that, apparently.
posted by gurple at 9:23 AM on June 16, 2010 [4 favorites]


What? Since when are issues of practicality or whatever important to the court?

Since Bush v Gore, certainly.
posted by Joe Beese at 9:24 AM on June 16, 2010


Prop 8 supporters can take their request to invalidate my marriage and shove it where the sun doesn't shine.

You mean Seattle?

I keed, I keed!
posted by Aizkolari at 9:24 AM on June 16, 2010 [3 favorites]


Pope Guilty: "Loving v Virginia was nationwide because it was decided by the Supreme Court."

Which is why he mentioned the Supreme Court, I guess?

Commentary: In a recent class on argumentation and logic, I took up the position for same-sex marriage, and wrote up a large essay about my position. The instructor gave me a hard time for it, saying that the word "marriage" has sacred connotations and that if gays/ lesbians would just settle for civic partnerships, they'd be able to get the rights they were really after. Here's a bit of the reply I sent to him:
The issue, then, under full equal rights would be phrasing of the term. As you mentioned (and I have myself experienced) it is a commonly held conservative Christian point of view that marriage is a sacred institution. I agree that it can be. However, many people can get married at the courthouse, no religious intercession required. Should these heterosexual marriages be denoted in the same way? No. The singular word "marriage" is just as applicable to civil ceremonies as it is religious ceremonies, and therefore it ought to be as applicable to same-sex marriages as heterosexual.

Beyond that, we have to look at the sacred connotations of the word. Marriage does have strong religious traditions, but we are a secular and pluralistic society. Is it sufficient in a pluralistic society to say one is "married" Would it be acceptable for denominations attached to the term? Would my parents be "Ukrainian Orthodox Married"? Christian Married? Jewish Married? Muslim Married? When applied this way, the terms take on a term of divisiveness and mean-spirited exclusivity if not outright bigotry. Would you be settle for being "Roman Catholic Married"? The rights extended to you would be no different than a Protestant Married couple, but, it might be argued that society as a whole would be more accepting of your union.

For both of these reason "civic unions" ought to unacceptable to same-sex advocates.
This issue is geniunely difficult for sympathetic and caring individuals inside of religious institutions. I can sympathize for their desire to compromise to bring about more rights under the civic union (or etc) label, but it's impossible to endorse a position that effectively grants fewer total rights than het marriages.
posted by boo_radley at 9:24 AM on June 16, 2010 [34 favorites]


I've always thought that if we aren't gonna let same sex partners get married because of the "sanctity of marriage" hooplah, we should also criminally prosecute divorcees and adulterers. Because those two things definitely do the trick of fucking up marriages and make them less sacred.

I'm just sayin: If we're gonna be the Upholders of the Christian Standard, we should go balls to the wall and do it right.
posted by From the Fortress at 9:25 AM on June 16, 2010 [5 favorites]


List of journalists and activists who will be providing live coverage via Twitter.
posted by ericb at 9:27 AM on June 16, 2010 [1 favorite]


Yes well the supporters of this bullshit are frequently guilty of adultery and divorce so you won't see them advocating against that any time soon.
posted by amethysts at 9:28 AM on June 16, 2010 [3 favorites]


You mean Seattle?

Well, Seattle ..... or the west side of San Francisco most days.
posted by blucevalo at 9:29 AM on June 16, 2010


The ABC News link has a pullquote from Pugno in a blog. I'm not sure if this is the original blog, but there is more context to that line on front page of Guard Marriage.com right now (no deep link for posterity, sorry). Weird note: the fine print at the bottom of the page reads
This site is not owned or operated by The Church of Jesus Christ of Latter-day Saints (sometimes called the Mormon Church or LDS Church). For the official Church websites, please visit LDS.org and Mormon.org.
Why clarify, unless they're associated in loose terms? Oh right, because links to WhyMormonism.org are included in the reasons to "guard marriage" (example: "Historic marriage has its roots in pairing a man to a woman and has served as the foundation of the family and society as a whole." -- link location maintained from the source text)


From "The plaintiffs are also asked..." pullquote covered by some here, here are the full two lines, giving a bit more context:
Among the questions Walker asked Olson and Boise to address in their closing arguments is whether voters who believe "genuinely but without evidence" in legitimate reasons for restricting marriage to opposite-sex couples are infringing on constitutional rights. The plaintiffs are also asked to provide evidence that recognizing same-sex marriages would reduce discrimination about gays and lesbians and provide benefits to the state.
Snarky reply: shouldn't the court first find out if voters actually understand the content and meaning of their constitutional rights? Also, why does this need to be a benefit to the state? However, the defendants are getting their own questions:
Walker asks Pugno and supporters of the marriage ban to provide concrete evidence that allowing same-sex weddings would harm the institution of marriage itself. He also asks, among other things, how banning the marriages would improve the chances of a child being raised by both a mom and dad given that the state already permits same-sex couples to adopt children.
The article isn't very long, and these blocks of text represent about 1/4 of the total write-up, FYI.
posted by filthy light thief at 9:31 AM on June 16, 2010


The instructor gave me a hard time for it, saying that the word "marriage" has sacred connotations and that if gays/ lesbians would just settle for civic partnerships, they'd be able to get the rights they were really after.

Your instructor sounds like a fool.
posted by blucevalo at 9:31 AM on June 16, 2010 [1 favorite]


Lots of Prop 8 news all at once. Just a few days ago, the Mormon church agreed to pay a $5,000 fine for grossly underreporting their contributions to the Prop 8 campaign and then lying about it when they were challenged initially.

OK. Now that this evidence has come to light, can the Federal government step in and examine whether their tax-exempt status should be revoked?
posted by zarq at 9:32 AM on June 16, 2010 [9 favorites]


In Canada (where I live) the process by which same-sex marriage became legal was driven by court rulings. After much delay and dithering, Parliament eventually agreed (and by the smallest possible margin) to adopt legislation that would be consistent with court rulings. Rather than having to depend upon the judiciary, it would be much better to live in a society in which the general public understands that there is actually nothing wrong with homosexuality and that there is no reason to persecute homosexuals or to deprive them of the rights enjoyed by heterosexuals. However, if it takes the courts to move forward with this issue, that is better than nothing. The process is tricky because, however unjust it may be to discriminate against homosexuals, that does not in itself determine a legal outcome. We have to show not only that something is unjust, but that it violates a specific legal requirement. In general I think that a good case can be make that homosexuals are entitled to equal treatment under the law - a interpretation which has prevailed in Canada - but there is no guarantee that US courts will come to a similar conclusion.

Incidentally, although it remains possible that some future Canadian government may seek to repeal same-sex marriage, that is not expected to be applied retroactively. Even our most conservative politicians have not sunk to the level of mean spiritedness that would be required to allow people to marry but to then annul their marriages.

I wonder how many of those people who think that they are defending the institution of marriage by preventing same sex couples from marrying, would also support other restrictions on marriage. Perhaps only Southern Baptists should be allowed to marry, and all marriages involving people who are not of that particular faith should be annuled. Surely the more exclusive marriage is, the better. Why should infidels, unbelievers, blasphemers and heretics be allowed to marry? Surely God doesn't approve of such marriages.
posted by grizzled at 9:32 AM on June 16, 2010 [2 favorites]


I still think the government has no place in marriage regardless of the sexes or genders of the involved parties, and wish we had civil unions for everyone.
posted by shakespeherian at 9:35 AM on June 16, 2010 [4 favorites]


I'd be totally okay with creating civil unions; decoupling all rights, privileges, and obligations associated with marriage; and then making those same benefits assignable to people, or not, as you like, by filing paperwork.

That a religious ceremony confers legal rights is definitely not okay with me, not that anyone cares. It's not like we only grant birth certificates for the baptized.
posted by adipocere at 9:38 AM on June 16, 2010 [6 favorites]


OK. Now that this evidence has come to light, can the Federal government step in and examine whether their tax-exempt status should be revoked?

There is a petition to get the IRS to do exactly this. You could always sign it and hope. But the IRS would only do this if they want civil unrest on a scale we haven't seen since Vietnam, or possibly the Civil War.
posted by gurple at 9:38 AM on June 16, 2010


Separate but equal is not constitutional, full stop. I cannot believe that anything more need be said.
posted by Pope Guilty at 9:42 AM on June 16, 2010 [11 favorites]


Here's one piece of evidence on same-sex marriage having public benefits. "Forsaking All Others? The Effects of Same-Sex Partnership Laws on Risky Sex" by Thomas Dee, Economic JournalVol. 118, Issue 530, pp. 1055-1078, July 2008. The abstract reads:

One conjectured benefit of a marriage-like legal status for same-sex couples is a reduction in the incidence of sexually transmitted infections (STI). In this study, I discuss how such a policy might influence risky sexual behaviour and STI rates. I also present reduced-form empirical evidence on whether same-sex partnership laws have reduced STI rates, using country-level panel data from Europe. The results suggest that these [marriage-like legal status] laws led to statistically significant reductions in syphilis but not in infections that are not sexually transmitted. However, their effects on the incidence of gonorrhoea and HIV were also smaller and statistically imprecise.

FWIW, that he finds this for syphilis, but not gonorrhea, could be interpreted as evidence in favor of his hypothesis since gonorrhea has considerably more prevalence in heterosexual networks, whereas syphilis is almost entirely MSM (at least in the US). I spoke with one public health official in either Washington or Oregon over the phone a year ago who told me that they had not seen a single case of female syphilis in years. They'd all been MSM cases.

HIV is also predominantly MSM, but as its transmission rate is so small, it's not clear that one should find it for that STI. Syphilis, though, seems like the one STI you would find it - it has a relatively high transmission rate, a short incubation spell, and is highly concentrated in MSM networks.

See also this paper by Hugo Mialon and Andrew Francis in the 2009 Journal of Health Economics which finds "tolerance of homosexuality" reduces HIV incidence. That again would be evidence of the public benefits - though indirectly - of marriage status.
posted by scunning at 9:42 AM on June 16, 2010 [6 favorites]


boo_radley: On top of the messy fact that the largest protestant groups in the United States developed from a schism that was formalized when Henry VIII told the Pope that he was going to exercise his royal prerogative to a divorce in spite of the Church, arguments that it's about the sacred connotations of the word "marriage" are fucking disingenuous.

