Prop 8 Decision Was Proper

Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.

- Vaughn R. Walker, Chief Judge, Northern District of California

The recent decision overturning Proposition 8 in California is one of the best analytical decisions I’ve read in a long time from a court involving an issue of cultural significance. The last one that really impressed me with its rigorous analysis was Judge John E. Jones decision in the Kitzmiller v. Dover case in 2005.

I recommend that you download it and read it, despite its 138 page length. The Findings of Fact and Conclusions of Law are worth the time and effort alone. The quote above is one of Judge Walker’s findings of fact (# 34), and I also think one of the best definitions of marriage I’ve seen. He thoroughly skewers the proponents* arguments, one by one, many times with their own admissions.

Opponents of gay marriage tend to want to define marriage in an exclusionary, restrictive manner, so that it fits within their own restrictive, exclusionary, bigoted religious mindset. Hence, only those that fit into their Biblical worldview can be married, and all others are excluded. It’s part of the tribalistic, us-vs-them mentality that characterizes religion, indeed underscores the origins of religion, something a civilized society has moved past, one would hope. Apparently not, in fundeological circles.

Judge Walker’s opinion makes clear that Proposition 8 was religious in origin, and the political voter campaign that brought about its enactment was based on fear and ignorance in an attempt to garner the votes necessary for victory in November 2008. For instance, one of the ads broadcast during the campaign attempted to imply that if gay marriage was  allowed in California, children would be harmed, without actually showing how children would be harmed, thereby playing on innate human fear. The evidence adduced at trial however, shows just the opposite – children brought up by gay parents are just as well adjusted as those by opposite sex parents, and gays are not inclined to harm children any more than the general population does (probably less so than a population of Roman Catholic priests). It’s human nature to viscerally react to claims of abused children, so it was an effective campaign to target voters with. Unfortunately, it was dishonest, and thank doG we have a court system to correct the ignorance of the mob.

Much has been made in the media about one judge overturning the “will of the people”. Again, the ignorance of those same people (including noted Constitutional scholar Sarah Palin) is what leads to comments like that. Our court system is in place to provide the checks and balances needed to effectively administer the will of the people, as long as it is done without violating the Constitution. If it does, it doesn’t matter what the will of the people is, as that “will” can be subverted to create a “tyranny of the majority” (as Madison termed it in the Federalist Papers), and if anything, the Bill of Rights and the Constitution were created in part to protect the rights of the minority, not to force the ignorance of the majority on the minority. Don’t forget, it was once the “will of the people” that blacks attend segregated schools, and it was the Federal judiciary that changed that. Sarah Palin should try putting her Bible aside and read a little more history .

For those who don’t fully understand the Equal Protection Clause of the 14th Amendment, it has been consistently held by the courts that the government cannot create classes or groups of individuals and treat them differently, unless there is a valid governmental basis for doing so. Hence, “Equal Protection”. In Prop 8, the government has decided (via the “will of the people”) that same-sex partners cannot enjoy that which opposite-sex partners can, thereby creating two unequal classes, and Judge Walker has made mincemeat out of the Prop 8 proponents’ reasoning for doing so, in the process showing that there is no legitimate governmental purpose for treating these two groups differently.  Marriage is a fundamental right of everyone, and marriage has benefits, societal, governmental and cultural, that flow to those who are married. To deny those benefits to people because they don’t meet the opposite-sex classification requirement is to deny them those rights without due process, and in violation of their equal rights under the Constitution. Hence, Prop 8 is unconstitutional, and the courts are empowered, indeed required, to strike it down.

For some time I have been a proponent of the theory that we ought to do away with marriage, and simply call every coupling a domestic contract or partnership of some sort. However, that would require a complete cultural paradigm shift, not to mention the somewhat large scale revamping of our legal system. In our federal laws alone, there are something like over 1100 statutes that define marriage or give benefits to people on the basis of their status as married individuals, and this does not even take into consideration the laws of the fifty states.

After reading this decision I’ve changed my mind, and agree that it would be much simpler to adopt the definition of Judge Walker and allow everyone to get married if they so choose. There is no harm to anyone in doing so. None. The idea that the “institution of marriage” would be diminished by it is soundly rejected as nonsense, another scare tactic of the religious. If that institution hasn’t been affected by the societal changes of the past 100 years, including the divorce rate of opposite-sex couples, then the marriage of homosexuals will have little impact on it.

