Tuesday, May 26, 2009

Prop 8 Upheld

(warning: if you've sensitive eyes to naughty words, move on)

As of about eighteen minutes ago Prop 8 was upheld.

BUT, the 18,000 marriages performed while it was still legal are also upheld. So at least there's that. Better than nothing (I can't imagine).

I still don't understand the logic of "sex is only okay within the bonds of marriage [not "civil unions"], so because we cannot make 'sodomy' illegal anymore, we'll just make sure the gays can't get married."

Am I wrong there? At all?

The debate right now is when to time the next battle: 2010 or 2012 when they'll have the presidential election on their side (= greater turnout)

So.

Nobody is truly surprised, but many are disappointed, especially given the events of the past few months with Iowa and Connecticut and other states which have legalized gay marriage. As my husband points out, however, this decision was not about legalizing gay marriage so much as it was deeming Prop 8 constitutional as a ballot measure, if this was a matter of amending the constitution or a constitutional revision.

And the judges by a 6-1 vote said it was constitutional.

But time is only on the side of the Prop 8 opposition.

Here's a bit of a news interview I just saw:

Reporter: "We're going to turn to someone who is in support of Prop 8. George Riley. Good morning. You know we've seen you out here since six a.m., how do you feel now knowing that the judges have supported Prop 8?"

Riley: "Well I feel like justice was finally served. This is the third time that we've had the people vote and the people for the third time have said yes. We believe marriage is between a man and a woman, and whether or not people like that or not, that's what the people want. So if there was anything else besides that, I'd have to say that the judges were trying to play lawmakers from the bench."

He went on to say that he feels Prop 8 opponents have a vendetta against Christianity.

Everything is about the Christians. If Christianity isn't being persecuted, someone will ensure Christians at least feel persecuted. Newsflash: this is only about the Christian religion inasmuch as they make it about the Christian religion.

As for "activist judges": People need to read their history books more often. I'm no historian, but I learned enough in the past semester of U.S. History to know that Supreme Court judges tend to do one of two things on occasion:

(a) Judge very poorly (see the Dred Scott decision)
(b) Judge against the majority (see Interracial Marriage. Loving v. Virginia)

One of the purposes of the Constitution of the United States is to protect the minority from the majority's whims. For so long (even into the '60s I believe) the majority felt interracial marriage was wrong. The majority isn't always right.

The Supreme Court justices are not there to represent the majority. They are there to act neutral, unbiased, to interpret the Constitution and the laws of the land, and sometimes it doesn't turn out as we'd like.

And that's why we have a system. There's always next time.

Again: this is not about legalizing or de-legalizing gay marriage. This is about the constitutionality of Prop 8--revision v. amendment. The Court found it was a perfectly legal amendment in need of no more than a simple 50% + 1 majority.

I respectfully disagree.

As other states have found, the right to marry is a civil right. It's in the books. Go look it up.

People don't have to agree with it. It's none of their business. But people do things all the time we don't "agree" with, but we pop our shoulders and we get over it. We understand nobody is forcing us to run out and have gay sex.

The opponents don't seem to have the same zeal regarding serial divorces. There’s no rallying against "no-fault marriages." They say (and by "they" I mean LDS leadership and membership) it's because straight marriages have the potential for celestial glory. By the way, this is also the LDS response to the point that the government once used similar rationale against polygamy--at least polygamy was between a man and, uhm, women.

That's fucked up.

The world will never be 100% LDS. And the LDS are not in charge, nor should they be. No religion should be.

Honestly I wish people would open a few books and consider different perspectives for a change. It doesn't hurt. I promise.

Marriage is a civil right. Not a basic human right like water and food and *cough* health care, but a civil right. A civil right is a right bestowed upon its people by its government (see 13th and 14th amendments)

I'll allow a minute for that to sink in.

And this is a government decision, not a religious decision. Nobody is going to force any church to marry a couple guys or a couple of girls. They don't force churches, especially the LDS church, to marry anyone--civilly or in the temple.

