CA Supremes to Hear Challenge to Prop 8 – No Stay

Timothy Kincaid

November 19th, 2008

Per the LA Times:

The California Supreme Court agreed today to review legal challenges to Prop. 8, the voter initiative that restored a ban on same-sex marriage, but refused to permit gay weddings to resume pending a ruling.

While neither of these decisions is a surprise, this is a welcome step in the continued fight for marriage equality.

The court gave no indication as to the way they are leaning. However, it seems likely that at least one of the justices is inclined to overturn Proposition 8.

Some legal challengers also sought an order that would have permitted same-sex couples to marry until the cases were resolved, a position opposed by Atty. Gen. Jerry Brown and Proposition 8 supporters. Only Justice Carlos R. Moreno voted in the private conference to grant such a stay.

The court will hear the arguments in March of 2009 so there may be no clear answer for another year. Should the court decide that Prop 8 was an amendment rather than a revision to the constitution, pro-marriage activists will immediately begin the process of placing another amendment on the ballot to overturn Prop 8 and reinstate marriage rights for same-sex couples.

[To clarify the paragraph above, I’m saying that if the courts upholds Proposition 8, then the gay community and our friends will begin the process of reversing Prop 8 through another initiative. Sorry for the confusion.]

In a manner consistent with their behavior during the campaign, anti-gay activists have issued an ultimatum to the judges.

Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure.


One negative observation: Judge Kennard was one of the four judges who found for gay couples in May. The motion indicates that Judge Kennard would have denied the petitions of the gay couples to be heard before the court on this matter. That may indicate that she does not think that the case has merit.


November 19th, 2008

“Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure.”

Really?!?! Oh, My Stars! I am shocked! SHOCKED, I tell you!


No, I’m not, not at all…

David C.

November 19th, 2008

This has also been reported by other Gay advocacy groups, including those that filed the original complaint.

Interesting to note is that one extreme “Pro-family” group that wanted to sign on were denied. Specifically, Campaign for California Families, with Randy Thomasson as president, which, I believe, wanted to go beyond Prop 8 and take away domestic partner rights as well.

Visit the following link to see what the court has done so far and what the schedule is for the review process:


November 19th, 2008

I think “negative comment” in reference to the Kennard vote is a real understatement. If she doesn’t even think the Constitutionality of Prop 8 should be addressed — and specifically invited a petition based solely on the retroactivity of Prop 8 — it’s pretty clear that she has decided Prop 8 is Constitutional.

That means we need to keep all three of the other Justices who were in the majority on the Marriage Cases (and I agree that it appears we at least have Moreno), and that we have to pick up one of the dissenters. I just don’t see the dissenting Justices, who based their dissents in large part on a concern for the “will of the people,” finding it unconstitutional for voters to take away rights those Justices never believed existed.

Sorry, folks, but I think we’re doomed.


November 19th, 2008

Brian, I think you’re right. IANAL, but the Kennard business…

My gut tells me we are screwed.

I never thought I’d let the bastards run me out of my home state (my lifelong home state), but if Prop 8 is upheld, I don’t know how I can stomach living in a such a hate-filled, backwards place anymore.

Timothy Kincaid

November 19th, 2008


You make a good point. However, we must accept that the other six found enough merit to the petitions to hear arguments.

Also, we shouldn’t assume that those who voted no last time will do so again. The question is quite different.

We are not asking the court – again – to find a protected class or a fundamental right. They already have done so.

Rather, we are asking the court – even those who disagreed last time – to agree that once you have found a fundamental right for a protected class that such a right cannot be stripped from a class by means of a majority vote.

This is a far bigger issue in some ways and really is not so much about the rights of gay people as it is about the rights of a court to recognize and protect a minority. It’s not about our rights, it’s about their rights.

But I agree that losing Kennard is a tragic blow.


November 19th, 2008

Kennard may very well have thought that the issue should have been heard by lower courts first.


November 19th, 2008

The California Supreme Court is going to have a very tough time with whatever they decide. If they do decide to uphold Proposition 8, they really won’t have any grounds to invalidate Constitutional Ammendments that restrict Mormons from performing legally recognized marriages on church property or any other rediculous limits on various minority groups.

In some ways, it might be simpler from a court precedent point of view to put real limits on the right of the majority to limit the rights of minority groups, rather than invite all sorts of laws that restrict the rights of whatever vulnerable minority group is being targeted.

David C.

November 19th, 2008

One could reason that the court decided to deny the stay of implementation of Prop 8 based on the belief that it did not want to allow more same-sex marriages that might in the end be invalidated or otherwise challenged should 8 go on to be upheld.

In fact, 8 proponents could then argue that those marriages allowed during the time 8 was in litigation would indeed be invalid by virtue of the fact that the proposition should be “enforced” retroactively.


November 19th, 2008

With regard to a recall campaign against any justices that vote to invalidate Proposition 8, I think that we should start being clear now to the Mormons what the cost of that strategy would be.

It should be made clear that their campaign will be painted as a Mormon attempt to hijack the California Supreme Court, regardless of who they put up as their front men.

Advertising would include things like: Tell the Mormon Church to keep it’s hands off our California Supreme Court; It’s the California Supreme Court, not the Mormon Supreme Court, etc.

Do they really want to be the focus of that much attention, and do they really want Californians to be asking themselves if the Mormons are trying to take over?

Don’t say a word about gay marriage, just keep the focus on whether Californians want to be controlled by this Utah church.


November 19th, 2008

If I read it correctly, Kennard simply thought that the issue of the existing marriages should have been filed separately. If that is the case, I don’t think it indicates anything about how she views the constitutionality of Prop 8.


November 19th, 2008

It would be nice if the CA Supreme Court struck down 8, but don’t expect it. In Massachusetts, the bar kept being set higher and higher. Once the court here found equal marriage legal, there was a constitutional amendment introduced to take it away. We needed a majority of the legislature to stop it, and we managed to do that through a lot of work, and it was killed. But then another amendment was introduced through a different process that officially needed a 75% majority of the legislature to kill. The legislature routinely kills this type of amendment off with a procedural vote (ie sending it back to committee) that only requires a simple majority. So we thought we were golden since we had a majority of the legislature supporting equal marriage. WRONG! We ended up having to get 75%+, which seemed impossible and certain doom, but it happened. It helps having a just cause. Keep fighting California.


November 20th, 2008

I read a thoughtful post on a legal blog that suggested the following:

“I think that Kennard wants to confirm that existing marriages are valid quickly and avoid the question on the constitutionality of prop. 8. I think when push comes to shove she will undoubtedly vote to strike prop. 8. She was hoping that by denying review for other than existing marriages that prop. 8 would be overturned by a popular vote before it reached the Supreme Court.”

To my mind, this is probably what’s going on with her vote to deny review. We can’t forget that Justice Kennard stands alone on the California Court in her continuing advocacy for gay rights and same-sex marriage (case in point: she alone voted to uphold the marriages performed in San Francisco in 2004). Indeed, her separate concurrence in the marriage cases essentially wrote the book on why questions of equal protection and why the protection of minorities from hostile majorities are the unique–and inviolable–province of the judiciary. These constitutional principles, of course, reach far beyond the narrower question of gay rights.

Of course, the question of whether Prop 8 is an amendment or a revision is constitutionally unrelated to the questions of whether same-sex marriage is a fundamental right under the CA Constitution and whether homosexuals and same-sex couples are entitled to heightened judicial protection as a suspect class.

But unless Kennard has had some massive change of heart about the latter issues since May 15 (unlikely), it is almost unthinkable that, as a conceptual matter, she would vote to uphold ANY “amendment” that strips a fundamental right (marriage, voting, exercise of religion) from a vulnerable minority (gays, blacks, Mormons) that has been identified as a suspect class under the equal protection clause of the CA Constitution.

Given her prior positions, it is far likelier that she views an initiative like Prop 8 as a revision, given the singular change that it works regarding the foundational meanings of “fundamental right” and “equal protection.”

(Keep in mind that the federal constitutional principles applied to protect some of these rights and classes of people are NOT in play here, because the CA Constitution itself says that it is wholly-independent from the federal constitution. The majority opinion in the marriage cases confirmed this.)

