Prop 8 ruled unconstitutional

[Farnhamia]

Now, now. That wasn't bad. Two paragraphs, concise, no long, involved story about you watching the announcement of the decision with your son and his reaction.

He's cute! Dammit! He's fucking adorable, its like owning an achondroplasiatic on uppers with a 20 word vocabulary and no shame!

He adds to every story! He does! It...he...I...

Oh, man...what have I become...

I'm sure he's cute as a button, one of those shiny brass ones with the eagle on them that kind of gleam when you polish them ... sorry, I ... anyway, I bet he's adorable but I think he might be used a bit more sparingly.

[Tmutarakhan]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

[Ashmoria]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

[Buffett and Colbert]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

[Ashmoria]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

for sure

but what are scalia, roberts, alito and thomas going to give as reasons for why they find it constitutional? it should be fascinating.

[Ifreann]

Now, now. That wasn't bad. Two paragraphs, concise, no long, involved story about you watching the announcement of the decision with your son and his reaction.

He's cute! Dammit! He's fucking adorable, its like owning an achondroplasiatic on uppers with a 20 word vocabulary and no shame!

He adds to every story! He does! It...he...I...

Oh, man...what have I become...

Quick, get a daughter to mix things up.

[Buffett and Colbert]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

for sure

but what are scalia, roberts, alito and thomas going to give as reasons for why they find it constitutional? it should be fascinating.

I look forward to reading their dissents.

[Helertia]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

for sure

but what are scalia, roberts, alito and thomas going to give as reasons for why they find it constitutional? it should be fascinating.

I look forward to reading their dissents.

Meh, it won't be any different from the usual thing. They'll say that civil unions are suffcient and provide equal rights in a small paragraph buried in all the evil things that allowing same sex marriage will release on the world, such as kitten culls, the return of Cthulu and the replacement of chocolate with cod liver oil.

[Buffett and Colbert]

and the replacement of chocolate with cod liver oil.

Egad!

[Helertia]

and the replacement of chocolate with cod liver oil.

Egad!

Indeed! Soon, you'll all be healthy!
Ahahaha!AHAHAHAHAHAHAHAHAHAHAHAHA!

[Buffett and Colbert]

and the replacement of chocolate with cod liver oil.

Egad!

Indeed! Soon, you'll all be healthy!
Ahahaha!AHAHAHAHAHAHAHAHAHAHAHAHA!

Fuck that. Hopefully someday, I'll be as fat as Justice Scalia.

*stuffs face with chocolate*

[Ryadn]

If it wasn't pointless because of this being an election year, I'd be trying to impeach Schwarzenegger and Brown because they are absent in protecting something that was a part of the (then legal) California Constitution.

That makes less sense than most of your posts.

[DaWoad]

Now, now. That wasn't bad. Two paragraphs, concise, no long, involved story about you watching the announcement of the decision with your son and his reaction.

He's cute! Dammit! He's fucking adorable, its like owning an achondroplasiatic on uppers with a 20 word vocabulary and no shame!

He adds to every story! He does! It...he...I...

Oh, man...what have I become...

ooo ooo I know this one um . . .a father? Final answer!

[Tekania]

You're both missing the point that all marriage in the US is essential a civil union. No religious element is required or even necessary. All that is necessary is the proper paperwork and payment to the state. No one in the mainstream of the gay rights movement has proposed forcing churches to marry gay people. With Prop. 8, however, religious people have conspired to deny gays the right to legal unions that they falsely claim are religious in nature.

Yep, the only group denying religious freedoms in the context of proposition 8 are its proponents. No if, and, or buts about it.

[Bottle]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

for sure

but what are scalia, roberts, alito and thomas going to give as reasons for why they find it constitutional? it should be fascinating.

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

[Ifreann]

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

Racism is bad, but gays aren't a race, so this isn't bad!

[Bottle]

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

Racism is bad, but gays aren't a race, so this isn't bad!

Pretty sure Thomas and Scalia, in particular, will flip their shit over the parts of the ruling that explicitly talk about how out-dated gender roles in marriage are bunk. I don't think either would be capable of writing a dissent without including some effort to put women in their place.

