President Obama on Marriage Neutering

If President Obama's publicly stated position that marriage is between a man and a woman is his sincere belief, then he holds a belief that lines up with...

1) The understanding of those who wrote and adopted the Constitution of the United States of America and every amendment.

2) Every previous POTUS.

3) Just about each person, if not every person, who has served on the Supreme Court of the United States.

4) A majority of voters in any state where voters have directly voted on the matter.

5) The law in 40 states and the practice in 5 more.

6) The law in most countries around the world.

7) The sacred texts and traditions of every major world religion.

8) Thousands of years of human history, including in places and times in which homosexual behavior was openly practiced and accepted by society.

9) The opinion of some homosexual people.

10) Jesus Christ, Martin Luther King, Jr., and every great moral thinker or civil rights leader in history.

If I had to guess, I would guess that Obama really does believe marriage is between a man and a woman. I would also guess that he cares more about scoring points with certain political activist groups than that belief, and so he's looking for a way to get credit for neutering marriage in national law without also getting the blame.

Recently, he made news in this regard. Here's Peter Nicholas' article in the Los Angeles Times.

President Obama, in saying this week that his view of same-sex marriage is evolving, stirred expectations that he may announce a new position in coming months, fundamentally altering the national debate.

I'm not sure how, unless this means that he's going to publicly tell federal agencies like the Department of Justice to take a dive in court cases defending DOMA. I'm not expecting Congress to send him legislation to neuter marriage.

A declaration from a sitting president that he supports gay marriage would be "a game changer," one proponent said, and would provide cover to other politicians, especially to local and state officials as they decide which way to vote on bills permitting gay couples to wed.

Ah. I see the thinking. But it smacks more of wishful thinking to me, and then hoping that other people will believe that their vote has to change because someone else's opinion has.

An immediate goal, the White House said Thursday, is the repeal of a Clinton-era law, the Defense of Marriage Act, that defines marriage as the union between a man and a woman. The law holds that couples who don't meet this description are not eligible for federal benefits.

I like it when people seeking federal benefits argue that DOMA is unconstitutional, but fail to notice that nothing in the Constitution authorizes most of those federal benefits programs in the first place, and based on the 9th and 10th Amendments, that would make those unconstitutional, too.

Obama, using the forum of a news conference, gave a window into his thinking about a volatile social issue on which there is no clear public consensus.

On what other issue would "no clear public consensus" be used to describe a situation in which SCOTUS has never ruled in a way different than the laws of those 40 states, and in which every popular vote has been on the same side?

So, if gays can fight and die for their country, why can't they marry people they love, Obama was asked by ABC's Jake Tapper.

Gays have always been able to, and always have, fought and died for their country. The military used to screen out people who admitted, when asked, to engaging in homosexual sodomy, then changed to not asking about it. The difference now is that gay military personnel will be able to tell everyone they work with about their sex lives without getting fired for doing so. And that they can do this no more means we need to neuter marriage for everyone than it means we need to pay for genital mutilation surgery for everyone who wants it.

"I struggle with this," the president said. "I have friends, I have people who work for me, who are in powerful, strong, long-lasting gay or lesbian unions.

And they are extraordinary people, and this is something that means a lot to them and they care deeply about."

That is a non sequitur. They are already allowed to vote however they want. There's nothing in that statement that indicates why Obama, or anyone else, should vote contrary to their own understanding of marriage. Think about it. When do you see anyone quoted in the media saying, "I have friends, I have people who work for me, who are wise, intelligent, loving, accomplished people. And this is something that means a lot to them and they care deeply about, and they voted to uphold the bride+groom requirement in their state marriage licensing. So I don't want to force them, through their state government, to issue marriage licenses to brideless or groomless couples."? Why is someone's desire to have their sexual or personal attraction called the same thing as a different kind any more important than someone else's deeply held convictions about marriage, family, and public policy?

The article then goes on to invoke fauxmentum and poll dancing.

Today, the paper ran an editorial on the subject. It's almost like the editorial board is unaware that there is already a homosexuality media.

The president could spare himself that struggle if he would analyze the issue logically. If he did, he would recognize that it's irrational, once same-sex couples are given the practical advantages of marriage, to deny them married status.

Maybe they're right. Maybe civil union laws should not be written so that government will treat participants exactly as though they are married spouses.

