Wednesday, August 04, 2010

Judge Overturns California's ban on gay marriage

For me this was good news, at a time where there isn't a lot of it. It is what I think will someday be seen by all as the right thing. I had waited today wondering which way it would go. It had been encouraging to me that Ted Olson, a conservative had been part of the legal team working to overturn the ban. He did so based on what he felt was Constitutional. It is a conservative viewpoint to stay out of other people's choices as long as they don't hurt others.


Obviously it, like the recent court decision on Arizona's immigration law, is not over. It will be decided by the Supreme Court eventually (and who knows how they'll see it given they are all from a religious background, most Catholic), but it's a good start.

To deny one group a right to have a normal family life simply because they fall in love and sexually want to mate with someone of their own sex is very discriminatory and not good for the country. The fear that it will damage heterosexual marriages is foolishness. The fear, that somehow God will reach down and smite our nation if we don't make it impossible for one group of humans to live normal lives, is superstitious fear mongering.

My bet is someday humans will wonder how anybody could see it as anything but logical that marriage is open to all consenting adults. Will it someday lead to legalizing of polygamy? Who knows but they are about two different questions.

19 comments:

Michael Ejercito said...

To deny one group a right to have a normal family life simply because they fall in love and sexually want to mate with someone of their own sex is very discriminatory and not good for the country.
There are states like Texas, Florida, and Nebraska where they are denied that right.

But they were not denied that right in California. In California, the state's supreme court had ruled, after the adoption of Proposition 8, that same-sex couples have the right to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage".
Will it someday lead to legalizing of polygamy? Who knows but they are about two different questions.
There are Supreme Court precedents that uphold laws that impose adverse consequences for polygamy and advocacy of breaking laws against polygamy.

From Reynolds v. United States

"Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."

From Davis v. Beason :

Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community.

Davis also cited Murphy v. Ramsey :

Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.

The rationale of the district court ruling in Perry v. Schwarzenegger directly conflicts with the reasoning of these Supreme Court decisions.

Michael Ejercito said...

To deny one group a right to have a normal family life simply because they fall in love and sexually want to mate with someone of their own sex is very discriminatory and not good for the country.
There are states like Texas, Florida, and Nebraska where they are denied that right.

But they were not denied that right in California. In California, the state's supreme court had ruled, after the adoption of Proposition 8, that same-sex couples have the right to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage".
Will it someday lead to legalizing of polygamy? Who knows but they are about two different questions.
There are Supreme Court precedents that uphold laws that impose adverse consequences for polygamy and advocacy of breaking laws against polygamy. The district court ruling in Perry v. Schwarzenegger conflicts with those Supreme Court rulings.

Rain said...

Anybody can live together that is true but what gays want is the right to have it be a marriage with all the rights of a marriage. I used to say the government can call all such licenses civil unions but now I feel it has to be marriage. Oregon voted on such a ban and if this is decided by the Supreme Court to not be Constitutional in California, it will probably be challenged in other states. I don't really know what the Supremes will decide. To me though it should not be decided on religious grounds as if you look at the Bible for your standards, you can make a case that what it is talking about is promiscuity, not a committed, loving relationship which is what marriage would signifcy. We shall see as this sure won't be decided right away or easily either way.

Michael Ejercito said...

Similar legal challenges will arise in other states.

One issue that other courts will have to deal with is that in other states, same-sex couples do not even have the right to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage".

Would those district courts and their respective appellate courts rule that marriage must be defined regardless of gender? Or that same-sex couples are entitled to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage" while the state retains the power to decide what to call same-sex unions?

Rain said...

The state should stay out of defining one one way and another another. It is using a religious test to do that and this is about civil rights. I don't see that anybody should force a church to have a ceremony there as they have a right to their beliefs under religious freedom, but the state should not be part of that.

It wasn't that long ago, the '60s where some states banned mixed racial marriages. Now we think that's ridiculous. I think that is how this will be seen someday. It will not been seen as a moral issue but one of biology.

It is how one treats another that is moral and by understanding gays have equal rights, they also have equal responsibilities to act morally, not hurt others, be like the rest of us who fail at relationships sometimes and sometimes make the grade.