In light of Kennard’s past positions on such issues, therefore, my educated guess is that she’s hoping to delay a constitutional ruling until after the 2010 midterms (or perhaps even later) for at least two reasons:

(1) The possibility that Prop. 8 is repealed by a subsequent ballot initiative, thus mooting the question of its constitutionality by removing it from the constitution.

(2) She hopes to avoid the threatened recall fight for ALL Justices voting to strike Prop 8, because we know that a recall battle will be BLOODY. She’s a liberal, but she’s also a pragmatist.

**DISCLAIMER: My comments are based on (1) Justice Kennard’s prior statements and (2) the political realities facing the California Supreme Court. They are merely educated guesses and should not be construed as anything more.**


November 20th, 2008

“if Prop 8 is upheld, I don’t know how I can stomach living in a such a hate-filled, backwards place anymore.”

If it’s at all possible, consider a move to Canada or Connecticut or Massachusetts. Take your money, time and talent with you.

Would such a move be premature? If you don’t have same-sex marriage in California within the next four years, I’d say the writing is on the wall. Call the moving van, and good luck.


November 20th, 2008

JTW-Can you give us a link to that blog you quote?


November 20th, 2008

Jason D

November 20th, 2008

Brian, Sapphocat – – If I understand the way this works correctly, the prior case is settled and now a precedent that ALL justices must follow.

IE the judges who dissented in the first case are not allowed the luxury of disputing the prior decision. Whatever opposition they have to THIS case cannot be a continuation of their dissent from the first case. The first case is now established precedent that cannot be disputed or ignored.


November 20th, 2008

I think you’ve confused amendment with revision – at the heart of the issue is whether Prop 8 constitutes an amendment (which requires only a majority of voters) or a REVISION, which requires a supermajority (i.e. two-thirds of voters) in order to pass. As I understand it, the amendments passed as propositions which have been overturned as being improper revisions implicated substantial structural changes to California’s bureaucracies.


November 20th, 2008

Kennard might prefer a delay in deciding the case because the basis of her decision would not be the amendment/revision issue but, rather, the U.S. Constitution. I think we can all agree that we don’t want to go to the SCOTUS with this issue.

There’s also the possibility that New York may legislatively approve same-sex marriage now that the Dems have taken the Senate there. Our win there would certainly take the wind out of the sails of the anti-gay crowd.

Tim Hulsey

November 20th, 2008

Mr. Kincaid, a question: How can someone be a “pro-marriage activist” if s/he opposes the right of same-sex couples to marry? Wouldn’t such a person in fact be an “anti-marriage activist”?

Jason D

November 20th, 2008

you’re mistaken, a revision must go through the legislature and pass with a 2/3 majority and THEN be put before voters for a simple majority.


November 20th, 2008

Jason – Yes, thanks – in my haste to distinguish between a revision and an amendment, I overshot. A revision would have to go through the legislature first and pass by supermajority. I was merely saying that towards the end of the original post, revision and amendment were reversed.

Timothy Kincaid

November 20th, 2008

Tim, Moira,

Sorry. That paragraph was a bit confusing. I’ve clarified.

What I meant was:

Should the court decide that Prop 8 was an amendment rather than a revision to the constitution (thereby finding in favor of the anti-gay amendment), pro-marriage activists (gays and friends) will immediately begin the process of placing another amendment on the ballot to overturn Prop 8 and reinstate marriage rights for same-sex couples.


November 20th, 2008

Art Leonard offers a comforting (and reasonable) theory about Kennard’s opposition to the expedited hearing schedule here.

Also, thanks for the link to the Volokh discussion, JTW. I’d somehow missed that post, and I was eager to hear what folks there thought about this issue.


November 23rd, 2008

One has to remember that the Court is itself a creation of the Constitution. In California, all power rests with the people and it assigns the responsibility of the court to uphold and defend the people’s constitution. When the Court interpreted the equal protection clause to mean that gays are a suspect class and have a right to marry, they were not modifying the constitution, they were interpreting it in a particular case. It is nothing more than the interpretation and application of equal protection to gays. This does not actually modify the constitution. It’s not like the legislature or the people amending the actual text… the court is simply giving an interpretation to the existing text.

Prop 8 actually modified the text with unambiguous language. The people have modified THEIR constitution. This amendment does nothing to contradict the existing text of the constitution. It DOES contradict a particular interpretation of the constitution but a simple opinion of the court cannot trump an actual change to the text of the constitution that serves to clarify the meaning of the equal protection clause of the court. For the court to place its interpretation of the equal protection clause above the text of the constitution itself would be to place itself above the constitution.

The equal protection clause it ambiguous. It is possible for reasonable people to interpret it differently (hence, the 4-3 original decision). In the absence of any specific language giving it guidance, the Court gave it the best interpretation it could, guided by previous precedents (which themselves are simply interpretations).

The people have replied by clarifying the meaning of the equal protection clause. As long as their is a plausible way to reconcile the Equal Protection Clause with this new amendment, and there clearly is, the Court is compelled to uphold the clarified meaning the people have given to their constitution.

For the Court to fail to uphold this Amendment would be catastrophic for the Court. It would deligitimize itself by placing itself outside of its constitutional function which is as an interpreter of rights granted by the people.

California apparently is more sensitive to the potential for judicial tyranny in which the Court usurps the right of the people to rule themselves. That is why they allow for a simple majority to effectively overrule a Court interpretation.

They did this in the early 70s when the Court declared the death penalty “cruel or unusual” (another ambiguous provision). The people amended the constitution allowing the death penalty, thereby clarifying for the court what “cruel or unusual” didn’t mean. The Court upheld the amendment even though it “took away” a “fundamental right” not to be treated cruelly or unusually according to a previous court’s interpretation.

Again, to the degree a fundamental right to gay marriage existed, it existed not as an expressly enumerated right in the text, but as a interpretation derived from the more ambiguous equal protection clause.

The hypotheticals mentioned are in fact theoretically possible I suppose. For example, when the Court found bans on interracial marriage unconstitutional, the people could have passed an amendment saying no they aren’t and the Court would have had no choice but to defer to the people’s understanding of their own equal protection clause. The fact that they did not do so gave implicit approval of the Court’s interpretation, even though it overturned an existing statute.

Does California risk tyrrany of the majority? Of course it does? But it avoids the risk of tyranny of the judiciary. California apparently places great confidence in the wisdom of the people to get it right and less wisdom in the Court’s. If Massachusetts and Connecticut allowed for such easy amendment of the constitution, their court decisions would likewise have been overturned.

The Court does have one option that no one has mentioned. It could reiterate its original decision but base it on the US Constitution’s 14th Amendment Equal Protection Clause. Now that would be fun and finally result in a challenge to the US Supreme Court which could declare whether gay marriage is a constitutional right or not (under the US Constitution). Of course, gay marriage proponents don’t want that to happen because they know they would lose. They have a different strategy which is to pursue court decisions in friendly states (although so far they have only won three 4-3 decisions…. indicating that their equal protection clause logic isn’t very persuasive).

Timothy Kincaid

November 24th, 2008

An equal protections clause that was “clarified” to so as to neither protect nor to apply to citizens equally would not be worthy of its name.


November 24th, 2008

End Political Manipulation.

Amend the 1964 Civil Rights Act to include “sexual orientation” assuring non-discrimination in public accommodation, employment, and housing.


November 24th, 2008

Timothy: As to whether it would be worthy of its name or not is a matter of opinion. I understand that gays REALLY REALLY REALLY want equal protection to mean something the authors of that provision never intended it to mean. I mean seriously, do you really believe that California’s forefathers really intended to protect gay couples from a future anti-gay majority? You think today’s Californians are LESS gay-friendly than those who ratified the equal protection clause?

Since you can’t answer either question YES with a straight face, then it must be possible to interpret the equal protection clause to NOT mean that gay couples can get married. The court apparently thought it was possible to construe it the other way also. The people restored the original meaning of equal protection with respect to marriage. That is their right.