Civil unions, while a vast improvement over the absence of any recognition of same-sex relationships, are almost by definition second-class arrangements.

It is logical, practical, Constitutional, and necessary to treat different behaviors and different kinds of voluntary associations differently. It is certainly okay to call them by different names.

The temptation is to think that Obama knows this, and that his reluctance to endorse marriage equality is more political than personal.

I think they have it backwards – that Obama knows that a bride+groom pairing is inherently different from other kinds of relationships, but he may be willing to ignore that for political reasons.

"JonWrightLA" at 8:49 PM December 29, 2010:

My husband and I have been together for 13 years + and were registered domestic partners up until the pre-Prop 8 window opened and we got married. Becoming registered domestic partners was a private and legal act we did alone in our home and was about as exciting as signing escrow instructions. Getting married, however, was a totally different experience-- from having to get in line at the LA County Clerk's Office to pay for a license, to a wedding in our back yard in front of friends and family, officiated by a dear friend who is a retired Presbyterian minister and complete with a fantastic wedding cake from Porto's!

You could have had the ceremony even before you registered as domestic partners. Anyone can have that ceremony now. It isn't illegal. Nobody will stop anyone.

Before you drop a hundred grand on a wedding, make sure he really likes you.

Lawyer sues ex-fiancé 
for calling off wedding

CHICAGO — A lawyer who said her ex-fiancé called off their wedding just four days before the ceremony wants to make him pay – literally. According to a lawsuit filed in Cook County Circuit Court, Dominique Buttitta, 32, is suing Vito Salerno, 31, for nearly $100,000 over the canceled wedding. The wedding was supposed to take place Oct. 2. But the bride said that Salerno backed out Sept. 27 and “intentionally inflicted emotional distress” on her. She said she was looking to recover the more than $95,000 she spent on the wedding, including nearly $12,000 on flowers and $5,400 on her wedding dress and accessories.

What make him go through with the wedding, because a divorce afterward would be cheaper and less distressing? I'm sure her engagement ring could cover a portion of her losses

Strong Is He With Talent

...but not that strong. Sir Elton John is extremely talented. I appreciate his work as an artist. He makes it look and sound like he could write ten catchy hit songs in his sleep, and seems to have more talent in his smallest toe on his average day than so many in pop music can muster in their entire lives. I also appreciate that he has publicly stated his satisfaction with a civil union, and affirmed the distinction between a civil union and a marriage.

I am, however, very disappointed that John and his partner have used a surrogate to intentionally create a situation where a child will be deprived of his mother. Neither one is strong enough with their talents to overcome nature and be a mother. In addition to this very selfish aspect of their actions, they have compounded the problem as John is 62 and his partner, Mr. Furnish, is 48. This means that Furnish will be 66 when the child is 18, and John, if he is alive (God willing), will be 80.

I previously wrote about a similar action by Neil Patrick Harris and his partner, although at least they are younger. Although we can expect the children will be well supported financially, I can't be anything but dismayed when anyone, wealthy or not, makes decisions that deprive a child of a mother or a father, whether there will be one man or two men, one woman or two women raising the child.

It is interesting that both this Associated Press article and this AFP article say that John and Furnish "married". Not that the news media is biased to the point of perpetuating factual errors, or anything.

Also from the AFP article:

The star tried to adopt a 14-month-old boy he met while visiting an orphanage in Ukraine last year, but his attempt was blocked because Ukrainian law does not permit couples in same-sex marriages to adopt.

The singer admitted at the time that while Furnish had always wanted to adopt a child, he himself believed parenthood was incompatible with his lifestyle but changed his mind after the Ukrainian boy "stole my heart".

I can support the idea of a same-sex couple adopting a child, especially an older child, if the alternative is ongoing institutionalization. Having hired help raise the children isn't much better than institutionalization, however.

By turning to a surrogate mother, John has followed in the footsteps of "Sex in the City" star Sarah Jessica Parker and her actor husband Matthew Broderick who had twin girls by a surrogate mother in 2009.

I'm not opposed to married couples using technology, as long as they are only going to allow the conception of as many human beings as they are willing to give a reasonable chance at life. In other words, I have serious objections to creating "extra" embryos. Each human embryo is a human being, just like every toddler is a human being.

Latino pop star Ricky Martin used a surrogate to have twin boys before announcing he was gay.

