I was thinking the same thing even as I wrote this, and it's a fair point. Worth mentioning that attempts by gay rights groups to claim 'civil rights' is not exactly a popular argument in black churches... But still, a worthy argument and one that was specifically noted by this judge.

Perhaps we could go back to the roots of homosexuality, which has existed throughout history, and ask -- Is it a choice for gays not to regulate their conduct in line with societal norms, therefore a choice that they are 'opting out' of the institution of marriage? I could certainly make this argument of bisexuals - their lack of self control and morality should earn them no special rights from the community. I don't think that it's a completely unreasonable leap to say - hey, you're doing something immoral, against the norm, you're a sinner. We love you, but we can't have you getting "married." How about a nice civil union? I'm just asking the question here. All laws are based on morality at some level, aren't they?

And, I know some of you are calling the slippery slope thing silly, but wouldn't you bet that, when race-based marriage laws were struck down, some wacky racist Senator was railing that this would lead to "homosexual marriage, legitimization of sodomy, incest, polygamy" - and here we go - two out of four at least.

People who call the slippery slope argument "silly" are short sighted to say the least. I can give you two examples on both sides of the political spectrum in the past two years:

(1) Lawrence v. Texas: the holding that sodomy laws are unconstitutional has been extended in both recent cases addressing whether gay marriage is unconstitutional. Pretty strong language in Lawrence:

"The fact that a governming majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice"

The courts are taking this language and running with it down the slippery slope.

On the flip side:

(2) Michigan recently enacted an amendment to its constitution that bans state recognition of any type of union as marriage other than "marriage". Attorney General Mike Cox just issued an opinion that the state and local governments can no longer provide benefits to same sex couples according to the Michigan provision. The Conservatives in this instance are taking the language and running down that infamous "slippery slope".

I understand why some people find the "civil rights" argument problematic. From what I can tell, if you are pro same-sex marriage, you think it's a civil right, and if you're against it, you think it's not a civil right. But whether it's labeled as civil rights issue or a Constitutional issue or whatever, I don't think we should let the label interfere with the reasoning.



You seem to be suggesting that gay people should stay in the closet and, if they want to marry, marry someone they are not attracted to. Is that what you mean by regulating their conduct in line with societal norms?

Or are you suggesting that they somehow change who they are romantically and sexually attracted to? I'm confused about what exactly is the "choice" that you are talking about?




How does being attracted to both genders amount to a lack of self-control? I understand how say, alcoholism or chronic procrastination is evidence of a lack of self-control, but how does being attracted to both genders imply someone lacks self control?



You've brought up morality a couple of times now, but your subjective morality alone is not enough to create laws upon. If I happen to think it's morally OK to beat a gay man to death if he makes a pass at me, does that mean we should make it legal? To sustain a just society, we need rational reasons as well as an appeal to one group's arbitrary morality.

First off, thanks for keeping this civil My disagreement with gay marriage as civil right is a little deeper than "I'm against it, therefore it's not a civil right" as I'll explain below.


Society has norms. Deviating from those norms has consequences - you speed, you may get a ticket, because your fellow citizens have deemed that a maximum allowable speed is necessary for safety and local revenue generation. You choose to be gay, you experience consequences, notably that society does not allow a man to marry a man. What - it's not a choice? It's born? What if being a murderer is "born"? Should we allow murder only among those "born" as murderers?

A more appropriate comparison - Some people are very attracted to children or animals. Society has deemed that we have a compelling interest in protecting children and animals, therefore the deviants are expected to control themselves, and not indulge in these behaviors. If they "choose" to do so, there are consequences. Bisexuals want it all. Fun sex with both genders. Good for them, they are liberated. But, they are also deviant vs. societal norms. Therefore, we should not reward their deviant behavior, but if anything we should discourage it to protect our children from being exposed to this behavior. A compelling interest.


Beating a gay man to death is illegal. This is based on societal norms and morality, starting with the Ten Commandments, delivered to all people who are monotheistic thousands of years ago. It hasn't evolved fully in Islamic countries, where beating a gay man to death is actually the law, but in the US we've deemed it illegal and legislated as such. Are you saying that all laws are useless because they are all based on "someone's arbitrary morality"?

No problem. I didn't mean to imply that you arguing from a civil rights angle wasn't sincere or well thought-out - I just think that (either side) bringing the term "civil rights" into the debate complicates things.



None of the gay people I know tell me they chose to be gay. Why should I doubt them when 1) I never chose my sexuality and 2) there are strong societal disincentives to being gay?



But there are no such legal expectations at all for bisexuals, and rightfully so. Certainly none that don't also apply to full-on homosexuals. So why are you singling out bisexuals?



I don't see how this argument doesn't apply equally to gay people.



(Aside: Of course murder was illegal well before the Ten Commandments and in most societies that (historically and currently) never subscribed to the Ten Commandments. The illegality of murder did not originate with the Ten Commandments)



No, most laws are very useful. But it takes more than pointing out that somebody believes an act to be immoral to justify a law concerning that act. If you want someone to accept your argument and they don't share your exact sense of morality, you'll have to use reasons other than an appeal to your own morals.