History lesson here, laws against same-sex marriage were pushed through state legislatures in the early 90s to block piecemeal rights like custody, private insurance benefits, powers of attorney, and family visitation in jurisdictions where neither civil unions nor marriage were on the horizon. As we've seen repeatedly over the last 40 years, any step in which LGBT people are treated as human beings worthy of recognition or civil rights is considered an attack on the sanctity of marriage.

adipocere: The legal rights are not granted by the religious ceremony. They're granted by filing a signed and witnessed document with the local government. They're removed by filing a signed and witnessed document with the local government. The religious sacrament is an entirely separate event.
posted by KirkJobSluder at 9:45 AM on June 16, 2010 [5 favorites]


That a religious ceremony confers legal rights is definitely not okay with me

I may be wrong here, But I believe it doesn't. Not exactly.

My marriage license was issued by the state of Texas. There were requirements my wife and I had to fulfill, in order to be granted that license. IIRC, we had to pay a fee, prove we weren't siblings and provide our birth certificates (to prove we were adults and US citizens) and another acceptable form of identification.

I was married by a rabbi in El Paso several days later. The state had authorized him to sign and approve my marriage license, but in theory he could have done so with just our signatures and a witness. Just as certain city officials can.

The ceremony was *the rabbi's* requirement to us, for his signature. But he could have signed our certificate without it.

I sympathize with the argument that clergy should not be allowed to sign a marriage license. But my understanding is that the religious ceremony itself isn't conferring the legal right of marriage.
posted by zarq at 9:47 AM on June 16, 2010 [2 favorites]


blucevalo: "Your instructor sounds like a fool."

No, although I can see how you'd think that from what I posted. His position is one of gay rights advocacy from within the Catholic Church. While he's interested in increasing equality, he has to do so within a culture that makes any compromise very difficult. He wrote that he found within his own diocese that people weren't opposed to gay rights, but marriage as a church institution. Literally everything was OK up til then. The pattern repeated itself in other dioceses as well. He wanted to increase the net good without really grasping that this kind of compromise is just readjusting the line of discrimination, not erasing it.

And it's interesting to me to see someone who's genuinely committed to making a change within a worldwide institution whose policy is to oppose these rights. I don't agree with the church, but I think it's a tiny, courageous act for a person to try to get it on a good path, even though his ideas aren't so hot in a wider scope. We're still talking and I'm trying to bring him inside the fold.
posted by boo_radley at 9:47 AM on June 16, 2010


rtha: "You know what it feels like to have the state send you a form that tells you you're not married anymore? It feels like shit."

Ugh. It's like a punch in the stomach just reading that. I can't even imagine.
posted by brundlefly at 9:51 AM on June 16, 2010 [1 favorite]


Who the hell is this judge?
whether voters who believe "genuinely but without evidence" in legitimate reasons for restricting marriage to opposite-sex couples are infringing on constitutional rights.
If it's a "legitimate" reason, what does is matter why people believe in it? Is the genuineness of the belief supposed to somehow stand in for evidence? And what does any of that have to do with the effect of that belief on the rights of others?
The plaintiffs are also asked to provide evidence that recognizing same-sex marriages would reduce discrimination about gays and lesbians and provide benefits to the state.
Would eliminating a form of discrimination reduce discrimination? Let me ponder that for a moment.

I'm hoping the writer of the article is misrepresenting what the judge is asking, because from this it sounds like this trail has all the intellectual and Constitutional rigor of a third grade civics class.
posted by bjrubble at 9:51 AM on June 16, 2010 [2 favorites]


Separate but equal is not constitutional, full stop. I cannot believe that anything more need be said.

Agreed, but it took 58 years for the Court to overturn Plessy v. Ferguson. Change happens very slowly, especially if the court perceives it as overturning the will of the people.
posted by zarq at 9:53 AM on June 16, 2010


If this goes to the supreme court and the anti-8 side wins, does this mean the entire country gets gay marriage, like Loving v. Virginia?

It depends how the anti-8 side wins--on what grounds. If they win and part of the reasoning is that sexual preference (sexuality? I'm not sure of the best term) is a suspect classification (same category as race, religion, national origin), it will be close to impossible for a state to make a law that differentiates on the basis of sexual preference without it being found unconstitutional under strict scrutiny. I'm pretty sure that alone would torpedo laws that deny same-sex people the right to marry, in addition to most everything else, like the laws that ban gay people from adopting.

If part of the reasoning is instead that sexual preference is a quasi-suspect classification (like gender), it will be significantly harder for a state to make a constitutional law that differentiates on the basis of sexual preference, but laws that do would face intermediate scrutiny. So some laws would survive. Even if Prop 8 gets struck down under intermediate scrutiny, a state could conceivably pass a constitutional anti-same-sex marriage law--at least in some hypothetical world where there is actually a legitimate reason for denying people to marry another person of the same gender--but it would be a hell of a lot tougher than it is now. (In other words, if the standard was only intermediate scrutiny, Scalia would have a small chance of pulling something out of his ass to convince Kennedy.)

Right now, laws that differentiate on the basis of sexual preference supposedly face only rational basis review. Over the years, people have speculated that the Court is actually treating sexual preference as a sort-of-quasi-suspect classification (fuzzy intermediate scrutiny) even though they won't admit it, because it's very rare for the Court to strike down a law under rational basis review and yet the Court has done just that in some sexual preference cases. They could continue this pattern, and that would look like "CA's Prop 8 fails rational basis review" rather than "All laws against same-sex marriage fail rational basis review." Challenges would have to be brought against each anti-same-sex marriage law. If a state were able to pass rational basis review, its law would stay on the books.

And what's the worst case scenario for marriage rights if this backfires?

My guess is this case will get the Court to speak firmly about how they treat sexual preference. If the worst happens, that means they'll say definitively that sexual preference is neither a suspect nor a quasi-suspect classification, and then under rational basis review, they'll find Prop 8 constitutional. That would deny gay people the levels of protection afforded to other historically discriminated against groups and confirm that states can make laws constitutionally discriminating against gay people in fairly blatant ways without any real support. Because the Court gives a lot of weight to precedent, this ruling would pretty much decide the outcome of other challenges to anti-gay rights laws for years, if not decades.
posted by sallybrown at 9:54 AM on June 16, 2010 [18 favorites]


The confusing thing to me is that the California SC judgment that got this all rolling was their finding that marriage was a civil right, and couples should not be denied this on the basis of their gender. So Prop 8 was essentially removing equal protection under the law. It was decided by a simple majority. So since when could a simple majority remove minority protections? What if Prop 8 had been "Women are not allowed to attend school" or "Only white people can use public restrooms"? How is this any different, except that the minority group being targeted is smaller and more defenseless?

I suppose, to answer my own question, the reason is that gender and race are protected at the federal level, where same-sex couples not only aren't protected, they're actively targeted for discrimination with historically shameful stuff like the "Defense of Marriage Act."
posted by mullingitover at 9:55 AM on June 16, 2010 [3 favorites]


FWIW -- here's the National Organization for Marriage's (NOM) pro- Prop 8 website and coverage.
posted by ericb at 9:57 AM on June 16, 2010


I'd be totally okay with creating civil unions; decoupling all rights, privileges, and obligations associated with marriage; and then making those same benefits assignable to people, or not, as you like, by filing paperwork.

Yeah, exactly. I mean, I realize that this is largely orthogonal to the current marriage equality debate, in which framework I think it's patently obvious that equality is constitutionally mandated. But ideally I'd like to see an entirely different framework wherein civil unions are the legally granted recognition of whatever, which confers all of the associated rights and privileges, and marriage is some entirely unrelated religious and/or social signifier that your priest or rabbi or guru or friend can give you so that you fulfill whatever religious/moral/social obligations or desires you happen to have w/r/t the whole thing.
posted by shakespeherian at 9:59 AM on June 16, 2010 [2 favorites]


bjrubble: I can only suggest you check out the previously links in the FPP and read the court transcripts linked at the marriagetrial.com link if you need a more clear picture of how the trial has been handled and what kind of judge Vaugn Walker is. It seems you've not followed this trial at all up until now, so perhaps some background will help you find the context you feel you lack.
posted by hippybear at 10:03 AM on June 16, 2010


...saying that the word "marriage" has sacred connotations and that if gays/ lesbians would just settle for civic partnerships, they'd be able to get the rights they were really after.

Have you professor take a look at Project 1138's website.
"Project 1138 is designed to increase public awareness of the 1,138 federal marital benefits and protections denied to same-sex couples as the result of marriage inequality."
Separate is not equal!
posted by ericb at 10:04 AM on June 16, 2010 [13 favorites]


So since when could a simple majority remove minority protections?

Since California has a seriously fucked up ballot initiative process and it's possible to amend the state constitution by looking at it funny.
posted by rtha at 10:04 AM on June 16, 2010 [9 favorites]


boo_radley: And it's interesting to me to see someone who's genuinely committed to making a change within a worldwide institution whose policy is to oppose these rights.

And to me as well. I retract my epithet.
posted by blucevalo at 10:05 AM on June 16, 2010


That's true enough, zarq, but let's not pretend that the people supporting Proposition 8 aren't doing it, overwhelmingly, because of religious issues. This is basically about religious groups getting to define what marriage is. They have couched the opposition to same-sex marriage with terms like "traditional family" and "defense of marriage," but it's actually about how much of Leviticus you think everyone ought to live under. Heteromarriage is this non-tangible entity which is presumably threatened by the existence of alternatives. That's what "sacred" means in practice — we get to do this, you don't get to do this, and this other thing you want to do threatens our mental concept of this non-tangible thing. That's what is behind it.

Rather than "separate but equal," I'd rather have civil unions be the baseline, and then you have or don't have some ceremony of some kind, but the ceremony itself is completely detached from any legal status at all. Then your officiating MC (Master of Conjugation) signs you and your spouse (and maybe your other spouse) up in the Official Registry of Recognized Marriages in the Reformed Baptist Church of God, Reformation of 1879, and that's all it is — some entry in a some church database that you had this ceremony, and the clergy or the gal who got herself the Subgenius Ordained Minister paper does not sign the civil union certificate. That glory goes to some bored clerk who thumps down a stamp at an office somewhere, and, maybe, for an extra fee, you could have the government send out said clerk to make her part of the ceremony, if you're that keen on making the rights assignment simultaneous with the ritual.