And whatever Michael Jackson's sexuality, assuming he was actually innocent of molestation charges, and however his children were bought into the world, I still didn't like the way he set up a situation that deprived his children of having a mother. Or that he risked - and lost - his life the way he did when he had children in his care. With parenthood comes enormous responsibility. Our desires, as adults, have to stand aside when in conflict with the needs of a child. Don't make them if you're not going to raise them, and raise them with both a mother and a father.

Legal, but replusive (Part II)

While it is frustrating to watch a train wreck, such as Hugh Hefner's engagement to a 24 year old woman, it does fit into the the main objective of what marriage.

The protection of accountable procreation.

We can debate the minimal pros and the substantial cons of what a marital set up is like, and the lack of virtues Hefner has being who he is, and how he obtain his fortunes through the sexual exploitation of women. The fact is, this woman is marrying Hugh Hefner with her own free will. This is her choice.

The government can't baby us, in who isn't and isn't an ideal mate. And it shouldn't. Ultimately our own parents shouldn't tell us who to marry. The government, society, and our extended family does care though, who will be held accountable to a child that is conceived from a sexual relationship.

Now Hugh Hefner could procreate beyond the average man's means with multiple women in his harem of the Playboy mansion and still afford the bill.

Yet apparently he doesn't.

Legal, but repulsive

Playboy's Hefner announces Christmas engagement on Twitter

Hefner, 84, said on Saturday in a posting on Twitter that he and his girlfriend Crystal Harris, 24, got engaged on Friday.

the comments....

Actually PATHETIC on the girl who accepted...anything old wrinkly sole for money---sad

Old dried up 84 yr old men don't even turn on an OLD WOMEN much less a young one. Must keep the lights off so she doen't throw up......

When I saw Hefner's name in a headline I thought it was going to be to announce his death. What a pathetic old man.

"ever-changing zone that bears the label "family.""

This is from Ann Althouse, on the New York couple that had their re-marriage featured in the New York Times. The ex-husband opines.

Which one is his daughter? Is it the sad-faced girl with the bow in her hair in profile at the right-hand side of the photograph? Look at her and think about how she might feel as she gazes at the brown wedding-cake about to be put asunder by the gleaming knife gripped by her outreaching mother whose hand is overclasped by the (diamond?) ring-wearing paw of her new husband, the erst-while friend of her parents, whom she's long known as the dad of her kid-friends, who are now strangely intruded into the confusing, ever-changing zone that bears the label "family."

Or is his daughter the sweet little child in the husband's arms? Imagine how her father's heart aches to see that man with one hand grasping his daughter's rear and the other hand grasping his ex-wife's hand and, inside that, a knife. The new husband and wife are performing wedding theater for the NYT photographer, and they don't know that the frame the Times will select is the one where their smiles look like predatory grimaces and everyone else in the photograph looks like they belong at a funeral.

DOMA Again

DOMA is an issue again in another case, as Lisa Leff reports for the Associated Press.

Lawyer Karen Golinski has spent the past 19 years working for a federal appeals court based in San Francisco.

So finding herself seated in court Friday as the plaintiff in a lawsuit seeking health insurance coverage for her same-sex partner was disturbing and strange, she said.

"I never thought I'd be in this position," Golinski said. "I certainly never expected the government to throw their full weight behind hurting my family."

I'm sure she was shocked, shocked! She was free to find an employer who would cover two people of the same sex. Extending coverage to 1) one adult male and one adult female who are 2) legally married are objective criteria to guide an employer. Employers can choose different ohjective criteria, and some have.

The office has argued that the federal Defense of Marriage Act bars the government from recognizing same-sex unions.

They have to follow the law, which for the time being includes DOMA.

Denying Golinski's wife, Amy Cunninghis, the benefits afforded other spouses of federal employees is discriminatory, Kozinski said.

Of course, all laws are discriminatory. And a "wife" is a woman who has a husband.

Over at my namesake blog, I note that now that "Don't Ask Don't Tell" is safely trashed, the news media is suddenly writing about the hoped-for connection to marriage neutering.

Prop 8 Letters in the Los Angeles Times

The Los Angeles Times printed some letters reacting to the paper’s coverage and commentary on Proposition 8 being back in court.

Jack Fertig of San Francisco wrote:

Freedom of religion is harmed more by the status quo than by allowing same-sex marriage. If your religion doesn't approve of same-sex marriage, it will never have to bless any such unions.