Fair point, which helps make my point again. Societies (plural) have evolved with a sense of morality. And many societies, including our own, have legislated this morality, in an effort to preserve those societies' continued existence.


It's a little more than just my subjective morality or "somebody believing an act is immoral." Gay relationships are forbidden by Islam, Judaism and Christianity. A reasonable alien, arriving from outer space, would look at mankind, note that men and women have different and complimentary parts, note that we seem to reproduce this way and call that "normal." This is not just me, it's the vast majority of citizens of the world, along with their respective religious and state institutions, along with a little common sense for the ongoing reproduction of the species and mankind. Yes, the belief on gay marriage is changing in places like Europe, but some not-so-illiterate people sincerely believe that they are indeed destroying their own society and due for dire consequences down the road. Notably that they can't even sustain their own populations. (This is not meant as a slam at Europe or trying to take us off-topic, just pointing out the conditions that exist there, notably more permissive society coupled with de-population coupled with Islamic immigration, etc.)

I have trouble with the definition of marriage as "regulation". So, far you've asserted that it is a "regulation". You've stated that marriage is "regulation" because certain rights are conferred on married folks in preference to unmarried folks. This is a very odd sort of regulation. Usually, regulation involves restrictions not supplementations.

However, using your "rights = regulation" position, I cannot see how you would differentiate marriage "regulation" from civil "regulation". In other words, all the arguments you are making about marriage being a "regulation" apply equally well to "civil rights". Thus, you're back to square one. Whether you call "marriage" a regulation or a right, it's still falls under the umbrella of "civil rights" (or in your language "civil regulation").


Again you are defining a difference without meaning. Civil rights attempts to "regulate" the behavior of folks to create equal treatment under the law. It is in government's interest to do this. It is now considered a Constitutional guarantee.

Like I said, it's okay to be against civil rights. As a big "freedom of speech" person, I would support your right (or is that "regulation"?) to take a position against equal protection. I disagree with it. If this were back in the 1940s, when California was the first state to strike down anti-miscegenation laws, then I am sure we would be having a similar debate except it would be "mixed-race couples" instead of "same-sex couples".


The reason it is being called civil rights is because it is civil rights. The folks, who don't want it to be called civil rights, are concerned that they would be seen as bigoted and prejudiced. I have sympathy for this.

The slippery slope argument is as silly today as it was then. Until someone can prove gay marriage is actually harmful to society--not vague arguments about the current population numbers in europe or some lengthy speech on the "morality" of society at large--always a hallmark of intelligent and reasoned positions on any subject .
there is no substantial weight to the argument other than "I don't like gay people so my answer is no"
Often laws are passed that do not reflect the opinions of people at large but the minority of people who are so fanatic about inflicting their morality on others that they spend every waking moment trying to bring every one else under their heel. The rest of us have lives to live.

To quote the wise and sage DTOM

That Lawrence case is bogus Hayleyanne, do you actually know what the definition of sodomy is? It includes both anal and oral sex and not only that it applies to straight couples as well. Yet it was only being enforced to harrass homosexuals. There were numerous things wrong with that law.


No, what they are doing is cleverly avoiding getting into a separate but equal situation as I described above (which by the way you did absolutely nothing to refute, in fact you only strengthened the argument).

The slippery slope argument is silly.

Lets look at it:

It suggest that this might lead to polygamy being legalized. To that I say, so what? Why is it that we cannot allow people to simply be who they want to be. Exactly who is harmed if John and Jack, or Jack John and Mary, or Mary, Sue and Jack want to live as a family?

It also suggests that it will lead to incestual marriages. Well, not that is a heck of a leap. Incest is an illegal relationship. You would have to legalize that form of relationship before even considering having the state recognizing such a marriage.

It also suggests that it will lead to adult/child marriages. Well, what prevents them now? If an adult wants to marry a child, in most states the only thing stopping this is a parental consent requirement and in some cases an age restriction. So, Without the child being of the minimum age or older and without parental consent, such a relationship is illegal, so again, the legal status of such a relationship would have to be changed before considering recognizing a marriage.

NO ONE IS HARMED by allowing Homosexual couples to marry. I have yet to see a reasoned argument to dispute that. Why is it, that those who rail on and on about "Big Brother" and "Nanny" Government protecting us from ourselves seem to be among the loudest opponents to gay marriage? Exactly how is it, that if I choose to marry a man, instead of my wife, that anyone outside of the relationship would be harmed?

As for the topic at hand. California's constitution is quite clear on this issue. And the state itself defined homosexuals as a "class of citizens" the moment it started writing laws treating them as different from others. Interesting problem. The existence of the statute is the strongest argument for it's unconstitutional status.

Do the people in California have any options here? Sure. They can choose to amend their constitution so long as a majority agrees.



So, based on your opinions am I to assume that you would have opposed legalizing inter-racial marriage? After all, it was not a social norm, and in many areas it is still not the social norm?



Your examples fail the most basic test. Bisexual relationships are LEGAL. Relationships with Animals and minors are not. Whereas, Adult/Child relationships, are legal under certain conditions and marriage is allowed, and homosexual/bisexual relationships are legal period, so marriage should be allowed.

