Comments on: California’s Prop. 8: Let the Court Battles Begin

By: Mike (PC)

Mike (PC) — Fri, 21 Nov 2008 19:51:13 +0000

As I’ve said before, while I think gay mariage is inevitable and I am cautiously optimistic that it won’t cause the collapse of society, I think plural marriages would be the logical next step and I see their case having perhaps even more validity.

By: Kris

Kris — Fri, 21 Nov 2008 17:34:29 +0000

Good point there, Mike. But in thinking about it, I realized that that’s another case of the difference religious marriage and secular marriage. You can already get married as many times as your religion allows, but that doesn’t mean the state will accept it when it comes to rights conferred by marriage. The state doesn’t prevent you from cohabitating with multiple people you would call spouses.

Gays could argue the relgion aspect, too, since there are churches that will perform ceremonies for gay couples.

Already, both groups can act married (and gays have civil unions in some places) but neither type of union is fully sanctioned by the state. In fact, since the objections to the state recognizing either is primarily religious (or cultural based on religious preconceptions), both really should be accepted for the good of the institution of secular marriage.

By: Mike (PC)

Mike (PC) — Fri, 21 Nov 2008 12:59:21 +0000

From Ames, Either sexuality is immutable – like skin color – or it’s not immutable, but would work great personal hardship to force someone to change – like religion. Both cases are suspect classes.

If that is the case then wouldn’t plural mariage proponents be able to argue their case on religious grounds?

By: didionsmommy

didionsmommy — Fri, 21 Nov 2008 12:47:24 +0000

contrary to my usual disposition, i am feeling hopeful about the pending state supreme court case, and more important, let’s not forget the attitudinal shift among voters in california.

(perspective: prop. 8 polls were pointing to defeat — albeit very close — just before the election. although the prop won, it was very close compared to prop. 22. in 2000 polls were very close, but election results blew them out of the water. on another thread there was discussion of a bradley effect re: gay marriage. true in 2000; not so much in 2008.)

i also feel confident that there will be resolution re: immutability. the court might have been able to avoid pronouncement, but this cannot go on indefinitely. while lawrence might not have addressed immutability, look at the evolution from the days — not a generation earlier — when scotus said sexual behavior wasn’t protected. as frustrating as it is that the court hasn’t said sexuality isn’t mutable, it is also reassuring that it hasn’t said (at least recently) it IS mutable.

the door is open.

i think it is important to look at overall trend rather than rely on cross sections; though i don’t want to imply the trend is inevitable. it is where it is now because of vigilance on the part of gay-rights advocates.

By: Ames

Ames — Fri, 21 Nov 2008 02:54:24 +0000

Gotchaye, right, but the problem is SCOTUS has never done it yet. In fact, Kennedy in Lawrence was at pains to NOT discuss the mutability of sexuality. So it remains an open question, sadly. I do think they would have to address it to get to suspect class status, but I think it’s hard to see how it goes the other way. Either sexuality is immutable – like skin color – or it’s not immutable, but would work great personal hardship to force someone to change – like religion. Both cases are suspect classes.

By: Gotchaye

Gotchaye — Fri, 21 Nov 2008 02:52:10 +0000

My understanding is that the courts have effectively done that in every way that matters. The opinions we’ve already seen are justified by claiming that homosexuality is more or less immutable. The California Supreme Court decision I linked to is no exception – it calls sexual orientation a ‘suspect classification’ and repeatedly lumps it in with race and gender. It discusses immutability later on, pointing out that we don’t care about immutability (one’s sex can change, one’s religion can change, etc) as much as we care about how important a characteristic is to a person’s identity.

By: Mike (PC)

Mike (PC) — Fri, 21 Nov 2008 00:58:51 +0000

Ames, obviously you’re the legal student but wouldn’t your arguement (status verses conduct) require the courts to endorse the notion that homosexuality is genetic? Are the courts ready to take that additional step?

If not then both become a matter of choice and then they become apples and apples.

By: Kris

Kris — Thu, 20 Nov 2008 23:39:17 +0000

I don’t think that a revision would have passed the legislature, or that a similar amendment would have passed at the federal level, either. I was considering the hypothetical situation.

As far as this challenge is concerned, what is its basis? As in, is it written into legislation, or is it explicitly in the state constitution? Fortunately, the conditions for a federal amendment are pretty darn strict.

By: didionsmommy

didionsmommy — Thu, 20 Nov 2008 22:35:49 +0000

yes, i saw that same info re: kennard, and i chose to put blinders on, hoping against hope.

and this is going to sound very lame (but i did grow up in l.a.) … i am kinda hoping for this great hollywood ending, where it looks like all is lost but our hero(ine) comes up with some kick-ass argument that moves the justices …

enter swell of music … maybe a power ballad by bon jovi …

run credits …

By: Ames

Ames — Thu, 20 Nov 2008 22:24:11 +0000

Thanks for that Gotchaye… that’s kind of exactly what I was hoping to do, so I’m super-glad that you’ve relieved me of the research. Unfortunately, that’s what I was afraid of, though.

PC – you may be right, and someone will file the challenge, but from a legal perspective, in an argument that I haven’t made here before I think, it’s absolutely apples and oranges. Sexuality carries all the hallmarks of a “suspect class” under the equal protection clause (immutability, history of discrimination, etc.), while one’s numerical preference for spouses carries none. The former is status, the latter is conduct. An equal protection decision constitutionalizing the marriage right would have almost NO bearing on plurality. It’s not exactly a credit to Scalia that he can’t recognize that.