The Real Issue With Prop 8


On November 4th, 2008, seven million Californians vote to define marriage as only between a man and a woman. On August 4th, 2010, the United States District Court for the Northern District of California struck down the decision declaring it unconstitutional under the Fourteenth Amendment’s equal protection clause and the right to due process.

The moral issue of homosexuality need not be addressed here. What will be addressed is the Court’s continual use of equal protection to take basic cultural decisions out of the hands of the people. The Court is a legal institution, but it undertakes to decide hot button issues of culture and politics that are, strictly speaking, none of its business. The Supreme Court, aided by the lower federal courts and many state courts, has usurped the powers of the people and its elected representatives. Our democratic system gives the people the power, if they are persuaded that the policies of the past should not be the policies of the present, to change the laws as they see fit. The system is destroyed if the policies of each age is taken out of the democratic process and written into the constitution. It’s ironic that the Court criticizes the ways of our ancestors when at least our ancestors left us free to change. The same cannot be said of this Court-dictatorship which has chosen to inscribe into law, one by one, the current preferences of society and in some cases the counter-majority preferences. The court has become a supreme law maker beyond the reach of the ballot box.

In conclusion, the decision by one Judge Walker to usurp the power of the California voters of more than seven million and overstep his bounds was wrong. One against seven million. Every American, gay or not, should be alarmed at those numbers, strip the courts of their cultural and political influences, and put the issue to a vote. Whatever the decision, at least we would have the power to change down the road.

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12 thoughts on “The Real Issue With Prop 8

  1. No, Martha, Daniel should not become a lawyer because he doesn’t understand why doing one’s legal homework is important. He makes his pronouncement based on the ignorance of his religious beliefs but fails to read (and understand) the decision itself. That’s hardly the footwork of a good lawyer but someone who is simply pandering to the ignorant notion that the majority is always right.

    This isn’t about democracy, Daniel. This is about the TYRANNY of the majority… a concept that I have little doubt you will have a great deal of difficulty understanding. This is about that majority (52% in the case of Prop 8) taking away civil rights and exercising legal discrimination. You see, D, that’s a BAD thing.

    Our legal system depends on certain inalienable rights and not the ignorant and bigoted wishes of a temporary majority at some snapshot moment. That’s a GOOD thing.

    You are damned right that Judge Walker is “usurping” the power of the majority that attempts to legalize bigotry and undermine our civil rights, and you should give your heartfelt thanks for having the moral courage to stand up to the majority of ignorant twits who think democracy alone is the root of our rights. It isn’t. It’s the Constitution, which derives its authority from we the people. That doesn’t mean it comes from the majority of people who believed the lies and distortions and naked bigotry from the ad campaigns paid for by the wearers of secret and magical underwear – our deluded friends the Mormon who took to the late 1900s to revisist the notion that dark skinned people were humans. It means it comes from ALL the people as a collective… even those whom you think deserve fewer rights than you because they belong to some group you wish to marginalize through the passing of discriminatory law based on your bigoted religious beliefs. Tough. You’re out of line, as are the slim majority of voters who agree with you.

    You see, Judge Walker is not there to rubber-stamp the wishes of the majority. He’s there in his role of judge to determine if the law meets the constraints of what is Constitutionally allowable. Prop 8 fails this test, whether 52% or 100% think its a good idea. Judge Walker’s decision to overturn the 52% majority vote that denied gays and lesbians the civil right to marry was for exactly these reasons of discrimination on the sole basis of group membership – whether the genders of the spouses were the same or different. No evidence could be provided to show that this legal discrimination was based on anything other than this single discriminatory criteria that no other rational justification supported except religious bigotry. That means if you are for Prop 8, you are a bigot. Now try to see if you are intellectually capable enough of wrapping your mind around that fact or if you simply refuse to address why this is so because your religious beliefs give you what you assume is a pass from some little bigoted god.

    1. tildeb: You’re begging the question by insisting that that gay marriage is a “civil right” when you have not (and cannot) demonstrate that it is one. It’s certainly not a right that has existed up to this point in time in our history and is not reflected in any of our founding documents.

      Same-sex marriage is not analogous to traditional marriage nor is it analogous to slavery, or interracial marriage.

      You use the emotionally charged phrase “tyranny of the majority” but all that means is simply “the majority.” When it comes right down to it the majority has the right to amend the constitution (both state and federal) which is the codification of all civil rights.