Let's hope we never have to hold you to this claim.

But there are churches, synagogues and other religious institutions that wed same-sex couples. It defies the 1st Amendment that only one religious perspective is given legal status.

Wrong. Those religious institutions can still practice their religion, even if they do so in opposition to both their own tradition and their scriptures.

The separate-but-equal arguments against marriage equality are too transparent to be taken seriously.

A brideless or groomless pairing is not equal to a bride+groom pairing, and that would be true even if the law said say they were. They are not equal ontologically, they are not equal functionally. This is demonstrable.

Anything less than equality is un-American.

None of the Founding Fathers, none of the great rights crusaders of the past such as Martin Luther King, Jr., and no Presidents up through this current one ever said or wrote that a brideless or groomless pairing is a marriage. How much more American can you get then them?

Joseph B.D. Saraceno of Gardena:

[Neutered] marriage and interracial marriage are not analogous. The prohibitions against interracial marriage may have been "legal," but they were immoral. Prohibitions against [neutered] marriage can hardly be called immoral, because Judeo-Christian tradition and other major religions and cultural mores hold that marriage is a union of a man and a woman.

Any effort by a court to rule to the contrary would be to legislate (from the bench) a "new morality."

Yes, someone's morality is going to be law. The question is whose. And who decides? The people should decide if licenses issued on their behalf should be changed. We have voted that the licenses should require inclusive participation of both sexes.

Right now, a court in Canada is examining whether or not polygamous marriages should be legally recognized, and stateside, people are questioning if incest should be illegal after the arrest of a Columbia University professor on the allegation of having consensual sex with his adult daughter. Polygamous and incestuous marriages have wide historical precedent. SSM is a recent invention. It is not out of the range of possibilities for courts to strike down the monogamy requirement as well as the prohibition against incest/incestuous marriage when courts have removed the bride+groom requirement, because neutering marriage is a bigger change. Who decides, and how?

"Switzerland to vote on bizarre law to make incest legal between adults"

Switzerland to vote on bizarre law to make incest legal between adults From the Daily Mail UK

Switzerland is considering a repeal its incest laws to make sexual relations between family members legal.It claims the law is 'obsolete' and that the courts have dealt with just three cases since 1984.

Both parties also echoed concerns of rising incest if it was decriminalised, possibly leading to more genetic mutations among the population as a result.

Some members of the Swiss People’s Party are calling for the proposed amendment to be struck down immediately and for incest laws to actually be beefed up - calling, for example, for a prohibition on cousins having sexual relations and marrying.

Several states in the US allow cousins to marry.

The opposite of responsible procreation

A recent study in France turned up that the number of neonaticides (the killing of a baby on its birthday) may be five time higher than previously thought. Some may read this as a form of responsible procreation, if you can't take responsibility then you stop it as soon as you can. In that way this is presented as a form responsible non-procreation, but that is a misnomer, there was no non-procreation.

There is no mistake, the procreation did happen. And how and why did it happen? The report quotes the authors...

An Analogy

One of the primary functions of government is the continuance of the nation or state. As such, it has an interest in human reproduction, especially reproduction that happens naturally and is the result of normal, natural, common behavior between two citizens.
One of the primary functions of a grocer is to sell food; a produce seller sells produce (fruits and vegetables). A common item a produce seller sells is oranges.
But not everybody likes oranges. Some people are downright allergic.
Let's say most of these people are intensely drawn to playing with an orange rubber ball (ORB).
They insist the produce seller sell ORBs.

We all have a reading assignment.

From the Harvard Journal of Law & Public Policy "What is Marriage" About 35 pages of reading...

Why Married Men Tend to Behave Better via Science Daily

Why Married Men Tend to Behave Better via Science Daily

"Our results indicate that the reduced rate of antisocial behavior in married men is more complicated than we previously thought," said Burt, associate professor of psychology. "Marriage is generally good for men, at least in terms of reducing antisocial behavior, but the data also indicate that it's not random who enters into the state of marriage."

Burt said it's unlikely that marriage inhibits men's antisocial behavior directly, but rather that marriage is a marker for other factors such as social bonding or less time spent with delinquent peers. Another factor that seems to be important is marriage quality; the effect of marriage on antisocial behavior tends to be stronger in better marriages.

You can judge a man by his friends.