There can never be a fundamental right recognized by the people unless the people specifically enumerate that right. If you want gay marriage, do it honestly and persuade the people of the righteousness of your cause. I don’t think the gay response to Prop 8 has helped their cause.

Is there a danger of majority oppression of minorities? Of course. However, your position appears to be that a court has the authority to presumably interpret the constitution HOWEVER it pleases… declare their interpretation to be a “fundamental right” and then force a “revision” process to overturn it. I can invent just as many hypothetical nightmare scenarios for that situation as you can for majority rule. The California Constitution apparently is more comfortable with pure 50%+1 majority rule than it is with judicialy tyrrany. They are jealous of their rights to self-rule and will slap down a court that misinterprets the people’s constitution. They did it with the death penalty 30 years ago and they did it with gay marriage now.

Timothy Kincaid

November 24th, 2008


No, I don’t think that the founders of the state intended equality to extend to gay people.

They also clearly didn’t intend for it to extend to the Chinese who worked on the railroads. Nor did they intend it to extend to the women who could not vote. Or the Armenians who were not allowed to buy property in the San Juaquin Valley. Nor did they intend it to extend to pretty much anyone other than white males of Western European descent.

But what the DID intend was that all people – as they understood “people” to be – should be afforded equality under the law. They were probably trying to protect Catholics from Methodists or Irish from English. They may even have been protecting poor Eastern US immigrants from the rich powerful Spanish Californios.

We don’t use their definition of “people”. Time has given us a broader definition.

And no one wants to go back to a definition of “people” that excludes many and a definition of “equal” that frankly is not. Well, until one finds a group that one doesn’t want to be equal. Then there is great hue and cry about the original intent.

But that the definitions have changed does not at all mean that the principle has changed. It still holds true, even though some try to claim that it is limited to 1850 definitions and understandings.

The difference between you and I, Bill, is that I believe that our constitution actually does promise equality under law to all people and I think that “all people” includes gay people. You, clearly, do not.


November 25th, 2008

Timothy…no the difference between you and I is that I believe that if you want to change the definitions, then you should have them voted into the constitution. To change the meaning of the constitution just so it corresponds to what you believe is a form of tyranny.

I mean, really, if you agree the original authors did not include gay marriage and a majority of Californians have never approved of it, then how can the constitution possibly contain a right to gay marriage?

You can’t just say “time” changes things. If “time” changes things, then the constitution would expressly reflect those changes.

Equal protection means exactly that… that the laws are applied equally to everyone. The traditional definition of marriage applies to gays exactly the same way it does to straights. Nothing on the marriage license asks you what your orientation is…. all that matters is that one of you is male and one is female.

Name a single legal protection that heterosexuals have that homosexuals don’t have. The law is totally blind with respect to orientation. In fact, in the eyes of the law, orientation doesn’t even exist.

Priya Lynn

November 25th, 2008

Bill said “The traditional definition of marriage applies to gays exactly the same way it does to straights. Equal protection means exactly that… that the laws are applied equally to everyone. “.

Wrong. Your definition of marriage does not apply equally to everyone, particularly men and women. If a man has a right to marry a woman, I as a woman deserve the same right he has to marry a woman, anything else is sex discrimination. Under your definition of marriage gays do not have the same right to marry the one they love most that heterosexuals have. The government should not be in the business of dictating anyone’s marriage partners without good reason and gender is not a good reason.

Bill said “Name a single legal protection that heterosexuals have that homosexuals don’t have.”.

The right to marry the person they love most.

Bill said “The law is totally blind with respect to orientation. In fact, in the eyes of the law, orientation doesn’t even exist.”.

Wrong. Present California law dictates the gender and presumed orientation of married couples. That is discrimination and its wrong.

TJ McFisty

November 25th, 2008

Marital rights.

Jason D

November 25th, 2008

“Timothy…no the difference between you and I is that I believe that if you want to change the definitions, then you should have them voted into the constitution.”

Like when we voted to end segregation?
Like when we voted to end the ban on interracial marriage?
Like when we voted to allow married couples to use contraception?
Or when we voted to allow Jehova’s Witnesses to not salute the flag?
Or when we voted to end forced prayer in public schools?
Or when we voted that suspects have the right to remain silent and to be informed of their rights when being arrested?
Or when we voted for the right of mentally challenged children to receive an education?

All of these were decided by supreme court cases, not votes. Not majority decisions.
The courts have a longstanding tradition of protecting citizens against the majority, and even the state itself.

Timothy Kincaid

November 25th, 2008


You are so caught up in the words that you have abandoned the principles.

The state constitution does not say, “All Californians of Korean descent are equal to Californians of German descent”. Nor does it say, “All Jewish Californians are entitled to the same state holidays as Christian Californians”.

Nor does it say, “Black Californians may marry the person of their choosing”. So of course it does not say that gay persons may do the same.

Please don’t take this as an attack or a condescention. I pity you.

I think you are probably someone who really genuinely thinks that you support the principles of equality. And now that you are confronted with evidence that you do NOT support equality, you are frantically searching for some reason, some excuse, some exception to convince yourself that this is not a matter in which the principles of equality come to play.

And so you come up with “in the eyes of the law, orientation doesn’t even exist”.

But the problem, Bill, is that you know that orientation does exist.

And you know that it is not true that a marriage between a gay person and someone of the opposite sex would hold up in court should it be challenged for immigration, taxation, inheritance, or pretty much any other reason. Courts know such marriages are frauds… and so do you. That, Bill, is an argument of desperation – one you really, deep down, don’t believe.

So I do pity you (sincerly, not in a condescending way). You are finding that your belief in yourself as “fair” is running up against your beliefs about homosexuality.

It must be very disconcerting.

L. Junius Brutus

November 25th, 2008

‘I mean seriously, do you really believe that California’s forefathers really intended to protect gay couples from a future anti-gay majority?’

Undoubtedly, they did not. As they did not intend to grant a right to interracial marriage (the ban on which was struck down by 4 activist judges in 1948). And neither did the writers of the 14th (federal) amendment think that it granted a right to desegregation, since they segregated the school system of the District of Columbia. And neither did they think that it granted a right to interracial marriage, which was considered an ‘abomination’ by very many.

So, in light of your… unique interpretation of what the constitution says and does not say, is it fair to presume that you oppose the court rulings by the California and U.S. Supreme Court that struck down bans against interracial marriage, as well as the famous Brown v. Board of Education?


November 26th, 2008

Ok…there are a variety of comments. I will try to give one response to all of them.

This is what it always comes down to when someone insists that the constitution must be grounded in its text and history. Someone will start listing various decisions that would not be valid if the originalist approach were followed. The implication is that you first look at past decisions that are considered “landmark” and “indisputed” and these become the test for any principle of constitutional interpretation. If a theory can’t support Brown v Education or Loving or Roe v Wade then it is not acceptable.

That the court’s got most of these decisions “right” — that is, the majority of americans agree with the OUTCOME of these decisions — is not a justification that the decisions were reasoned correctly.

The best argument for originalism is that there is no other theory that attempts to be objective. Otherwise the constitution means whatever anyone wants it to mean. The clauses “equal protection” and “due process” are infinitely elastic, limited only the creativity of the justice’s desire to remake society in his image. This is not a liberal or conservative concern, although liberals are more guilty of it because conservatives generally support tradition and liberals are usually rebelling against tradition.

In their rebellion against the status quo, however, liberals get impatient with the pace of social change because it actually requires persuading people that you are right. Since liberals believe everyone who doesn’t believe like them is “bigoted” and “hateful” (at least those are the words appearing in every sentence I read about Prop 8), they are not enamored with the idea of trying to persuade people they consider beyond hope especially when it is so “obvious” to liberals that they are right.

