Here Comes The Show

Today's the day – the day that the California Marriage Amendment, voted in as Proposition 8 in 2008, is put through what I expect to be a television show-trial by a three judge panel.

A few days ago, as covered in Carol J. Williams' Los Angeles Times piece, U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt said he would stay on the case. Guess he couldn’t miss his opportunity to stick it to the people of California. I hope he proves me wrong.

Oh, and this article and every other piece in the paper continue to push the biased presentation of the amendment as a "gay marriage ban", as does the Reuters and Associated Press coverage.

Reinhardt is married to Ramona Ripston, longtime head of the American Civil Liberties Union of Southern California. The ACLU has filed friend-of-the-court briefs in the same-sex marriage case, urging the appeals court to uphold U.S. District Judge Vaughn Walker's Aug. 4 ruling quashing Proposition 8.

[Much analysis after the jump.]

I left my comment after the story:

The fix is in. Federal judges telling Californians they can't amend their constitution to have requirements for state licensing. SCOTUS has previously said the bride+gromm requirement could stand. Hey, why do we even bother having state governments?

And get your terminology right, editors. The constitutional amendment is NOT A "GAY MARRIAGE BAN". I know gay couples who got "married", some many years ago. They had ceremonies, exchanged rings, changed names, had receptions, went on honeymoons, and live together. AND THAT ISN'T BANNED! Nobody is trying to stop them! Other people can call them married. Their employer and other organizations can choose to consider them married. But they can't FORCE the rest of us to call it marriage. Those state licenses are issued on OUR behalf. It is Constitutional and practical to treat different KINDS of associations differently and the uniting of bride+groom is the ONLY KIND of voluntary association that CAN naturally produce new citizens, unite both sexes in a unique legal, financial, and social partnership, and give those new citizens legally obligated parents from each of the two sexes. Only bisexuals can avoid hypocrisy in denying that there is any difference between men and women, and therefore mothers and fathers.

"monicadence" responded at 2:05 PM December 3, 2010:

But people aren't allowed to be at the deathbed of their chosen spouse.

People can designate just about anyone to be at their deathbed, but this is a situation that can be addressed through other means. California has domestic partnerships.

They're denied inheritance rights. They are cut out of decisions about medical care. They lose the right to see the children they've helped raise.

Again, these things have been addressed. Monica next knocks down a strawman:

BTW, you're entirely wrong that bride+groom is the only kind of association that can produce new citizens. So can the association of john+hooker, the association of rapist+victim, the association of booty+call, and the assocation of drunk+naked.

Read what I wrote again:

and the uniting of bride+groom is the ONLY KIND of voluntary association that CAN naturally produce new citizens, unite both sexes in a unique legal, financial, and social partnership, and give those new citizens legally obligated parents from each of the two sexes.

"Markus Lastur" wrote at 9:57 PM December 2, 2010:

Playfulwalrus: It's very simple. If you don't like gay marriage, don't have one.

If you don't like counterfeiting, don't do it! If you don't like the government printing more money, don't do it!

See the thing is, procreation is NOT a requirement of marriage.

I never said it was.

Second, you say they can't "naturally" produce kids, implying you are against anything "unnatural"

I implied nothing of the sort. I was demonstrating that same-sex pairings are not the same thing as bride+groom pairings.

I responded:

State licenses are issued on my behalf. I have voted. What two people do in private is their freedom. When they ask me for a license, it becomes my business.

"monicadence" at 1:59 PM December 3, 2010:

I assume, Walrus, that you think I shouldn't be married either? My husband and I are atheists.

Where did that come from? I didn't drag religion or God into the discussion. But it is the people who say "make marriage a church only thing" who apparently want to make it more difficult for atheists the marry. Actually, this was probably prompted by me responding to "Markus Lastur" bringing the Bible into the discussion.

Would you take the right away from us, too?

I don't want to take away the freedom to marry from anyone.

When the state starts saying "You're worthy of this right, but you aren't" to people who are statutorily indistinguishable (all adults in compos mentis), it is discriminating.

Well, yes, all laws discriminate, but this law is doing so on the basis of behavior, not saying that someone can't get married.

"Markus Lastur" at 8:48 PM December 3, 2010:

When you work at a place, you have to abide by their rules.

And when you live in a state, you abide by the state's rules.

Issuing a marriage license to a same-sex couple does not affect your heterosexual marriage, nor does it affect you at all.

Sure it does. It denies the core meaning of my marriage and cheapens it through dilution.

There is no reason to discriminate.

There isn't a compelling reason to strike down the state constitutional amendment. The burden of proof is on those who want change.

I brought up the completely secular line or argumentation that so often gets ignored:

1) Men and women are different. Even most of the people who try to deny this demonstrate that they understand this to be true. After all, if men and women were not different, all, or at least three, of the terms in "LGBT" would have no meaning.

2) The pairing of a man and a woman is different than the pairing of two men or two women. It is the only kind of pairing that is able to naturally produce new citizens (who, unlike the adults, do not consent to the relationship), even if not all do. This alone is enough to give the state more interest in the pairing of a man and a woman.

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.

"monicadence" responded at 1:51 PM December 3, 2010:

However, we live in a world where marriage and children are only somewhat correlated. Either may exist without the other.

That doesn't negate what I wrote.

Specifically, in California, many gay couples are able to become parents without the benefit of marriage.

Nor does that.

Thus, the only question left is: do we hurt or help those children by forbidding their parents from marrying each other?

Every single one of those children ended up in such homes by the willful choice of the same-sex couple who created that situation, aware of the laws. None are there as the natural result of private sexual behavior between the same-sex couple.