[Tahar Joblis]

You're both missing the point that all marriage in the US is essential a civil union. No religious element is required or even necessary. All that is necessary is the proper paperwork and payment to the state. No one in the mainstream of the gay rights movement has proposed forcing churches to marry gay people. With Prop. 8, however, religious people have conspired to deny gays the right to legal unions that they falsely claim are religious in nature.

Yep, the only group denying religious freedoms in the context of proposition 8 are its proponents. No if, and, or buts about it.

The church I grew up in says that gay people can marry each other and has been performing such religious unions for quite some time. Actually, I'm pretty sure it predates 1984, but 1984 would be when the overall association officially voted to approve of gay marriages.

Unlike many in this thread, I view the legal institution of marriage not as a fundamental civil right (I see no reason why it fundamentally requires special legal recognitions, as convenient as they may be - there's no intrinsic reason why the law must be involved at all in what is ultimately a private relationship, the law simply happens to have poked its nose there), but as an essentially religious practice that has been granted legal sanction, recognition, and a variety of benefits. I view marriage laws that bar gay marriages to be clear violations of the separation of church and state, no more and no less than it would be if states passed laws dictating that in order to qualify for non-profit status, organizations must have regular assemblies of their membership on Sundays and mount a crucifix on the roof.

By placing legal favor on the religious practices of certain theological varieties of christianity, bans on gay marriage amount to systematic religious discrimination, even if it is possible for the irreligious to marry without intervention of religious authorities - much as associations of irreligious individuals would be able to build a building with a crucifix mounted on top and find Sunday a reasonably convenient day to have membership meetings (since it is not during the working week) and thus still be able to put together a non-profit under the abovementioned laws.

I won't disagree with the argument that gay marriage bans violate the 14th amendment by unlawfully discriminating against gays, but I'm of the opinion that they also violate the 1st amendment's bar to the establishment of state religion. By positing heterosexual monogamous unions as having particular legal benefits, the law begins to establish official state religion - something not necessarily tied to the outright elimination of other religions, as exhibited in the case of the pre-Constantine Roman Empire, an example that also demonstrates that a state religion need not be tied to a single state-run organization. Unfortunately, I've come to find that the courts generally take a much narrower view of the first amendment than do I, and are generally comfortable with having a state religion, so long as it remains a nebulous umbrella codified within legal benefits, rather than involving direct organizational funding.

[Enadail]

Unlike many in this thread, I view the legal institution of marriage not as a fundamental civil right (I see no reason why it fundamentally requires special legal recognitions, as convenient as they may be - there's no intrinsic reason why the law must be involved at all in what is ultimately a private relationship, the law simply happens to have poked its nose there), but as an essentially religious practice that has been granted legal sanction, recognition, and a variety of benefits.

While I applaud your post, and the notions within it, I have to take objection to this, largely because well... its not. Religious marriage is religious, civil marriage is not. Marriage has been a civil matter for centuries in countries around the world, being sanctioned by religion. In fact, if I remember an article I read correctly, at least in the western world, there is evidence that marriage originated as a civil matter, not religious (as early Jews/Christians weren't bound to the same notions of marriage as we are today, often being nomads in the same family group generation after generation and what not). I'll try to find the article again.

Regardless, I'd argue that marriage is a legal practice that has religious sanction. To claim that all actions are broken down to religious, even the irreligious ones, is kind of like saying everything is red, except for things are not. When creating a space, you start with NOT then build in what its. It makes a lot more sense to say not everything is red, but some things are.

[Dyakovo]

(I)f I remember an article I read correctly, at least in the western world, there is evidence that marriage originated as a civil matter, not religious.

The earliest record of marriage as a civil affair is the Codex Hammurabi... Which predates the Abrahamic religions by app 1200 years.

[The Cat-Tribe]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

for sure

but what are scalia, roberts, alito and thomas going to give as reasons for why they find it constitutional? it should be fascinating.