But apparently we can be coerced—a kind way to put it—into votes we weren’t sure we wanted to make in the first place (I know of a few people who would’ve voted differently)

Why more people don't understand this is completely beyond my comprehension.

32 comments:

Rick Fernández said...

Dead-on analysis. Thank you!

Amanda said...

The only things I can say are

1) at least the anti-family people didn't forcibly break apart 18,000 families. I'm grateful for that.

2) it seems the passing of Prop 8 has already had an explosive backlash all around the country. I'm not sure if Maine, Iowa, Connecticut, and all the rest would currently allow gay marriage or be considering allowing gay marraige if it weren't for the injustice in California. This has prompted people to take more notice and to take action, and I think in the long run, this will help. I hope so at least. I'm looking forward to the next election. With all this backlash, I wonder if the majority will choose the right this time.

MOJ said...

Have you actually read Loving v. Virginia? It really does not provide the compelling justification you suggest. In the opinion, Justice Warren specifically declares that marriage as a "'basic civil right of man,' fundamental to our very existence and survival." Clearly, gay marriage is not fundamental to our very existence and survival. One could counter with the argument that, as society "progresses," marriage is no longer fundamental to our existence and survival either--childbearing, within any relationship, is all that is fundamental to our existence/survival. But that only weakens the Loving argument in that it underscores the fact that court decisions are always (at least partially and sometimes substantially) a product of their social era. In other words, the role of the social climate as a backdrop to these precedential cases was pivotal, which makes them even weaker justifications for gay marriage. When Loving and Perez were decided (in 1967 and 1948, respectively), they weren't talking about gay marriage. Gay marriage was YEARS away from even being on the radar. Thus, use of those cases to legalize gay marriage would be an EXTENSION of their holdings, not a direct application of them, per se.

Tip for the future: applying Loving or Perez to the gay marriage debate as though the Court intended such an application isn't going to convince many conservatives who have read the opinions themselves. Opponents of your position will naturally argue that marriage Perez and Loving are both still good law; they just don't apply to GAY marriage.

THAT will be the issue when the Supreme Court grants certiorary to a gay marriage case. Will the Court consider Loving? Of course, but which way will they go on the Loving holding? They MIGHT say "We decided, in Loving, that marriage was a fundamental right, so this naturally applies to gay marriage too." Or, they might say, "We decided, in Loving, that marriage was a fundamental right, but this does not apply to gay marriage because..." Courts constantly distinguish precedential case law based on what they consider material differences in the facts of the case. Here, supporters of gay marriage obviously argue that there is no material difference between gay and heterosexual marriage (and, thus, Loving justifies gay marriage), while opponents of gay marriage obviously argue that there is a material difference (and, thus, Loving does not justify game marriage). The Supreme Court ruling, consequently, will depend upon which of those arguments it finds most compelling.

Why more people don't understand this (and thus treat the issue as though it were so black and white) is completely beyond my comprehension.

Maren said...

Funny, as I was reading this, a LDS friend emailed us passing on "the good news...so excited!!!". I finally had the guts to email this person back (I just delete all of their VERY conservative emails and don't reply back) and made sure they knew where we stood. Let's see if I get any more emails from them NOW.

Great post.

Lisa said...

Dude, MOJ, I am rolling my eyes.

Yes I have read Loving v. Virginia, and it states in its official wording that marriage is a civil right. Period. And such findings have been upheld even up until just recently in Maine, Connecticut, Iowa, etc.

Comments like this don't sound eerily familiar to you?

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.=> Almighty God created [the people woman and man], and he placed [on them complementary genitalia]. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the [genders] shows that he did not intend for the [gay sex].

You say "Clearly, gay marriage is not fundamental to our very existence and survival."

How is heterosexual marriage fundamental to our existence and survival?

Loving v. Virginia and Perez v. Sharp were not dealing with gay marriage. I'm not stupid. But cases like these are used as precedence. This sort of extension happens often as it must when direct precedence does not exist.

Look, the point at the end of the day is that marriage is a civil right. And if you're going to toss me the tired argument regarding procreation, you can save yourself the energy. There are plenty of heterosexual couples who suffer infertility. Can they adopt? Absolutely. So can gay couples.

