Prop 8 Nov. 15 Protest

[DrPhil]

Originally Posted by preciousjeni

Can someone explain to me why heterosexual couples have the right to be married?

Kevin answered it based on the legal right. And that legal right is mostly based on the perceived moral and religious rights. The dependents and economic stuff are mixed up in there, too.

Sidebars:

It annoys me when people say "if gays can be married, what's stopping someone from marrying their dog or their toaster?" Uh...equating humans marrying each other to marrying an animal or an inanimate object is just...insulting and dumb. It is exaggerated moral outrage used to invoke fear of the "unknown" and perceived moral decline.

However, I have seen people begin to wonder if other types of marriages will be re-introduced to the mainstream. I watched the special on polygamy the other day and the people were like "we're not saying everyone else should do this...just don't try to stop us from doing it." Some of them were doing it for religious reasons and their kids were also home schooled. For whatever the reason, should these people have a legal right to marry more than one person, since their inability to do was initially based on a moral argument? What would be the social, political, and economic implications if this was to become a big case? Some people argue that this stuff is similar to the gay marriage issues, obviously not the same. I can only see the similarity at the abstract "what constitutes 'rights'" level. Polygamists are certainly not an oppressed minority group in the strict definition of the phrase.

[MysticCat]

Originally Posted by DrPhil

However, I have seen people begin to wonder if other types of marriages will be re-introduced to the mainstream. I watched the special on polygamy the other day and the people were like "we're not saying everyone else should do this...just don't try to stop us from doing it." Some of them were doing it for religious reasons and their kids were also home schooled. For whatever the reason, should these people have a legal right to marry more than one person, since their inability to do was initially based on a moral argument? What would be the social, political, and economic implications if this was to become a big case? Some people argue that this stuff is similar to the gay marriage issues, obviously not the same. I can only see the similarity at the abstract "what constitutes 'rights'" level. Polygamists are certainly not an oppressed minority group in the strict definition of the phrase.

Looking at it just from a legal standpoint, I think that this is a very valid question to raise. Generally speaking, the legal analysis doesn't turn on whether a group is oppresed or not; it's been turning on how the equal protection clauses of state constitutions have been interpreted and applied.

Under equal protection clauses, generally speaking, all citizens are entitled to have the law applied to them in an equal manner. The state cannot apply the law differently to different people (or classes of people) unless it has a sufficient reason (based on neutral rather than discriminatory intent) for treating people differently. In the case of certain groups ("suspect classes" is the term of art), such as racial or religious minorities, the state has a much higher burden -- it has to show not only that it has a very important interest at stake, but also that it has chosen the least-restrictive means it could to meet that interest.

So, for gay marriage, the argument goes like this: the state issues marriage licenses and recognizes the marriages of heterosexual couples. The state does not have a sufficiently important interest in limiting marriage to opposite-sex couples. Because the state does not have a sufficiently important reason for so doing, the equal protection provision of the state constitution forbids the state from limiting marriage to opposite-sex couples and requires the state to recognize the marriages of same-sex couples.

If a state court agrees with that argument, it is not a long trip to the next lawsuit: the state issues marriage licenses and recognizes the marriages of two people. The state does not have a sufficiently important interest in limiting marriage to only couples. Because the state does not have a sufficiently important reason for so doing, the equal protection provision of the state constitution forbids the state from limiting marriage to couples and requires the state to recognize marriages between three (or more) people.

The last argument might not win. But I have no doubt it will be brought in a court somewhere.

[DrPhil]

Originally Posted by MysticCat

Looking at it just from a legal standpoint, I think that this is a very valid question to raise. Generally speaking, the legal analysis doesn't turn on whether a group is oppresed or not; it's been turning on how the equal protection clauses of state constitutions have been interpreted and applied.

Under equal protection clauses, generally speaking, all citizens are entitled to have the law applied to them in an equal manner. The state cannot apply the law differently to different people (or classes of people) unless it has a sufficient reason (based on neutral rather than discriminatory intent) for treating people differently. In the case of certain groups ("suspect classes" is the term of art), such as racial or religious minorities, the state has a much higher burden -- it has to show not only that it has a very important interest at stake, but also that it has chosen the least-restrictive means it could to meet that interest.