It is a lot easy to discover that your values have actually been hidden in the constitution all along… they only need some judges to give them “full” expression. Presto! Instant social change without having to do all the dirty work. Of course, the judges have to give a “reason” for why their interpretation is valid, but being smart people they come up with phrases like “separate but equal is inherently unequal” or “one man one vote” or “privacy.” As long as they don’t get too far ahead of the American people, they don’t have to worry about having their decision overturned because it is near impossible to get 2/3 of Congress and 3/4 of states to do so. (California has a far simpler initiative process because they are more confident in the people than the court. In other words, the FUNDAMENTAL principle of the California Constitution is that ALL political power lies with the people — you can look it up — and that majoritarian tyranny is less a threat than judicial tyrrany.)

Ok… having summarized the theory, let me address some of the decisions.

On race, I typically give the court a lot of slack because race is unique among all issues in american history. While other groups may claim discrimination, only blacks can claim a history of hundreds of years of INVIDIOUS discrimination in which by virtue of the color of their skin they are deemed to be an inferior kind of human being. Women cannot claim this, minority religions cannot claim this, and gays cannot claim this.

In addition, the 13th, 14th, and 15th amendments were designed specifically to address full civil equality for blacks so there is at least SOME historical basis for Brown v Board of Education and Loving/Perez (interracial marriage). The Supreme Court in the late 1800s had held interracial marriage bans and segregation to be constitutional, which as some of you have noted, is indisputably correct…. the 14th amendment was not intended to address these issues. “Separate but equal” is a valid theory.

In the case of race however — AND ONLY IN THE CASE OF RACE — “separate but equal” was so obviously a transparent ploy for justifying an entire social theory of segregation. While I don’t believe the court had any legitimate constitutional basis for their decisions, as long as they are limited to issues involving INVIDIOUS DISCRIMINATION, they do not establish precedents for any other aggrieved minority groups.

As for interracial marriage, 30 of the 48 states had bans when Perez was decided in 1948. By 1967, when Loving was decided, it was down to 16. This was a policy that was going away on its own. The court basically just rounded up some stray sheep and moved the country on its way. While I have no problems with interracial marriage (my daughter is married to a black man), it is far preferable (and more socially legitimate) for the bans to be removed by the legislature. The court, in its haste to right a wrong, unwittingly created logic that it never would have imagined would by used by gay couples to justify gay marriage. This is a common problem when you stray from the text and history…the court creates a justification for its novel decision, unaware that someone in the future is going to latch onto that logic to move the ball even further. Thus, declaring that everyone has a fundamental right to marry the person of their choice suddently becomes an argument for gay marriage. I’m quite sure the courts in Perez and Loving would be quite embarrassed that their decision was being misued this way.

It is not at all clear that Brown sped up the integration of blacks. Oftentimes, these “righteous” decisions result in a backlash that delays progress rather than speeds it up. The court, in its arrogance, thinks that the people will just follow its leadership.

In the case of religion, I think the court has been wrong ever since the Everson decisionin 1947 and has made a mess of the establishment clause. There is no doubt that states had significant latitude to endorse or support religion as long as they did not suppress another’s religious belief. It would be like allowing the govt to endorse and teach evolution to the exclusion of creationism but still allow people to believe in creationism and promote it. The states were free to support endorse any idea, secular or religious, they wanted. it would shock the founders that schools could not lead prayers or bible reading. This is just another example of the court simply inserting its “modern” views into the text.

Privacy. The court literally invented this idea. It began with Griswold in 1963 when the court establishe a right for married couple to use contraception, while expressly stating that nothing in their decision limited the right of the govt to regulate non-marital sexual conduct. Yet just 5 years later, they applied the ruling to unmarried couples. Then in 1973 they discovered a right to abortion. Ultimately, they reached the pinnacle in Lawrence, declaring sexual autonomy a constitutional right, essentially arguing that all “morals” laws are invalid.

All of you support these decisions, not because you believe they are based on some objective theory of interpretation but because you like the outcomes. Of course the outcomes are consistent with the general principles you find in the constitution. You believe that these principles need to be “liberated” from the text and history and given new meaning and application for each generation.

As Kennedy noted in his closing in Lawrence: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

This is such patent nonsense it is hard to believe that someone as smart as Kennedy actually believes it. OF COURSE “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” However, it is emphatically NOT the function of the courts to discern what those new “truths” are, nor to determine what is “necessary and proper” versus “oppressive.” What gives the members of the court any more insight into this than the people or its representatives. The ONLY way the courts can detect if such change has take place is to see if the LAW changes. Otherwise they put themselves ABOVE the law.

You can’t argue against my views by pointing to the fact that that would mean certain previous precedents would be invalid because those precedents are invalid. The fact that those decisions are considered landmarks now by people is not because of the reasoning but the outcomes, which is to suggest that society would have gotten there anyway without the court’s assistance.

We are a better country because women had to obtain the right to vote by constitutional amendment rather than have some court expand the meaning of equal protection to include women (which is how it would happen today).

We are a better country because an amendment was passed lowering the voting age to 18 rather than have some court rule that equal protection required it.

We are a better country that the Civil Rights Act was LEGISLATION, not a court decision.

We would have been a better country, as even liberals such as Justice Ginsburg has observed, had Roe v Wade not interfered with the consensus that was developing over abortion. Instead Roe launched the culture wars and the religious right so that now abortion is a litmus test in every presidential election. Thanks Supreme Court.

We would be a better country if gays tried to PERSUADE people of gay marriage. Until they actually win a VOTE, society will never considered their “rights” legitimate.

All minorities depend on the majority for recognition of their claim to “rights.” No minority can claim a “right” just because they want it to be so. Clearly the constitution (of the US or California) never anticipated such a right. People in 30 states have reaffirmed that there is no such right. Gays have never been able to get a single state to pass gay marriage legislatively or to prevent a state from re-affirming the traditional definition of marriage.

Normally, in the face of thousands of years of recorded western civilization and continued overwhelming rejection of their claims, a group my reassess not only their strategy but the validity of their claim.

I continue to be amazed at the myopia of gay marriage supporters. They are so convinced of the righteousness of their cause that those opposed to them can only be understood as “haters” or “bigots.” It is ironic that they are at least as “fundamentalist” in their beliefs as any religious fundamentalist. In fact, they cannot even acknowledge any respect whatsoever for the traditional institution of marriage. It is this hostility to the idea of hetero-marriage that cause me to actually wonder why they want to bother with it at all. I have come to the conclusion that they don’t want to participate in marriage…. they want to transform it and, in doing so, destroy it.

It is like someone who flies their flag upside down. On the one hand, they pretend to be patriotic by flying their flag, but in fact they are really mocking true patriots. They fly the flag upside down to insult what is sacred to others but offensive to them.

Likewise marriage is sacred. Gays want to marry to mock what makes it sacred… that is, the union of a member from each gender into “one flesh.” This sacred “one flesh” image is offensive to gays because it reminds them that they cannot become “one flesh.” Thus, gay marriage insults marriage; it makes a mockery of it. It demeans and diminishes those who recognize it importance.

Marriage represents everything oppressive to gays. Marriage tells them that they are different. Marriage goes to the core of the hetero dominance in society. Thus if marriage can be infiltrated that hetero dominance will fall. Anyone who continues to view marriage in traditional terms will become a pariah, treated like racists are viewed today.

The fact that I cannot visit a forum on the internet without every post including invectives like “bigot” and “hate” is simply a preview of what like will be like for those of us who value tradition should gay marriage become law.

By the way, for the best article I have read on why “gay is the new black” is so fundamentally offensive, read this:

For Scalia’s common sense view of constitutional interpretation, read this:


November 26th, 2008

To Timothy:

I support a very narrow view of “equal protection of the law:”

“the right of all persons to have the same access to the law and courts, and to be treated equally by the law and courts, both in procedures and in the substance of the law. It is akin to the right to due process of law. ”

It is a procedural equality, not a substantive.

Otherwise, ALL laws theoretically are violations of equal protection because ALL laws draw lines… all laws disriminate in SOME way.

I could argue that progressive taxation treats rich people unequally.

I could argue that anti-disrimination laws treat bigot unequally (as well as violates their rights to freedom of association).

Are not separate atheltic teams (eg., basketball) for men and women in college an example of separate but equal? Is this not a violation of gender discrimination? Apparently not. If the college had separate teams for black and white, would it be different? So gender and race are not treated equally?