Also, I am now imagining an interesting future where Glenn Danzig announces he wants to get married to a man and begins singing, "We Are One One Thirty-Eight."
posted by adipocere at 10:10 AM on June 16, 2010 [2 favorites]


I retract my epithet.

Hot.


I'm sorry.
posted by A Terrible Llama at 10:13 AM on June 16, 2010 [2 favorites]


If this goes to the supreme court and the anti-8 side wins, does this mean the entire country gets gay marriage, like Loving v. Virginia? And what's the worst case scenario for marriage rights if this backfires?

On preview, I see sallybrown answered your question more specifically than I was going to. But here's my answer at a broader level, bypassing the details of what legal grounds the case would be decided on (gender, sexual orientation, etc.):

I haven't been following the case closely, so take this with a grain of salt, but ... I assume if SCOTUS hears the case, the issue will be whether the U.S. Constitution requires all of the thousands of governments in the US to recognize same-sex marriages. If the court says "yes," that'd apply nationwide, irrevocably (unless SCOTUS itself later overruled this). If the court says "no," this would just mean there's an absence of any federal constitutional command. This wouldn't close off the possibility of getting same-sex marriage through legislation or any other source of law. (For instance, a state court could interpret a clause of its state constitution -- even one whose text seems to mirror a clause of the federal constitution -- and say, "Well, we all know there's no right under the federal constitution because of that SCOTUS case, but our state constitution does say there's a right -- so, there's a right.") As with all constitutional SCOTUS cases, whatever the court decides will definitively settle the interpretation of the federal constitutional provisions at issue. In other words, no court could then rule differently under the same federal constitutional clauses at issue in the SCOTUS case (which I assume are the Equal Protection and Due Process Clauses).

All of the above is pretty similar to the situation when the court was deciding Roe v. Wade in 1973. Since SCOTUS ended up recognizing a right under the federal constitution, this applied to everyone. But if the court hadn't recognized that right, what would have happened? The status quo would have been maintained -- including a legal and social trend in the direction of more abortion rights. (It's not obvious that Roe v. Wade was ultimately a victory for supporters of abortion rights.) The absence of a federal constitutional right just lets governments do whatever they want.

I don't understand Pope Guilty's "no" answer to your question about Loving v. Virginia.
posted by Jaltcoh at 10:13 AM on June 16, 2010


Who the hell is this judge?

BTW -- Judge Vaughn Walker is himself gay. You just know those who support Prop 8 will go ape-shit if he overturns the proposition, claiming bias, etc.
posted by ericb at 10:14 AM on June 16, 2010


So since when could a simple majority remove minority protections?

Poli. Sci. 101: Tyranny of the majority.
posted by jabberjaw at 10:14 AM on June 16, 2010 [1 favorite]


I spoke with one public health official in either Washington or Oregon over the phone a year ago who told me that they had not seen a single case of female syphilis in years. They'd all been MSM cases.

We gays roll retro.
posted by The Whelk at 10:17 AM on June 16, 2010


> But ideally I'd like to see an entirely different framework

Me too. When we first got gay-married in 2004, we did it more out of a sense of civil disobedience than out of any longtime desire to get married. We were already civil-partnered. When I found out that we'd been annulled - via an article on sfgate; I was at work - I was all "Oh hey, well, I kinda knew that was coming. Whatever," - and then, unexpectedly, I burst into tears. (I just *love* crying at my desk.)

Despite the multiple marriages, I still feel that marriage as it currently stands in the US is broken and discriminatory. The options should be something like: Get married in the religious institution of your choosing - not recognized by the state; have a big party in the backyard with you and yours jumping over a broom - not recognized by the state; do any variation of the aforementioned, file the proper paperwork, and be recognized by the state. Regardless of your gender/sex and the gender/sex of the person you're hitching yourself to.

All the "sanctity of marriage" stuff drives me completely crazy.
posted by rtha at 10:17 AM on June 16, 2010 [21 favorites]


I'm confused. Would "historic marriage" permit Rush Limbo to get married four times?

Yes, but he'd be stuck with 'em. No divorces.
posted by delmoi at 10:18 AM on June 16, 2010 [1 favorite]


Please let this be the point where we start turning back the tidal wave of crazy in this country. Please.
posted by stoneweaver at 10:20 AM on June 16, 2010 [1 favorite]


Man I'm watching the live feed from the American Foundation for Equal Rights, it is confusing as hell. They seem to be using a speech-to-text and just tossing it up on the 'Net. Can still see things like {TAE} which I assume are failed phonics parsings.

But they're a lot quicker than the other ones I've seen, so oh well.
posted by Lemurrhea at 10:25 AM on June 16, 2010


rtha, I would favorite your comment a thousand times if I could. I couldn't agree more.
posted by The World Famous at 10:26 AM on June 16, 2010


...it's actually about how much of Leviticus you think everyone ought to live under.

I received this e-mail (which has made the rounds for years now) from a friend the other day:
In her radio show, Dr Laura Schlesinger said that, as an observant Orthodox Jew, homosexuality is an abomination - according to Leviticus 18:22 - and cannot be condoned under any circumstance.

The following response is an open letter to Dr Laura, penned by a US resident, which was posted on the Internet. It's funny, as well as informative:
Dear Dr. Laura:

Thank you for doing so much to educate people regarding God's Law. I have learned a great deal from your show, and try to share that knowledge with as many people as I can. When someone tries to defend their homosexual lifestyle, for example, I simply remind them that Leviticus 18:22 clearly states it to be an abomination ... End of debate.
I do need some advice from you, however, regarding some other elements of God's Laws and how to follow them.

1. Leviticus 25:44 states that I may possess slaves, both male and female, provided they are purchased from neighboring nations. A friend of mine claims that this applies to Mexicans, but not Canadians. Can you clarify? Why can't I own Canadians?

2. I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7. In this day and age, what do you think would be a fair price for her?

3. I know that I am allowed no contact with a woman while she is in her period of menstrual uncleanliness - Lev.15:19-24. The problem is how do I tell? I have tried asking, but most women take offense.

4. When I burn a bull on the altar as a sacrifice, I know it creates a pleasing odor for the Lord - Lev.1:9. The problem is my neighbors. They claim the odor is not pleasing to them. Should I smite them?

5. I have a neighbor who insists on working on the Sabbath. Exodus 35:2 clearly states he should be put to death. Am I morally obligated to kill him myself, or should I ask the police to do it?

6. A friend of mine feels that even though eating shellfish is an abomination, Lev. 11:10, it is a lesser abomination than homosexuality. I don't agree. Can you settle this? Are there 'degrees' of abomination? Should I smite him?

7. Lev. 21:20 states that I may not approach the altar of God if I have a defect in my sight. I have to admit that I wear reading glasses. Does my vision have to be 20/20, or is there some wiggle-room here?

8. Most of my male friends get their hair trimmed, including the hair around their temples, even though this is expressly forbidden by Lev. 19:27. How should they die?

9. I know from Lev. 11:6-8 that touching the skin of a dead pig makes me unclean, but may I still play football if I wear gloves?

10. My uncle has a farm. He violates Lev.19:19 by planting two different crops in the same field, as does his wife by wearing garments made of two different kinds of thread (cotton/polyester blend). He also tends to curse and blaspheme a lot. Is it really necessary that we go to all the trouble of getting the whole town together to stone them? Lev.24:10-16. Couldn't we just burn them to death at a private family affair, like we do with people who sleep with their in-laws? (Lev.20:14)

I know you have studied these things extensively and thus enjoy considerable expertise in such matters, so I'm confident you can help.

Thank you again for reminding us that God's word is eternal and unchanging.

Your adoring fan,

James M. Kauffman, Ed.D.
Professor Emeritus, Dept. Of Curriculum, Instruction and Special Education, University of Virginia
posted by ericb at 10:27 AM on June 16, 2010 [27 favorites]


I'd be totally okay with creating civil unions; decoupling all rights, privileges, and obligations associated with marriage; and then making those same benefits assignable to people, or not, as you like, by filing paperwork.

CA already has civil unions, with all the same rights. The only difference is the legal definition.

That said, I think the right way to fight this is with another referendum. Last time it only passed by a few points, but on the other hand California residents are much more likely to vote 'no' on a referendum, so who knows what might happen.
Who the hell is this judge? ... it sounds like this trail has all the intellectual and Constitutional rigor of a third grade civics class.
Judge Vaughn Walker? He's has presided over some pretty important cases involving the Bush administration's warrantless wiretapping, such as the Al Haramain case. I'm guessing he knows a little more then you do about 'civics'.

Walker is gay, btw.
posted by delmoi at 10:28 AM on June 16, 2010


I don't understand Pope Guilty's "no" answer to your question about Loving v. Virginia.

I missed where he mentioned the Supreme Court.
posted by Pope Guilty at 10:29 AM on June 16, 2010


Fighting the battle over same-sex marriage by trying to convince various world religions that their interpretation of scripture is incorrect strikes me as both stupid and counterproductive.
posted by The World Famous at 10:30 AM on June 16, 2010


I'm watching the live feed from the American Foundation for Equal Rights, it is confusing as hell. They seem to be using a speech-to-text and just tossing it up on the 'Net.

No...I believe they are manually typing. They did it during the previous court sessions. They tend to clean them up a bit during breaks and after the hearings. They also provide daily summaries.
posted by ericb at 10:32 AM on June 16, 2010


If this goes to the supreme court and the anti-8 side wins, does this mean the entire country gets gay marriage, like Loving v. Virginia?

Sallybrown gives a great answer, but the answer to your question will depend not only on the classification level that the Court will give to sexual preference, it will also depend on what the Court decides that actual controversy is. Is the problem that a constitutional ban on same-sex marriage is a violation of the Equal Protection Clause because it discriminates against homosexual couples? Or is the problem that Prop 8 specifically removed a right that was already granted to same sex-couples because marriage was found to be a fundamental right by the California Supreme Court?

If the Court frames the question like the former and then decides that such bans violate the Equal Protection Clause, then all such bans in every state would be struck down, a la Loving v. Virginia. If, however, the Court goes the latter route, the case would only apply to California, as it is the only state to grant and then rescind same-sex marriage. (If the Supreme Court does this, I think it would be loudly decreed by both sides as a cop-out.)