      A judge’s job is to interpret and apply the law. This judge is looking in the Constitution and finding a civil right that simply does not exist and yet has decided to thwart the will of the people anyway.

      As for your charges of “bigotry” that is merely thought-stopping language attempting to end the discussion before it begins. It’s a tired old ploy that has been used in recent days to paint everyone who opposes the President as a racist or everyone who stand for traditional marriage as a bigot. Defend the thing on its merits or don’t but the name calling only serves to weaken your argument.

  2. When people start talking about the same-sex marriage debate in general and Proposition 8 in specific, the word “equality” shows up with great frequency. All gays want, we’re told, is the same rights that everybody else already enjoys. What could be so wrong about that? Who does it hurt? C’mon, live and let live!

    The problem with the use of the word ‘equality’ is that what the proponents of same-sex marriage rights are seeking is a fundamental redefinition of what a “marriage” means. In doing so this is not the mere extension of an existing freedom but an attempt to create a new right where none existed before.

    When African-Americans were denied a seat at a lunch counter because of their skin color there was a genuine disparity of equality. One person=One person regardless of race. When a woman was denied entry into a school because of her gender there was inequality. One person=One person regardless of gender. However, when comparing a marriage of one man+one woman to that of one man+one man the scope of what we mean by marriage has to be altered since marriage had never been defined as one person + one person but always as one man+one woman. We are no longer in an apples to apples scenario. Equality is no longer an operative term.

    It would be as if a person complained that since a restaurant did not change its menu to suit his specific tastes that they were not giving him the same service as all the other customers who were content to order what was already being served. Insofar as a gay man has the legal right to marry any woman who agrees, he has the equal protection of the law. But introduce another man into that equation and the terms have changed. It’s no longer a question of equality.

    If the word marriage no longer means the legal binding of a man and woman into a family unit then it can be legally twisted to mean anything. Once a term is forced to encompass every meaning then it has no meaning at all. Marriage is then left to the whim of whatever judge happens to feel that someone is being left out of being ‘equal.’

    If we’re going to open the door of redefinition, why stop at two people? Why stop at human beings for that matter? Or even living things? If those four men, their horse, and their toaster oven really, really feel hurt that they’re left out of the whole marriage game then let’s let them have a little equality too. What could be so wrong about that? Who does it hurt?

    Here is my modest proposal on the subject. If we’re really going to re-make society in which the marriage of a man to a woman is no longer the core unit then let’s just allow the government to see its way out of the marriage business all together. Churches can marry people in the religious sense and as far as the secular world is concerned we can all go to having the kinds of community property and power of attorney rights that are already available to anybody who wants them now.

    My suspicion is that this proposal would not be met with great support by activists in the gay community. Because what is at stake here is not equality at all. It is instead an attempt use a law to take away the freedom of organizations and individuals to stand on their convictions and not not recognize same-sex unions as legitimate. And it is being done despite the explicit will of the people as expressed in Proposition 8.

    Equality? Hardly. Tyranny? Precisely.

  3. Tildeb,

    Californians are now forced to adopt the Court’s view of morality rather than their own. Moral objection is not the same thing as discrimination unless all moral objections are to be treated as discriminatory. You can’t just classify a moral distinction you disagree with as hateful or bigoted. You must provide moral reasons for the opposite.

    Modern liberalism is obsessed with creating and finding new rights that did not exist before and claiming injustice when none existed. I wouldn’t object as much if these new rights weren’t being written into the constitution by a judiciary system we have no influence over. We do not elect judges. They are appointed. We have no recourse.

    Tildeb, just wait until your values are being forced upon. Then you will experience this lack of freedom.

    I understand your emotionally charged statements and why you say them this way. But do understand, we as Christians are the chains and fetters that stop you from taking your individual liberty too far and making things equal that are not. We will seek to preserve the institutions that you work to corrupt. I imagine there are no words to stop you or change your mind because there is no end to the justification of whatever you want. So, keep talking as you do. When you drive this country into the ground, we will be there to pick it up, dust it off, and start anew.

    1. Here’s the judgment:

      Proposition 8 fails to advance any rational basis in
      singling out gay men and lesbians for denial of a marriage license.
      Indeed, the evidence shows Proposition 8 does nothing more than
      enshrine in the California Constitution the notion that opposite-sex
      couples are superior to same-sex couples.
      Because California
      has no interest in discriminating against gay men and lesbians, and
      because Proposition 8 prevents California from fulfilling its
      constitutional obligation to provide marriages on an equal basis,
      the court concludes that Proposition 8 is unconstitutional.