Argument by appeal to popular opinion is invalid. Most people once thought that, say, slavery and the rape & murder of innocents during military raids was OK too. Some people disagreed. Were these dissenters wrong?



OK now this is a potentially valid argument. You expand upon it here:



So: Nations that have legalized same-sex unions are also experiencing low population growth. An obvious reason for this is that legalization of same-sex unions leads to the devaluation of traditional family formation - to the point where the birth/death ratio dips below replacement levels.

So we're now pinning the reasoning for denying marriage to a certain class of people on this phenomenon in certain European countries. Although we can't come up with a mechanism to explain the rationale, we're just sure that because there is a correlation, there must be causation. We're so sure, in fact, that we must deny marriage to otherwise deserving people.

To extend this reasoning: If the same phenomenon had occured with interracial marriage, or marriage between people whose age differs by more than a decade, then we must deny these people the right to marry. Why? Because we're just that sure that the evidence points to such unions causing the societal decline.

If the only reason we're denying marriage to certain people is the growth rate data in certain European countries, we need be be very very sure that research backs such a profound denial.

If this growth data is not the only reason, what else is there?

Just a clarification. The Texas statue wasn't "enforced" to harass homosexuals only, though that may be true of other states prior to Lawrence v. Texas. Some states did have laws against both heterosexual and homosexual anal sex. Texas wasn't one of them.



After the Supreme Court decided the case I read a Texan's take on the matter. According to her, the legislature considered also making heterosexual anal sex illegal, but decided against it because it could "lead to heterosexual relationships." Someone can confirm or refute this.

I'm not arguing that each instance of homosexual marriage harms anyone at all. I'm arguing that we should consider the big picture of changing our society in so broad a way that we redefine family and gender roles.

But, to take your argument literally - In my opinion (my "subjective morality," if you will), no one is harmed by pot smoking or prostitution either. Yet, those things are illegal and are not deemed to be civil rights violations. Is it only that their interest groups are not powerful enough, or that a judge has not yet "seen the light" to find these civil rights violations against "classes of people" - pot smokers and prostitutes.

On a related note...Judge denies first cousins the right to marry Why is that? No one is being harmed, after all...


Lastly, I really do apologize to you all for being so esoteric on this, and I acquiesce that the judge probably did act in accordance with the California law. And no, I'm not saying that Europe is depopulating because of gay marriage, just pointing to it as a smaller indicator of possible societal breakdown.

edited to qualify my non-expert legal opinion with the word "probably"

So you are willing to deny equal service / protection to one class of people for a possible effect on society? Would you have agreed with similar positions when they were used against inter-racial marriage? Since in all likelihood, the high level of divorce in this country has a much higher chance of damaging our society then allowing another group of people to commit to each other for life in the eyes of the state, would you support criminalizing divorce?



First off, these are not classes of people. You and I can disagree on the origins of homosexuality, if you are born homosexual (a I believe) or choose to be that way, but I think it is plainly obvious that drug users are prostitutes are not born as such.

However, I also see no reason at all for the state to criminalize these activates. If regulated, these activities would have little to no negative effects on anyone, outside of the participants. The greatest negative effect from these activities today comes from the criminal organizations created by criminalizing these activities. Again, the "Nanny state" at work. Why should these activates be illegal, these topics have been approached here before, and perhaps someone should start them again.



I am not sure why a case from PA applies to this CA case. However, In the case of this couple, they were seeking an exception to the law here. I do not think that is possible. If they want to change things, then need to challenge that law in court (if there is a provision in the PA constitution that would create legitimate grounds to do so) or lobby to change it through the legislature.



I tend to agree, based on the California Constitution, I do not see that the judge had a choice in the matter. And I cannot see how anyone could call this Judge an activist on this particular issue considering the judge's Catholic, Republican background. If anything I think it is far more likely that this judge, went against personal beliefs (though I could be wrong as I am stereotyping here) to properly rule on this case based on the state constitution. I think that I QUITE admirable.

I am curious. Why, when I suggest that all rights and benefits of marriage from the state be removed from all married couples in order to ensure that no group of people get special treatment over another group is it always ignored?

The opposition to gay marriage always seems to point out that the legal protections of marriage are easily gained through the use of contract law between the parties involved, thus marriage is somehow unnecessary. If these protections are so easy to obtain, why not remove all of the protections from all marriages, let the participants enter into contracts to gain those specific benefits and thus treat everyone equally by leaving marriage to the churches?

As an alternative, why not leave marriage to the churches and call ALL state marriages civil unions and allow homosexual couples to enter into them. This would allow equal protection, while leaving the concept of marriage to the church, where it likely belongs in the first place.

I believe in equal rights for all races, so no I would have been against these arguments in terms of amalgamation. Race does not equal behavior.

I would support changing the law to make divorce more difficult, yes. Absolutely. This would be a wonderful thing for our country, to try and reduce the divorce rate by any means.