Also note that it is possible that this case never makes it to the Supreme Court. It is likely that a measure to repeal Prop 8 will be placed on the ballot in California for the 2012 presidential election. If the repeal measure is successful, and the Supreme Court has not yet ruled on the case, it would probably be dismissed as moot. (Also, it's possible that the Supreme Court just decides not to take the case, but that's not likely).
posted by thewittyname at 10:32 AM on June 16, 2010 [2 favorites]


shakespepherian: Since when are issues of practicality or whatever important to the court? Shouldn't the decision be based on, y'know, the fact that peoples' Constitutional Fucking Rights are being violated?

bjrubble: Would eliminating a form of discrimination reduce discrimination? Let me ponder that for a moment.

Pope Guilty: Separate but equal is not constitutional, full stop. I cannot believe that anything more need be said.

The thing is, discrimination on the basis of some trait--whether that means "separate but equal" treatment or something else--is not inherently unconstitutional, even for quasi-suspect classifications. (Example: it's not currently unconstitutional for a government office building to have separate bathrooms for men and women.) When the thing that makes discrimination between two groups unconstitutional is the trait used to discriminate, that trait determines what the discriminating party has to prove to continue discriminating and/or what the discriminated-against party has to prove to stop the discrimination.

The judge's questions cover all his bases, because if he decides that discriminating on the basis of homosexuality calls only for rational basis review, then all the pro-Prop 8 side has to show is that Prop 8 is theoretically reasonably related to a legitimate government interest. Maybe that sounds like a tough row to hoe, but it's almost always a slam dunk for the party doing the discriminating, because the interest put forward does not have to be the actual reason the law was passed, and Prop 8 would not have to be the best or anywhere near the best means to accomplish this interest--it just has to be "reasonably" related.

If the standard were higher, then the pro-prop 8 side would have to deal with practicalities--they'd have to explain how Prop 8 actually (rather than theoretically) advances an interest important to California, and how Prop 8 advances that interest better than most or all other means. So if they said Prop 8 protects the sanctity of marriage, they'd have to actually show how that works, and explain why Prop 8 would do that more effectively than other theoretical laws. In Olsen/Boies' answers to the Judge's questions, they note that they got the other side's witness to admit on the stand that the availability of same-sex marriage might reduce the number of gay people who enter into "sham" opposite-sex marriages. Practicalities like that make it harder for the Prop 8 side to argue that Prop 8 actually does advance the interest of strengthening the institution of marriage.

One really interesting question is whether the trait at issue, instead of being homosexuality, should be gender: in California, both straight and gay men can get married to women, and both straight and gay men cannot marry other men. If this were a gender discrimination case, the standard would automatically be intermediate scrutiny because gender is a quasi-suspect classification, and this would make the Prop 8 side's case harder off the bat.
posted by sallybrown at 10:34 AM on June 16, 2010 [8 favorites]


BTW -- the American Foundation for Equal Rights will post the court-approved transcript at the end of the day. Here are the daily transcripts from the trial in January.
posted by ericb at 10:35 AM on June 16, 2010


I am in support of Prop-8 as soon as it is amended to include:
No divorce once you are married.
Jail time for adulterers and fornicators.

Any clips of Prop-8 supporters being called out in this way? For the lolz.
posted by MrMulan at 10:37 AM on June 16, 2010


adipocere: Other than the linguistic slight of hand of calling marriages civil unions and using ministers as notaries, that's exactly what happens now.

Legal marriage (and we need to use the term marriage because there's over 200 years worth of common law that says, "marriage") has absolutely nothing to do with religion in the United States. There are critically important historical reasons for this, but anyone who argues otherwise is:

A) badly mistaken
B) a fucking liar.

And I'm not certain that either should be indulged.
posted by KirkJobSluder at 10:41 AM on June 16, 2010 [5 favorites]


I received this e-mail (which has made the rounds for years now) from a friend the other day:

I loved it when Martin Sheen did that on the West Wing.
posted by zarq at 10:43 AM on June 16, 2010 [2 favorites]


Fighting the battle over same-sex marriage by trying to convince various world religions that their interpretation of scripture is incorrect strikes me as both stupid and counterproductive.

Pointing out hypocrisy and incoherencies is hardly about trying to convince religious extremists of anything. It is about making a rational, reality-based case to a judge that applying scripture to our laws is inappropriate, when the law is tasked with protecting the equality of all citizens.
posted by Blazecock Pileon at 10:43 AM on June 16, 2010 [3 favorites]


Please let this be the point where we start turning back the tidal wave of crazy in this country. Please.

Every step to justice in this country is accompanied by a commensurate leap in lunacy. Elect a black president? Racism enjoys a resurgence. Pass health care? Paranoid know-nothingism enjoys a rebirth.

Make gay marriage legal?

Well, homophobia will get an uptick for quite a while. The same people who constantly cry out for liberty are the very ones who prefer to crush justice into the ground.
posted by Astro Zombie at 10:48 AM on June 16, 2010 [6 favorites]


Legal marriage (and we need to use the term marriage because there's over 200 years worth of common law that says, "marriage") has absolutely nothing to do with religion in the United States. There are critically important historical reasons for this, but anyone who argues otherwise is:

A) badly mistaken
B) a fucking liar.


Actually, legal marriage has quite a bit to do with religion in the United States and elsewhere. But it's not necessarily because of government making it that way. The entanglement exists on several levels, one of which is various religions' willingness to recognize legal marriage outside the religion as sufficient to make a couple's sexual relationship chaste. In my opinion, religions get themselves in a whole heap of trouble doctrinally when they define chastity as involving the consent of the state. But it is inaccurate to say that legal marriage has absolutely nothing to do with religion in the United States.
posted by The World Famous at 10:51 AM on June 16, 2010 [1 favorite]


I suppose it's worth mentioning that Dr. Laura is not alone. Extensive homophobia within the Orthodox community has been well documented. However, several of my friends are gay, Orthodox and out, despite the existence of prejudices and oppression within their communit(ies).
posted by zarq at 10:52 AM on June 16, 2010 [1 favorite]


Fighting the battle over same-sex marriage by trying to convince various world religions that their interpretation of scripture is incorrect strikes me as both stupid and counterproductive.

I don't know how this is relevant. This has nothing to do with interpretation of scripture. Individual congregations can, and do make their own decisions about whether to recognize same-sex unions (or any other union). The United Methodist Church for example at one time had a ban on ministers celebrating same-sex unions or the use of Church sanctuaries for them regardless of the legality of those unions.

But we don't let the United Methodist Church dictate who can get legally married, for the same reason that we don't let the Roman Catholic Church dictate who can get legally married. The reason is because many denominations didn't recognize each other's sacraments or had conflicting requirements on how the sacrament could be performed.
posted by KirkJobSluder at 10:53 AM on June 16, 2010


Pointing out hypocrisy and incoherencies is hardly about trying to convince religious extremists of anything. It is about making a rational, reality-based case to a judge that applying scripture to our laws is inappropriate, when the law is tasked with protecting the equality of all citizens.

The fallibility and inconsistency inherent in scripture is not the reason for separation of church and state in the United States. To waste any time in a court of law arguing to a judge that the bible is inconsistent and that religions don't follow all of Leviticus would be incredibly idiotic.
posted by The World Famous at 10:54 AM on June 16, 2010


I don't know how this is relevant.

My point exactly.
posted by The World Famous at 10:55 AM on June 16, 2010


Actually, legal marriage has quite a bit to do with religion in the United States and elsewhere. But it's not necessarily because of government making it that way. The entanglement exists on several levels, one of which is various religions' willingness to recognize legal marriage outside the religion as sufficient to make a couple's sexual relationship chaste. In my opinion, religions get themselves in a whole heap of trouble doctrinally when they define chastity as involving the consent of the state. But it is inaccurate to say that legal marriage has absolutely nothing to do with religion in the United States.

And such doctrinal entanglement can easily be revoked by the individual Church or the organization, using the same process that multiple denominations used to formally celebrate same-sex unions regardless of legality.
posted by KirkJobSluder at 10:56 AM on June 16, 2010


And such doctrinal entanglement can easily be revoked by the individual Church or the organization, using the same process that multiple denominations used to formally celebrate same-sex unions regardless of legality.

I agree.
posted by The World Famous at 10:59 AM on June 16, 2010


That's true enough, zarq, but let's not pretend that the people supporting Proposition 8 aren't doing it, overwhelmingly, because of religious issues.

I'm not. I was simply correcting a point.

This is basically about religious groups getting to define what marriage is.

I completely agree. The primary motivating force behind Proposition 8 is provincial, religious homophobia, and it's disgusting dominionist bullshit that should never have been allowed to pass into law.

They have couched the opposition to same-sex marriage with terms like "traditional family" and "defense of marriage," but it's actually about how much of Leviticus you think everyone ought to live under. Heteromarriage is this non-tangible entity which is presumably threatened by the existence of alternatives. That's what "sacred" means in practice — we get to do this, you don't get to do this, and this other thing you want to do threatens our mental concept of this non-tangible thing. That's what is behind it.

Quoting this solely because it's worth repeating.

I agree with your other points as well. I'd have zero problem with the state recognizing marriages and having religious ceremonies be separate window dressing with no actual legal power in the secular realm. No problem whatsoever.
posted by zarq at 10:59 AM on June 16, 2010


Since California has a seriously fucked up ballot initiative process and it's possible to amend the state constitution by looking at it funny.

Why is why Ambrose Bierce defined "vote" as "The instrument and symbol of a freeman's power to make a fool of himself and a wreck of his country."

The California Constitution has an amendment proposition on the ballot every election cycle, as nearly as I can tell since I moved here in 1999. The amendments sometimes have to do with simple solutions to complicated fiscal issues but just as often are used to promote some populist agenda without regard to things like facts or controlling federal constitutional principles.

Worse, many of California's problems are structural in origin and are a direct result of our lunatic proposition-amendment system. Thanks to these amendments, we let a minority political party have a stranglehold lock on the budgeting process that leads to annual threats of government shutdowns (and sometimes actual shutdowns) and perpetual failures to have a budget delivered on time. Also thanks to these amendments, the government is chronically underfunded because we have a permanent and irrational property tax system.

If you live in a state that does not have a proposition system for fucking up your (state) constitution or stripping you of your legal rights on a whim, be grateful.