There is literally no limit to the violations of equal protection that anyone on the wrong side of a law or policy could claim. That is why equal protection cannnot possibly mean what you say it means and must instead refer simply to the fact that everyone has access to the legal process, not that the law itself has to apply to them equally.

See for a presentation of this view.

The idea that “equal protection” means “equal treatment” is NOT in the constitution… it is an intrusion of modern (liberal) egalitarian philophy into the text.

Timothy Kincaid

November 26th, 2008


I was saddened to see you totally fall apart in your last missive. I thought there was some chance that your position was driven by logic, ideals, and consistency.

But rather than discuss the issues of equal protections or inalienable civil rights, you ranted about “liberals”. You claimed that all of the No on 8 language was about “hatred” and “bigotry”. And then you railed about all the imagined evils that you fear and all the dreadful motivations and intentions that you have ascribed to those whom you wish to disadvantage.

We have no use here at Box Turtle Bulletin for dispatches from the Culture War.

As someone who is not a “liberal” and who does not argue that all who disagree with me are hateful, your very long-winded screed was perplexing, pointless, and eventually boring.

So let’s just lay out our basic premises and let them be:

Me: The principles established in the Constitution are noble and grand and stand far above the limited ability of various peoples at various times to live up to them. Equal Protections is a laudable goal to which we stive, though we are all limited by our own biases. Yet men of good character seek to rise above their failures and apply these standards to all, even when they would rather let bigotries prevail.

You: The principles established in the Constitution are limited to those expressly intended by the thinking of time in which they were written. “All” only means those persons itemized in the heads of men in the 1780’s or 1850’s (depending on whether Federal or State) and “equal” is limited to such equalities as those men intended. Oh, except for race.

You would have the courts serve as historians, seeking the mindset of those living in a time before electronic media, genetics, dna, sex research, global travel, nuclear weoponry, carbon dating, international banking, and bioterrorism. You would have us measure our freedoms by whether they were imagined by farmers and shopkeepers who, though they were literate and often wise, lived before the industrial revolution.

Or perhaps you’d have us be like one of the banana republics that crank out a new constitution every decade or so but who have no continuity, creating and deleting rights based on the whim of whomever has a momentary majority.

And as for the rest of your nonsense (stuff like “they don’t want to participate in marriage…. they want to transform it and, in doing so, destroy it” or “Gays want to marry to mock what makes it sacred”), you have now revealed your true colors.

No, not all of those who supported Proposition 8 are bigots or haters. The vast majority are not. But you, sir, are a hater.

Having been depleted of all logical argument, you resort to all you have left: bile, vemon, and hate.

How very very sad.

Timothy Kincaid

November 26th, 2008


In the latest comment (the one AFTER you went off on a homophobic rant about what gays want to destroy and mock and insult), you sought to return to a discussion of logic and principle.

Sadly, it wasn’t much better.

Your argument is that as long as a minority has the right to petition the government by means of vote, then no injustice doled to them by either a simple majority or by the elected representatives is beyond the pale. You argue that no rights are inherent to the individual and that all belong only to the collective, that government – as defined by a majority – owns its citizens outright.

While that may be a populist position, you are certainly no conservative. Nor, for that matter, would your views be welcomed amongst those who thought that some rights are inalienable and cannot be subjected to the whim of fickle public opinion.

You see, they (and I) believe that some rights are substantive and not just procedural. But, then again, they had experienced inequality and did not like living on the downside of it.

Jason D

November 26th, 2008

“It is like someone who flies their flag upside down. On the one hand, they pretend to be patriotic by flying their flag, but in fact they are really mocking true patriots. They fly the flag upside down to insult what is sacred to others but offensive to them.”

Apparently Bill knows nothing of the US Flag Code. Section 8a says:

“The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.”

David C.

November 26th, 2008

To Bill:

Your remarks, up to a point, were well reasoned and helpful. Your transition in: “I continue to be amazed at the myopia of gay marriage supporters.” seemed to mark the beginning of your move away from reasoning about the constitution, law, the judgement of courts, and the advancement of society.

Opponents of same-sex marriage declare that use of the term “marriage” is not necessary to secure the desired protections gay couples seek, and that same-sex couples should accept something called a “civil union” which is, from a legal perspective, identical in operation to marriage but a differently named institution. This somehow “preserves the sanctity of marriage” for heterosexual couples according to conservative religious and “family” organizations.

I am currently unaware of any (US) law or body of law that describes “civil unions” that mimic marriage in every respect but name, and therefore suspect that no such type of civil contract exists in any state of the US at this time. Were it to, a disinterested observer might conclude that the availability of such a contract to same-sex couples would satisfy them and their perceived (and, I believe, genuine) need for the associated legal protections and benefits.

Many of the participants in the debate over the legitimacy of same-sex marriage have abandoned all semblance of rationality. We are, fundamentally or at least it would appear and ignoring the availability of a marriage equivalent, arguing over the use of a word, albeit one with deep significance.

For gay people, this word is important, not because they want to “destroy” the heterosexual hegemony, undermine the sanctity of marriage, or mock it. They not only want for their relationships all the rights, privileges, and legal protections afforded by marriage, but go on to demand that society acknowledge those relationships to be “just as good” as those of heterosexuals. Herein lies the crux of the matter, as clearly in your mind, as well as the minds of many other opponents of same sex marriage, they are not.

The lack of satisfaction gay people feel when civil unions are proposed as a substitution for marriage is due to a principled argument that the significance (sanctity?) of their relationships is somehow diminished by naming them something different from what heterosexual couples call theirs. I can’t speak for everyone in a committed same-sex relationship that seeks societal recognition of that commitment, but it does seem clear that thousands of years of prejudice against, and repression of, homosexuals by something akin to a heterosexual hegemony may have a lot to do with that.

Contrary to what opponents shrilly claim, a victory by gay people in the tug-of-war over sharing the institution of marriage will not destroy civilization, marriage itself, or traditional families. Such a victory would mean that those that constantly trot out the instability of gay relationships would have a little less justification for their intolerance, and evidence suggests that in every country where same-sex marriage is legal, marriage as an institution is strengthened.

Jason D

November 26th, 2008

David C. Good points. I’ve noticed this about the debate. Those that say “civl unions are good enough and “the same thing” only without the name don’t understand. What they propose is seperate but NOT equal. Let’s look at the logic.

They often trot out the justification that “marriage is sacred” and we must “preserve the sanctity of marriage”. These are the reasons why the “rights” can go to gays but the “word” can’t. But let’s unpack that…. If the courts, the legislature were to take “sacred” and “sanctity” as being things that rise to the level of government control and protection, they are saying these things have value. They are saying that marriage contains these valuable elements.

So what happens? We create two institutions. But those institutions are not equal. We have marriage, for straights which is “sacred” and has “sanctity” and then we have civil unions, which is neither. Marriage is therefore more special, of more value to the government than civil unions. Thus the couples involved in each institution are not equal. One couple is valuable, the other is not. The word marriage bestows upon the couple “sacredness” and “sanctity” and therefore provide benefits denied to those in a “civil union”.

Thus marriage and civil unions are not equal and can NEVER be equal. The separation is predicated on one commitment being more important than the other. The separation is supported by the notion that a gay couple is not equal to a straight couple.

Just look at the words they use “destroy marriage” and “undermine marriage” explicitly state that gay couples are not good enough to be legally married, and their use of the institution would taint and destroy it. They want to protect their institution much like whites wanted to protect their water fountains from blacks.

This is about rights. The rights bestowed upon the word “marriage” by our government and society. Rights that cannot be transferred to civil unions, and thus cannot ever make a “civil union” equal to a “marriage”. It basically says that no matter how committed, how loving, how dedicated, how enduring the love and loyalty of a gay or lesbian couple, they are still not as good and will never be as good as the 55 hour marriage of Britney Spears and Jason Alexander.

If that’s not inequality, I don’t know what is.

David C.

November 27th, 2008

To Jason D:

That sanctity cannot be codified, is central to the passion felt by all sides. Preventing access to the term marriage is the only way gay marriage opponents feel that they can prevent such a cherished and ineffable quality from falling into the hands of a group that they fundamentally despise, or at least perceive out of misunderstanding as a threat.