Someday I really believe people will look back at this and think what the heck was going on that it was even debated. It's not like someone will become gay just because they can be married to someone of their own sex; but maybe less will marry an opposite sex partner trying to be 'normal' and ending up having to face the truth that they were 'normal' and they have to live their truth to live normal. That has hurt families when the lie can no longer be lived. The state should be no part of creating that situation at least not in my opinion.

When it's an issue of civil rights, it does impact us all even if we aren't gay or don't have gay relatives or close friends. This is about doing what is right and that impacts us all when it's not done.

I think it will help children growing up gay also when they see they can have a life like anybody else with a family and committed relationship that is respected by their government. Anybody who knows gay couples already knows they can be as committed and loving as any couples out there. It's way past time for the government to acknowledge that legally.

It's not a matter of majority deciding either. This, like other rights, has to be legal as the majority isn't always right in what they think. It's not something we should vote on as you can get a mob to go along with a lot of things in the moment of furor. This is recognizing that they are human, citizens, and are entitled to what all other citizens are entitled to. Equal right to marry for consenting adults just seems obvious to me.

Rain said...

If this stands, I hope it will lead to Oregon overturning what happened here also. It was wrong and I wonder if a lot who voted for it now don't realize their mistake. It was such a wave of false piety that led to this happening in so many states led by fear talk which makes zero sense to me but seems to often work :(

Michael Ejercito said...

If the Ninth rules that banning same-sex marriage is unconstitutional, then Oregon, along with eight other states, would not be allowed to define marriage as between one man and one woman, unless a stay of the ruling is granted pending appeal to the Supreme Court.

Rain said...

I hope so because we have always been a live and let live state with the attitude of staying away from judging our neighbors or limiting them when what they are doing doesn't hurt others and hence our death with dignity law. I think it was a wave that just carried people along with it without really thinking. That's what I'd like to think anyway as it seemed very wrong to me when they passed it.

I have no idea what the courts will do though as lately they always surprise me...

Robert the Skeptic said...

Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth... than that which seeks to establish it on the basis of the idea of the family, as consisting... from the union... of one man and one woman in the HOLY estate of matrimony; the sure foundation of all that is stable and noble in our civilization... the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.

So exactly who is deciding what the standard of wholesomeness is? Who determines the standards of nobility? On whose conclusion is a male-female marriage is the source of all beneficent progress? On whose authority should these "opinions" be forced upon the rest of us.

I agree with Rain, the same arguments were made against allowing people form different racial background from marrying.

The objection (to same sex marriage) is rooted in religious dogma by people who want to define for, and impose on, everyone else what THEIR definition of morality and social order is. If they want to live by the rules of their holy book of myths that is their choice. NO ONE is being harmed by granting the legal status of marriage on two individuals just because they are the same gender.

Michael Ejercito said...


So exactly who is deciding what the standard of wholesomeness is? Who determines the standards of nobility? On whose conclusion is a male-female marriage is the source of all beneficent progress? On whose authority should these "opinions" be forced upon the rest of us.

The U.S. Supreme Court did.

They stated this in Murphy , and quoted this in Davis . They had ruled in Davis that the law in question (which effectively imposed adverse consequences on people who engaged in polygamy or advocated breaking laws against polygamy) that the law was not "open to any constitutional or legal objection. that includes objections based on the 14th Amendment.

Thus, the reasoning used by Davis is valid reasoning in equal protection cases.

Rain said...

The Supreme Court changes its mind for what the Constitution means. Society changes its mind. Sometimes that requires an amendment. The question is should any religion decide what is appropriate for our government to have for laws? As was just said by Judge Walker, there is only one basis that would make sense on banning gay marriage and that's a moral one. Who decides what is moral? A religion who might change their minds and have in the past?

Michael Ejercito, just out of curiosity, I am having a bit of a problem deciding which side you are on for this issue. Are you just looking at this issue abstractly or do you have an opinion on what the law should be?

Michael Ejercito said...

The Supreme Court changes its mind for what the Constitution means.
And in effect, de facto amends the Constitution.

