Judge Walker may have made an interesting debate point about gay marriage .But his ruling is flawed and I predict it will be overturned.

Since the people of California had also recognized same sex civil unions ,they had balanced competing interests through the ballot. The Judge is denying them that right .
He fails to show in his ruling how
14th Amendment rights are being denied and instead creates a new right... the fundamental "right " to marry.
The parallel between this and inter-racial marriage is flawed. Interacial marriage is between one man and one woman, where the skin color of the one male and one female are of a different color. Because of the color of a person’s skin, they were treated differently under the law. This, of course, is unconstitutional.

His dismissal of gender difference is bunk. Marriage was a religious institution long before it was co-opted by the state and federal government. Where in our Constitution is marriage a right?Throughout history "marriage "has been defined specifically by the gender difference.
Regardless of what he thinks of it ,the truth is that gender differences are biologically scientifically confirmed ,and not the construct of evolving social mores or judicial fiat.

Bottom line ;the people of California amended their Constitution to say that every adult has a “right” to marry someone of the opposite sex, and NO Californian has a “right” to marry someone of the same sex.There is no 14th amendment argument ,and no US Constitution violation.

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Originally Posted by tomder55

His dismissal of gender difference is bunk.

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Hello again, tom:

We can argue about the other stuff, and I'm sure we will, but I found THIS ruling to be VERY interesting - and truly, true. You disagree. I don't know why.

It's hard to argue that the roles of married partners hasn't changed SIGNIFICANTLY, in just our own lifetimes. In fact, PRIOR to that change, with few exceptions, women were stay at home moms. Now, they're not. In fact, because of that, a mans role in our society changed significantly too. These changes WEREN'T minor - not even CLOSE. As those changes became endemic, we learned that men's TRADITIONAL roles could be well played by women, and that a mom's traditional role could be well played by men. That was NEW. Today, women run Fortune 500 companies, and men take care of babies.

THOSE are the facts. Recognizing that the distinct roles we USED to play, are becoming virtually indistinguishable today, is nothing more than stating the truth. It's NOT bunk. It IS stuff the right wing WISHED had never happened, but you can't deny that it did.

Now, I don't know if that is reason enough to make gay marriage legal. But, I wanted to address your assertion. The issue, in my view, is equal rights for gay people. That stands on its own merits.

excon

His ruling ignores biological fact. The sociological roles of the genders are an interesting academic exercise that has zero role in deciding constitutional law. Since the dawn of humanity, marriage has always been between a man and a woman.In order for the judge to reach his ruling, he had to basically tell Californians that they should ignore this reality.

The judge demonstrates no proof of equal rights violations with his thesis of the evolving roles of the genders. The biological differences have not changed since we were lower primates.
Gay couples can enter into legal, protected civil unions as can hetero couples in common law statutes. So where is the bigotry ? Where is the violation of equal protection ? You can't find it.
What is needed is statutory assurances that all types of one couple unions are treated equally ,not that all types of one couple unions are consolidated into one institution.

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Originally Posted by tomder55

His ruling ignores biological fact. The sociological roles of the genders are an interesting academic exercise that has zero role in deciding constitutional law. Where is the violation of equal protection ? You can't find it.

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Hello again, tom:

From a legal perspective, the biological roles have NOTHING to do with constitutional law. You think it's the other way around.

I can't find it?? Dude! Separate but equal, is by its very nature unequal. If you want TRUE equality, you eliminate the differences. Unequal is what the Fourteenth Amendment is all about.

But, you Constitution loving right wingers want to CHANGE the Fourteenth Amendment, don't you? I thought you guys were STRICT constructionists. I thought you liked it the way it WAS.

excon

PS> You don't have to answer the last part. I was just ranting...

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From a legal perspective, the biological roles have NOTHING to do with constitutional law. You think it's the other way around.

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The judge certainly thought gender differences relevant (heterosexual marriage being "an artifact of a time when the genders were seen as having distinct roles in society and marriage.” )

Tell me ; what is constitutional in his reasoning ? He essentially becomes the sole arbiter of what is good and right about gender roles ,child rearing ,and marriage itself. Forget what the majority of Californians think . Judge Walker has deemed it "beyond any doubt that parents' genders are irrelevant".

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I can't find it?? Dude! Separate but equal, is by its very nature unequal. If you want TRUE equality, you eliminate the differences. Unequal is what the Fourteenth Amendment is all about.

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Brown v Board was decided as it was because SCOTUS correctly determined that there could not be an instance where legal segregation could result in equal access.

This is not the same with civil unions. The same legal privilages apply to both marriage ,civil union ,and common law. There is nothing in Brown v Board that says separate but equal is an unconstitutional principle. Just that it didn't work in segregation .

Separate but equal in education didn't work because it really wasn't equal.One side had high quality, clean schools and the other had low quality, run-down schools.;and it was a literal separation.

This is different. From a legal perspective marriage is a title that implies privilages . If the privileges are the same in civil unions and common law , then the title's, although different, are legally indistinguishable.