There you go, with your "subjective moraility" deciding which laws are appropriate

Seriously, you say that homosexuals are born that way. I say that persistent pedophiles must be born that way. One activity is legal, the other illegal. You can't marry a child, because the state (mostly, as noted) has deemed adults marrying children to be harmful. A man can't marry a man, because, well, he's a man, baby. That's not marriage.

Similarly polygamy is illegal. Surely you will acknowledge that Muslims (or even Mormons) are a "class of people" yes? In nearly every Muslim country, polygamy is practiced legally. It is currently being tolerated (they are looking the other way) in enlightened corners of Europe. I am sure that some Muslims are practicing de facto polygamy right here in the USA, but the state is not choosing to sanction it as "marriage." Doesn't that violate their civil rights? What about forcing women to wear burkas - bet that "civil right" - forcing women to cover themselves - wouldn't go over big in the 9th Circuit. Yet for women to go around exposed like they do is clearly violating the "civil rights" of a whole class of Muslim men.

I would say that changing our laws in the legislature would be far better vs. the current mode of judicial "finding" of rights in 200-year old documents a la Massachusetts.


I think that encouraging and sanctioning marriage is a bedrock of our society, and as such our government should indeed stay in the marriage business. I posit that non-traditional marriage, whether gay, polygamous, "just friends," cousins, etc., should have to work twice as hard as others because they just aren't building society the way that nuclear families are. There are a bazillion studies that tell you married people with kids are better off in every single measure vs. single-parent homes. Every kid deserves a mom and dad. The disintegration of the family is the #1 indicator of poverty, crime, you name it. This is important to me, and in my (morally-subjective) opinion, it is important to society. It has seemed to work until now (except for the obvious failure of the high divorce rate), until we find ourselves in a civil-rights "crisis" and judges are re-interpreting centuries-old custom and law to find "rights" for all sorts of things.

carlitoswhey, you seem to be making three arguments:

1. Marriage is always by definition between a man and a woman.

2. Since someone's interests can be "hurt" by allowing a thing, then there is a moral equivalence between allowing one thing vs. another thing. For example, allowing same-sex marriage is morally equivalent to allowing pedophilia.

3. The infamous "slippery slope" argument.

If I have misconstrued anything, please correct me. Let's look at each point by point:

First, this whole civil rights exercise is to permit same-sex marriage. If you are going to create such a definition, then there can be no debate. I could very well create another definition of marriage: "Marriage is always by definition between two people of the same race." Thus, anyone who calls themselves married but are of different races are by definition not married. I could define marriage: "Marriage is always by definition between two people of the same religion." Thus, anyone who is married but of different "faiths" are by definition not married. Both of these alternative definitions of marriage have existed and been sanctioned by the State at one time or another. In other words, this whole exercise is to recognize the civil rights and rights of due process of two consenting adults (citizens even) regardless of gender.

Second, the moral equivalence argument doesn't work. Yes, there are genetic components homosexuality as there are probably genetic components to pedophilia. There are genetic components to one's risk for heart disease, however I don't see the State stepping in and forcibly sterilizing folks from passing on that genetic factor to their children.

I will grant you that choosing to address the issues of any arbitrary "class of people", e.g. categorization, doesn't work too well. We're not talking about something arbitrary. There are other factors which makes this class of people an important "class". They are consenting adults, they are citizens, they wish to marry who they love. They also exist. They are not hypothetical cases. It's easy to imagine a hypothetical case where the outcome is clearly undesirable.

Third, the slippery slope argument. You must demonstrate that what we get will really fall down that slippery slope. It isn't good enough to generate hypothetical cases to make your claim. You must show real empirical data demonstrating the pattern of "badness". For example, if children are the risk of being defined as fully fledged citizens, then you might be able to make a slippery slope case for adult-child marriage. Another example, if it looks like animals will be defined as citizens, then you might be able to make a slippery slope case for human-animal marriage. If it looks like dirt will become a member of society, then a slippery slope case for human-dirt marriage could be argued.

If I'm not mistaken, the judges ruling only paved the way for an official law legalizing gay marriage, so let's not jump that gun.

Now that California has made motions to legalize gay marriage is it likely for a group of states to come together and push a bill legalizing it before a vote for a ban ever comes to a vote in Congress?

I don't think a group of states are gonna make a push together for this. At lst reccolection, the concept of gay marriage is opposed about 2 to 1. What will be interesting though, is not whether or not this goes nationwide, but how the states that do not official legalize it react to having to recognize it via the full faith and credit clause. Will they have to provide the same benefits that the states that have legalized it do?

Is Judge Kramer within his right to lift the ban on gay marriage in California? Also, do you believe he truly has the best interests of everyone at heart? Why or why not?

I can't really say. If something appears to violate the civil or human rights of the citizens of a state or nation, I imagine that it's a judge's duty to call a spade a spade and put things on the right track. I do believe that the US Supreme Court should weigh in on the matter though.

Do you support the actions nullifying the ban? Why or why not?

Yup. There's no logical explanation, none put to this day, that can justify the denail of someone's Constitutionally affirmed right to the pursuit of happiness.

