Thoughts On The Prop 8 Ruling.

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I never thought that the Pro Prop 8 arguments had much legal weight. It is just hard to demonstrate what the harmful effects would be on society if gay marriage were legal. If you think gay marriage damages the institution of marriage, you have to be able to demonstrate how. There are already a few states that recognize it, yet, there is nothing to point to to say “SEE! This is what happens when you change this historical institution called marriage to recognize gay couples”.

Marc Ambinder summarized Judges Walker’s decision:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.

2. California, like every other state, doesn’t require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy “are well-documented in human history.”

6. Sexual orientation is a fundamental characteristic of a human being.

7. Prop 8 proponents’ “assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”

8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

9. California has no interest in reducing the number of gays and lesbians in its population.

10. “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union.”

11. “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”

12. “Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”

13. “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the
stability of opposite-sex marriages.”

Granted, Marc Ambinder, the guy who I stole this summary from, is not a legal scholar, but the list seem in line with other things I’ve read so far, including this from Orin Kerr, whose opinion on legal and constitutional matters carries a bit more weight than my fellow armchair law schlubs. 🙂

NDT, a fellow commenter at Gay Patriot, relies heavily on gay couples inability to biologically procreate to make his case for Prop 8. This ruling exposes the flaws in that argument. Also, keep in mind that the proponents also failed to present compelling evidence to the judge to sway him in that direction.

2. California, like every other state, doesn’t require that couples wanting to marry be able to procreate.

In order for the procreation argument to carry legal weight, the defendants would have to show where there is legal precedent for the idea. They didn’t.

8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

Yep. You could site groups like Exodus, but their success rate is very limited at less than 25%, and they have never been able to show that they have “cured” homosexuality, but only curb the behavior resulting from the orientation, not the orientation itself.

10. “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union.”

You would then argue that they can’t procreate…. See bullet point # 2.

12. “Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”

On page 19 of the opinion, the plaintiffs not only didn’t challenge this assertion, they agreed. It is one of the ways that marriage stays superior to domestic partnerships.

13. “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”

The defendant didn’t show how permitting gay marriage would affect married couples in a any way…. because they can’t.

One last thing about the procreation argument. How many of our straight brothers, sisters and friends who decided to marry said right off the bat “I want to have children, therefore, that is the reason we should marry”. In modern western society, it’s because they love each other, and want a stable family. Very rarely, if ever, do couples get married to have children without love being the first order of business.. Marriage is neither required for procreation, nor procreation required for marriage.

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