"Markus Lastur" at 8:55 PM December 3, 2010, apparently unable to deal with what I actually argued:

The procreation argument in regards to same-sex marriage fails because it is not a requirement of marriage to procreate.

I never said it was.

You are assuming every gay couple that gets married will adopt kids.

Where did I imply that?

The paper ran an opinion by Brian Powell, a sociologist at Indiana University, is the coauthor of Counted Out: Same-Sex Relations and Americans' Definitions of Family.

He likens marriage neutering, which encourages sex segregation, to the fight against forced skin-color segregation that some states practiced through, among other things, banning "interracial" marriage, which, unlike bride+groom licensing requirements, actually prevented the freedom of association and tried to stop what was historically recognized as marriage.

Once, Americans were overwhelmingly against interracial marriage. Court rulings helped change that. Will it be the same with [neutering] marriage?

We've been over the differences many, many times before.

In Perez vs. Sharp, the California Supreme Court ushered in a change that feels absolutely normal today.

And notice the court didn't neuter marriage. How did they fail to recognize that "fundamental" right?

Counterfeiting should be made legal. After all, in the past, some things that were illegal were made legal by court decision. Men are more likely to commit certain violent crimes. That means the laws against such crimes is discriminatory against men, right?

Eventually - nearly 20 years later - the U.S. Supreme Court also refused to bow to public opinion and, in its landmark Loving vs. Virginia decision, invalidated all remaining race-based marriage laws, most of them in Southern states.

Notice one of the big differences? 40 of the 50 states have constitutions or statutes that specifically have the bride+groom requirement in state marriage licensing.

And again, notice that the court didn't neuter marriage in their ruling.

Even in 1967, when the court issued its decision, only one-fifth of Americans approved of interracial marriage. Yet public opinion soon changed, in large part as a result of the court decision.

And isn't this the real reason for the marriage neutering advocacy? Sure, some of the same-sex couples are probably genuinely desiring "societal approval" for their relationship via a marriage license, which is interesting considering that in most states, society clearly doesn't approve. It's like suing when your film doesn't win an Oscar, getting a court to order that the Academy give your film and Oscar, and then pretending that the Academy members voted to give your film an Oscar.

But the organized advocacy is not about the needs of couples. It is about forcing everyone else to pretend that a same-sex pairing is no different than a bride+groom pairing, that heterosexual coitus, which is how all of us got here (test tube babies have ancestors, too), is no different than homosexual sodomy.

After dismissing people who recognize the obvious about the nature of marriage as uneducated (though we're in the same company as every major civil rights leader, religious leader, President, and great moral thinker in all of history up until now) he goes to poll dance and cite fauxmentum.

Here's Maura Dolan's article today.

"I wouldn't be surprised at all if two of these judges decide there is no standing," said UC Davis law professor Vikram Amar. Even the liberal Reinhardt might agree that the supporters of Proposition 8 have no legal authority to appeal, Amar said.

Reinhardt, considered strongly supportive of gay rights, "may not want the case to go to the Supreme Court right now" on the constitutional questions, Amar said.

Many gay rights groups, including the ACLU, initially opposed the federal challenge of Proposition 8 because of fear that a majority of the high court might rule against gay marriage. A narrow ruling on standing could be appealed to the Supreme Court but the outcome would have limited effect on gay rights.

So when will we know the outcome of this phase?

A ruling could come at any time. Legal experts anticipate that a decision is at least a month away and possibly many months. The ruling could then be appealed to a larger panel of the 9th Circuit and up to the U.S. Supreme Court.

The paper ran this editorial today.

We also agree that there was no rational basis for Proposition 8.

This is disingenuous because the people who wrote this editorial demonstrate by their behavior that they know there is a difference between same-sex relationships and bride+groom relationships.

The judge is Stephen Reinhardt, known as perhaps the 9th Circuit's most liberal jurist.

When the Los Angeles Times writes that, look out!

The original lawsuit challenging Proposition 8 in federal court was filed against Gov. Arnold Schwarzenegger and various other state officials. The governor refused to defend the initiative; so did Jerry Brown, attorney general and soon to be governor. In our view, they were wrong: No matter how much we dislike Proposition 8 - and we dislike it intensely - it was passed by a majority of the state's voters, who have a right to expect that it will be defended in court.

Even the Los Angeles Times sees the truth of this matter.

Reuters has their preview written by Peter Henderson and Dan Levine.

Three federal appellate judges considering whether to allow gay marriage in California hear arguments on Monday in a case many expect to land in the Supreme Court and set national policy.

California voters, with a reputation for social liberalism, shocked the United States in 2008 when they narrowly approved the Proposition 8 ban on gay marriage only months after the top state court opened the door to same-sex weddings.

See how they word this – "allow gay marriage" and "ban on gay marriage" – as if it is illegal to have a ceremony?

More than 40 states have outlawed such unions, but the California challenge could shape the nation if the Supreme Court decides to review the appeals court decision.

Wrong! The states have not outlawed same-sex unions.

And you knew Lisa Leff is going to have her reports for the Associated Press.

The defenders of California's gay marriage ban took a pummeling during the first federal trial to explore the civil rights implications of outlawing same-sex marriages.

"Ban", "outlawing". They all have the same marching orders, don't they?

Proposition 8's supporters maintain Walker erred by employing "standard courtroom fact-finding" to a case that, unlike a criminal trial where a singular event is in dispute, hinged on broader questions of policy, tradition and legal precedent.

"The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by plaintiffs' experts, and simply ignored virtually everything - judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence - that ran counter to its conclusions," they wrote in their opening brief.

Our hope at this point is likely only with SCOTUS.