The Daily Universe -- Defending Proposition 8

[LA Ute]

How was the right to vote historically defined before the 15th amendment? And before the 19th amendment?

Fair enough, but you are equating race and sex with sexual orientation. You and I disagree about whether that's a fair equation.

[Non Sequitur]

Fair enough, but you are equating race and sex with sexual orientation. You and I disagree about whether that's a fair equation.

I'm not really equating race and gender with sexual orientation. I'm just questioning the validity of arguing that rights shouldn't become more inclusive simply because they haven't been more inclusive in the past.

[LA Ute]

I'm not really equating race and gender with sexual orientation. I'm just questioning the validity of arguing that rights shouldn't become more inclusive simply because they haven't been more inclusive in the past.

I see that point. My point is that the miscegenation (interracial marriage) cases and same-sex marriage cases are not "apples to apples." I suspect that is where you and I disagree.

[SoCalCoug]

Can someone provide any more context behind that statement? I'd be interested to know what the SC was thinking there. Outside of linking reproduction to marriage (a stronger link in 1942 than it is now, right?), I don't see how it is fundamental to survival and existence of humanity.

So, if it's not that big a deal, why all the angst about homosexuals being able to get married? Isn't that the whole point of Prop 8? Marriage and family is supremely sacred and important, and we need to keep gays from getting married?

The real problem is that the church is in a catch 22 - if marriage is that important, the government can't deny it to its homosexual citizens. If it's not that important, what's the big deal?

[SoCalCoug]

Can someone provide any more context behind that statement? I'd be interested to know what the SC was thinking there. Outside of linking reproduction to marriage (a stronger link in 1942 than it is now, right?), I don't see how it is fundamental to survival and existence of humanity.

Here's a little context.

[SoCalCoug]

Fair enough, but you are equating race and sex with sexual orientation. You and I disagree about whether that's a fair equation.

That's a very lawyerly tactic I see all the time - claiming a case isn't "on point" and doesn't apply, because there are factual differences. Even when the factual differences don't affect the principles underlying the decision in the least.

[UtahDan]

The most important thing to know is that those cases were all about marriage as historically defined, i.e., between a man and a woman.

Good one.

[TheBYUGuy]

So, if it's not that big a deal, why all the angst about homosexuals being able to get married? Isn't that the whole point of Prop 8? Marriage and family is supremely sacred and important, and we need to keep gays from getting married?

The real problem is that the church is in a catch 22 - if marriage is that important, the government can't deny it to its homosexual citizens. If it's not that important, what's the big deal?

I didn't say marriage is or is not a big deal. Obviously, the LDS Church teaches that getting married in the temple is a big deal, but that's not what we're discussing.

I just don't understand how from the standpoint of humanity and society, "marriage is fundamental to our very existence and survival". If you substitute "reproduction" for "marriage" it makes perfect sense. But a society cannot survive without a couple going to the courthouse to get a marriage license? No, that doesn't resonate with me.

Basically, I just don't know how the statement cited by UtahDan applies to the gay marriage argument either way because I don't know what the SC was trying to say in the base case.

[Green Monstah]

You'll have to ask the Supreme Court that question - they're the ones who said it is: "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)" (from Utah Dan's post).

That's an egregious example of not only mining a quote, but actually misquoting what was said. I will follow up with an more in-depth rebuttal.

[Green Monstah]

That's a very lawyerly tactic I see all the time - claiming a case isn't "on point" and doesn't apply, because there are factual differences. Even when the factual differences don't affect the principles underlying the decision in the least.

In this example, however, it's not on-point at all.

[SoCalCoug]

But a society cannot survive without a couple going to the courthouse to get a marriage license? No, that doesn't resonate with me.

It can't if it also teaches you can't have sex unless you are legally and lawfully married.

[SoCalCoug]

That's an egregious example of not only mining a quote, but actually misquoting what was said. I will follow up with an more in-depth rebuttal.

So this is also a misquote: "These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." From the same case. See Utah Dan's post that I linked to.

[SoCalCoug]

In this example, however, it's not on-point at all.

Do we take your word for it, or do you want to support that statement?

[Green Monstah]

That's an egregious example of not only mining a quote, but actually misquoting what was said. I will follow up with an more in-depth rebuttal.

Skinner v. Oklahoma


Underlying Facts: Skinner involves an early-20th century version of the notorious "three strikes" rule...only on your third strike you are not just put away in the slammer for life....you are sterilized for life. Skinner was convicted of a felony for robbing chickens; and two others for robbery with a firearm. After being incarcerated the third time, the OK AG instituted the requisite sterilization hearings. At these hearings the only issue was whether the convict can be sterilized (via vasectomy) "without detriment to his general health." Not a very high standard.

Inexplicably, the law contains an exception to the felonies that qualify for three strikes treatment. The statute stated that all felonies involving crimes of "moral terpitude" will count against the convict for purposes of sterilization unless the crime is embezzlement (stealing money/property when you're placed in a supervisory/custodial/bailee/bailor situation). This is central to the grounds upon which the OK law was overturned and the fundamental right of marriage has very little if anything to do with the opinion (I'll get to that later).

Grounds for reversing the OK Statute: The SC said that it violated the Equal Protection Clause of the 14th Amendment. Before you claim victory, follow the SC's logic. Imagine I steal 1,000 dollars from a perfect stranger three times...and am convicted for all three offenses; I can get sterilized in OK under this law. Now imagine you steal a grand from three different employers and are convicted thrice of embezzlement. Under the OK statute, I'd have to get sterilized while your boys would go untouched. Such a trivial distinction for the what amounts to the same crime is the reason that the law was overturned. The case has nothing (and I mean nothing) to do with marriage. It has to do with a statute that imposes a harsher penalty for a meaningless distinction and therefore violates the EPC of the 14th Am.

Where does your quote come from? As noted, page 541: "We are dealing here with legislation which involves one of the basic civil rights of man." Does the legislation deal with marriage in any way? No. It deals with sterilization...the right to procreate (I'm not sure Prop. 8 opponents want to go the procreation route, do they?) The opinion then goes on to say "Marriage and procreation are fundamental to the very existence and survival of the human race." Marriage is thrown in as an afterthought and has nothing to do with the opinion. At the very best this is semi-relevant dicta. In my opinion, it is nothing more than an early-20th century judge who simply associates procreation with marriage and it is tossed in to the sentence. Even if we give weight to the use of the term marriage, it does not say that marriage is a civil right, but says Marriage is fundamental to the survival and existence of the human race [sidenote: why is that? due to procreation purposes].

Sorry, man, but if the Supreme Court states that marriage is a civil right, it's not in the case you cited.

[Green Monstah]

Do we take your word for it, or do you want to support that statement?

I am ambivalent about same sex marriage. I think the states should decide whether to allow it or not, but just as the pro-Prop. 8 crowd needs to refine its arguments, so do its opponents. That's just sloppy.