Would you support a Supreme Court upholding a law that defines marriage as between one man and one woman, even though a prior Supreme Court ruling had ruled such a thing to be unconstitutional and no constitutional amendment was ratified that would gut the relevance of that ruling?

Or do you only support the Supreme Court changing its mind on what the Constitution means when you like the result?

I oppose the courts ignoring original public understanding and relevant case law, and will only support a court overruling its own precedent if it conclusively shows that the precedent conflicts with the original public understanding of the underlying law .
Sometimes that requires an amendment.
Yes, sometimes the Constitution has to be amended.

But I can never tolerate courts ruling in defiance of original public understanding, and dismissing relevant case law unless they show that the case law conflicts with original public understanding.

mandt said...

"Ted Olson, a conservative had been part of the legal team working to overturn the ban"---very observant point Rain. The point being, that what was once legitimately 'conservative' is now radically aberrant. Mid stream Republicans seem silent and floundering about their party being high jacked by fascists, who are usually totally ignorant of the facts in the Constitution, nor its legal evolution over time. George Bush best summed up their view, "It's just a piece of paper."
True conservatives like Ted Olson respect the Constitution and uphold its tenets.

Rain said...

A recent Supreme Court decision said that a corporation was an individual in terms of having the right of free speech and therefore instead of it being made up of many individuals, it was the individual. No other court ever said that and someday I would have a feeling it would be overturned.

The issue here is one of civil rights. The state gives certain benefits and acknowledges responsibility to marriage with its license but a gay couple have not been permitted that even though they are not about to marry someone of the opposite sex. The courts and governments as well as man individual people have said that it has to be one man and one woman based on a Biblical standard but we are a nation that says we don't have a religion ruling us.

Frankly, shocking though it might be, I would have absolutely no problem if polygamy was legal as long as it was with consenting adults. See the consenting adult part is where the state has changed its mind before. At one time a child could marry. Now we decree someone has to be a certain age but some states still allow what other states regard as children to marry. These things are negotiable and have been as has been a black to marry a white.

Someday this will be seen as so simple that people will wonder why it ever was thought otherwise because it's about biology not morality.

As for whether I'd like a court decision that went against what I believe, of course not. I don't all the time like the first one I mentioned here. But those things are overturned often with a new look at the Constitution and what it means when it says something like -- equal rights. Even by courts that claim they will be modest jurists...

Rain said...

Recently I heard that with young people, this is a no brainer. Marriage, if one thinks it is a good thing for society, should be open to all citizens. If you have known any gay or lesbian couples, you know how committed they are, the kinds of homes they establish, and as the judge says, the only possible reason for banning such marriages is an interpretation of scripture which has been foisted upon people by a religion. Frankly it's an interpretation that doesn't take into account reality and implies Sodom and Gomorrah is like a desire to marry and have a family. Give me a break. Sodom and Gomorrah was about rape, about decadent sex, about wanting to take either sex in a promiscuous desire to debauch the other person and themselves. That is no relationship at all to what gays are asking which is for it to be recognized that for them it is normal and for the rest of us it should make total sense as an issue of equal rights.

It didn't used to be a key issue to me but it has become one. It's about fairness and love. It's about being happy when someone can find that soul mate and not wanting the state to stand in their way based on a religious view that wasn't really ever about what they claim!

Robert the Skeptic said...

Hey Michael Ejercito:

Murphy vs Ramsey, 1885
Davis vs Beason, 1890
Reynolds vs United States, 1878

Why don't you join the rest of us who are living in the 21st century!

Michael Ejercito said...

Why don't you join the rest of us who are living in the 21st century!
14th Amendment- ratified 1868

I guess the 14th Amendment must be outdated. How could such an old law have any bearing on modern issues?

Robert the Skeptic said...

Michael:
I guess the 14th Amendment must be outdated. How could such an old law have any bearing on modern issues?

Interesting that now you change the subject to immigration. Well apparently your anti-gay neo-con buddies think it IS outdated:
John Boehner: Repeal of 14th Amendment Is Worth Exploring

Michael Ejercito said...

I never mentioned immigration on this blog.