Will activists who support traditional marriage manage to appeal and win back the ban on gay marriage in California? Why or why not?


Well, from the L.A. Times piece I read, they will appeal, but I imagine they'll have a hell of a time because all one has to do is say "seperate but equal", and the judges will have no option other than to uphold the judge's ruling.

Now that California has made motions to legalize gay marriage is it likely for a group of states to come together and push a bill legalizing it before a vote for a ban ever comes to a vote in Congress?

You will likely see any state that has Civil Unions or domestic partnership benefits (read: Vermont) challenge a ban on same-sex marriage -- as this was one of the reasons that the court deemed the ban unconstitutional. As I've stated in another thread, and Kramer acknowledges in his opinion, to allow the benefits of marriage for gay couples and yet not allow gay couples to get married creates a suspect class of citizens. It also makes the reasons for limiting marriage to a man and a woman seem irrational. There is nothing in the current contract of marriage itself that can be seen to necessitate the limitation. As I've pointed out in another thread and as Kramer notes in his opinion, nothing beyond history and tradition seem to maintain this limitation and there seems to be no reason to keep it, especially when the State appears willing to give the benefits of marriage to them anyway.

Is Judge Kramer within his right to lift the ban on gay marriage in California? Also, do you believe he truly has the best interests of everyone at heart? Why or why not?
He is certainly doing his job in making the decision. One reason the court's exist is to challenge the constitutionality of laws.

Do you support the actions nullifying the ban? Why or why not?
Yes. For the answer to why, there is a huge thread called "The History of Marriage" in which I explain my reasons:

1. There is nothing in the current marriage contract that necessitates the exclusion of same sex couples (for all those textualists out there).

2. Traditional laws regarding marriage have changed in the past.

3. The slippery slope argument is a fallacy.

Among other reasons.


Will activists who support traditional marriage manage to appeal and win back the ban on gay marriage in California? Why or why not?
Who's to say. California's support of domestic partnership benefits puts the ban on weak footing.

The problem with this line of argument Logophage is that you refuse to acknowledge that marriage has always, in some way or another, been linked to procreation. Throughout history, governments and societies have carved out "exceptions" to the universal understanding about marriage. But this is the first time that a group is trying to make the argument that they are one of these "exceptions" when they don't have the capacity to share the one universal characteristic that defines marriage: the link to procreation. The definition of marriage looks first to this link to procreation. The definition is broad and will encompass some individuals that do not procreate, but as I stated in a prior post this is the exception to the rule. Gay marriage advocates seek to turn the definition on its head by basing their argument on the exception to the rule of marriage as opposed to the universal component. This is why gay marriage changes the definition itself and is not just a plea to eliminate an exception.

I find it disturbing that Judge Kramer ignored established case law in California that explicitly recognized the importance of procreation to the marriage contract. The State cited numerous cases spanning half a century where California courts dissolved the marriage contract based on what they viewed as an essential term: "procreation". These were cases where courts in California had seen fit to dissolve a marriage because one of the "signatories" (for lack of a better word) fraudulently misrepresented something having to do with procreation (ability to have children; that the child was the product of the union etc). With a wave of his magic wand, Kramer declared that these cases had nothing to do with procreation and had only to do with "fraud". OK. Understood. The cases were based on fraud. But his reading ignores the fact that a contract is not dissolved unless an essential term is misrepresented. That essential term had everything to do with procreation in all of those cases. How he could ignore this is beyond me. Of course, if you want to get to point C from point A and point B is in your way-- I guess the only choice you have is to ignore point B as if it does not exist. And that is what he did. Not very intellectually honest and not very good jurisprudence.

I do not understand why it is that you refuse to accept that there the concept of procreation is not in any of the laws that govern who can enter into marriage. Procreation is never even mentioned in these laws. There is no law that requires the ability to procreate in order to enter into marriage.



I have yet to find a definition of marriage in any dictionary that mentions procreation. There are some that mention a union between a man and a woman, and some that do not, but none mention procreation. The only universal truth in the definitions of marriage is the ABSENCE of the concept of procreation.

The procreation argument is a strawman argument, pure and simple.



There are miles of case law covering marriages being dissolved (I assume you mean Divorce and not the Catholic church's version) because one party misrepresented their finances to the other, one party misrepresented their past activities to the other, one party misrepresented their employment to the other, one party misrepresented their willingness to compromise to another, etc. All of these are examples of fraud, and none of these, as with procreation, have anything to do with the specifics of a marriage contract, or the laws that govern who can enter into them. The judge hit the nail right on the head here. The opposition to same sex marriage was clearly reaching.

The whole idea of the sanctity of marriage has already been a joke for years in America. People divorce because they were drunk when the wed, because they want to have sex with other people, because they can't agree on how to hang the toilet paper roll, make the bed, etc. The sanctity of marriage was destroyed by Heterosexuals decades ago. I fail to see how allowing another group of people to enter into this sort of contract would in any way worsen the situation.