So, for gay marriage, the argument goes like this: the state issues marriage licenses and recognizes the marriages of heterosexual couples. The state does not have a sufficiently important interest in limiting marriage to opposite-sex couples. Because the state does not have a sufficiently important reason for so doing, the equal protection provision of the state constitution forbids the state from limiting marriage to opposite-sex couples and requires the state to recognize the marriages of same-sex couples.

If a state court agrees with that argument, it is not a long trip to the next lawsuit: the state issues marriage licenses and recognizes the marriages of two people. The state does not have a sufficiently important interest in limiting marriage to only couples. Because the state does not have a sufficiently important reason for so doing, the equal protection provision of the state constitution forbids the state from limiting marriage to couples and requires the state to recognize marriages between three (or more) people.

The last argument might not win. But I have no doubt it will be brought in a court somewhere.

Thanks for clarifying. The legal standpoint is what I meant by the abstract "what constitutes 'rights'" level.

[MysticCat]

Originally Posted by DrPhil

Thanks for clarifying. The legal standpoint is what I meant by the abstract "what constitutes 'rights'" level.

I need to clarify a little more. I've been reading some of the reports on the cases in California, and it seems that the argument is being made, in the equal protection context, that gays and lesbians are a group that has historically faced discrimination (that is, it appears, members of a "suspect class" or something similar) and that, as I understand it, the voters cannot keep the courts from protecting the equal rights of this group that has historically faced discrimination.

[DrPhil]

Originally Posted by MysticCat

I need to clarify a little more. I've been reading some of the reports on the cases in California, and it seems that the argument is being made, in the equal protection context, that gays and lesbians are a group that has historically faced discrimination (that is, it appears, members of a "suspect class" or something similar) and that, as I understand it, the voters cannot keep the courts from protecting the equal rights of this group that has historically faced discrimination.

So being discriminated against is a factor, afterall.

[KSig RC]

Originally Posted by MysticCat

So, for gay marriage, the argument goes like this: the state issues marriage licenses and recognizes the marriages of heterosexual couples. The state does not have a sufficiently important interest in limiting marriage to opposite-sex couples. Because the state does not have a sufficiently important reason for so doing, the equal protection provision of the state constitution forbids the state from limiting marriage to opposite-sex couples and requires the state to recognize the marriages of same-sex couples.

If a state court agrees with that argument, it is not a long trip to the next lawsuit: the state issues marriage licenses and recognizes the marriages of two people. The state does not have a sufficiently important interest in limiting marriage to only couples. Because the state does not have a sufficiently important reason for so doing, the equal protection provision of the state constitution forbids the state from limiting marriage to couples and requires the state to recognize marriages between three (or more) people.

The last argument might not win. But I have no doubt it will be brought in a court somewhere.

Meh, it seems like the argument is a non-starter from any aspect other than the technical (i.e. "the only one that matters" but hey - message board!) . . . I'd run it something like this:

The state's interest in limiting marriage to two people can be proven "sufficiently important" for any number of qualifying reasons, including the difficulty of parsing out or setting up multi-party contracts for the layperson, and the amount of work it would take to integrate such contracts (or the resultant work for public administration in dealing with the aftermath - for instance, do you have a primary wife and a secondary for legal purposes, like estates? If so, that's not really one "communal" marriage, it's essentially two separate, and precedent shows that the state has an interest in not allowing two separate marriages where the secondary parties are not interactive). This is in addition to the historical precedent for polygamy's connection with detrimental acts (such as underage marriage or forced marriages). The change of an institution to support the desires of a non-protected class of people would require support through an inordinate amount of work, oversight and negative historical precedent - and the end result likely would violate already-upheld rules.

Probably enough of a hijack, but I think one could adequately reverse "no compelling reason to do so" to meet a "sufficiently important" burden . . .

[MysticCat]

Originally Posted by KSig RC

Meh, it seems like the argument is a non-starter from any aspect other than the technical (i.e. "the only one that matters" but hey - message board!) . . . I'd run it something like this:

The state's interest in limiting marriage to two people can be proven "sufficiently important" for any number of qualifying reasons, including . . .