Churches will not be required to perform marriage ceremonies in situations they don’t approve, just like they don’t have to now if they find a proposed marriage to not be in the best interest of the church or the couple (usually the former). (I doubt, if I was gay, I’d want to be married in a church like that anyway, but that is the decision of the couple to be married). Opposite sex couples can still be married,  and the gay wedding down the street will not affect their marriage or their ability to procreate if they so choose. Finally, as far as marriage goes, we will all be “created equal”.

As Judge Walker said:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

______________

* An interesting sidelight is that the actual Defendants in the case, Governor Schwarzenegger, Attorney General Brown, and others (the government) refused to defend the case, in effect agreeing with the Plaintiffs, two same-sex couples. In order to allow a fair airing of all the issues, Judge Walker allowed the original proponents of the Prop 8 campaign to intervene and defend the case. He then made clear, throughout the opinion, with precision, the clear vacuous nature of the defense .

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38 thoughts on “Prop 8 Decision Was Proper

  1. “Marriage is a fundamental right of everyone, and marriage has benefits, societal, governmental and cultural, that flow to those who are married.”

    And those benefits are what most gays are after, as they never would worry about any social stigma for merely living together prior to that. I’ve never known any homosexual to worry about what God or any Christian thinks about him/her, nor do they concern themselves with His institutions, except for what they think they might be missing out on in terms of financial gain. You’ve hit the nail on the head, as they would otherwise just live common-law and not raise any fuss. It’s like with some heterosexual couples that don’t like kids, but they’ll have them to get the family allowance cheque that comes with them.

    And, perhaps this would be all well and good, in terms of life in a Godless universe like the one that Dawkins, et al, propose, where it’s all a matter of survival of the fittest and anything goes. Trouble is, God is going to reestablish His government on a new Earth and homosexuality isn’t a part of the program. The marriage of a man and a woman is supposed to signify the relationship between Christ and His church. Same-sex ‘marriage’ (hack, cough!) is one of the most insidious attacks against God there is, totally distorting one of the purposes for sexual union.

    “Churches will not be required to perform marriage ceremonies in situations it doesn’t approve…”

    And, that’s all I require for my own satisfaction. If gays insist on destroying themselves, I don’t need to be a party to it. If they try and force me to (hack, cough!) ‘marry’ them, I’ll go to jail before I’ll do it! They want their ‘rights’, I want mine. I also want the right to not have my kid read their shit in school, either, when lately there has been an influx of gay propaganda being pushed on kids in public schools throughout North America. They want to preach their religion, they can build their own churches and preach to those consenting to visit them. Just like infidels bawl whenever God’s name is mentioned in school, they can bloody well keep fag propaganda out of the classroom, too.

    As for those stats you quote on homosexual unions not being detrimental for youth, I believe there are just as many or more that show that such unholy alliances do confuse and stunt the social growth of children, producing effeminate men and aggressive, masculine women who later compete with men for increasingly diminishing jobs and leave the day-cares to look after the upbringing of their kids.

    The so-called experts do not have the wisdom of God for knowing what is best for society. They live their lives between their legs, and that’s as far afield as they can see. Just like the old Sixties’ mantra that produced a generation of pot-heads and socialists…

    “If it feels good, do it.”

    Bullshit!

    • Thank you for writing this reply to the article and showing just how right the judge was in his decision.

      1: You assume that your Christian God is the only one out there. IT IS NOT. There are other religions out there with different beliefs than yours. I don’t care if I’m an Atheist, a Hindu, A Hebrew, etc… America = equality for ALL.

      2: With over a 50% divorce rate, that is highest amongst Christians in this country, your statement also makes you a big ol’ double decker hypocrite.

      3: Your argument also fails because there is a significant Theist Gay populace in America, many of them Christian.

      4: Your economic rationalization as a reason for Homosexuals to want marriage is LAUGHABLE. It does not deserve a response.

      5: We win; you LOSE! Please, go to jail over this cause. That’s where you belong.

      Enjoy your fail-day.

    • Well at least they’re thinking with something, you on the other hand are a religious f#$% head thinking without his dick or brain.

    • Oh, Gideon, still railing against progress? How I’ve missed you :)

      This is a change, or get left behind world. Getting left behind (pun intended) is exactly what’s happening to a lot of religions that refuse to adapt. Your god is not coming to Earth to smite the heathens, nor is anyone else’s god. The only judgment you’re gonna get is from history, and it will not be kind.

