Proposition 8 overturned
Posted: 04 August 2010 08:04 PM   [ Ignore ]  
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A California judged ruled against proposition 8, today. He called it divisive and discriminatory, an apt description. He also pointed out that basic civil rights were not subject to a vote, another very appropriate statement. I wonder how the Mormons and Catholics, which spent tens of millions of dollars to fight gay civil rights, will respond. I have no doubt that they will appeal, although I hope the clear logic and facts that were spelled out in the initial case will continue to prevail. I do hope the bigots squeal.

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Posted: 07 August 2010 07:08 PM   [ Ignore ]   [ # 1 ]  
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i just finished reading the entire decision.  it is beautifully reasoned out, almost like reading Sam Harris.  i kept trying to find ways for Justice Scalia to dissent, but without exposing his religious bigotry, it will be impossible for him to oppose this ruling.  i suggest everyone read it.  it’s very thorough and totally rational.  Judge Walker is a true hero of civil rights.

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Posted: 17 August 2010 10:21 AM   [ Ignore ]   [ # 2 ]  
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Goodness. I can’t believe that this kind of debate is even happening in America.  Gay rights are inherent, much like civil rights for the straight person.  Sanctity of marriage?  Definition of marriage?  By who?

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Posted: 21 August 2010 10:31 AM   [ Ignore ]   [ # 3 ]  
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There are a couple of interesting wrinkles to the opinion, although they may only be interesting to lawyers and some gay rights activists (I’m a heterosexual lawyer, and I happen to think they’re interesting). 

First is the role of “immutability” in the history of gay rights.  “Immutability” has historically been asserted to leapfrog the objections of people who think gay conduct is immoral, by jumping over their conception of “free will.”  Although most liberals have historically advocated the “immutability” argument and it has been shown to be the biggest pragmatic driver of “tolerance” of gays (in an immediate sense of not getting them killed and grotesquely persecuted), I argue that it’s not truly the liberal position because it is a defense to an intrinsically immoral offense.  It represents gay people begging a Judeo-Christian framework for their rights, rather than a direct criticism of Judeo-Christian morality.  The truly liberal position is a harsh critique of Judeo-Christian morality.

There are additional problems with the “immutability” argument that some gay rights activists and academics have recently pointed out.  For example, some lesbians say they experience their lesbianism as “chosen.”  Should these people not receive constitutional protection?  Moreover, with the advent of liberal eugenics, if the only thing making gayness socially acceptable is that it is immutable, the entire question may very well rear its ugly head again if gayness becomes genetically or biochemically mutable.  For these reasons, while the interesting science into the “immutability” aspect should continue, I think it’s time we stopped resting legal and moral rationales on it.

Compare the “immutability” rationale to how atheists (typically) handle gay rights.  Atheists tend to accept gays because they never had a problem with gay conduct to begin with.  There are not really any arguments against gay marriage rooted in secular ethical philosophies like the branches of utilitarianism, Kantianism, or virtue ethics.  While Jews/Christians/Muslims have to rebut a presumption of sinfulness with the notion of “immutability,” atheists never had this problem to begin with.  In contrast, the Old Testament and Islam clearly consider gay conduct sinful.  So apart from bogus religious arguments, the “immutability” rationale is superfluous.

The second is a legal technicality of sorts that is nevertheless kind of important.  Although Judge Walker disposed of the case using rational basis scrutiny (i.e., does the gay marriage ban have any rational basis? No.), he mentioned in dicta that homosexuality should be a class protected by the much higher standard of strict scrutiny.  Dicta is not a great thing for judges to do generally, but I find this dicta especially problematic.  In Perry and the earlier Massachusetts case, gay marriage bans were knocked down on the basis of rational basis scrutiny alone.  The factual underpinnings of the arguments for them are entirely bullshit, as Judge Walker noted, so they don’t even survive rational basis scrutiny.  Rational basis scrutiny has a good track record on this issue.

The problem I have with applying strict scrutiny is that it has historically otherwise been reserved exclusively for immutable characteristics like race and national origin.  Because the “immutability” rationale may well fall by the wayside in the long term (for the reasons mentioned above), I am worried that strict scrutiny as applied to homosexuality would eventually become understood as protecting a class of conduct.  And—here’s how, to come full circle, it’s relevant to this blog—the next group that would demand this kind of class protection would be religious people.  If religiously motivated conduct became a suspect class protected by strict scrutiny, we would have a real problem.

