Sunday, February 12, 2012

Prop 8 Revisited


An interesting week on the gay marriage front. In 9th Circuit Court of Appeals, California's marriage amendment Prop 8 was struck down again. Part of me is so glad I chose to not go into law. Reinhardt, author of the majority opinion, wrote that "the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class." He explains that enacting such a law is beyond the ability of voters and their representatives. That's a sticky statement and the implications are a touch too paternalistic for my taste.


I don't know how big of a difference there actually is between taking a cookie away after it was given and never giving the cookie in the first place, but apparently the difference is big enough attempt a deed worthy of Chuck Norris and declare the constitution unconstitutional.


"Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already committed to same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds."

Since judges aren't supposed to be politically motivated, and theoretically can't declare the constitution unconstitutional, United States District Court of Northern California left many people scratching heads trying to figure out how the constitutional amendment added to California's State Constitution by popular vote was dismantled by plaintiffs and United States District Chief Judge Vaughn R Walker (never mind that he himself is gay) when Proposition 8 was challenged back in 2010.

Chief Judge Walker couldn't just come out and say the constitution is unconstitutional (the jovial masses might chortle at such an oxymoron), so he walked through the back door and tell the public that popular vote can't possibly amount to anything since the populace was not fed the same arguments that were presented in court.  The court proceedings proceeded dismally from the first day for proponents.  Four of the six expert witnesses, Loren Marks, Paul Nathanson, Daniel N Robinson and Katherine Young, decided not to testify after all.  Perhaps they feared the same pulverizing attack that shattered the testimony of the remaining two witnesses David Blankenhorn and Kenneth P Miller.

Blankenhorn was founder and president of the Institute for American Values and testified on marriage, fatherhood and family structure.  Walker decided that Blankenhorn "lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions." Blankenhorn stated that 1.) allowing gays to marry will deinstitutionalize marriage, 2.) kids raised by parents biologically related do better than those raised in other environments, 3.) that his research has led him to conclude there are three universal rules that govern marriage that will be violated: (1) the rule of opposites (the “man/woman” rule); (2) the rule of two; and (3) the rule of sex.

Unfortunately, Blankenhorn did not research the biology of #2 so that opinion got thrown out, he couldn't provide a rebuttal to plaintiff's definition of marriage so #3 got thrown out. In reponse to #1, Walker stated, "To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization, his opinion is tautological. Moreover, no credible evidence supports Blankenhorn’s conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization."

Miller, a professor of government at Claremont McKenna College, fared only marginally better because "Miller admitted he had not investigated the scope of private employment discrimination against gays and lesbians and had no reason to dispute the data on discrimination presented" by plaintiffs. "Miller did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question."

To sum, all of the proponents' arguments, opinions, and witnesses were systematically destroyed and only the plaintiffs' weighed in on the now very lopsided scale. It makes me wonder just how defensible opposition to gay marriage is.

Of course you can say that gays can't ruin the concept of marriage any worse than heterosexuals have.  And you'd probably be right. And honestly, the Church does not need a tax exempt status to exist because if God wanted, He could let the prophet know where a mountain full of gold or oil is to take away the financial burden.

In fact, I am hard-pressed to find any defensible logic that opposes gay marriage although t tries and makes some very good points that could be the correct response to the mysterious "discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court." LGBT advocates should know that members of the Church of Jesus Christ of Latter-day Saints oppose gay marriage because God, through His prophet, commanded us to.

As difficult as it is to find defensible logic that refutes gay marriage, it is impossible to find one that supports it that can't also be used for other obscure unions. One example of many, the plaintiff's expert witness Edmund Egan, the chief economist in the San Francisco Controller’s Office, said during the proceedings that allowing gays to marry will increase revenue for the city and state through payments for an increased number of marriage certificates. Perhaps a group of five individuals (why not 3 girls and 2 guys?) wish to enter into a group marriage. That would have to be 2.5 times the revenue from the same marriage certificate, right?

It seems to all come down, at the very least in a progressive logical argument, to where you draw the line. I draw the line before gay marriage, group marriage, and bestial marriage. Others may draw the line where they will.

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