The law cannot imbue anything with this quality either, nor can we ever expect it to attach to any act of any lawmaking body by lawmaking itself. The very meaning of the term, holiness of life and character or the quality or state of being holy or sacred cannot be invoked by operation of law alone, irrespective of how one feels about the establishment clause or its applicability.

We have now reached the horns of a dilemma: we want same-sex relationships to be seen as sacred in a sense that is not expressible in the secular terminology of law, but simultaneously claim that the frameworks upon which our laws derive their order and force should require others to treat those relationships as if we could. So far, marriage alone has been able to perform this seemingly impossible feat.

Gay people cannot expect, by demand at least, to extract from society any approval, respect, compassion, or love. Even valid claims on a right to equal protection under the law will not engender these, as they must be won another way, not being under control of any government however constituted.

Likewise, respect and admiration of same-sex relationships will not be shown by those that do not perceive those relationships to even be legitimate, let alone sacred. Notwithstanding the casual treatment of marriage by many heterosexuals, the institution has been traditionally imbued with a deep spiritual significance few can separate from their belief in some higher force or being, and by extension, the traditions of those beliefs.

The ineluctable conclusion is that the societally perceived sacredness or sanctity of any human relation can only be established through a religious argument, which takes this part of the debate out of the sphere of law, and places it squarely in the domain of belief and faith.

Winning in the courts would be significant from the point of view that society occasionally needs prompting to advance in its understanding, but that will not be enough to change the hearts of those dedicated to a faith that they don’t completely understand, or that denies dignity to any human soul because of who they choose to love.

Does that make such a legal victory hollow? Perhaps not if, in time, faith communities can find it in their hearts to look past traditions that no longer fit into our modern view of civilization and justice, changing as they have been doing for millennia, but at a pace far slower than that of today’s world.

Jason D

November 27th, 2008

Good Point, David, I think we definitely agree.

I think it’s odd that we all agree the government either has no business sanctifying a relationship, or simply can’t make something sanctified and sacred leads me to wonder… If the government cannot make something sacred how can they “defend” it’s sanctity? How can they destroy it?

You nail it here: “We have now reached the horns of a dilemma: we want same-sex relationships to be seen as sacred in a sense that is not expressible in the secular terminology of law, but simultaneously claim that the frameworks upon which our laws derive their order and force should require others to treat those relationships as if we could. So far, marriage alone has been able to perform this seemingly impossible feat.”

Here you say :

“Gay people cannot expect, by demand at least, to extract from society any approval, respect, compassion, or love. Even valid claims on a right to equal protection under the law will not engender these, as they must be won another way, not being under control of any government however constituted.”

Well put!

I guess my point is that if “sacredness” is a quality that the government can in some way preserve, defend, or guard — then it is a quality it cannot withhold from one group or another without running into separate and unequal territory. I don’t believe the government should be in the business of sanctifying any institution or relationship. Legal contract, yes, sanctity – no. — but if we’re going to get government into the sanctity business we cannot expect it to deny this quality to a segment of the population just because a majority says so. Once we offer up a religious element to the government to control and regulate, we can’t expect the spiritual aspects, or religious specifics to be retained, enforced, or preserved. If it has core elements that are of a religious nature, it would be wise to keep it entirely religious. For example, baptisms and the Jewish bris have been able to retain their religious and spiritual aspects and significance because they have been kept under the watchful eye of their faith and NOT turned over to the government. In contrast, Christmas and Marriage have taken on decidedly secular variations and meanings precisely because they’ve been offered up to the public and government.


November 27th, 2008

Greetings Friends :)

To the degree that my remarks descended into a polemic, I somewhat apologize.

There are two issues I was addressing.

1. The legal issue, which is where I addressed why I thought constitutional interpretation needed to be grounded in text in history otherwise it means whatever judges want it to mean. Hopefully this part of my post was somewhat rational.

2. The policy issue as to why those like myself oppose gay marriage. Necessarily, those comments were more emotional. I feel just as attacked I suppose as gay people on the other side and more forums engage in more “lively” discussions. My comments were rather tame in tone compared to most of the forums I read.

With respect to some of the helpful comments, I totally agree with Jason D:

“Thus marriage and civil unions are not equal and can NEVER be equal. The separation is predicated on one commitment being more important than the other. The separation is supported by the notion that a gay couple is not equal to a straight couple. ”

Exactly. That is the whole point. If the relationships were equal, I would have no objections to letting gay couples marry. By “relegating” them to civil unions, govt is saying that gay relationships to not rise to the same “status” as marriage reletionships.

Society has no obligation to treat all voluntary relationships as equal. That doesn’t necessarily mean that non-married relationships are necessarily inferior. For example, I love my mom but I can’t marry my mom or sister or daughter, but that doesn’t make my relationship with them “second class,” just different.

Likewise for gay relationships. They are not remotely analogous to straight relationships (to quote the pope). A relationship that joins one member of each gender into “one flesh” is organically and qualitatively different than one that joins to people of the same gender. What seems like an obvious observation to me is consistent with all the history of western civilization. Gender is more important than sexual orientation. In other words, a gay person who sublimates his orientation and marries a member of the opposite gender has made a noble decision and that marriage is far more sacred than any gay relationship he might be involved in. Thus, govt is not denying marriage to any individual, it is simply stating that choosing a member of the opposite gender is better, regardless of sexual orientation. Some my consider that cruel or unfair, but it does not treat anyone “unequally.”

The fact that I believe homosexuality is “inferior” and gay relationships are not the same as straight relationships doesn’t make me a hater.

Government recognition of male-female marriage doesn’t make marriage sacred. Government recognizes male-female marriage because it IS sacred. Of course, govt recognition reinforces the natural pre-existing sacredness.

If, by definition, marriage is the union of one man and one woman, then of course “expanding” it to same gender relationships would “destroy” marriage just as adding one oxygen molecule to H2O would “destroy” water.

One final comment on discrimination. Marriage is by its nature a discriminatory institution. Even if we allow gay marriage, the govt is putting its stamp of approval on a union in which both individuals engaged in explicit gender discrimination. In other words, in a straight relationship, members of the same sex were completely discriminated against in the search for a mate. In a gay relationship, member of the oppose gender were discriminated against. Such discrimination is apparently justified by one’s “sexual orientation” although I am not aware that courts have ever justified discrimination because the discriminator claimed he was just “born that way.”

Just a thought.

Priya Lynn

November 27th, 2008

Bill said “The fact that I believe homosexuality is “inferior” and gay relationships are not the same as straight relationships doesn’t make me a hater.”.

Yes it does.

Priya Lynn

November 27th, 2008

Bill said “Gender is more important than sexual orientation. In other words, a gay person who sublimates his orientation and marries a member of the opposite gender has made a noble decision and that marriage is far more sacred than any gay relationship he might be involved in.”.

Nonsense. Marrying someone you’re not attracted to makes for an inferior relationship to one where you are attracted to that individual, gay or straight.

Bill said “Thus, govt is not denying marriage to any individual, it is simply stating that choosing a member of the opposite gender is better, regardless of sexual orientation.”.

It is not the government’s position to make such a judgment, it is the individual’s moral right to do so.

Bill said “Some my consider that cruel or unfair, but it does not treat anyone “unequally.””.

Wrong. If a man has a right to marry a woman, I as a woman deserve the same right he has to marry a woman. Anything less is unequal treatment, sex discrimination. By the same token, if a woman has a right to marry a man, a man deserves the same right she has to marry a man, anything else is unequal treatment and sex discrimination. The government has no business dictating the gender of anyone’s marriage partner.

Your motive here is to define gay people as inferior to justify treating them as such. That is hateful. Loving monogamous gay couples hurt no one by marrying and there actions are by definition moral. Your attempts to interfere in these actions hurt gay couples and are by definition immoral. The essence of morality is “Do whatever you want, but hurt no one.”.