Recapping Some Aspects of 9th Circuit on Prop 8

Maura Dolan and Jessica Garrison have today's Los Angeles Times coverage of the attack on the California constitutional amendment duly adopted by the people as Proposition 8. They start out describing what appears to the strategy of the judges:

Federal appeals court judges Monday seemed headed toward a decision that could reinstate same-sex marriages in California while avoiding a ruling of national sweep that would invite U.S. Supreme Court action.

They see fit to intervene in California’s business, but they don't want SCOTUS involved? Interesting. So they think SCOTUS will come down on the side of California voters and/or marriage?

The judges explored at least two routes that could achieve that goal. One would be a ruling that California, having granted marriage rights to same-sex couples, could not take them away by popular vote.

See, that's the catch. We are born with our true rights. There is no right to a state-issued license. What the state gives, the state can take away. People get their driver's license taken away all of the time. Even after the state issued it to them - imagine that! It doesn't matter if they really, really feel like driving a different way. They still need to stick to the rules, or stick to private roads.

Prop 8 Coverage at LATimes.com

The LATimes.com breaking local news blog has extensive coverage of the current Prop 8 trial. Constitutional defenders who value both men and women are referred to as "anti-gay marriage". Biased, much?

In this entry, Barry P. McDonald, a professor at the Pepperdine School of Law, makes a point that is reinforced elsewhere – by having our Domestic Partnerships law, we have allowed a Trojan Horse to threaten marriage. That's what we get for trying to be nice.

It also looks like the California Supreme Court may yet have a role to play.

Marriage neutering proponent Erwin Chemerinsky, dean of the UC Irvine School of Law, discusses the issue of who has standing to defend the state constitution, which once again illustrates what a horrible disservice Governor Schwarznegger and Attorney General Jerry Brown have done by abdicating their obligations.

If there is a lack of precedent to allow Prop 8 proponents to defend the amendment in federal court, wouldn't that be because it is unprecedented for a voter-approved amendment to be abandoned by the Governor and Attorney General when it is attacked in a federal court?

[Much, much more after the jump.]

In this update from Jessica Garrison, we read:

Charles Cooper, who is arguing in favor of Prop. 8, argued that marriage exists for society to recognize relations between men and women that can lead to children.

That is what so many people miss – the argument is not that all marriages will lead to children (though most do), it is that the pairing of a man and a woman is the only kind that can naturally do so; therefore, it is objectively different from other kinds of associations.

Again, with this analysis by Courtney G. Joslin, acting professor of law at the UC Davis School of Law, we see the Trojan Horse:

Specifically, Judge Smith pointed out that even after Prop. 8 was approved by the voters, California law still extended to lesbian and gay couples all of the state-conferred rights and obligations of marriage, including all of the parentage and child-related protections. That being the case, he suggested, it is difficult to see how Prop. 8 rationally furthers any interests related to the protection and well-being of children. Later in the hearing, Judge Smith suggested that same-sex marriage bans in states that, unlike the state of California, do not encourage and facilitate same-sex parent families might be more likely to survive constitutional review.

The way having a separate word to describe marriage protects children is illustrated in the very reason why marriage neutering advocates are not satisfied with California's Domestic Partnerships – it sets apart the bride+groom relationship as different. If marriage is not about the possibility of internal procreation, then it can't be about children. If marriage is not about children, nobody should bother to get married to raise children. If marriage is only about feelings, then people should not try to work out problems or disagreements in their marriage.

Karin Klein checks in on the trial on the LATimes.com opinion blog.

All three judges have been pressing Charles Cooper, the lawyer arguing to keep Proposition 8 intact, to articulate the rational basis for the ban on same-sex marriage.

It's not a ban. But why should the California Marriage Amendment stand? Because a federal judge erred in intruding into a duly adopted state constitution, because it is Constitutional for laws to treat different kinds of associations differently.

If domestic partnerships have all the same rights as marriage in California, what's the relevance of all this argument about the ability of heterosexual couples to procreate?

The ability to naturally procreate is why the state has an interest in licensing marriage that it doesn't have with other kinds of associations.

If same-sex couples have the right to adopt children or have them through the help of a third party of the opposite sex, along with the ability to form lifelong loving relationships with legal recognition of rights to inherit and make medical decisions, what is the rational basis for denying them a word?