      No, I don’t have to provide reasons for not codifying into law a discriminatory practice; those like you and Darrell have to give reasons why the state should discriminate. The complete and abject failure to come up with a single piece of evidence to justify the discrimination you wish to impose except by your belief that such discrimination ought to be imposed onyour religious grounds means the religious position you hold is bigoted, meaning an irrational (no substantiated reasons) suspicion against an identifiable group.

      Your freedom to swing your fist ends at the tip of my nose. Your claim that failure to impose your irrational legal discrimination is an imposition of YOUR freedom. This is audacious and arrogant and hurtful and intolerant. That you have the colossal arrogance to presume that you have the authority from your religious beliefs to chain and fetter my rights and freedoms to be equal to your own is telling. But to suggest that my primary allegiance to human rights, legal equality, and universal respect for the dignity of personhood is a corrupting influence to the public institutions that promote and protect these enlightenment values from those who would have us return to the dark ages of religious authority and embraced bigotry is simply deranged and delusional thinking. But don’t for one minute think that your attempts to foster your corrupt, unjustified, and irrational religious beliefs on me will go unchallenged. Bigotry – like slavery – is morally wrong even if scripture can’t provide you with theological reasons why (I’m just sorry you have such a paucity of resources upon which to draw), and it’s about time you and your religious beliefs begin to catch up with the rest of us moral citizens in the 21st century and open your mind wide enough if you can to begin to understand why such a change will be for the betterment of all.

  4. Proposition 8 fails to advance any rational basis in
    singling out gay men and lesbians for denial of a marriage license.

    The rational basis is as clear as the fact that marriage has always been legally, socially, and religiously defined institution between a man and a woman and that extending that right would be a legal redefinition of what the word “marriage” means.

    Year and years of case law and family law has been predicated on that definition of marriage. That definition has also the tacit understanding of society at large until agitators to change it appeared on the scene in the last few years.

    It would be like taking the word “prison” and redefining it to include shopping malls and then attempting to extend the laws that regulate prisons to include mall shoppers. It doesn’t take much logical basis to realize you have a pretty big hurdle to cross if you’re going to attempt it.

    1. Well, then, we need a lot more ‘agitators’ to make a world a better, fairer place than the rigid and bigoted (not to mention misogynist) christian tradition to keep some people more… um, equal… than others. To dare to legally redefine marriage as nothing to do with the actual gonads involved sends all these bigoted hearts aflutter with indignation. Imagine… law that is applied equally to all. Shocking, I know.

  5. Here’s a quote from jurist Robert Bork that speaks to the “religious bigotry” part of the argument

    The fear of religion in the public arena is all too typical of Americans, and particularly the intellectual class, today. Religious conservatives cannot “impose” their ideas on society except by the usual democratic methods of trying to build majorities and passing legislation. In that they are no different from any other group of people with ideas of what morality requires. All legislation “imposes” a morality of one sort or another, and, therefore, on the reasoning offered, all law would seem to be antithetical to pluralism. The references to “bigotry” and “demagoguery” seem to mean little more than that the author would like to impose a very different set of values.

    Today’s religious conservatives take Christianity and Judaism seriously, but that does not place them outside a very long moral tradition.

    – Robert Bork, Slouching Towards Gomorrah.

    1. This is the same Bork who says that [m]odern liberals … have a need to lie, and do so abundantly, since many Americans would not like their actual agenda.” Chief among the culprits, Bork says, are the universities, feminists, homosexuals, artists, and, of course, atheists and church-state separatists. Yes, this a worthy source to back up your kind of attitude that the ‘institution’ of slavery always has always been with us so to change it must be a bad thing, that marriage between two consenting adults in a loving relationship will undermine that between men and women, even though tens of thousands of gay marriages have already occurred without the slightest ripple of effect in the more ‘traditional’ institution. But the sky must be falling because the reactionary christians say it must! End times!

      The funny thing about reactionary christians is that they often accuse others of being motivated to support something bad, which is exactly what in actuality they themselves do, which suddenly is good. Some legislation, for example, may impose a law that can be associated with certain set of values that can be considered an extension of a kind of morality (and this is ‘bad’ we are assured), but in the case of legislation about a very specific kind of religious morality, we can count on the christian reactionaries to impose exactly this through legislation (which magically becomes ‘good’ we are assured). How convenient. The important and meaningful difference, of course, is entirely lost on the bigoted reactionaries.

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