Overland Sailor, try and separate your personal beliefs that gay marriage should be legal, from the analysis here. If the link to procreation is not the universal characteristic underlying marriage-- what is? What characteristic has always been present in all marriages? The opposite sex of the participants. Why has the oppositie sex of the participants always been a constant--- because of the potential for procreation. Even if you don't want to accept that marriage is linked to procreation you still must start from the fact that the universal characteristic is the opposite sex of the participants.

What in your opinion is the universal characteristic always present in marriage?

Please respond to this question as it forms the basis of the arguments.

Identifying the universal characteristic of marriage is the point where we start in analyzing whether the ban on gay marriage is an "exception" or a "redefinition". Gay unions do not have the universal characteristic present in all marriages so they are a redefinition of marriage. This makes a difference when it comes to an equal protection argument. That doesn't mean we as a society cannot redefine marriage, it just means that constitutional law is not the place to do it.




This is where you and Judge Kramer lose me as you push through the looking glass. Fraud in a contract is based on misrepresentation of an essential element of that contract. How else do you think a court determines there was fraud? It means that the thing that was "misrepresented" in the contract was an essential term of that contract. A marriage is not going to be dissolved because one of the participants fraudently lied about the color of his car, because that is not an essential term of the contract of marriage.

I suggest you take you own advice. As a legal professional you should have a better understanding of the issues here in regard to the law. It is your personal bias that is clouding your professional reasoning IMHO.




A contract between two people swearing before all, that they will stay together and support each other forever.

There have been examples presented here in various topics of the existence of state recognized unions between same sex couples in history. So "the ability to procreate" has not UNIVERSALLY been part of the institute of marriage. Also, being between "a man and a woman" has never been a universal part of marriage because of the unions mentioned above, as well as the fact that marriage has been between "a man and many women" for a good portion of recorded history.

Secondly, even if it was a "universal" part of marriage (which in my opinion it is not), then we regularly make exceptions for couples where one member cannot have children, both cannot have children, it is in the best interest of the state that they do not have children (as with MS carriers for example) or that simply choose not to have children. To make an exception to one group of people in regard to something that in your opinion is a "universal" part of marriage, and not another group is clearly a case of discrimination, especially in the state of California where equal protection is so clearly addressed in that state's constitution.

Now my turn.

hayleyanne, where exactly in the law do you in your opinion find any support for the concept that procreation is a "universal characteristic" of and has always been present in marriage?

Please respond to this question as it forms the basis of the arguments.

You have failed to prove this point in countless debates on the subject and yet you insist on continuing to present it. Then you actually question my bias on the matter. Then you, as a legal professional, cannot support your legal position based on the law, any law. Is that not an example of bias clouding reason?



An essential element in the contract of marriage is the honestly of the participants. Come on now, marriage requires an intimate level of cooperation between the two parties. If one fails to be honest prior to the marriage, then the entire foundation of the marriage which is made up of TRUST and LOVE begin to fall apart.

If we take your argument to the logical conclusion then how someone hangs the toilet paper roll, drives, drinks, etc must all be essential element of that contract because the states have allowed divorce of marriages based on all these various issues. The essential element of the contract that is at issue here is the honesty of the participants.


Edited to add: Wow, this is my 900th post. I honestly never thought I would be hanging around that long. And I know that milestone is seen in a rather different light by my wife. "just a minute dear".

That is why I was careful to say between opposite sexes and not between a man and a woman.

.

I have no problem making an "exception" for gay marriage but not by way of the constitution's equal protection clause or due process clause.





This is true in the modern day of no fault divorce. But the precedent that was cited in the case had to do with dissolving marriages when you had to have grounds for it. The california courts recognized misreprentations relating to children as grounds then because it involved an essential element of the marriage contract when no fault divorce did not exist. This means that the Californial courts have indeed recognized that marriage is related to child bearing. You and Kramer can't get around that block.

Maybe the potential for procreation has something to do with it.

But it has more to do with the fact that up until recently, the majority's irrational perception of homosexuality as unhealthy and/or profoundly aberrant was so widespread that they could enforce their logically unsupportable exclusion of homosexuals by sheer weight of numbers.

And also carefully ignored the existence of SAME-SEX marriages in history, as in Rome.

source

It is interesting to note that much of our law today can trace its historical roots back to Rome.



OK then:

A> what would you base this exception on?

B> why do you feel the equal protection clause of the California state Constitution does not apply?





OK, so what you are saying then is that modern precedent for divorce somehow does not apply? Most states have recognized financial misrepresentation as a basis for divorce in the past as well, but I fail to see were marriage law, as in who can enter into it, mentions finances anywhere.

Here is the opinion of others on the subject:

Grounds for annulment vary slightly from state to state. Generally, they may be obtained for one of the following reasons:

source

So it would appear that Concealment and Misunderstanding are considered grounds for civil Annulment (as in the marriage never existed) in most states.




I am not surprised that you chose to ignore a question that "forms the basis of the arguments" or respond to my answer to the same question. Does this mean that your argument(s) have no basis? Until you provide one I will have to assume so.

source - "when nations die"

For our younger readers, the descriptions above are that of the decline of the Roman Empire, and the author notes other parallels, leading to the conclusion that what happened in Greece, Rome, Egypt, Carthage, and many other civilizations can happen to us. I'm just sayin'.