These arguments are so lame they're almost laughable. And it makes me want to post something that has been sitting in my queue for some weeks now. Perhaps after I let this one settle.

But if you really believe that gay marriage is going to be the thread that unravels the very fabric of society, I suggest you go back to interracial marriage and indeed women's suffrage and tell me you don't see the exact same arguments being made then, too.

If not in society at large than just in the Church.

That's all I was saying. So chill.

Lisa said...

As far as the courts considering the material differences, I do believe the core argument of whether or not homosexuality is a choice akin to skin color.

Many argue there is a difference. A homosexual man could have heterosexual intercourse.

(would you want to have gay sex? didn't think so. they don't want to have straight sex)

The problem with that argument is this:

They said the same thing about black people.

"Black people can marry. They can marry other black people!"

But what if they were in love with and wanted to marry a white person?

What if?

I apologize if my earlier comment acknowledged points you had made, but I had to point them out again.

Obviously it's not so black and white, but if you were to hear again some of what is being said now compared to what was being said back in the late 17th century to the 1960s, you would be rather shocked at the similarity in rationale.

djinn said...

The ruling was on the narrowest possible grounds. To quote (page 37) "Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family
relationship."

In non-lawyer-speak, opposite couples get the sequence of letters M * A * R * R * I * A * G *E, Same sex couples get all the rights that "traditionally" go with the word marriage. So, could be worse.

jessicabeck said...

if we decide to live in a country where morality is dictated, and the country's tide changes--that is, if the common language of the country's civic religion ever takes a non-judeo-christian route--then heaven help the faiths that suffer as a result.

it is actually to the benefit of people who practice different faiths to have the separation of church and state. as a person of faith, i don't see what is difficult to understand about THAT. it's kind of shameful that we (as a society) buy into discriminatory law-making when it suits our purposes (to avoid being inflammatory, i'm not saying "prejudices").

the laws that the state/country dictate should not be faith-based. it doesn't matter what faith the founding fathers practiced; they also kept slaves. without getting into the argument about the bible being inerrant and/or infallible, the documents of the US are not. it isn't our job to regulate morality. if people are so concerned about morality, they ought to do a better job upholding their own families first.

Amanda said...

Jessica, can I just say it's so refreshing to hear that coming from a person of faith. I am no longer Christian, but when I was (for a long time) I really felt like I was alone in wanting to keep church and state as far apart as possible.

Aggie said...

I agree and couldn't have said it better myself. Let's just hope that this next time around, the ads contain the truth rather than the lies that caused many, many people to vote for this hateful measure.

Lisa said...

Jessica: You're awesome. You have a gift for elucidating I do not have.

Then again if I hadn't been in such a hurry...

Amanda: I had no idea I wanted Church and State separate so badly until last summer. I think it's not only constitutional but an absolutely necessity in keeping our freedom.

One would think the neo-conservatives would understand this.

No religion is infallible enough to be in charge. Until Christ actually does come again, and we ALL know about it, I don't trust anybody's judgment as 100% inspired. Because history demands we understand that even the Church of Jesus Christ of Latter-day Saints screws things up--we just don't say it like that. Because that would be the ever sinful "criticism."

And I think that's what stabbed me last summer. Being told how to vote. And I was. Every good Mormon in California was told how to vote. The "oh but others may feel differently" didn't come until much, much later. The original official letter on the official letterhead signed by the official first presidency speaking in their official capacity said "Donate all your time and means to support this Proposition"

Any idiot Mormon knows this means "We want you to vote yes."

To come out later, much later, and try to backpeddle is pathetic. It did no good. Too little, too late.

T.J. Shelby said...

“The only way to comprehend what mathematicians mean by Infinity is to contemplate the extent of human stupidity.” -Voltaire-

Chris and Annalee Waddell said...
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Urban Koda said...

I always find it amusing how judges seem to be relavant to peoples point of view. When they agree, they're accurately intepreting the Constitution and when they don't they become those Activist Judges who legislate from the bench!

Like Rick said way up top... Dead-on analysis. Thanks!

shannon j said...

