Posted on 08/11/2010 9:08:02 AM PDT by Kaslin
At first blush, the notion that there is no rational basis for California's ban on same-sex marriage, as U.S. District Chief Judge Vaughn Walker ruled last week, seems extreme. But the more you consider the arguments presented by the ban's supporters the less far-fetched Walker's conclusion looks.
Walker ruled that Proposition 8, the 2008 ballot initiative that excluded gay couples from the legal definition of marriage, violated the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." He deemed the case presented by the measure's supporters so weak that it failed even the "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class," such as race (although he also argued that gay marriage bans implicate both).
Proposition 8's defenders, Walker noted, emphasized "its consistency with the 'central purpose of marriage, in California and everywhere else, to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.'" Yet when Walker asked Charles Cooper, the attorney defending Proposition 8, how recognizing same-sex marriages would impair the asserted state interest in procreation, Cooper at first said it was "not the legally relevant question" and then essentially conceded the issue, saying, "Your honor, my answer is: I don't know. I don't know."
In their trial brief, Proposition 8's supporters promised to identify 23 -- count 'em -- negative consequences of "redefining marriage to encompass same-sex relationships." During the trial, however, they presented just one witness to substantiate this point -- David Blankenhorn of the Institute for American Values, who, in Walker's judgment, "provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate."
Blankenhorn conceded that children raised by adoptive parents fare at least as well as children raised by biological parents, that recognizing gay marriages would benefit gay couples and their children, and that such recognition would be "a victory for the worthy ideas of tolerance and inclusion." Although Blankenhorn nevertheless worried that giving gay couples the same legal status as straight couples might exacerbate the "deinstitutionalization" of marriage, he never explained why.
During his closing argument, Cooper returned to the theme that "responsible procreation is really at the heart of society's interest in regulating marriage." When Walker asked him to cite the evidence that had been presented during the trial to back up this claim, Cooper replied that "you don't have to have evidence of this point."
But you really do, especially because procreation, responsible or not, never has been a requirement for a marriage license. The government routinely recognizes marriages between people who have no intention of reproducing or who are physically unable to do so.
Walker concluded that "the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex." Because the "rational basis" test requires that discrimination be "rationally related" to "a legitimate government interest," that conclusion alone was enough to overturn Proposition 8.
Walker's reasoning is similar to that of the 1996 decision in which the Supreme Court ruled that Colorado's Amendment 2, a ballot initiative that prohibited state and local bans on discrimination against homosexuals, failed the "rational basis" test. Like the court in that case, Walker found the asserted reasons for the challenged law to be so weak that the true motivation had to be a moral judgment concerning homosexuality.
Seeing as Amendment 2 was ostensibly aimed at protecting property rights, freedom of association, and freedom of contract from bans on private discrimination -- as opposed to requiring official discrimination -- it had, if anything, a stronger basis than Proposition 8. But even if both cases were wrongly decided, one thing is clear: Opponents of gay marriage ultimately will lose the public policy debate if they can't do a better job of defending their position.
If 10,000 years of tradition isn’t good enough defense everything is fair game. That is the real goal. Destroy the foundations, you destroy the building.
What a giant red herring.
Liberals are admittedly skillful at presenting their viewpoint as the status quo while attacking the REAL status quo but they’ve got millennia of evidence and history to overcome while they play parlor games about childless marriages.
Any gay person may marry any person of the opposite sex he or she wishes.
Otherwise we’d have no Windsors.
Same-Sex marriage was never banned from California, even with Proposition 8. Same-sex couples were allowed social security, insurance, and inheritance benefits through registered domestic partnerships. The California populace clearly had no problem with that. The same-sex couples could call their relationships marriages if they wished to. However, the real issue here was the title part. If they want everyone to call their relationships the same as marriage, sorry, they’re not the same kind of relationship.
While common sense says that gay marriage will be bad for society, you can’t PROVE it—especially if its never been tried. And you would have people arguing about what is “bad”. Its hardly objective. One person’s bad is another’s good. Its like trying to prove that welfare has been bad for society. Most would probably say yes, except for the welfare queens and bureaucrats.
Yep. We're now ruled by liberal federal district court judges and their ad hoc rationalizations.
I see that the prop 8 team was pretty lame in it’s presentation. I suspect it is because they are assuming this will go to the SCOTUS, where they will prevail.
RINOs stomping around conservative sites.
We have homo-trolls circulating on the fora trying to hype up support for homosexuals.
The article is one giant red herring.
Stupid political stunt brought upon us by sociopath bullies who really hate the “normal.”
In an earlier time, the howls for impeachment and removal of this embarrassment to self government would be overwhelming.
Ted Olson, white courtesy phone please.
Don’t you mean the author’s argument?
Yes.
Well, to my surprise it was an excellent and well-reasoned judgment. Not what I had anticipated, but the intellectualt clarity contained therein satisfied my initial doubts.
Next will be marriages to animals, robots, siblings,dolls,children,and marriages to multiple partners, and who knows what else.It is the slippery slope that will be damaging to procreation.
Why do persons of homosexual orientation insist upon calling what they want to gain “equity” with hetrosexual couples “marriage”?
They have been offered “civil unions”, a means of allowing the persons who choose to subordinate their lives to another of the same sex, the same advantages given freely to persons of opposite gender who have chosen to make this kind of long-term (even lifetime) contract. No matter how it is cut, the state-sanctioned marriage contract gives unequal apportionment of the rewards of married life to one partner or the other in the event of its breach. And even now, these advantages written into the tax code are being eliminated or denied upon expiration of the tax reform enacted early in the Bush administration.
And yet, even this offer of “civil unions” have been soundly rejected by a minority within the homosexual community, as “not enough”.
What do they really want? It has nothing to do with gaining any “right to get married”.
As you say, the whole argument against polygamy was not political or legal but societal.
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