Oh, I'd counter it that way, too. I think those are the sorts of arguments that would be made. But just because those arguments would be made doesn't mean that the suit wouldn't be brought, and that was my point: a suit along those lines will be brought. Whether it will be successful is a whole 'nother question. Typically, good judges have thought about the cases that could follow and have carefully tailored their opinions to the issues before them accordingly. (But judges have been known to do surprising things.)

And for what it's worth, I wouldn't be surprised if such a suit included a free exercise of religion aspect. Again, not saying it would carry the day, but I won't be surprised to see someone try it.

[KSig RC]

Originally Posted by MysticCat

Oh, I'd counter it that way, too. I think those are the sorts of arguments that would be made. But just because those arguments would be made doesn't mean that the suit wouldn't be brought, and that was my point: a suit along those lines will be brought. Whether it will be successful is a whole 'nother question. Typically, good judges have thought about the cases that could follow and have carefully tailored their opinions to the issues before them accordingly. (But judges have been known to do surprising things.)

And for what it's worth, I wouldn't be surprised if such a suit included a free exercise of religion aspect. Again, not saying it would carry the day, but I won't be surprised to see someone try it.

All good points . . . which plays right back to the "CA is bizarre" issue, too.

[MysticCat]

Originally Posted by DrPhil

So being discriminated against is a factor, afterall.

Apparently, at least in the sense of arguing that gays are a protected class under the California Constitution.

Originally Posted by KSig RC

. . . which plays right back to the "CA is bizarre" issue, too.

Res ipsa loquitur.

[a.e.B.O.T.]

Originally Posted by MysticCat

If a state court agrees with that argument, it is not a long trip to the next lawsuit: the state issues marriage licenses and recognizes the marriages of two people. The state does not have a sufficiently important interest in limiting marriage to only couples. Because the state does not have a sufficiently important reason for so doing, the equal protection provision of the state constitution forbids the state from limiting marriage to couples and requires the state to recognize marriages between three (or more) people.

The last argument might not win. But I have no doubt it will be brought in a court somewhere.

Yes, there is always going to be a line in the sand... but I think the key difference that strikes it apart is monogamy.

[LightBulb]

Originally Posted by preciousjeni

Can someone explain to me why heterosexual couples have the right to be married?

Originally Posted by Kevin

Because our states allow it.

Originally Posted by sigmadiva

Kevin gave one answer. The other is that the Bible supports a heterosexual marriage.

The United States is not a theocracy. Rights should not be recognized based on morality teachings of one religion.

"The legitimate powers of government extend to such acts as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg." -- Thomas Jefferson, Notes on Virginia

[DrPhil]

Originally Posted by LightBulb

The United States is not a theocracy. Rights should not be recognized based on morality teachings of one religion.

"The legitimate powers of government extend to such acts as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg." -- Thomas Jefferson, Notes on Virginia

And...regardless of what America is supposed to theoretically be, it is a theocracy with rights that are based on the morality teachings of the dominant religion and of the sensibilities of the majority. Most societies are. The difference is that our country is supposed to be this capitalist democracy melting pot.

If people have a problem with that reality, we would have to take a critical look at almost all of our laws and practices. Starting...now....

[MysticCat]

Originally Posted by LightBulb

The United States is not a theocracy. Rights should not be recognized based on morality teachings of one religion.

A nation needn't be a theocracy in order to base its legal framework on the moral teachings of a relgion -- many if not most nations have done the latter without being theocracies.

[LightBulb]

Originally Posted by MysticCat

A nation needn't be a theocracy in order to base its legal framework on the moral teachings of a relgion -- many if not most nations have done the latter without being theocracies.

A nation needn't disfranchise citizens for the sake of the "morals" of one (or more) constituency(ies).

[DrPhil]

Originally Posted by LightBulb

A nation needn't disfranchise citizens for the sake of the "morals" of one (or more) constituency(ies).

MysticCat and I agree.

We are just responding to your assertions about what the United States is and what it was designed to be. That's a different discussion.