Ditto.

MOJ said...

I think you misrepresented my comments above. My point is simply that it a Supreme Court case COULD go either way, depending upon whether the court (a) extends or (b) distinguishes the precedent. We won't know until it happens.

Chris and Annalee Waddell said...

I haven't been here for awhile. Things haven't changed much I see.

So, just for the sake of debating, I want to ask why gay marriage is ok (in the opinion of many) but polygamy is not (perhaps by the same people who support gay marriage)? I mean, once upon a time weren't mormons forced to change their lives and families because their marriages were considered atrocious (legally and otherwise)? Hm, I wonder if once the tide of moral change finally pushes this issue onto the side of legalizing SSM, the window of opportunity will once again be open for polygamy as well. Some may hope...

No thanks, on both.

Thanks Lisa.

Lisa said...

MOJ: Sorry for the misunderstanding. I think we're largely on the same page.

Chris/Annalee: Here's the difference:

When I think polygamy, I think of church mandated and arranged marriages composed of a man and a young bride or an already married woman (there were also the widowed women, sure). Women (and men) who had the threat of excommunication looming over their heads if they spoke against it or rejected it when asked to practice it.

Yes, people were excommunicated. They were threatened with the wrath of God.

You had women who were by all intents and purposes forced into a situation where they had to share their guy. Joseph Smith couldn't even bring himself to tell Emma about his first bride for quite some time. And once she found out, Emma could never reconcile it. "God said so" doesn't always fly with your conscience. And in a church that tells us to trust our conscience, that light of God, what does a person do? Ignore themselves and trust in their leaders? No.

Remember, we may not have to practice it today, but the Church teaches that we must be in a spiritual enough place that we would accept such doctrine--and willingly. It's always best when it's with a willing heart. It's the same with laws such as the law of consecration. We have to be willing to do whatever God asked of us. Kill our own children (even though God stopped Abraham), share our husband. Sacrifice everything we have. Everything.

So if it were reinstated, would you be okay with that? Could you possibly sustain the leaders, even if you yourself didn't have to practice it? Do you honestly think women who are compelled to enter into such unions were happy? Because they weren't. Too many of them, and one is too many, weren't okay with it.

I know I would be physically ill over the idea.

We would have to uphold it as not only lawful to God but divinely inspired. We would have to ideally be in a place where we would live the law if asked.

Now, if a group of people who all go into it willingly without the fear of God thrust into them, well, whatever. I'm not going to tell them no. It would be a legal nightmare, but whatever. People (Charles Barkley) have open marriages.

That isn't the polygamy I speak of.

Gay marriage is totally different from the polygamy I speak of. Nobody is being forced to accept this. N-o-b-o-d-y. It just seems that way since we're voting on this right. But we're not being forced to be gay or live a gay lifestyle or even accept it as God approved. Just allow other people the freedom to marry whomever they want to--two consenting adults in a sacred union. That does not hurt you, me, or the Church.

That's the difference.

Clever, by the way. I would think the Church would be against government imposing on marriages seeing as that is *exactly* what happened back in the mid 19th century. The only difference is we "know" we're right and everyone else is wrong...right?

Chris and Annalee Waddell said...

Lisa, it's Annalee...

Let's just leave the spiritual element out of it, since our feelings on the matter of polygamy are identical, and view the issue of "marriage" (who, what, when, where, how) in a legal context: If SSM becomes legal, wouldn't it be reasonable to assume that other unions (polygamy, for instance) would/should also be considered legitimate?

What say you?

Lisa said...

Annalee (I thought so, just didn't want to assume)

It's nothing I haven't thought of before. I even mentioned it to my husband, "What if...?"

My biggest beef with polygamy is "is this forced upon the people or not?"

Within the church's boundaries, it was. They can say it wasn't, that the couple/woman had "free agency" but she didn't. Not with excommunication behind the words "The Lord has called you to be another wife of President Smith."

But, and as much as I'm not a fan, if it were a matter of a group of people who wanted to engage in a polygamous marriage, well. I'm not going to stop them.