      That said, it’s every religion’s right to get left behind in the dark ages. It’s when they try to interfere with and drag down civil laws that they cross a line, and must be beat back. If any church, as a body, wants equal representation in government issues, they should pay taxes as a body. Otherwise, they can rail their hearts out on the sidelines.

      –Vitamin R

  2. I’ve never known any homosexual to worry about what God or any Christian thinks about him/her, nor do they concern themselves with His institutions, except for what they think they might be missing out on in terms of financial gain.

    I’ve known quite a few who are very religious and worry immensely about what God and other Christians think. I suspect that your personality and outspoken belief system must create a zone of bigotry that gays avoid, or you would too.

    You’ve hit the nail on the head

    I’m not sure what nail you think I was striking, but (speaking of heads) it appears that whatever it was, it went right over yours.

    Trouble is, God is going to reestablish His government on a new Earth and homosexuality isn’t a part of the program.

    Is this part of the theology of True Christians™? Because I know a lot of Christians that don’t buy any of that.

    Same-sex ‘marriage’ (hack, cough!) is one of the most insidious attacks against God there is, totally distorting one of the purposes for sexual union.

    So the purpose of marriage is “sexual union”? That explains True Christians™ obsession with sex. Thank you.

    I believe there are just as many or more that show that such unholy alliances do confuse and stunt the social growth of children, producing effeminate men and aggressive, masculine women who later compete with men for increasingly diminishing jobs and leave the day-cares to look after the upbringing of their kids.

    I smell bigotry. You are quite the bigot, aren’t you? What are you scared of? So many people so outspokenly homophobic turn out to be latent homosexuals. Is Ted Haggard your hero?

    They live their lives between their legs,

    Another irony meter broken to hell.

  3. Quit showing off, John, and reread my comment, okay?

    Also, read my last comment on the other thread about Christianity and those that claim to be proponents of it. Sorry to disturb your fantasy world, John, but not everyone that says “Lord, Lord” is one of His.

    I’m no bigot. I accept the privilege that God gives to everyone to either obey or disobey, and I also accept that they must accept the consequences for their actions. If you’d overridden your emotions, for a few minutes, you’d have noticed that my primary concern was that gays not have a monopoly on rights and freedoms in a supposedly democratic society. But, you got all hot and bothered over nothing.

    I fear ignorance more than any other thing… especially WILLFUL ignorance, the type practiced here.

    It’s scary, all right!

    • Gideon, you do seem to be quite ignorant. You descend into fallacy without even a thought to the damage you do to yourself and others.

      You may not like it, but this country was founded on the principles of freedom and equality. Just because it’s taking us some time to fulfill that dream doesn’t mean that wasn’t the intended purpose.Your strawmen arguments will get you naught.

      As to your claim that only Christians that believe as you do are true Christians;

      * There are more things in heaven and earth, Gideon,
      Than are dreamt of in your philosophy.”

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  6. Gideon:
    They want their ‘rights’, I want mine.

    How exactly are your rights threatened by granting rights to others? Please explain, citing the Constitution, federal statutes, and the laws of your state.

  7. SI, I did a video the other day requesting that my attorney friends weigh in on this. I know you didn’t do this as a response to ME, but it is a wonderful response nonetheless. This is the best analysis of the ruling that I’ve read thus far. Great job, buddy. As Larry says, “Great post on a great decision.”

  8. I never fails to amaze me that most of the people around here who fulminate about how “gay” marriage will wreck the institution and somehow destroy civilisation as we know it seem to know a lot about marriage. Most of them have tried it multiple times and STILL can’t manage to make it work. Yup, they’ve done a lot for the “institution”.

    Every wedding I’ve ever played for (except the “unions” of gay couples) in every church has had the words, “,,,by the power invested in me by the state of…”.
    Not much mention of any deities when it comes to the actual legality of the deed.

    Sooner or later the people handling the “state” will figure out that there’s a spare dime or two that can be vacuumed up, and there won’t be such a fuss.

  9. “Imagine there’s no heaven, it’s easy if you try, no hell below us, above us only sky. Imagine all the people living for today…”, John Lennon.

    And, no bigots. Just imagine!

  10. Churches will not be required to perform marriage ceremonies in situations it doesn’t approve, just like it doesn’t have to now…

    Is there a lack of evidence or precedent for churches being compelled to violate their doctrines? What about the analogy with racial discrimination? I am guessing it is illegal for a church to refrain from hiring a pastor based on race? Wondering how

    I’m not disagreeing with your premise, just trying to learn what supports it. Your article is very informative, thanks for posting it.

