More on Olson’s Argument

Maura Dolan had an article in today's Los Angeles Times based partly on yesterday's blog entry. In addition to the stuff I already addressed, the article had more interesting coverage of Olson’s argument.

Olson also argued that striking down Proposition 8 would not require the court to create a constitutional right to same-sex marriage. The 9th Circuit is considering an appeal of a district court ruling in August that found Proposition 8 unconstitutional.

Just as the U.S. Supreme Court struck down a Virginia ban on interracial marriage without creating a new right to interracial marriage, the court could overturn California's gay marriage ban on the grounds that all persons are free to decide whether or whom to marry, Olson wrote.

Oh, were to start?

1. It's not a ban.

2. It would be news to most people that there is no right to "interracial" marriage, and quite a few marriage neutering advocates that there is no right to "gay marriage". Rights are things we are born with, not things the government bestows. There is a right for someone of darker skin to marry someone of lighter skin because that is a natural thing that has existed for all of history. There is no "right" for someone to marry someone of the same sex, because it is an oxymoron. It's like saying men have a "right" to give birth. Two (or more) men, or two (or more) women can live together. Freedom of association is a right.

3. If Olson really believes that "all persons are free to decide... whom to marry" in the sense that they are owed a marriage license by the state regardless of the person they want to "marry", then how can we tell a married man that he can't marry a second woman? How can we tell first cousins they can't marry (as some states do)? How can immigration officials claim that people who have a marriage license together aren't really married simply because they don't live together?

4. Are all persons free to buy rifles? The Second Amendment would seem to say yes, but there are conditions and restrictions that SCOTUS allows.

5. How can a federal court strike down a state's marriage amendment unless it is doing so to protect a right? Is Olson not playing at semantics? If Olson is not asking the court to find a right to a brideless or groomless marriage specifically, then he must be asking for a right to marriage that would be strong enough to remove the other limitations on state marriage licensing.

He conceded that voters who supported Proposition 8 were not necessarily motivated by malice.

How big of him.

Quoting from an opinion by Justice Anthony Kennedy, Olson said prejudice may result "from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different."

It's not prejudice. We can demonstrate that a bride+groom union is different than other kinds of unions. There is no pre-judging involved.

Olson wrote: "But whatever the reason that voters supported Proposition 8, the fact remains that it embodies an irrational and discriminatory classification that denies gay men and lesbians the fundamental right to marry enjoyed by all other citizens."

They have the very same right as anyone else, and should the marriage amendment ultimately lose, they will still have no more or fewer rights than anyone else. Not wanting to exercise a right doesn't mean it isn't there. It is discriminatory – all laws are. But it certainly isn’t irrational.

[Comments analyzed after the jump.]

I wrote after the article:

Really? If California was passing out marriage licenses to brideless or groomless couples, the suicide and gang beatings back east wouldn't have happened? Give me a break. A straight person wouldn't have committed suicide if their privacy has been violated in the same way? Suicides and bullying will stop because bridless or groomless couples can get a state license

1) Men and women are different.

2) The paring of a man and a woman is different than the pairing of two men or two women.

3) Men and women are different in personal relationships. If that difference matters enough to someone in picking a lover, how can it not matter when it comes to the parent-child relationship?

4) State licensing of bride+groom pairings provides children with a role model, guardian, and bonding partner from each of the two sexes that comprise all of society, legally bound to each other as well as the children; generally, this is good for children.

5) It is constitutional, moral, common, and necessary to treat different kinds of relationships differently.

6) One need not believe homosexual behavior, relationships, or people to be harmful, sinful, or inferior to accept any or all of #1-5.

"Dan_Doe" at 4:34 AM October 20, 2010 failed to read my comment closely and responded:

Your logic on this point lacks any proof. It not only blatantly discriminates against homosexual parents, but also judges some heterosexuals as “unfit” for marriage (those who cannot or will not reproduce), i.e., elderly, cancer survivors (chemotherapy = sterile), single mothers.

I didn’t say reproduction was a requirement of every marriage. Read point #4 carefully.

As you say, a couple "...legally bound to each other as well as the children; generally, this is good for children." By that logic, denying gay couples the right to marry would actually HURT their legally bound/adopted children...

He left out the important phrase "a role model, guardian, and bonding partner from each of the two sexes that comprise all of society", thereby missing the point.

because there is no legal contract to create a binding family environment.

California has domestic partnerships.

Therefore, you are actually creating a "problem child", rather than a loving "legally bound" family.

No, except for relatives dying or otherwise losing custody of their children and those children ending up in the care of a same-sex relative, no same-sex couple ends up with children without a conscious decision to bring them into a situation where there isn't both a mother and a father, and a decision to bring them into a situation where there isn't a marriage license. Same-sex couples are not obligated to bring children into such situations. It is their choice to do so. We are not obligated to change our laws because of this. Either they use third-party reproduction, or make a child with someone of the opposite sex, then enter into a same-sex relationship, or they seek out an adoption. No faithful same-sex couple has ever had a situation where one partner nervously surprises the other with "We're pregnant. How are we going to handle this?" Children are not a natural result of homosexual interaction.

Laws like Prop 8 single out homosexuals, and make society look at them as "unfit citizens."

Laws (including programs) relating to pregnant women and selective service and many others single out one sex or other. The California Marriage Amendment doesn't place any objective restriction on a homosexual person that it doesn't also place on a straight person.

"TruthSeeker_Two" at 4:51 AM October 20, 2010 also fails in reading comprehsion:

Who you sleep with does NOT determine how good a parent you are.

Where did I say it did? (Although, I wonder if this person would argue that a woman who choosed to bring a pedophile into her home isn't demonstrating herself to be a bad parent... and NO, I'm not equating homosexuality with pedophilia.)

State marriage licensing of same-sex couples provides their children with role models and guardians legally bound to each other.

But not a parent of each of the two sexes. Cite all the studies you want, the fact is you live in a way that shows there is a difference between men and women in personal relationships. Parenting is a personal relationship.

It is unconstitutional to treat same-sex couples differently than mixed-sex couples. (See Iowa Supreme Court ruling in Varnum and the judge’s ruling in Prop 8 case.)

See higher court rulings that say otherwise.

"Dan_Doe" at 5:32 AM October 20, 2010 pats TS2 on the back:

Walrus, NOTICE how TruthSeeker sited COURT approved, UN-BIASED documented fact.

I have "court approved" fact that says racial segregation by government force is okay. Guess what? Other court decisions supersede. What documented fact was used? I used facts that just about everyone knows or lives by, and they weren't refuted. They were ignored.

If you have any "proof" that isn't the Bible verses or "hearsay" from a biased "religiously funded" study/source... I'd love to get those links.

I didn't cite the Bible, religion, or any funded source. I used basic reality that even homosexual people demonstrate in their daily lives.