On the bright side, California is definitive proof that direct democracy is an insane form of government, and demonstrates the necessity of deliberative government bodies.
posted by Hylas at 11:00 AM on June 16, 2010


I also think Judge Vaughn Walker appears to be doing a great job so far. If anything, that list of questions demonstrates how non-emotional the legal system is and how far behind it lags. I understand rationally why this is a good thing but in cases like this one I also know it seems backwards and cold and tilted towards injustice. I mean, fuck, obviously Prop 8 is a crock of shit! Can any non-deluded person seriously question whether it's discriminatory, or whether same-sex marriage harms opposite-sex marriage?!

On the other hand, as ericb pointed out, because Judge Walker is rumored to be gay himself he will come under heavy fire from the Prop 8 folks if he rules against them. To me, the extensive time he has spent on this trial and his questions before closing arguments demonstrate that he is being extraordinarily careful and comprehensive in his reasoning. He is refusing to assume anything. This aides Olson/Boies, because the assumptions on their side--the ones people make in this thread, for example that gay people suffer when discriminated against--are things that can be proven, while the assumptions on the Prop 8 side--that same-sex marriage harms opposite-sex marriage--are flimsy and unproveable cover stories for very real, very ugly prejudice. And "But I hate gay people!" isn't a valid reason for passing a law.
posted by sallybrown at 11:04 AM on June 16, 2010 [5 favorites]


zarq: I'd have zero problem with the state recognizing marriages and having religious ceremonies be separate window dressing with no actual legal power in the secular realm.

Religious ceremonies currently are separate window dressing with no actual legal power in the secular realm. The county clerk and the IRS don't care who performed your ceremony or where. They don't care whether your church denied your divorce. They only care that the proper paperwork was filed.

I suppose that a religious marriage ceremony can be used as evidence to support common-law marriage but that's a fringe case.
posted by KirkJobSluder at 11:07 AM on June 16, 2010


Religious ceremonies currently are separate window dressing with no actual legal power in the secular realm.

Yeah, I think the problem that people are trying to solve about this bit of legal/religious semantics is just that: semantics. The problem is that the entanglement of civil and religious marriages is not only historical or ideological, but linguistic, and creating more of a separation between the two terms would go a long ways toward shortcutting 'defense of marriage' idiocy or indeed any confusion or conflation of the two wholly distinct concepts.
posted by shakespeherian at 11:12 AM on June 16, 2010


On the other hand, as ericb pointed out, because Judge Walker is rumored to be gay himself he will come under heavy fire from the Prop 8 folks if he rules against them.

I agree. Only straight people should be able to make decisions on gay marriage, in the same people that only white people should serve on the board of the NAACP and only New York Jews should head up the Southern Christian Leadership Conference.

Us do opposite of all Earthly things!
posted by Astro Zombie at 11:12 AM on June 16, 2010 [1 favorite]


To waste any time in a court of law arguing to a judge that the bible is inconsistent and that religions don't follow all of Leviticus would be incredibly idiotic.

Private morality (e.g. some but not all religions follow Leviticus) is the basis for at least two of Judge Walker's questions, so I guess you're basically calling him an idiot, or at least both the plaintiffs and defendants are idiots for bothering to address the judge's "idiotic" questions:

If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?

...If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?


Prop 8 is at least partially an issue of codifying the narrow, private moral framework of church followers into laws where it simply does not belong. Walker's questions task both sides with addressing this matter.

Therefore, it is arguably not a waste of time to show that inconsistencies in doctrine are themselves legally problematic. We no longer allow slavery or treat women like property, even though Leviticus and other Old Testament scripture demand it, because our laws place greater value on equal protection of all citizens than on the problematic and contradictory edicts of any one religious text.
posted by Blazecock Pileon at 11:12 AM on June 16, 2010


I agree. Only straight people should be able to make decisions on gay marriage, in the same people that only white people should serve on the board of the NAACP and only New York Jews should head up the Southern Christian Leadership Conference.

Your third situation isn't congruent. Jews aren't normative! Straight white Protestant men are neutral cases, and any deviation constitutes bias.
posted by shakespeherian at 11:14 AM on June 16, 2010


So let's see.

We (the people, right?) let "marriage" be a strictly religious thing, with no legal binding. That way, everyone is "married" if they stood before God (or an equivalent, such as a Unitarian service), and has a "civil union" if they have filed the appropriate paperwork. All the rights and privileges conferred by the state come from the paperwork, and all the rights and privileges conferred by one's God (or an equivalent) come from one's God (or an equivalent.)

I would actually be a fan of this. However, here are the inherent problems:

One: people would continue to use "marriage" as shorthand for one of, or both of, those things. Thus, the potential for misunderstandings and misrepresentations are increased. "Are you married?" asks the interested party, and "nope" answers the other party who is actually in a civil union.

Two: people who are "married" (here, meaning in the religious sense) may view it as a reduction in their rights, or even state-sponsored discrimination against religion, so you can imagine that it would be an uphill battle to say the least.

Three: people could break their "civil unions" but still remain "married" and vice versa, so it would make the legal waters surrounding divorce, custody, property rights, etc. a huge minefield to be navigated over years to come, since the language is baked into so many aspects of our society.

So this isn't going to be solved any time soon, until/unless religious organizations open their arms and hearts to allowing gay marriage the way they did with inter-racial marriage. I have high hopes that, ultimately, "marriage between two consenting adults" will eventually be embraced, although I won't hold my breath, just because change of this nature takes time. But for once, I have faith the religious organizations -- driven as they are ultimately by their members -- will do the right thing eventually, after they stop allowing right-wing pedagogues to hijack them.
posted by davejay at 11:17 AM on June 16, 2010


I loved it when Martin Sheen did that on the West Wing.
His first appearance in the pilot (in a similar scene) is one of the best entrances in the history of television, a perfect match of character, actor, and lines. Goddamn, that show was great from the very beginning.

posted by kirkaracha at 11:28 AM on June 16, 2010 [5 favorites]


Private morality (e.g. some but not all religions follow Leviticus) is the basis for at least two of Judge Walker's questions, so I guess you're basically calling him an idiot, or at least both the plaintiffs and defendants are idiots for bothering to address the judge's "idiotic" questions:

The question you quote is not asking whether the religions' various beliefs are internally consistent, but whether the involvement of their members in the political campaign was for the purpose of enforcing their beliefs - consistent or not.

I didn't call the judge or his questions idiotic, and no reasonable interpretation of what I said can conclude that I said or implied that.

Therefore, it is arguably not a waste of time to show that inconsistencies in doctrine are themselves legally problematic.

While I don't strongly agree or disagree with you on this point, I would point out that there is a difference between showing inconsistencies to be legally problematic (whatever that means) and attempting to show that they are doctrinally problematic (which is a waste of time).
posted by The World Famous at 11:29 AM on June 16, 2010


Jews aren't normative!

They are in New York.
posted by Astro Zombie at 11:37 AM on June 16, 2010 [1 favorite]


Religious ceremonies currently are separate window dressing with no actual legal power in the secular realm. The county clerk and the IRS don't care who performed your ceremony or where. They don't care whether your church denied your divorce. They only care that the proper paperwork was filed.

Did you read my previous comment, where I said exactly this?
posted by zarq at 11:38 AM on June 16, 2010


kirk, the point that adipocere was making and that I was agreeing to is that clergy can still sign a person's marriage license. I was simply agreeing with adipocere that I would not have a problem with that right being removed from clergy, and kept within the secular, civil system.
posted by zarq at 11:41 AM on June 16, 2010


They are in New York.

But that's one of those East Coast Liberal Enclaves, not Real America.
posted by shakespeherian at 11:42 AM on June 16, 2010


The question you quote is not asking whether the religions' various beliefs are internally consistent

I quoted two of Judge Walker's questions, each issues to both parties of the case.

I know perfectly well that the questions are not asking if the religious beliefs are internally consistent.

I am pointing out to you that the questions are asking about whether the application of one set of religious beliefs to law is problematic.

I am pointing out to you that using Leviticus, for example, is problematic as a legal basis for why two people of the same sex should not be married, because it also argues for the legality of slavery and other behaviors that have otherwise already been proscribed by the equal protection clause.

It is not idiotic to point out the inconsistency of religious beliefs, especially when those beliefs are used to make an argument for codifying private morality into laws for all, which violate equal protection.

I didn't call the judge or his questions idiotic, and no reasonable interpretation of what I said can conclude that I said or implied that.

Perhaps, then, you might think about being a great deal clearer about who or what you are calling idiotic, as this post is very clearly about the Prop 8 case and the ideas in this case.

I would point out that there is a difference between showing inconsistencies to be legally problematic (whatever that means) and attempting to show that they are doctrinally problematic (which is a waste of time).

The difference you are now positing is almost wholly irrelevant to the subject matter of this post, and borders on derailing. It is unlikely Judge Walker is interested in church doctrine, in itself—only in the attempt to apply it to the laws we are all answerable to.
posted by Blazecock Pileon at 11:48 AM on June 16, 2010


I am pointing out to you that using Leviticus, for example, is problematic as a legal basis for why two people of the same sex should not be married, because it also argues for the legality of slavery and other behaviors that have otherwise already been proscribed by the equal protection clause.

It is not idiotic to point out the inconsistency of religious beliefs, especially when those beliefs are used to make an argument for codifying private morality into laws for all, which violate equal protection.


Yep, that's where you lost me. Sorry. I disagree.

Perhaps, then, you might think about being a great deal clearer about who or what you are calling idiotic, as this post is very clearly about the Prop 8 case and the ideas in this case.

I assumed that I was sufficiently clear, given that the comment I responded to was above my own. I'm always happy to clarify for you, though.

The difference you are now positing is almost wholly irrelevant to the subject matter of this post, and borders on derailing.

Then you agree with me 100%. Thank you.
posted by The World Famous at 11:54 AM on June 16, 2010


This issue is geniunely difficult for sympathetic and caring individuals inside of religious institutions.

I think that such people must be either unthoughtful or ignorant. I do not think it's possible for someone to be genuinely caring and sympathetic and thoughtful and still oppose civil marriage rights on a religious basis.
posted by treepour at 12:03 PM on June 16, 2010


Then you agree with me 100%. Thank you.

No, I don't "agree" with you 100%. It would be really nice if you try to stop derailing these threads, though. Thank you.
posted by Blazecock Pileon at 12:07 PM on June 16, 2010


But that's one of those East Coast Liberal Enclaves, not Real America.