Quote:

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Originally Posted by tomder55

He essentially becomes the sole arbiter of what is good and right about gender roles ,child rearing ,and marriage itself. Forget what the majority of Californians think . Judge Walker has deemed it "beyond any doubt that parents' genders are irrelevant". This is not the same with civil unions. The same legal privilages apply to both marriage ,civil union ,and common law.

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Hello again, tom:

He didn't deem anything. You forget, there was a trial. Your side, the side that thinks homosexual gender roles in marriage, are BAD, was required to PROVE it in court. Yes, for the first time in homophobic history, the hysterical side (your side) was required to PUT UP, or SHUT UP. Guess what? They couldn't prove ANYTHING. They called TWO witnesses, and those witnesses were anything but credible. Their testimony was a mockery to expert evidence. I'll bring it up, if you like. I'd be embarrassed to hear it, if I were you.

From a legal perspective, that was a GRAVE error on their part. Findings of fact, which is when the judge finds a witness incredible, AREN'T usually subject to review on appeal. Therefore, the judges FACTUAL finding will stand. Therefore, the losing side has nothing really to appeal on.

In terms of civil union being the same as marriage, the FIRST question one would ask is, if they're the SAME, WHY are they called different things. The LOGICAL conclusion to that question, is they're NOT the same. Civil union, apparently doesn't measure up to marriage. Yes, there's a lot in the name. In fact, it's EVERYTHING. It's what YOU have. Consequently, it's what EVERYBODY has a RIGHT to have. That's what the Fourteenth Amendment says. It couldn't be clearer.

excon

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Originally Posted by tomder55

what the majority of Californians think .

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What does that have to do with this topic?

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Originally Posted by Wondergirl

What does that have to do with this topic?

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In California there is part of the state constitution that allows for the initiative process. And it can become the "peoples" law. That is what the Porposition process is about. It can also overturn laws or amend them.

Ex ,simply stated ,the law was "defended " by a state legal dept run by Jerry Brown and Arnold Schwarzenegger... both of whom opposed the State Constitutional Amendment . Like Eric Holder ,it was their duty to defend the law ,and like Eric Holder ,if they choses to lamely defend the law instead of vigorously defending it, someone like Elana Kagan was assigned to do so.
Judge Walker ruled that proposition 8 fails to advance any "rational basis" in singling out gays for denial of a marriage license.
But Walker provides no "rational basis" for identifying marriage as a constitutional right. You need a license to get married. That puts marriage in the realm of 'privilage ' and not rights'. Licenses are given if provisions for the licenses are met. The people of California made the decion that the marriage license is for heterosexual couples only while at the same time made provisions to satisfy the legal rights of all. It is only because marriage is a privilege and not a right that issues like age ,familial relationships ,polygamy etc can be added as restrictions. As you argue often ,rights are absolute.

Hello again, tom:

So, like a drivers license, the state can pick who get's it. Nahhh... Let's say the people of the state decided by referendum to DENY drivers licenses to blonds. According to you, that would be constitutional, but it wouldn't be. Not even close.

Since there are RIGHTS attached to marriage - actual real hold 'em in your hand, RIGHTS, it's NOT a privilege. I can't even imagine HOW you could consider it so - unless you're running out of arguments - and you are.

excon

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Originally Posted by califdadof3

It can also overturn laws or amend them.

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Hello again, dad:

But, it CAN'T remove a right... Even if 98.9% of California voters decided to VOTE guns out existence in their state, they couldn't do that... You DO understand that, don't you?

excon

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Originally Posted by excon

Hello again, dad:

But, it CAN'T remove a right... Even if 98.9% of California voters decided to VOTE guns out existence in their state, they couldn't do that... You DO understand that, don't you?

excon

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I was answering someone else's question about why it matter that it was up for vote of the people. In this case I don't believe it's a right. I believe it's a definition. As there was already remidies in place.

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Originally Posted by califdadof3

I dont believe its a right. I believe its a definition.

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Believe that all you want. Marriage conveys RIGHTS. I've been married for 43 years and have used some of those rights many times and will continue to do so. Want me to list some of them? Okay, I will.

1. The right to make medical decisions on behalf of an incapacitated spouse, and the right to choose funeral arrangements not specified by a will;
2. Joint insurance policies (health, life, and auto) and the ability to include a spouse on employer-provided benefits;
3. Social Security, Medicare, and Disability benefits;
4. Welfare and public assistance;
5. Inheritance rights, including inheriting joint property without taxation;
6. Visitation rights in hospitals and prisons;
7. Spousal privilege, which is the right to refuse to testify against a spouse in court;
8. Filing joint tax returns;
9. Joint parental rights, which include applying jointly for adoption, adoption of a step-child, and custody of children upon the death of a spouse;
10. Joint leases;
11. Spousal veterans’ benefits, wrongful death benefits, and family and medical leave benefits;
12. Immigration and residency benefits for partners from other countries;
13. Domestic violation protection orders;
14. Public safety officers’ death benefits; and
15. Credit protections.