Priya Lynn

November 27th, 2008

Further to Bill’s comment that “Gender is more important than sexual orientation.”:

That’s nonsensical. Gender is innate to sexual orientation, sexual orientation determines which gender(s) you are attracted to. You can’t have one without the other, they are inseperable.

Priya Lynn

November 27th, 2008

Bill said “If, by definition, marriage is the union of one man and one woman, then of course “expanding” it to same gender relationships would “destroy” marriage just as adding one oxygen molecule to H2O would “destroy” water.”.

Marriage by definition is the close union of any two things. A same sex couple marrying does not add or take anything away from any opposite sex couple’s marriage, so it does not in any sense “destroy” it or alter it in anyway. By the same token, those compounds that consist of H2O and another molecule were never water in the first place and their existence in no way affects any existing water molecules of future unions of H and O2.


November 27th, 2008

I don’t see any way to reconcile my position with Priya Lynn’s because I’m not sure we share enought points of contact on fundamental definitions to build on.

So what does a society do in that situation… when members have disagreements with respect to the moral assumptions around which a society should be ordered?

Do they debate it and then vote on it? Or do they ask a few judges to decide what they think? Since judges are entrusted with upholding the constitution and faithfully interpreting and applying the constitution to specific cases, what do they do when the “rights” claimed by the group asking for change are not expressly enumerated and there is not even any common law tradition or even actual history to support the change?

Obviously many believe it is not a court’s judges job to so much strictly interpret the constitutional text but to simply decide if a majority is “picking on” a minority and then side with the minority as if the court is supposed to play some anti-majoritarian role.

I agree with David that the acceptance gays are asking for cannot be achieved by force and, in fact, by going through the courts, that is exactly what gays are seeking to do. All that does is piss people off and if you want to see all hell break lose, watch and see what happens if the Cal Supreme Court throws out Prop 8.

The goals of gay rights are:
1. Tolerance. Eliminating active legal oppression of gays. This goal is mostly accomplished due to Lawrence and civil unions and mainstreaming of gays in general.
2. Accepance. Legal equality for relationships. That is, marriage.
3. Dominance. By this I don’t mean that gays will dominate straights but that the ideology that achieved #1 and #2 will necessarily result in those who disapprove of and believe homosexuality is an “objective moral disoreder” (Roman Catholic Church) will be increasingly marginalized and legally oppressed. By making such a close analogy between interracial marriage and gay marriage, it is INEVITABLE that this will happen. The fact that you insist I am a “hater” already proves there is no room for compromise on this issue. I mean what lower form of life can there be in modern liberal society than “bigot” and “hater”, words that crop up repeatedly on this issue. Every time I hear them, it just clues me into what people like me (by the way, WE are the majority) are in for. If there is one thing worse than majority oppression, it is minority oppression.

30 years ago Bob Jones U, a christian fundamentalist school, lost their tax exempt status because they had a policy forbidding interracial dating. After gay marriage is the new norm, any school that forbids gay dating will be treated exactly the same. I don’t see how they can’t be. Bigots and haters will find out that all this talk about tolerance doesn’t apply to them.

Certainly all our children will be taught the new meaning of marriage in school. If you think “white flight” was a problem after integration, wait until parents find out what their children are being taught without their knowledge.

eHarmony, a quasi-Christian dating service, was FORCED to start matching gay couples. What could be more oppressive and humiliating than to force an organization to facilitate behavior they consider immoral. Imagine a jewish restaurant being forced to serve food to Nazis and then multiply by 10.

All of these examples send chills down the spine of people like me.

Look, I suspect gay marriage is eventually going to happen, but I also don’t think gays are going to be happy with it once they get it.

The Supreme Court has declared sexual automony to be not only decriminalized but virtually a fundamental right, thereby separating sex from marriage as a legal matter (granted it had virtually achieved that culturally).

The Supreme Court has also declared birth control a constitutional right (the only product to achieve that distinction I believe), thereby separating sex from procreation as a matter of law.

Liberalization of divorce laws has eliminated any legal permanence to the commitment of marriage. If any state chose to revoke their divorce laws, I presume the courts would declare a constitutional right to divorce.

So… with sex separated from marriage, sex separated from procreation and no-fault divorce, what is left of marriage. The ideal exists as but a shell, having been completed gutted as a legal matter by the courts. I mean, who still believes in chasteness till marriage, procreation as a marital duty, and “until death do us part?”

How can gay marriage not be next?

Despite Justice Kennedy’s claim to the contrary in Lawrence, Scalia is right… the end of all morals legislation is at hand… any law rooted in “nothing” but the morals of the majority is unconstitutional.

Those “straights” who support gay marriage do so because they no longer view marriage as a big deal so why not include gays. They look at the current state of marriage and figure gays can’t screw things up any more than they are. They might even show us how to do it better!!

It is no coincidence that “marriage equality” is gaining ground as “sacred marriage” is declining (in practice if not in theory).

Once gays finally make it to the party, the party will be over. They will have achieved marriage quality in the same way Commmunists achieved economic equality…. by making everyone equally poor.


November 27th, 2008

By the way, as a historical matter, since the IDEA of sexual orientation is only 150 years old (according to Wikipedia, the word “homosexuality” was invented). That is, prior to that people didn’t think of sexual attraction as possibly an in-born trait. Sex was something you DID.

Presumable gay people got married, right? How did they accomplish this if they were gay? I could find no information on this subject on the internet. I mean for thousands of years, you find no one suggesting gay marriage…. it has only seemed to occur to anyone in the last several decades (and yet we are so casually prepared to overthrow millenia of tradition for an irreversible reckless experiment in the name of “equality”? crazy, crazy, crazy). Doesn’t anyone find that weird?

Although how can we know if any historical figure was gay? If he was gay, he would not have been been aware of it.

As a legal and cultural matter, everyone seems to take it for granted that sexual orienation is a fixed trait, yet it is based entirely on the self-reporting of individuals and yet their awareness of their orientation is not fixed but evolves. At one point, they may think they are straight, then gay, then bi. How can a scientific theory of sexual orientation develop when it is based entirely on subjective awareness.

Furthermore, even someone like Gore Vidal (no friend of conservatives), who notably lived in a same-sex relationship for 50 years yet also had relationships with women, has remarked:

“There is no such thing as a homosexual person. There are only homosexual acts.”


“The American passion for categorizing has now managed to create to nonexistent categories – gay and straight. Either you are one or you are the other. But since everyone is a mixture of inclinations, the categories keep breaking down, the irrational takes over.”

I tend to agree. Categories that courts are actually now defining to be “suspect classes” may in fact be nothing but mirages.

I consider myself straight, although I don’t think straights have a sexual consciousness, but I suspect that I could learn to be gay. Likewise, I suspect gays could learn to be straight, although they would simply say at that point that I (and they) were actually Bi. Whatever.


November 27th, 2008

Finally (actually, probably not… this is too much fun) not all gays apparently support “marriage equality”.

Elton John is apparently happy with civil unions.

“I don’t want to be married. I’m very happy with a civil partnership. If gay people want to get married, or get together, they should have a civil partnership,” John says. “The word ‘marriage,’ I think, puts a lot of people off.

“You get the same equal rights that we do when we have a civil partnership. Heterosexual people get married. We can have civil partnerships.”

Thank you Elton. Like many gays I suspect, he recognizes that gay relationships ARE different. He gets similar benefits to marriage. WTF does he care whether anyone else agrees with his relationship. HE is secure in his relationship and isn’t interested in threatening the historic understanding of marriage because, I assume, he understand that marriage is not rooted in ant-gay bigotry (given that it predates homosexuality by thousands of years) but is in fact a beautiful celebration of the union of each gender.


November 27th, 2008

By the way, echoing Elton John, Lindsey Lohan apparently is quoted as follows:

Actress-model-singer Lindsay Lohan talked to Harper’s Bazaar on Nov. 11 about her girlfriend, Samantha Ronson. “I think it’s pretty obvious who I’m seeing,” Lohan said. “I think it’s no shock to anyone that it’s been going on for quite some time. … She’s a wonderful person and I love her very much.”