Newsflash: American Jews are by and large social liberals, even if a small-ish percentage may have neocon tendencies when it comes to foreign policy. So we tend to congregate in socially liberal enclaves, like Boston, Baltimore, NYC and Los Angeles.

Might have something to do with the generations of persecution we suffered at the hands of others. Might also have something to do with wanting to live in places where people don't think we have horns, or that we're "Christ-killers."

There are Jews in "Real" America. But we're mostly distributed in major cities where there is protection in numbers.
posted by zarq at 12:09 PM on June 16, 2010


I was attempting, through sarcasm, to highlight the tendency by many in America to see white heterosexual Protestant males as normative and anyone else as biased towards their own particular special interests, i.e. a het judge would be unbiased but a gay judge would obviously be biased in this case. I apologize if the ironic nature of my comments was unclear.
posted by shakespeherian at 12:15 PM on June 16, 2010


shakespherian: The as I see it is that the linguistic confusion involved, is entirely manufactured to obscure the real target of this kind of legislation: gay rights in general. It's not just a claimed assault on marriage when the California Supreme Court rules that the distinction between Civil Unions and Marriage is unconstitutional, but also when:

* LGBT characters appear on television

* universities and private institutions offer domestic partner packages as a way to recruit employees

* LGBT people get consideration in legal custody

* the president appoints openly gay and lesbian people to federal offices

* a state has an "everything but the word marriage" law

* municipalities pass anti-discrimination acts inclusive of LGBT people

* LGBT people attempt to exercise legal and medial powers of attorney.

DOMAs have never been used to defend against non-existent attacks on religious doctrine or practice. They've been used to either explicitly bar piecemeal gay rights, or to provide a legal basis on which piecemeal rights can be challenged. It's a classic political bait and switch here.

It's not gay marriage that offends the religious right. It's the statement that civil unions/domestic partnerships should have any of the equivalent rights of marriage.

If you want to press universal civil unions, you need to say legally that they are equivalent to "marriage" as used in centuries of common-law precedent. At that point, you get the CA Supreme Court's objection that insisting on a trivial and meaningless distinction only provides a form of confusion that creates discrimination.
posted by KirkJobSluder at 12:20 PM on June 16, 2010 [3 favorites]


From Firedoglake's liveblog:

Olson: I was STRUCK by Dr — oh, I mean MISTER Blankenhorn’s statement.

OH SNAP!

(If you had told me back in the day that there would come a time when I'd want to high-five/terrorist-fist-bump Ted Olson I would've invited you into a nice padded room that locks from the outside.)
posted by rtha at 12:27 PM on June 16, 2010 [3 favorites]


I understood you, Shakespearean, but, then, I have had enough encounters with you to know you are an inveterate smartass.

Taken ironically, as you meant it, your point is exactly right: The status quo will never be seen as biased, while anything that deviates from it will be. Straight people will always be assumed to be unbiased about gay marriage, but put a gay judge on the case and it's (sing-songy voice here) JUDICIAL ACTIVISM!
posted by Astro Zombie at 12:27 PM on June 16, 2010 [1 favorite]


DOMAs have never been used to defend against non-existent attacks on religious doctrine or practice. They've been used to either explicitly bar piecemeal gay rights, or to provide a legal basis on which piecemeal rights can be challenged. It's a classic political bait and switch here.

I agree completely. I didn't mean that the confusion and conflation between two different things meant by the term 'marriage' lead to DOMA, but rather that it enables the bait and switch to occur. Currently, conservatives still make arguments based around the 'history' of marriage, what the word 'originally' means, and the 'religious roots' of the term. These arguments, duplicitous though they are, would be swiftly dealt with if the state only handled civil unions for everyone.
posted by shakespeherian at 12:30 PM on June 16, 2010


No, I don't "agree" with you 100%. It would be really nice if you try to stop derailing these threads, though. Thank you.

WTF?
posted by The World Famous at 1:02 PM on June 16, 2010


Sorry for the short comment - Blazecock Pileon, I would be happy to discuss our apparent mutual misunderstanding and your ridiculous accusation, but you have MeFiMail disabled. That you picked a fight about nothing, deliberately twisted my comments just so that you could have something to disagree with, and then ultimately repeated my initial sentiment would be annoying enough if you didn't end the whole thing by accusing me of derailing the thread. If you want to explain what on earth you're going on about, feel free to send me a MeFiMail or e-mail.
posted by The World Famous at 1:10 PM on June 16, 2010


I spoke with one public health official in either Washington or Oregon over the phone a year ago who told me that they had not seen a single case of female syphilis in years. They'd all been MSM cases.

I worked in a public STD clinic in Baltimore for years (just a few years ago), and while MSM syphilis was definitely a problem, we saw plenty of syphilis in women. Indeed, when Baltimore had the highest syphilis rate in the country in the late 90s a large portion of the prevalence was among heterosexuals.
posted by OmieWise at 1:15 PM on June 16, 2010


I apologize if the ironic nature of my comments was unclear.

Upon a re-read.... it should have been obvious to me, and apparently I'm feeling a little twitchy about the subject. My fault. Sorry. :(
posted by zarq at 1:20 PM on June 16, 2010


Well, the "history" of marriage includes things like Tycho Brahe denied communion due to his legal (under Danish law) marriage to a commoner, Henry VIII separating from the RCC in order to get a divorce, legal denial of marriages among slaves and free blacks, and miscegenation laws under the "one drop" doctrine.
posted by KirkJobSluder at 1:21 PM on June 16, 2010


Upon a re-read.... it should have been obvious to me, and apparently I'm feeling a little twitchy about the subject. My fault. Sorry. :(

Not a problem. This lot is common to online sarcasm.
posted by shakespeherian at 1:28 PM on June 16, 2010


The World Famous, I am not accusing you of anything: I questioned the logic of this specific comment of yours:

To waste any time in a court of law arguing to a judge that the bible is inconsistent and that religions don't follow all of Leviticus would be incredibly idiotic.

As Judge Walker asked both sides to address the issue of private morality, it is only "idiotic" or a "waste of time" to discuss logical inconsistencies in religious doctrine (as they apply to the case, and to the law as a whole) if the judge or the lawyers involved are idiots or time-wasters.
posted by Blazecock Pileon at 1:35 PM on June 16, 2010


MSM syphilis

Main Stream Media Syphilis?
posted by fatbird at 1:57 PM on June 16, 2010


I'm following the pro-Prop 8 closing argument here (starting from around the 1:00 mark), and it's a trainwreck.
posted by sallybrown at 2:11 PM on June 16, 2010


Blazecock Pileon, the judge did not ask the parties whether or not various religions follow all of Leviticus. He did not ask them whether the religions' doctrines are internally consistent. As you quoted above, he asked a) what the legal significance, if any, would be if the involvement of churches was an attempt to enforce private morality, and b) whether it would violate the equal protection clause for religious people to participate in the political process if their personal religious beliefs differ from those of other people in the community.

The judge is not asking those questions because he doesn't know the answers already. He appears to be offering the parties an opportunity to sink their own arguments by answering them. And it is interesting that he is asking those questions. What, for example, would be the reach of a holding that it is an equal protection violation anytime someone advances a policy because of an unpopular moral belief that they hold?

And for clarity's sake, I'll quote the questions, as you did above:

If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?

...If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?


Again, the first of those two questions is not asking about the consistency or inconsistency of LDS or Roman Catholic belief. It's asking what the legal significance is, if any, if those churches were involved because they wanted to enforce private morality on the general public. In order to determine the legal significance, there's no reason to break out Leviticus and find out what it says about the matter.

And the second question is even further from the question of whether Leviticus is uniformly followed in either of those churches. Reading the entirety of Question 11, it appears that the judge is asking whether any law enacted based on moral disapproval of something should be considered discriminatory and, therefore, unconstitutional. The part of the question that you quoted, which is the latter portion of the compound question, appears to be revealing the lower part of the slippery slope implied by the first part - i.e. whether, if all laws based on morality are per se discriminatory, any law based on a belief held by a minority of citizens is per se unconstitutional and violative of equal protection. Again, the internal consistency or inconsistency of various religions is irrelevant to the questions asked.
posted by The World Famous at 2:12 PM on June 16, 2010 [1 favorite]


Main Stream Media Syphilis?

Men who have Sex with Men.
posted by KirkJobSluder at 2:30 PM on June 16, 2010


Their closing argument seems to be that marriage is a shield society wields against "bad" men and women who "irresponsibly" have children outside marriage, and because same-sex couples can't get pregnant accidentally, all their child-having is intentional and thus responsible, so the state doesn't need to try to get them to marry in order to protect society.

What about opposite-sex marriages where one partner is infertile, Judge Walker asked? Well if they don't get married what's to keep the fertile partner from sexing some fertile third party and making an unwanted child, huh? Everyone knows married people don't have affairs!

In other words, the pro-Prop 8 forces think too highly of gay people to let them get married! We don't worry about them fucking up our society with their unwanted children, so we don't feel the need to trap them into responsibility using marriage. WTF.
posted by sallybrown at 2:31 PM on June 16, 2010


Again, the first of those two questions is not asking about the consistency or inconsistency of LDS or Roman Catholic belief.

And, as I have said to you repeatedly, I know that the questions are not asking specifically about the consistency of religious beliefs, but, instead, are very plainly dealing with the role of private morality in this issue, as it applies to marriage and related laws.

And it is perfectly relevant and non-idiotic to note that we don't make slavery legal, just because some aspect of scripture calls for it, whether that is Leviticus or whatever.

Further, the relation of this to equal protection directly and emphatically contradicts the notion put forward by you and by pro-Prop 8 parties that marriage is a wholly or almost entirely religious institution — and a very narrowly-defined religious institution at that, the boundaries of which are defined at least partially by Leviticus and other scripture that guides how most Christians and Mormons are taught to think about gay people.

So, yes, consistencies and inconsistencies in religious texts as they apply to modern laws that exist outside of religious texts are entirely relevant to Walker's questions, despite your protestations otherwise.

If you want to argue about the doctrine itself, that's fine, but it is an irrelevant diversion from what the case is about.
posted by Blazecock Pileon at 2:58 PM on June 16, 2010


And it is perfectly relevant and non-idiotic to note that we don't make slavery legal, just because some aspect of scripture calls for it, whether that is Leviticus or whatever.