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Originally Posted by califdadof3

In this case I dont believe its a right.

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Hello again, dad:

Here's where that empathy thing comes into play. Imagine for a minute, that you had some. Picture for a moment, when YOUR turn comes up at the marriage license office, and they tell you that they're NOT going to give you a license, because they don't like you...

Really, it doesn't matter WHY they turn you down, but if they DID, and they turned down nobody else, wouldn't you feel like your rights have been violated?? You might not, because you want your reaction to my question to FIT your political agenda... But, I would sure feel that way.

excon

Quote:

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Originally Posted by excon

Hello again, dad:

Here's where that empathy thing comes into play. Imagine for a minute, that you had some. Picture for a moment, when YOUR turn comes up at the marriage license office, and they tell you that they're NOT going to give you a license, because they don't like you...

Really, it doesn't matter WHY they turn you down, but if they DID, and they turned down nobody else wouldn't you feel like your rights have been violated??? You might not, because you want your reaction to my question to FIT your political agenda... But, I would sure feel that way.

excon

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So from the sounds of it your aganst the states right to make a legal definition ? And since its not the states business then anyone should be able to marry so long as the rules and registration follows. Like when a person has a baby. There should be no license to it? That way the state has no say in it?

Its not about emapthy. Its about rights correct? Then there has been remedy made through civil union. So where does the rights come in? Somewhere along the lines of getting a drivers license?


By definition gay/lesbian is an alternative lifestyle. So the civil union route gives them the rights like married couples (heterosexuals) and the law can define what a marriage can be. So where is this big rights problem your asking about? Do you just not get that part?

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Originally Posted by Wondergirl

Believe that all you want. Marriage conveys RIGHTS. I've been married for 43 years and have used some of those rights many times and will continue to do so. Want me to list some of them? Okay, I will.

1. The right to make medical decisions on behalf of an incapacitated spouse, and the right to choose funeral arrangements not specified by a will;
2. Joint insurance policies (health, life, and auto) and the ability to include a spouse on employer-provided benefits;
3. Social Security, Medicare, and Disability benefits;
4. Welfare and public assistance;
5. Inheritance rights, including inheriting joint property without taxation;
6. Visitation rights in hospitals and prisons;
7. Spousal privilege, which is the right to refuse to testify against a spouse in court;
8. Filing joint tax returns;
9. Joint parental rights, which include applying jointly for adoption, adoption of a step-child, and custody of children upon the death of a spouse;
10. Joint leases;
11. Spousal veterans’ benefits, wrongful death benefits, and family and medical leave benefits;
12. Immigration and residency benefits for partners from other countries;
13. Domestic violation protection orders;
14. Public safety officers’ death benefits; and
15. Credit protections.

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A bit off point here. We were discussing the "right" to be married. Not the rights conveyed by the marriage itself.

Quote:

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Originally Posted by califdadof3

Like when a person has a baby. There should be no license to it? That way the state has no say in it?

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There is a license needed for having a baby? The state determines this? What did I miss?

Quote:

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Originally Posted by Wondergirl

There is a license needed for having a baby? The state determines this? What did I miss?

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Comparative argument. If the state holds no interest or definition then it would hold the same ranking. To get married wouldn't require a license if you string it along to its end. So in asking if it should be or not as in a "right" without definition.

Quote:

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Originally Posted by califdadof3

and the law can define what a marriage can be. So where is this big rights problem your asking about? Do you just not get that part?

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Hello again, dad:

I think I DO get that part. You don't. In its simplest terms, you have the RIGHT to call what you have with your spouse, a MARRIAGE. If you HAVE that right, so does EVERYBODY ELSE.

If it's NOT, as you say, about what it's CALLED, and ONLY about the rights it bestows, would you be happy if the law decided that NOBODY is married, and EVERYBODY is civily unioned? No. You wouldn't. Why is that?

That's because it IS about what it's called.

Quote:

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Originally Posted by califdadof3

So from the sounds of it your aganst the states right to make a legal definition ?

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I don't know about that legal mumbo jumbo you said. What I am unequivocally against, are laws that contravene our Bill of Rights. If the state decided to pass a law "defining" an illegal search as a doughnut, it would, nevertheless and forevermore, BE an illegal doughnut/search.

excon

Quote:

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Originally Posted by excon

Hello dad:

I just don't see the rush to marry your dog that you do. The same argument WAS made about letting women marry and black people too. None of the bad stuff happened.

Case in point. There ARE married gay people in some states. Can you show me ANYTHING that's happened there that would indicate women want to marry their horse? We already have animal cruelty laws on the books.

excon

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Animal cuelty laws have nothing to do with this argument. If that were the case then the civil union argument would also be valid as it did provide a remedy. And those states your siting still have marriage laws on the books. So again the state is taking an interest. Who's to say what the future will hold if allowed to continue.