[ Edited: 21 August 2010 10:59 AM by Reece]
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Posted: 21 August 2010 12:51 PM   [ Ignore ]   [ # 4 ]  
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Reece - 21 August 2010 02:31 PM

There are a couple of interesting wrinkles to the opinion, although they may only be interesting to lawyers and some gay rights activists (I’m a heterosexual lawyer, and I happen to think they’re interesting). 

First is the role of “immutability” in the history of gay rights.  “Immutability” has historically been asserted to leapfrog the objections of people who think gay conduct is immoral, by jumping over their conception of “free will.”  Although most liberals have historically advocated the “immutability” argument and it has been shown to be the biggest pragmatic driver of “tolerance” of gays (in an immediate sense of not getting them killed and grotesquely persecuted), I argue that it’s not truly the liberal position because it is a defense to an intrinsically immoral offense.  It represents gay people begging a Judeo-Christian framework for their rights, rather than a direct criticism of Judeo-Christian morality.  The truly liberal position is a harsh critique of Judeo-Christian morality.

i’m not a lawyer, but i found your post very interesting anyway.  i am totally in favor of the harsh critique of judeochristian morality.  it’s about time the dirt is dug up and presented for the trash it really is.  the judeochristian morality is the worst kind of morality there is, excepting of course the islamic kind.  this entire theistic crap is what’s keeping mankind from advancing.  it ought to be exposed for what it really is—ancient prejudices, fears, and biases, based on a tribal mentality in an antique time and an antique land (re: Ozymandias).

just because “it’s always been this way,” doesn’t mean it always has to be this way.  it’s time to reorder our culture.  immutability for the religious would be anathema.  the harsh critique is the only rational way to go.  pull no punches; quote the “holy” books—that should do the job for us right there.

i’m not homosexual, but i’m anti-anti-homosexual.  my Great-Uncle Larry was homosexual way back when, and he was a really terrific and interesting fellow.  i didn’t know what homosexual was; i just knew he lived with my Uncle Morrie.  they were quite a pair, those two.  Uncle Morrie is buried with the rest of my family, while Uncle Larry and Sam (his last partner) had their ashes scattered in the Atlantic at South Beach.  it’s in part because of my Uncle Larry that i am so fervent about this topic.

you are right, though, Reece, that atheists/nontheists have no problem with homosexuality.  and if god/s say so, then screw those gods.  they are not immutable.  if there really are a heaven and a hell—which i do not believe is true—then i’m going to hell for the company.

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Posted: 23 August 2010 02:12 PM   [ Ignore ]   [ # 5 ]  
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I am not against gay marriage or homosexuality in general for that matter, but I once heard an interesting argument against gay marriage that to sum up stated marriage was a religious affair and aught abide by the values set by said religions. Now, as I have stated it the argument looks god-awful I’m sure, but trust me there are many who feel this way - and few who can argue fairly well to support it. Below I have some quotes on the issue, from the athiest-marriage perspective…

“The problem is, this perception of marriage is rather inaccurate. It is true that religion has a lot to do with marriage as it is commonly practiced in many countries, including the United States, but that doesn’t mean that this relationship is inherent or necessary. The key to this question is understanding that the way things are normally done is not necessarily the way they must be done or the way you should do them…”
More at http://atheism.about.com/od/atheistsweddings/a/whymarry.htm

Now to see if Wiki thinks Marriage is religious!

“Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union, often formalized via a wedding ceremony, may also be called matrimony… People marry for many reasons, including one or more of the following: legal, social, emotional, economical, spiritual, and religious”

How about this… if some religion wants to ban gay marriages from taking place in their churches - power to them! But as long as the State is separate from said religion, then two men surely can find other places to marry and no religion should be able to stop them.

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Posted: 25 August 2010 12:47 PM   [ Ignore ]   [ # 6 ]  
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Reece - 21 August 2010 02:31 PM

The problem I have with applying strict scrutiny is that it has historically otherwise been reserved exclusively for immutable characteristics like race and national origin.  Because the “immutability” rationale may well fall by the wayside in the long term (for the reasons mentioned above), I am worried that strict scrutiny as applied to homosexuality would eventually become understood as protecting a class of conduct.  And—here’s how, to come full circle, it’s relevant to this blog—the next group that would demand this kind of class protection would be religious people.  If religiously motivated conduct became a suspect class protected by strict scrutiny, we would have a real problem.