Please spare us the rhetoric about procreation hayleyanne. Marriage has been a lot of things through the course of history and during many periods of history it actually had very little to do with procreation and very much to do with property, politics and power.

Even today it isn't about procreation for plenty of straight people. I didn't get married because I was eager to start popping out kids and live life in suburbia. In fact my wife and I have no intention of having kids in the forseeable future (even though we are both able to) and if it gets to late to do it naturally we'll adopt (if we ever decide to take that path). That is not an uncommon scenario today either. A lot of the people I went to school with growing up or have worked with over the past several years have had similar attitudes about it. And before you say that is a "liberal" thing to say - I grew up in Texas (not known for liberalism) and have worked in probably 15 states - it is about our generation more than anything else.

Procreation is in no way a requirement for marriage and what I find very interesting is that since you cannot dispute the validity of the ruling in California you have now turned to making arguments why it is wrong based on your morals and your understanding of federal law.

It is pretty simple - this thread is specifically about gay marriage in california and this court ruling. It is not about your or anyone's feelings on the morals of it or what any other state or even the federal government has to say about it.

The portion of California's version of the Equal Protection clause which I have cited repeatedly makes this case pretty open and shut regardless of the other issues the judge commented on in his ruling.

I'm guessing that gay marriage will be legal in California in a year to two years, either through a legal decision by the CA Supreme Court or through legislation planned for introudction in the legislature this June and set for the ballot this November, and the country won't go to hell in a handbasket as a result.

There is not an occurrence in American history where a judge has ruled in contradiction of the public that a freedom has been advanced. The majority needs to accept the change and if the majority doesn’t support the change then the new freedom or rights will be in vain. That is democracy! On the other hand in a republic the government may rule in the best interest of the country but in the case of gays it has been to keep them in the closet. I personally think that is a good thing the congress elected to point out the gays in the military should not say or tell because it is in the best interest of the United States of America for gays to stay exactly in the closet until they represent they have earned a right to be equal to other citizens.

To me gays should have the rights equal of other citizens but the right to marriage or even civil union serves no purpose. I agree gays should educate the community why they deserve such rights and stop waiting for a judge to rule they have the rights. I don’t think gays can make the argument they deserve the right to marriage since they have co-existed in American society throughout history without the right. Fight for rights is usually followed by the rights be it women’s rights or MLK peace marches. Yet, when judges “give” rights not earned in the eyes of the majority and the agenda will flounder as it did in the black community.

I'd also refer you to the harm and ethics thread for more of my thoughts on the same subject. You cannot legislate or litagate love and understanding!

I don't dispute that marriage has been about all those things--power, politics, property etc. But I can't see how you dispute that the universal in all of it is the union of man and woman. Granted, sometimes the union is one man and several women but the constant is the opposte sexes coming together. And for what reason? Procreation is the only reasonable explanation. Anyway, if the opposite sex piece was not a universal-- why on earth would we not have had same sex marriages -- throughout world history. And not just the examples some have cited to about various bizarre rituals or the condoning of homosexuality itself in some instances. This is why I keep coming back to this issue. I cannot accept the line of analysis set out by gay marriage advocates in the courts. They would have you assume that it is a civil rights issue; the lifting of an "exception" or "exclusion" instead of a redefinition. Start from the point of calling it a redefinition and I and other conservatives will be much more amenable to the arguments raised. I hold no strong opposition based on morality here because I understand that there is a difference between civil and religious marriage. My problem with it is I see it as a "special interest" group (think your governor here ) trying to bend the Constitution to serve its purposes. I have even gone so far as to offer more acceptable arguments for gay marriage. For example, that the government has an interest in regulating gay unions. If it were legalized by a state through its legislature, I would accept it.




I am not sure what your "generation" is. I just turned 43 so I can tell you about my generation. Many in my generation held the same view--having kids was the last thing they were thinking about when they got married. It was easy to put off having kids and now in their 40s they are "popping" out quadruplets. The point is that whether you marry to have a family right away or wait, most people ultimately make the decision to have a family. Marriage is "linked" to procreation for lack of a better word. That is the reality. Marriage does not force procreation it just recognizes that family and kids is usually what comes from marriage and it provides an organized framework for the resulting family that is produced.



Can't dispute the validity of the ruling? Have you read my posts? Have you read the Kramer opinion? Everything I have been saying has to do with disputing the legal analysis set forth in that opinion. I have not brought my moral perspective into this at all. If I was "morally" against gay marriage, how could I say I would accept it if legislatively enacted?

Really? So I guess the majority of people supported desegregation during the civil rights era Ol Sarge? I'd also say that support for abortion probably wasn't in majority status when Roe v. Wade was passed. Judges have occasionally made calls that were unpopular at the time.


You said that you agreed the law was in violation of section 7 of the CA Constitution. In my opinion that closes the case right there, the law is unconstitutional. The judge included a lot of other things in his opinion, mostly to rebut the arguments made by the other side. I don't consider those at all relevant to the core issue.