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

[Enadail]

(I)f I remember an article I read correctly, at least in the western world, there is evidence that marriage originated as a civil matter, not religious.

The earliest record of marriage as a civil affair is the Codex Hammurabi... Which predates the Abrahamic religions by app 1200 years.

Yah, but there were religions before the Abrahamics, and I'm not qualified or currently informed enough to state their views on marriage.

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Wow TCT, thats a fascinating read. If I'm interpreting that correctly, does that mean that the judges people seem to think will oppose this have stated that banning gay marriage has no legal leg to stand on? If so, and this goes to the supreme court (which if I read your post correctly may not be possible, as the Prop 8 proponents cannot prove they are being injured by this decision), does that mean it would set precedence for repealing bans on gay marriages in the US? And if it stops here, does it mean anything for gay marriage bans in other states (legally that is)?

[Tahar Joblis]

While I applaud your post, and the notions within it, I have to take objection to this, largely because well... its not. Religious marriage is religious, civil marriage is not. Marriage has been a civil matter for centuries in countries around the world, being sanctioned by religion. In fact, if I remember an article I read correctly, at least in the western world, there is evidence that marriage originated as a civil matter, not religious (as early Jews/Christians weren't bound to the same notions of marriage as we are today, often being nomads in the same family group generation after generation and what not). I'll try to find the article again.

Pair-bonding and stable relationships have likely been part of hominid societies before modern homo sapiens sapiens arose. (Religion probably has as well, but we see pair-bonding behavior in non-hominids and precious little ceremony from them). Ceremony and law, religion and state, were originally not especially distinct. Civil was religious. This was the case as little as five centuries ago in the legal tradition from which American law was born. Church laws regulated marriage; when the king wanted them changed, he did not break the church's authority over marriage, but broke the Anglican church away from the Catholic church. It is precisely from that tradition that the American law has been born.

To clarify, people do have a fundamental right to engage themselves in semi-permanent social relationships. But what distinguishes marriage from shacking up? Ceremony. There are rituals, there are obligations, et cetera. To say a marriage is civil and not religious means it is only tied to the ceremonies of state.

Regardless, I'd argue that marriage is a legal practice that has religious sanction.

Except that in many cases, it is quite clearly a religious practice without legal sanction. When a UU minister stands up in the year 1990 and says something along the lines of "I now pronounce you wife and wife," he could not anywhere in the United States be offering religious sanction to a legal practice. When a FLDS priest in Texas marries another teenage bride, he isn't doing a thing involving legal practice.

There is a religious practice of marriage. There is a legal (we might say civil) practice of marriage. That they conveniently happen to refer almost entirely to the same thing is not some odd coincidence.

To claim that all actions are broken down to religious, even the irreligious ones, is kind of like saying everything is red, except for things are not. When creating a space, you start with NOT then build in what its. It makes a lot more sense to say not everything is red, but some things are.

I'm not claiming all actions are broken down to religious. I'm saying that marriage is by nature a practice bound to religion. You can hold beliefs without belonging to any particular creed; you can pray without being particularly religious; you can meet together in a building every Sunday to hear someone prattle, sing hymns, and then gladhand around coffee for an hour afterwards without it necessarily having a thing to do with religion.

Were the state to forbid non-profits from having weekly gatherings of their membership open to the public on days other than Sunday, it would not constitute a particular burden for non-religious non-profits - many of whom may well be perfectly happy to meet on the weekend. It would, however, be an imposition of the Sabbath of some particular sects of Christianity into state law - the beginnings of the establishment of a state religion. It would violate what I take as the appropriate intention of the anti-establishment clause; it would also probably be taken to violate freedom of assembly (also 1st) and be state sponsored discrimination against certain identifiable groups (14th), but represents several stones in the foundation of an official church.

[Tahar Joblis]

(I)f I remember an article I read correctly, at least in the western world, there is evidence that marriage originated as a civil matter, not religious.

The earliest record of marriage as a civil affair is the Codex Hammurabi... Which predates the Abrahamic religions by app 1200 years.