Existing wrongs should not obligate us to adopt further wrong. Make no mistake about it, intentionally conceiving a child into a situation where they will be deprived of a mother or a father is wrong. I would love it if we recognized in our laws that children have a general right to a mother and a father that not only protects marriage, but also denies unmarried people access to reproductive technologies. But we have to deal with the situation at hand.

She's bothered by the phrase, "responsible procreation".

It's always teeth-gritting time when the debate over same-sex marriage turns to the words "responsible procreation," a phrase that I used to think meant not having children without the ability and commitment to care for them well. It was about pureed peas, not whether your relationship was with a person of the same or opposite gender.

A child needs both a mother and a father, So said Nature, or Nature’s God. Take your pick.

Yet, as illogical as the argument about procreation always seems, it of course came up again Monday in the U.S. 9th Circuit Court of Appeals as the defenders of Proposition 8 sought to argue that society has a valid basis for regulating which adults can marry because marriage exists for the purpose of responsible procreation and the rearing of children by their biological parents.

All unmarried adults can marry.

If that's the purpose, why on earth do we let people marry who have no interest in having children?

It's called the Right to Privacy and Reproductive Rights. I'm sure you're familiar with those concepts. Whether someone is sterile or intends to procreate is a private matter. Sex (male, female) is on someone's government-issued birth certificate. We know two males or two females won't be making babies by themselves.

Why do we let people who aren't ready for responsible child-rearing give up their children for adoption, and why do we let couples who have all the desire and ability for children adopt them, and why do we let inattentive parents get married?

The first two is, ideally, to let a bride+groom couple adopt and raise the children. The last is because we have freedoms and we give parents the benefit of the doubt, taking away children only when they demonstrate they are unfit parents.

"Mitchell Young" at December 06, 2010 at 03:18 PM explains it:

The law makes arbitrary distinctions all the time which may been unjust for outlying cases.

I would not call the distinction between males and females arbitrary, but I understand where he is going.

There are sixteen year olds out there who could purchase and consume alcohol with no adverse affects to themselves or society, yet we insist on the 21 year age limit. There are people who could snort coke after work every night and still be productive members of society, but we totally outlaw that drug. Arbitrariness is inherent in law.

With real marriage of any sort, at least the form is preserved, even in the case of the elderly. And being that it is congruent in form, even the marriage of the elderly reinforces the importance of a societal institution that is primarily for channeling sexual energy in a way that reproduces the society. (But let's face it, a marriage of potentially fertile people is much more celebrated even by family and friends). Unlike any of the cases mentioned. A homosexual union totally negates the biological aspect of marriage.

And I can't be the only one who knows, personally, couples who weren't interested in children who found themselves with one or more, to their great delight in the long run. That can *only* happen in a real marriage.

"A piece of paper that costs a lot of money to change."

I had to stop by and post this from NPR

Unmarried With Kids: A Shift In The Working Class Brad Wilcox from the National Marriage Project is cited in the article.

"" lot of people, I think, see marriage as a piece of paper," says Mellissa. "A piece of paper that costs a lot of money to change." She laughs and explains that she means divorce."

Brilliant!

When people refer to 'the piece of paper' argument I really do sympathize, it may seem worthless as hyper inflated currency. We trust a dollar bill to have an attached value to it, just as we should trust marriage to have a meaning behind it also.

And this quote from another woman...

"I want to have that beautiful gown, and all the family, and toasts with champagne,"

They get so focused on the wedding, they forget the being married part. It's a marriage, not a party permit.

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.

The One Judge

Ed Wheelan has noted that at least one Judge appointed to a three-judge panel of the 9th Circuit to hear the Prop 8 case, should step down. Good cases can be made that Judge Walker should have stepped down (as well as the chief Judge in the Goodridge decision), so we'll have to see if this judge will follow their lead, or if he'll step down. The case against him is summarized as this...

1. ... [R]eported months ago in this California Lawyer article, that Ripston [Judge Reinhardt's wife] consulted with the plaintiffs’ lawyers about the decision to bring this very case [...]
2. In this case, Ripston was an officer of an entity that acted as a lawyer in the proceeding
3. Judge Reinhardt’s established (and unsurprising) policy is to disqualify himself from cases involving the ACLU of Southern California [of which Ripston is a longtime executive director].

Though I should also point out there is even more interest in these connections, noted by Wheelan.

Judge Reinhardt Is Obligated To Disqualify Himself from Prop 8 Appeal
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