    • Well, let’s look at the Mormons (Church of Jesus Christ of Latter Day Saints) since they were heavily involved in funding the Prop 8 movement.

      Many years after civil rights (re: African Americans) had been passed by the U.S. Congress, blacks were still discriminated against by the Mormons. They were not permitted to hold the priesthood. Legally, they were NEVER forced to change this rule. However, in the late 1970s, the leadership of the Church received a “message from god” telling them that he (god) had relented and was now willing to have blacks serve as priests in his (god’s) church.

      Now, you and I can see in retrospect that the Church was “forced” to receive this “revelation”, but not “forced” in a legal sense. They were deeply out of touch culturally and were losing membership, having become a social pariah. I think the same would eventually happen to churches who refuse to perform gay wedding ceremonies, though it will take a long time. My point being that they won’t be _legally_ forced to perform such ceremonies.

      • Interesting, so that is a precedent, if not a proof. I think God spoke to Bob Jones along similar lines at that time as well (interracial marriage).

        It makes sense that that would be the trajectory of many churches, really, it is happening already. But I’m still wondering if performing same-sex marriages could be required by law. Would it be required by law today to perform an inter-racial marriage, if a church chose to claim it unnatural and immoral?

        Ugh, putting it in those terms makes the ugliness of the current situation more clear…

          • Yes. Separation of Church and State works both ways. The State can’t tax churches, and by the same token couldn’t force them to perform gay marriages. They are free to exercise their religion any way they want, provided it isn’t illegal (The Holy Church of Paid Nookie, for instance). It’s the State that’s forced to acknowledge all marriage, not the churches.

            The cultural shift, however, will “force” them into line, as Evo pointed out upstream.

    • I suspect it is based on recent rulings where Christian groups that receive some sort of Federal funding and supported bigoted policies will be stripped of that funding.

      They’re quite upset over this; losing all that free money must be very disturbing to them.

      I say; Good.

      If you won’t support the laws of this country, why should we give you any sort of tax-payer generated funding, or tax breaks for that matter?

  11. Why does it always take so much time and effort to make the right thing happen? Not to take away from the Judge’s ruling or SI’s post, but duh!

    I should have bookmarked it, but I read an article recently by a straight guy who was living with his girlfriend and had a lesbian couple as neighbors. When they originally legalized same-sex marriage in CA, the lesbians got married and after Prop 8, the whole neighborhood came together to defend them. The guy said that he had nothing but negative thoughts about marriage prior to meeting the lesbians, but they made him appreciate it and he and his girlfriend got married. I think the irony is that it could be the LGBT community who saves marriage, not destroys it as the haters claim. I know my generation grew up not thinking of marriage that highly and I think it’s only been getting worse. Now marriage is something sought after.

    On a personal note, prior to my wife and I getting married I felt uncomfortable around our gay friends because we were essentially thumbing our noses at something they couldn’t have but wanted desperately by “living in sin”. Still, it was the issue of healthcare through my new job which finally got us to the courthouse. ;)

    • Why does it always take so much time and effort to make the right thing happen? Not to take away from the Judge’s ruling or SI’s post, but duh!

      Evolution is a slow, gradual, relatively imperceptible thing. But it does move forward over the long view. ;)

      Now marriage is something sought after.

      One of the things I wanted to mention in the original post, that I forgot to emphasize as I wrote it, was this notion that the institution of marriage was being harmed by allowing same sex relationship legalization. Aside from the fact that there really is no “institution” that exists in reality (other than what we humans define it as, it’s only a metaphor for the great number of people who partake of this social custom) , doesn’t the fact that we call it an institution lend it a certain amount of gravitas such that people who are not allowed to partake of it are left feeling inferior to those who are? If we hold it in such high repute, aren’t we telling people that can’t be married that they are not as important or as valuable to society as those that can? Isn’t that the subtext of religious bigotry? It’s almost like the Hindu caste system, where some people are deemed untouchable. Religions seem to glory in these feelings of superiority, and use it to attract adherents.

      Why gays would ever be religious is beyond me.

      • SI asked: “aren’t we telling people that can’t be married that they are not as important or as valuable to society as those that can?”

        Judge Vaughn Walker said:
        “Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.”

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  13. Hey, I’d like to believe in the biblical tradition of marriage, but my wife refuses to let me screw her handmaiden. Not only that, but she doesn’t even have a handmaiden!

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