So why not apply then intermediate scrutiny? As Walker noted, this issue of same-sex marriage relates not only to questions of sexual orientation, but also to gender—though I honestly do not understand the reluctance to apply this scrutiny level on sexual orientation as well. Your input on this would be great.

Also I’d appreciate if you could comment on whether Citizens for Equal Protection v. Bruning has any legal relevance to this current case on appeal.

[ Edited: 25 August 2010 01:06 PM by queefsr4quitters]
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Posted: 03 September 2010 09:06 AM   [ Ignore ]   [ # 7 ]  
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As you point out, Judge Walker seems to say that his Perry outcome could be based entirely on gender discrimination.  In other words, there are two independent grounds for finding Prop. 8 unconstitutional.

I think Citizens for Equal Protection is interesting because the District Court Judge took quite a different tack from Walker.  He claimed to be applying rational basis scrutiny, but the Court of Appeals decided that by treating it like the Colorado constitutional amendment in Romer he was effectively applying strict scrutiny.  The Court of Appeals found that the Nebraska constitutional amendment survives rational basis scrutiny for these two reasons:

(1) “The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry.”  Opinion at pg. 9.

(2) “But it is also based on a ‘responsible procreation’ theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.  See Hernandez v. Robles, No. 86, 2006 NY Slip Op 5239 at 5-6 (N.Y. Ct. App. Jul. 6, 2006); Morrison v. Sadler, 821 N.E.2d 15, 24-26 (Ind. Ct. App. 2005).”  Opinion at pg. 9.

The Court said that “[w]hatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification ‘lacks a rational relationship to legitimate state interests.’”  I think the Court is shirking its role a little bit.  A “traditional notion” is not a substitute for a factual foundation.  We also had a “traditional notion” that black people shouldn’t drink at certain water fountains.  I think what Judge Walker did well—and he’s gotten quite a bit of credit for this—is lay out a solid factual foundation for his ruling.

The “‘responsible procreation’ theory” is a bizarre bit of moral gymnastics from the Christian crowd.  This seems to argue that being raised by a married couple is good for children, and since heterosexual couples who regularly have sex can accidentally become pregnant, while homosexual couples who regularly have sex cannot accidentally become pregnant, then the benefits of marriage are geared toward heterosexual couples to advance the raising of unwanted children in married homes.  My answer to this would be that the moral answer to a truly unwanted pregnancy is sadly often exercising one’s choice of an abortion as soon as possible; it is not a coerced marriage leading to faulty child-rearing.  Of course, the same crowd is also completely anti-choice and doesn’t place much emphasis on children’s education.

I generally find the Christian crowd’s use of the word “procreation” troublesome because one often finds a fallacy of equivocation following on its heels.  In the word “procreation,” they tend to conflate reproduction with child-rearing.  They like to switch back and forth in the middle of an argument.  So, for example, they’ll argue that the “purpose” of marriage is to encourage “procreation” where by “procreation” they actually only mean child-rearing.  But the only reason homosexuals can’t rear children (e.g., adopt children) is because the same crowd prohibits that as well.  (Religions are very good at this—claiming to solve problems that they created.  See, e.g., The Onion’s “War-Torn Middle East Seeks Solace in Religion”—http://www.theonion.com/articles/wartorn-middle-east-seeks-solace-in-religion,2027/).  Then they’ll switch to the “reproduction” meaning, but that also doesn’t make sense because very few people believe that underpopulation is an urgent global problem and we also know about assisted reproduction.  So the “procreation” argument is entirely bogus.

[ Edited: 03 September 2010 09:12 AM by Reece]
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Posted: 06 September 2010 02:18 AM   [ Ignore ]   [ # 8 ]  
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Is a factual foundation necessary to legally overcome the rational basis scrutiny test?

Also, what is your comment on why it isn’t being put through intermediate scrutiny?

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Posted: 14 September 2010 03:45 PM   [ Ignore ]   [ # 9 ]  
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Prop 8 never made sense from the very beginning.

“They’re homosexual???!!!?  Stop them!!1!!!!!1111” said the religiously deluded primate.

I’m actually glad all of the religiously blinded fools wasted so much money on this attempt; it shows how much they’re willing to lose, then realize they’re still failing in the mind.  Maybe this will be a “lesson in life” for most of them?

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