Which is not to say that there was an visible division of civil and religious law. Hammarubi was what we might refer to as a priest-king. He claimed divine authority:

When Anu the Sublime, King of the Anunaki, and Bel, the lord of Heaven and earth, who decreed the fate of the land, assigned to Marduk, the over-ruling son of Ea, God of righteousness, dominion over earthly man, and made him great among the Igigi, they called Babylon by his illustrious name, made it great on earth, and founded an everlasting kingdom in it, whose foundations are laid so solidly as those of heaven and earth; then Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind.

The tradition of separation between church and state was not especially strong in ancient Sumer.

[Enadail]

Pair-bonding and stable relationships have likely been part of hominid societies before modern homo sapiens sapiens arose. (Religion probably has as well, but we see pair-bonding behavior in non-hominids and precious little ceremony from them). Ceremony and law, religion and state, were originally not especially distinct. Civil was religious. This was the case as little as five centuries ago in the legal tradition from which American law was born. Church laws regulated marriage; when the king wanted them changed, he did not break the church's authority over marriage, but broke the Anglican church away from the Catholic church. It is precisely from that tradition that the American law has been born.

Very true, but pair-bonding is not marriage, as I think we can both agree. And you're dead right that state and religion were not originally distinct, as religious leaders were also social leaders (we are talking about a time before cities). But actually, I realize my argument didn't support my case, nor does this yours: we're talking about a time before marriage had legal benefit. So its a moot point in the end. And are you saying American law is based on Anglican tradition? If so, I disagree.

To clarify, people do have a fundamental right to engage themselves in semi-permanent social relationships. But what distinguishes marriage from shacking up? Ceremony. There are rituals, there are obligations, et cetera. To say a marriage is civil and not religious means it is only tied to the ceremonies of state.

And it is... in the US, legally, getting married by a minister means nothing until you go to a court house and get a marriage license. But no, there are no necessary "ceremonies" to get married, any more then there are "ceremonies" to get a drivers license. Go to the correct legal establishment, fill out the right forms, and you're done. For example, most likely when I get married it'll be a party with family and friends and a trip to the court house.

Except that in many cases, it is quite clearly a religious practice without legal sanction. When a UU minister stands up in the year 1990 and says something along the lines of "I now pronounce you wife and wife," he could not anywhere in the United States be offering religious sanction to a legal practice. When a FLDS priest in Texas marries another teenage bride, he isn't doing a thing involving legal practice.

There is a religious practice of marriage. There is a legal (we might say civil) practice of marriage. That they conveniently happen to refer almost entirely to the same thing is not some odd coincidence.

They don't refer to the same thing at all... a religious marriage is not a civil marriage... in fact, by law, a religious marriage requires a civil marriage. Legally, a religious marriage means nothing until a civil marriage takes place. We have to talk in terms of legality, because that's the only basis for people to interact on at a universal level. You talking about a religious marriage without civil bounds means nothing to me, as I do not follow your religion.

I'm not claiming all actions are broken down to religious. I'm saying that marriage is by nature a practice bound to religion. You can hold beliefs without belonging to any particular creed; you can pray without being particularly religious; you can meet together in a building every Sunday to hear someone prattle, sing hymns, and then gladhand around coffee for an hour afterwards without it necessarily having a thing to do with religion.

Were the state to forbid non-profits from having weekly gatherings of their membership open to the public on days other than Sunday, it would not constitute a particular burden for non-religious non-profits - many of whom may well be perfectly happy to meet on the weekend. It would, however, be an imposition of the Sabbath of some particular sects of Christianity into state law - the beginnings of the establishment of a state religion. It would violate what I take as the appropriate intention of the anti-establishment clause; it would also probably be taken to violate freedom of assembly (also 1st) and be state sponsored discrimination against certain identifiable groups (14th), but represents several stones in the foundation of an official church.

Fair enough here. Though I will disagree that marriage is by nature bound to religion... marriage didn't start with religion, and not every religion has marriage. Marriage of a particular religion is bound to that religion, but that's as far as you can go.