Asked if she is bisexual, Lohan said, “Maybe.” Asked if she is a lesbian, Lohan said, “No.”

“I don’t want to classify myself,” she said. “First of all, you never know what’s going to happen – tomorrow, in a month, a year from now, five years from now. I appreciate people, and it doesn’t matter who they are.”


I mean, what’s up with this. Now I understand Lindsey Lohan is not exactly a political philosopher but nonetheless, there seems to be a lot of anecdotal evidence that people just “appreciate people, it doesn’t matter who they are” and little scientific evidence to suggest that sexual orientation is fixed.

I’m not gay (surprised huh?) so I depend on the testimony of people who claim to be gay to try to understand this.

What am I supposed to think when I read comments like Gore Vidal’s and Lohan’s?


November 27th, 2008

I’m done now. I promise not to post anymore. I’ll just read replies and give you last word.

David C.

November 27th, 2008


Were the CASC justices to declare that a procedural error was made in the passage of Prop 8 (amendment Vs. revision) resulting in the matter requiring the full legislative/voter procedure to be followed, the measure would probably not make it to the ballot for a second shot at approval. That would have the same effect even if the court didn’t outright strike it down. If left to stand, “all hell will break loose” anyway. Those that sought to deny marriage to same-sex couples have become ensnared in a trap of their own making by mixing politics with religion:

“Because it tends to the decrease and reproach of religion whatever, and is of the utmost danger to society, to make it a party in political disputes.” (Thomas Paine, Common Sense, 1791)

As a point of fact, eHarmony settled. they were not forced:

eHarmony’s lawyer said it believed the complaint “resulted from an unfair characterization of our business” but settled because “litigation outcomes can be unpredictable.” (

Even a progressive like myself is surprised that they gave in so easily, but they do charge for their services and perhaps they by settling satisfied the dual goals of preserving the perception of themselves as a “quasi Christian” organization and continuing to operate as a for-profit enterprise.

Those such as yourself feeling that traditional heterosexual marriage is in decline and losing its “sanctity” by virtue of “… sex separated from marriage, sex separated from procreation and no-fault divorce, what is left of marriage. The ideal exists as but a shell, having been [completely] gutted as a legal matter by the courts. I mean, who still believes in chasteness [until] marriage, procreation as a marital duty, and ‘until death do us part’?” cannot blame gay people for that decline. Heterosexual couples, for good or ill, chaffing under the yoke of these “duties” have chosen more often than not to throw it off.

Clearly, you are speaking of a general climate of thought increasingly holding that the legislation of morality is no longer “constitutional”. Gay people alone are not responsible for that, though many of them welcome it.

Finally, the observation “Once gays finally make it to the party, the party will be over.” depends on what party we are speaking of. If the desire of those that seek marriage are convinced of its sacrosanct nature and enter into it for the purpose of publicly, privately, or religiously solemnizing their commitment to each other, why should they care what others do? A true love, gay or straight, does not need societal approval, even if it would be nice to have.

While I have been writing this, Bill has again been busy posting more interesting tidbits I find hard to resist:

Elton John is apparently happy with civil unions.
In the UK apparently, a civil union is identical in legal operation to marriage with the dual exceptions that a church wedding cannot be had in Westminster Abbey and they aren’t called marriages. This was a necessary compromise to get any recognition for gay unions in the UK.

I mean for thousands of years, you find no one suggesting gay marriage.
Apparently your search was not quite as broad as mine. See for instance: , , .

The American passion for categorizing has now managed to create [two] nonexistent categories – gay and straight.
Umm, the problem was the creation of protected classes to begin with, forcing each “suspect class” to be enumerated in order for its rights to be protected. What part of “all men” didn’t they want to understand?


November 27th, 2008

So, I suppose that “gays” are the “REAL” reason that a married woman had sex in a public restroom at a college football game with another man, while her husband was in the bleachers watching the game? Oh, and the guy this lady was having sex with was at the game with his “girlfriend” and he too was “cheating” on his significant other.

Couple has sex in bathroom as crowd cheered them on and their significant others watched Minnesota-Iowa game

Seems to me that the “sanctity” of marriage is threatened MORE by straight people than it will EVER be by gays.

Especially if you consider that straight people outnumber gay people by at least 10 to 1, perhaps more.

And also keep in mind that not all gay people want to get married in the first place. Many of them are quite happy being single and non-committed.

So, gay people that are “monogamy” minded are an even smaller minority in our own “minority” gay community!

So really. Where is the BIG threat that “monogamy” minded gays pose to non-religious, “civil” marriage?

The bigots of this world are so busy attempting to protect “marriage” from a small, gay sub-minority that they forgot to turn around and look at how they (straight people) themselves are treating this institution.

They believe that admitting gays will be the straw that breaks their camel’s back. And it will be the end of the world as they know it.

And then Dr. Gay Evil will sit back in his Prada leather chair and laugh fiendishly as he watches the institution of marriage crumble on his big plasma TV in his super, secret hideaway on a far away island. Mission accomplished, gays! We have finally destroyed marriage! We have destroyed civilization as we know it! Now our next target is to take over the world!!!! Muah ha ha ha ha ha

Doesn’t that just sound ridiculous?

Well, that’s just how you people sound when you tell us we can’t get a “civil”, legal, non-religious marriage just because our genitals match.


November 27th, 2008


You prefer to relegate gays to an inferior status undeserving of equal protection before the law. That is bigotry, and for all your words, it still boils down to bigotry. You can try as you like, but you aren’t going to convince any of the gay people on this forum that we are inferior and undeserving of equal protection before the law.

Jason D

November 28th, 2008

“Once gays finally make it to the party, the party will be over. They will have achieved marriage quality in the same way Commmunists achieved economic equality…. by making everyone equally poor.”

Right, because Massachusetts marriages are doing so poorly — oh wait, they STILL have the lowest divorce rate!

“Massachusetts has yet to become, as former governor Mitt Romney predicted, the “Las Vegas of same-sex marriage.” Gay marriage rates leveled off at about 1,500 a year – about 4 percent of all state marriages – in 2006 and 2007. The divorce rate in Massachusetts has remained the same – and the lowest in the country.

And if Phil Zuckerman is to believed, all this change and dropping of morality laws might actually make the party better:

“And it simply isn’t true. If God punishes societies that violate his commandments and rewards those that do, this just isn’t apparent by looking at the state of the world today. The sociological fact is that the most irreligious nations right now are among the most successful, humane, moral, and free, while the most religious nations tend to be among the most destitute, chaotic, crime-ridden, and undemocratic.”

“From economic prosperity to low crime rates, from equality between men and women to excellent child welfare, from life expectancy to low rates of H.I.V., the relatively godless (or at least God-indifferent) nations of Denmark, Sweden, Norway, and Holland suggest that secularity – and acceptance of gay marriage, specifically — doesn’t bring down the wrath of God at all.”

“Where is the best place to be a mother and raise children? According to the latest Save the Children Report, it is relatively godless Sweden. The worst? Extremely Godful Niger. How about murder rates? Highly religious Columbia leads the globe, while highly secular Japan is near the bottom.”

“It is the more godless democracies – and especially those that allow for gays and lesbians to wed — that are faring the best, while it is the more God-worshipping and homosexual-condemning nations that are faring the worst.”

So the scare tactics of societal collapse are just completely off the mark.


November 28th, 2008

Check the link for an mostly unknown perspective on the Connecticut Supreme Court decision. Notice how the Conn. Atty. Gen. represented the State.

Although not in the linked article, one of the most conservative justices was not present and there was a lower court judge as a replacement. Remember, it was a 4-3 decision.

Timothy Kincaid

November 28th, 2008

The “most conservative” justice recused herself because her husband’s law firm had done legal work in favor of marriage equality. We are well aware of the the Justices.


December 11th, 2008

Perhaps you forgot about one other. Along with Chief Justice Chase Rodgers, the most conservative justice missing that I was referring to is Senior Justice William Sullivan. Had he been present he would of most likely had a dissenting vote, making it a 4-4 tie, which would uphold the lower court ruling.

Also, the Attorney General’s lackluster representation did not help the State.

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