I seem to recall having a rather long debate with you on this issue. You have yet to illustrate any exclusive connection between the marriage contract (as it exists in law today) and procreation. Have you suddenly found something in the current marriage contract that relates exclusively to procreation -- beyond assumed paternity (which again, only applies should a couple choose to procreate and is not an obligation in some states) -- as there has been in the past. Historically there were obligations in the marriage contract that related to procreation, but they no longer apply. Yes, the cases that were mentioned regarding the annulment of some marriages because of fraudulent claims regarding procreation deal with procreation, but only as an object of fraud -- not defining procreation as essential to marriage. If you are going to continue to insist that today there is some connection beyond assumed paternity and beyond a historical connection, please point to it. You've been asked several times to do this in another thread and have either ignored the issue or simply refused to answer. I am hoping you will now point to some exclusive connection or stop claiming there is one without backing it up.

Also, if it is a redefinition of the marital contract to include same sex couples, you need to show what in the marriage contract itself is redefined -- what changes? You can't point to the law that defines who can enter into that contract, but to the contract itself. If you can, then you have a case for calling it a redefinition -- otherwise, you don't. This is also something posed to you in that same thread to which you failed to respond.

Since hayleyanne seems unwilling or unable to elucidate on this particular topic, I will use what she has written as the core argument. Specifically:


Hayleyanne is attempting to make a "common sense" argument that marriage is fundamentally about the union of a man and woman as it relates to procreation. Her justification is that it is the only reasonable explanation. However, this is a false claim. Let's look at other reasonable explanations:

1. Marriage is about the state sanctioning love between two adults. That is, 90% of the population is heterosexual, thus the dominate form of marriage will be heterosexual; it will always be. Certainly, state sanctioned love between adults can be considered a reasonable explanation.

2. Marriage is about asset pooling. The idea of each party co-owning each other's assets is an old one. Sometimes these assets are gifted by the families of the parties to be married. This is also a reasonable explanation.

3. Marriage is about improving societal stability. The state has an interest in encouraging citizens to "invest" in the state itself. Marriage demonstrably correlates to home ownership. And so the theory goes, property owners are less likely to be the ones "rocking the boat".

None of these explanations involve procreation. Procreation is itself a very problematic criterion. First, the number of single (unwed) parent households belie the converse, that is, that procreation depends upon marriage. Second, the number of married couples who don't have children belie the initial assertion, that is, marriage depends upon procreation. In other words, people may procreate without being married and people may be married without procreation. All this means that you have your work cut out for you trying to prove your "common sense" argument because as far as I can tell your only reasonable explanation is neither "only" nor particularly justified.

But, for the sake of the argument let's go back to procreation as the only reasonable explanation. If this is the case, then how do you reconcile the rise of surrogate mothers and sperm banks? Clearly, infertile married, heterosexual couples are not the only ones availing themselves of this technology. This is to say nothing of folks who get married knowing there is no capability of procreation, specifically post-menopausal women. Then, of course, there's adoption which does perhaps involve procreation but not that of the prospective parent(s).

Anyway, all said, I question your "common sense" argument. It is not manifestly obvious to me that it works or is even relevant. It seems that you are giving people who "procreate" a special classification. You are then trying to narrow the notion of marriage to involve only those in this "special class" who are given special rights. In other words, you're doing just what you've been arguing against.

logophage,

Historically, the laws did reflect an exclusive connection to procreation. I've stated all this before in another thread, but I'll restate it here. Historically, it was illegal to have sex unless you were married, it was illegal to have sex with anyone other than your spouse, it was illegal to engage in any sexual activity that didn't involve possible procreation, it was illegal to use contraception to prevent procreation. This connected procreation to marriage. These laws, however, either no longer exist or are very rarely enforced (adultery and fornication, in some states). But there is nothing in the current marriage contract that necessitates the "one man, one woman" definition when it comes to stating who can engage in the marital contract.

For Logophage and Entspeak.

First off, entspeak, I acknowledge that current marriage law (alone) has no obligations associated specifically with procreation save for the assumed paternity statutes we have discussed.


However, I ask both of you this question:

What interest does the state have in recognizing marriage at all?

That is the root question in my opinion. As I have stated in this and other threads, "marriage" is not just a bundle of rights that the state chooses to dole out-- it must have a reason, an interest in doing so.

So, please answer that question. Why has the State been in the business of regulating marriage at all?

Maybe if we can talk about the answer to this question-- we can make some head way in this debate.


I also want to respond to some of your comments below:



But don't you see that this is important to the analysis? The fact that California courts have recognized that the basis for the fraud in dissolving the marriages related to procreation? The courts basically recognized that an essential element of the marriage (fraud can only be based on the misrepresentation of an essential element) related to procreation. The argument made by the State was that:

"Opposite sex marriage" is deeply rooted in California history and as such a court cannot call it "absurd" under the rational basis test. Surely you can see the argument?

By holding, as Kramer does, that opposite sex marriage is "absurd"-- can you not see that he is crossing the line --given the california case precedent? If you cannot see that his holding on this particular point is flawed--then you are ignoring what the "rational basis" test is supposed to be.