I disagree. It's irrelevant and idiotic, which is why Ted Olson didn't make the argument in his brief. Instead, he focused on the question of whether the interests advanced by the legislation are a sufficient basis for sustaining discriminatory legislation. Basically, he didn't actually answer either of the questions that you quoted above. Instead, he used them wisely as a springboard to make the larger point about the level of scrutiny that he thinks should be applied.

And the fact that Ted Olson's answer to Question 11 is shorter than the question itself bears out my assertions about it, as well, I think.

Further, the relation of this to equal protection directly and emphatically contradicts the notion put forward by you and by pro-Prop 8 parties that marriage is a wholly or almost entirely religious institution

I don't recall putting forward the notion that marriage is a wholly or almost entirely religious institution or any of the rest of what you say I put forward.

So, yes, consistencies and inconsistencies in religious texts as they apply to modern laws that exist outside of religious texts are entirely relevant to Walker's questions, despite your protestations otherwise.

It's not a protestation. It's an observation, and one that you have every right to disagree with. Maybe you can write a letter to Ted Olson chastising him for not including your argument in his brief.

If you want to argue about the doctrine itself, that's fine, but it is an irrelevant diversion from what the case is about.

Yes, that is exactly what I have been saying.
posted by The World Famous at 3:10 PM on June 16, 2010


Rebecca Brown's ACS issue brief: The Prop 8 Court Can Have it All:
Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role
(pdf)

posted by BrotherCaine at 3:20 PM on June 16, 2010


I don't recall putting forward the notion that marriage is a wholly or almost entirely religious institution or any of the rest of what you say I put forward.

"Actually, legal marriage has quite a bit to do with religion in the United States and elsewhere."

As for the rest of it, you keep changing your position and this is hardly the first same-sex marriage thread where you pop in some non sequitor that tries to derail the thread. So I'll just point out your latest inconsistency and wish you farewell.
posted by Blazecock Pileon at 3:23 PM on June 16, 2010


I don't recall putting forward the notion that marriage is a wholly or almost entirely religious institution or any of the rest of what you say I put forward.

"Actually, legal marriage has quite a bit to do with religion in the United States and elsewhere."


So, are you not reading what I wrote at all? I'm asking this in all seriousness. Did you actually read where I said "legal marriage has quite a bit to do with religion in the United States and elsewhere," together with my explanation of that statement, and honestly thought that I had said anything even remotely similar to your characterization that "marriage is a wholly or almost entirely religious institution — and a very narrowly-defined religious institution at that, the boundaries of which are defined at least partially by Leviticus and other scripture that guides how most Christians and Mormons are taught to think about gay people?" Seriously? Because if you're reading what I wrote and turning it into what you then wrote about it without even realizing it, that would explain a lot.

As for the rest of it, you keep changing your position and this is hardly the first same-sex marriage thread where you pop in some non sequitor that tries to derail the thread.

ericb is the one who brought up the irrelevant Leviticus argument, and all I did was point out that it's irrelvant - a point that you have now made several times, as well. I am discussing the questions asked by the judge and the relevant lines of argument with respect to those questions and the issues at stake in the case.
posted by The World Famous at 3:37 PM on June 16, 2010


Neither of you are understanding that the Leviticus argument is irrelevant.

Oh, I guess you both are.
posted by Astro Zombie at 3:43 PM on June 16, 2010 [1 favorite]


despite the multiple marriages, I still feel that marriage as it currently stands in the US is broken and discriminatory. The options should be something like: Get married in the religious institution of your choosing - not recognized by the state; have a big party in the backyard with you and yours jumping over a broom - not recognized by the state; do any variation of the aforementioned, file the proper paperwork, and be recognized by the state.

Well, this may vary by state, but in CA at least this is already the case. The only thing that matters is the piece of paper you sign, where (or even if) you have a ceremony is irrelevant. There is no official tie of religion to marriage.

Of course, it's still discriminatory because of Prop 8, but there is only one way to become married (for opposite sex couples) - file the correct paperwork. Everything else is window dressing.
posted by wildcrdj at 3:50 PM on June 16, 2010


So when exactly will Walker make his ruling? Is there a timeline for that, or just whenever he decides he's ready?
posted by lullaby at 4:10 PM on June 16, 2010


In DC, couples (opposite or same sex, yay DC!) apply for a license at the courthouse, then pick it up 5 days later. But the license still needs the signature (and date and address) of the officiant. The couple can opt for a civil ceremony at the courthouse, but there's about an 8-week backlog right now. The other option is to find an officiant who will do the deed. All that's required of the officiant is to fill out the form; no ceremony of any sort is required.

However, and this is a big however, it is virtually impossible to become a registered officiant in DC without the personal endorsement of another already-registered officiant belonging to the same religious organization. There is a procedure for becoming registered without an endorsement, but the officiant-to-be must still be recognized as a clergyman of some sort. No, ULC doesn't count.

We have gay marriage, but not (much) non-religious marriage.
posted by MrMoonPie at 4:32 PM on June 16, 2010


MrMoonPie: "No, ULC doesn't count."

Wha?

I was under the impression that the ULC is a legitimate religious institution. Since when do governments get to decide that one religion is legitimate and another is not? Isn't that getting on the wrong side of the Establishment Clause?

Amazing. I never expected to be a genuine victim of religious persecution.
posted by mullingitover at 4:45 PM on June 16, 2010


*passes out the shiny flame-retardant suits*
posted by the_observer at 4:49 PM on June 16, 2010


Isn't that getting on the wrong side of the Establishment Clause?
Well, of course it is. Plus, we can't buy liquor on Sunday.
posted by MrMoonPie at 4:52 PM on June 16, 2010


Since when do governments get to decide that one religion is legitimate and another is not?

It is well-established constitutional jurisprudence that the government has the power to determine whether a self-professed religion actually is a religion for the purposes of the First Amendment or whether it's just a faux-religion formed for one non-religious reason or another.

But it is an interesting question, in light of the opinion of some people that the government should decide that the LDS church is not legitimate enough to have tax-exempt status.
posted by The World Famous at 4:58 PM on June 16, 2010


Yeah, in CA the "officiant" can be non-religious entirely:

After you obtain a marriage license, which is valid for 90-days, you may be married by your choice of one of the following persons qualified to perform marriage ceremonies: 1) a priest, minister or rabbi of any religious denomination who is 18 years of age or older; 2) an active or retired Judge, Commissioner, or Assistant Commissioner of a court or record or Justice Court in this State; or 3) by a Deputy Commissioner of Civil Marriages.

Civil Ceremonies are available by appointment/request. (Here's a link to the LA page about this, including locations and times to get a civil official to solemnize your marriage. But the laws are statewide)
posted by wildcrdj at 5:01 PM on June 16, 2010


The World Famous, that's not really an issue of whether LDS is a "legitimate" religion or not. It is an issue of whether or not they are following the laws that all religions are required to follow in order to maintain a tax-exempt status.
posted by kyrademon at 5:08 PM on June 16, 2010 [2 favorites]


But it is an interesting question, in light of the opinion of some people that the government should decide that the LDS church is not legitimate enough to have tax-exempt status.

The LDS church's involvement in Prop 8 is just the most obvious example of why religions, generally shouldn't be tax-exempt--they're not the apolitical actors they pretend to be. No one's saying the Mormons should be stripped of their exemption and no one else.

Why are religious organizations exempt anyway? Is taxing them considered a violation of the first amendment, or is it just historical inertia?
posted by fatbird at 5:08 PM on June 16, 2010


The World Famous, that's not really an issue of whether LDS is a "legitimate" religion or not. It is an issue of whether or not they are following the laws that all religions are required to follow in order to maintain a tax-exempt status.

I admit I painted the issue with a broad brush. But the "substantial part" standard and the power of the government to remove First Amendment protections from a religion if it violates that standard is, I think, pretty fairly characterized as a question of whether or not the religion is legitimate for First Amendment purposes.
posted by The World Famous at 5:11 PM on June 16, 2010


I'm confused. Are you saying that a religious organization has no First Amendment rights if it's not an official 501(c) 3?
posted by rtha at 5:24 PM on June 16, 2010


Are you saying that a religious organization has no First Amendment rights if it's not an official 501(c) 3?

I don't think that's what I'm saying. But I also don't want to derail the thread with a discussion of tax exempt organizations and the law as it pertains to them.

I think the really interesting thing about the direction of some of the judge's questions to counsel is the idea that whether or not Prop 8 meets the level of scrutiny applied for constitutional purposes might depend in part on the motivations of organizations and voters that supported the measure, rather than to the statutory language itself. It's sort of like looking at the legislative history to determine the purpose of a law. But in this case, since it was not created by the legislature, the court seems to be asking whether the motivations of the LDS and Catholic churches and certain of their members should be inserted in the place of the legislative record and scrutinized to determine the government interest at issue. If that is the case, it doesn't bode well for any law passed by referendum that is challenged on equal protection grounds, since the motivations of the voters would always be attacked.

Of course, it would actually be nice if the referendum system in California became a collateral casualty of the Prop 8 fight, I guess.
posted by The World Famous at 5:33 PM on June 16, 2010


TWF: "It is well-established constitutional jurisprudence that the government has the power to determine whether a self-professed religion actually is a religion for the purposes of the First Amendment or whether it's just a faux-religion formed for one non-religious reason or another."

Really, the government is deciding whose imaginary friends are real and whose are fake? How is this not de facto establishing state religion(s)?
posted by mullingitover at 5:42 PM on June 16, 2010


Of course, it would actually be nice if the referendum system in California became a collateral casualty of the Prop 8 fight, I guess.

I am crossing my fingers here.
posted by rtha at 5:45 PM on June 16, 2010


ericb is the one who brought up the irrelevant Leviticus argument...

Actually, I did not present it as an argument, but as a one-off of the mention of Leviticus in a previous comment. It has and shouldn't have any bearing on the case before the court. Consider it a derail, if you will.
posted by ericb at 6:04 PM on June 16, 2010


Sorry if I mischaracterized it, ericb. It is an enjoyable anecdote, at least. And the West Wing clip is awesome, so I'm glad it led to that at least.
posted by The World Famous at 6:09 PM on June 16, 2010


Freedom to Marry.

Sign the pledge.
posted by ericb at 6:11 PM on June 16, 2010


Really, the government is deciding whose imaginary friends are real and whose are fake?

No, judges are deciding who has a sincere belief in their imaginary friend and who is merely claiming to have an imaginary friend for some cynical purpose. IE, a prisoner who states that his new and unique religion, called "Steakism," requires him to have nicely done USDA prime steak every day or suffer eternal damnation.

How is this not de facto establishing state religion(s)?

Because the content of the religious beliefs is not really the question, the sincerity of the beliefs is.

This gets flipped around a bit with the ULC, where the question is AFAIK normally whether the self-professed minister is a legitimate minister, and where they are not viewed as legitimate ministers it is not because of the content (or lack thereof) of their religious belief, but because they do not lead any congregation of believers (ie, do not minister and so are not ministers).
posted by ROU_Xenophobe at 6:16 PM on June 16, 2010 [1 favorite]


The World Famous -- no problem.

As regards to the 'West Wing' clip, this is from 'made the rounds' link above:
“In early October 2000, Dr. Schlessinger, ran a full-page ad in ‘Variety’ offering an apology for what she called "poorly chosen" words about homosexuality. She had previously referred to gays as "biological errors" and "deviants” …

October 2000 was not Dr. Laura's month. A few weeks after she issued her apology, a version of the "Letter to Dr. Laura" was incorporated into the 18 October episode of the political television drama ‘The West Wing.’ In "The Midterms," President Bartlet used his own detailed knowledge of the Bible to make a Schlessinger-esque character named Jenna Jacobs look ridiculous.

Just as the Internet piece gave the ‘West Wing’ writers fodder for a memorable scene, so did the exposure on a popular television show boost the online circulation of the "Letter to Dr. Laura." Similarly, the 2004 brouhaha over gay marriage sparked a renewal of this e-missive, causing it to once again be flung from inbox to inbox.”
posted by ericb at 6:23 PM on June 16, 2010


Noob Constitutional Law Question:

I (mistakenly?) thought that courts were charged with making decisions based on the constitutionality of a law or action. I always thought that legislatures could make an end-run around the power of the judiciary by passing constitutional amendments. Once an amendment is successfully made, the court has no authority to overrule it.

Obviously I'm wrong here since this case is being heard. Am I confusing state courts with the federal judiciary? If the federal legislature passed a constitutional amendment re-enacting something terrible, like slavery, does the Supreme Court actually have the power to rule against it?
posted by jsonic at 6:32 PM on June 16, 2010


This will likely have to be decided at the ballot, which is unfortunate. I mean, I'm really hoping for a Supreme Court ruling that invalidates all of the homophobic "marriage" laws, but one of the reasons we have this bullshit is because lefties were too complacent during the run-up to the election. (I do bet that Obama hopes any decision comes after 2012's election).

So, I will also take a moment to say that your friendly neighborhood canvasser out on a street corner would really appreciate some face to face donations to help us win at the ballot box. Twenty-twelve is coming sooner than you think, especially in the context of a political campaign, and face to face donations help keep the issue alive and public, as well as allowing us to take the time to educate and persuade some of the ign'ant and hateful out there. Which is often one of the best parts of the job—making that connection for a black woman between gay rights and the civil rights struggle, or reminding a Jew that protecting America from reactionary Christianity helps him too, or even getting some smug hipster to drop his glib bullshit and care about justice for someone else's love… People who join a political movement in person are more likely to keep with it, to become volunteers and advocates, and to talk to their friends and family about the issue. So help the folks out there keep doing it.
posted by klangklangston at 6:46 PM on June 16, 2010 [1 favorite]


Also, did anyone mention that today's the anniversary of when same-sex marriage was legalized in 2008? One-hundred seventy three days of freedom and equality!
posted by klangklangston at 6:47 PM on June 16, 2010


Am I confusing state courts with the federal judiciary? If the federal legislature passed a constitutional amendment re-enacting something terrible, like slavery, does the Supreme Court actually have the power to rule against it?

I believe the Equal Protection clause gives the federal judiciary the power to invalidate some clauses of state constitutions. Basically a state cannot deny rights to its citizens that are granted by the federal Constitution, that sort of thing.

Also, the federal legislature can't actually enact a constitutional amendment, it also takes the state legislatures (3/4 of which must ratify it).

If the federal Constitution is amended to allow/deny something, then no I dont think the federal judiciary can override that.
posted by wildcrdj at 6:53 PM on June 16, 2010 [1 favorite]


"This gets flipped around a bit with the ULC, where the question is AFAIK normally whether the self-professed minister is a legitimate minister, and where they are not viewed as legitimate ministers it is not because of the content (or lack thereof) of their religious belief, but because they do not lead any congregation of believers (ie, do not minister and so are not ministers)."

That's why I call myself a pope, because I usually pope at least once a day.
posted by klangklangston at 6:57 PM on June 16, 2010


That's why I call myself a pope, because I usually pope at least once a day.

In the woods?
posted by The World Famous at 6:59 PM on June 16, 2010


Are bears Catholic?
posted by klangklangston at 7:12 PM on June 16, 2010 [1 favorite]


Once an amendment is successfully made, the court has no authority to overrule it.

Obviously I'm wrong here since this case is being heard.


The question here isn't whether Prop 8 is part of the CA constitution. It is.

The question is whether that section of the CA constitution, and the circumstances surrounding its adoption, violate a part of the US constitution. If there's a conflict between a state constitution and the US Constitution, the US one wins. Likewise, if there's a conflict between a state constitution and a federal statute, the federal statute wins.

If the federal legislature passed a constitutional amendment re-enacting something terrible, like slavery, does the Supreme Court actually have the power to rule against it?

Probably not.
posted by ROU_Xenophobe at 7:28 PM on June 16, 2010 [1 favorite]


Probably not.

Probably not? It seems to me that the only question the Court could rule on is whether the constitutional amendment was passed legitimately. If it was, that's it.
posted by Justinian at 7:41 PM on June 16, 2010 [1 favorite]


It seems to me that the only question the Court could rule on is whether the constitutional amendment was passed legitimately. If it was, that's it.

Well, also on ambiguity between conflicting clauses. I mean, if a new Amendment specifically invalidates or replaces a section of the Constitution, that's clear. But if it seems to conflict without specifying how to resolve the issue, there might be a lot of room for the Court. I really don't know, and frankly I imagine any amendment would not leave this sort of thing open (the 21st for example was quite clear that the 18th was completely invalidated, the 13th pretty clearly overrode any refrence to slavery in the original draft, etc).
posted by wildcrdj at 7:43 PM on June 16, 2010 [1 favorite]


Prop8 Trial Finishes Arguments. Broad Range Of Possible Outcomes.
posted by ericb at 8:22 PM on June 16, 2010


This gets flipped around a bit with the ULC, where the question is AFAIK normally whether the self-professed minister is a legitimate minister, and where they are not viewed as legitimate ministers it is not because of the content (or lack thereof) of their religious belief, but because they do not lead any congregation of believers (ie, do not minister and so are not ministers).
posted by ROU_Xenophobe at 9:16 PM on June 16 [+] [!]


yep, and this is why I'm still not sure (just shy of my 10th anniversary) whether I'm actually married or not. in the state where we got hitched, our ULC minister had to "swear or affirm" that he had a legitimate flock.

When I was a notary for the state of Florida ($50 bucks, a handbook on checking IDs and signatures and an embosser), I had the authority to marry people.

I don't see why there has to be any more authority than a citizen sworn to witness that, yes, both these people were who they said they were, and agreed to commit to one another. These are their signatures, and I am the witness. Bring the Loving Part II - I'll marry all y'all!
posted by toodleydoodley at 8:26 PM on June 16, 2010


I'll marry all y'all!

Well, this is the enSpousening anniversary....
posted by hippybear at 8:52 PM on June 16, 2010


Well, this is the enSpousening anniversary....
posted by hippybear at 11:52 PM on June 16 [+] [!]


I'm not skerr'd
posted by toodleydoodley at 8:57 PM on June 16, 2010


This is like the 3rd time in a month I've ALMOST met lady Gaga

I'm actually put out by this.
posted by The Whelk at 9:04 PM on June 16, 2010


When I was a notary for the state of Florida ($50 bucks, a handbook on checking IDs and signatures and an embosser)

Wait, seriously?

Oh. Mygod.
posted by dirigibleman at 9:34 PM on June 16, 2010


Are bears Catholic?

I can think of one bear that I'm pretty sure has been seen in the Vatican recently.
posted by Mikey-San at 12:01 AM on June 17, 2010


If a Lady Gaga shits in the woods, will there be a mefi post about it?
posted by KirkJobSluder at 6:26 AM on June 17, 2010


Official court transcript.
posted by ericb at 7:14 AM on June 17, 2010 [1 favorite]


ericb, thanks for that.

I suspect I won't be done reading it by the time the judgement is handed down, though.
posted by zarq at 7:18 AM on June 17, 2010


Reading the transcript, this passage has leapt out at me:
So with respect to the Equal Protection clause, I go back to the Yick Wo case where the Supreme Court said the right to the equal protection of the laws is the protection of equal laws and in that case, this is 1886, because of a Chinese person not being able to run a laundry in this city, the Court stated that:
"The very idea that a person would be denied a material right essential to the enjoyment of life" -- that's marriage -- "seems to be intolerable in any country where freedom prevails as being the very essence of slavery."
Well, we know that taking away the right to marry was, indeed, the very essence of slavery. Yet, that very freedom once denied to slaves and denied to interracial couples throughout this country is now being denied to the plaintiffs; not because they are Chinese in this case, not because of their race, but because of their sexual orientation. (page 3001, lines 6-23)

Powerful stuff.
posted by hippybear at 8:10 AM on June 17, 2010 [1 favorite]


The documentary, ' 8: The Mormon Proposition', opens this weekend. Check out the trailer and clips here.
posted by ericb at 10:05 AM on June 18, 2010


Prop 8 Update: Marriage Is Not About Procreation
posted by homunculus at 8:56 AM on June 19, 2010


The Fear Factor: What happens to democracy when everyone's too scared to show up?
posted by homunculus at 9:47 PM on June 19, 2010


Prop 8: Mormon Persecution, Marriage and the Refuge of Patriotism

(An excellent article about Mormonism and Prop 8 from The Awl)
posted by The World Famous at 3:10 PM on June 22, 2010


Philosopher disclaims 'ick factor,' demands Huckabee apology
posted by homunculus at 4:58 PM on June 25, 2010


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