Legally, as I said, it would be a nightmare.

But as long as nobody is asking me to do it, then I'm fine. It's nothing I'd like to see my kids engage in when they're older, but that's because I'd always be afraid they were being coerced into it.

I mean, how many of us don't want to be the *only* one our spouse wants?

Then again I've spoken to some women who would be okay with such an arrangement.

Eh, not my cup of tea but whatever. If it is something that works for them, if it is something that all women are geuinely okay with, if it is happy and stable, then...okay.

My husband and others insist the Church will never reinstate polygamy. I hope they're right, but I think it would be a possibility for sure. And it did make me think twice about my vote, but I'm not going to allow a "what if" to get in the way of so many other people's civil rights.

Chris and Annalee Waddell said...

I think these things will be brought to the table (polygamy, etc), especially since people are already living in said unions. What I'm trying to get at with you is the consideration of how redefining marriage would impact society at large, not necessarily you personally. Gay, polygamous, and whatever else people can think of would have to be considered equally legitimate. You acknowledge that you have considered this but support the redefining of marriage to include SSM despite the possibility of legitimizing polygamy.

Ok.

p.s It would be more fun to talk about this in person, but oh well.

Lisa said...

Have you ever heard of a Boston Marriage?

I would love to do a post on one, and may well do one in a while, but google it. Throw in author Amy Lowell while you're at it.

Interesting stuff.

I have to say I wouldn't mind. Just because I don't agree with it doesn't mean it's badbadbad.

I do see the point of "well then we can redefine marriage to mean anything" such as polygamy, since it should include consenting adults who aren't coerced into such a union.

With interracial marriage, the argument may well have been "if we allow the blacks to marry the whites, then where do we stop?"

Because back then, the "definition of marriage" included the couple being of the same race. They were free, after all, to marry--just someone of their same race.

I just can't allow fear to get in the way of what I truly believe to be a civil right.

That's all. While I see the point the other side is attempting to make, I do believe there are more frightening things out there: like refusing good people their rights due to something they've no control over.

Thanks for the quick discussion. You're right--this would be more fun in person. I'm afraid I've a more difficult time in person articulating my thoughts, though :)

Rick Fernández said...

If I may jump in, I think the potential connection between same sex marriage and polygamy is less realistic than may otherwise appear. Equality advocates argue only that if straight people may marry the one person of their choice, then gay people should have that same right. Polygamy advocate, gay or straight, are seeking something that is essentially different from the right to have a monogamous relationship granted legal recognition. In any case, no gays I know are seeking polygamy but rather only to have the same right that straight people currently enjoy - to marry the person we love.

Chris and Annalee Waddell said...

The point I am making is that SSM opens up the argument of redefining a fundamental social institution to include only two alternatives whilst excluding all other unions. Whether it's PROBABLE or not that polygamous marriages would ride the legal coat tails of SSM is irrelevant, it is POSSIBLE and therefore must be considered in the discussion of marriage nouveau. What about minors? What about members of the same family? How can you deny them marriage rights, keeping in mind that they love each other, while acknowledging you have been refused the same?

Thanks...

Rick Fernández said...

Here's a great essay on this topic that's also a fun read: http://teamwashington.blogs.foxnews.com/2009/06/02/revisiting-prop-8/

Chris and Annalee Waddell said...
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Chris and Annalee Waddell said...

Re: Rick

That WAS funny! Especially the ridiculous situation that is "Yes, you can. Oh wait, now you can't." (They weren't as nice to the polygamous mormons who had to break up their families). It just gives weight to my argument, though, that it's better to anticipate what outcomes will follow if SSM is legalized. Trust me, people will expand on this and the law should, FOR ONCE, precede. It's economical :)

Rick Fernández said...

I recommend two stories for everyone's reflection:
1. From a Jewish writer - http://www.ajn.com.au/news/news.asp?pgID=7515. It makes the case clearly and succintly why equal marriage is not about protecting gays but about protecting all minorities. That's why I think the CA court decision last week was so disastrous and why no minority groups, including Mormons, ought to be celebrating it. I should also acknowledge that while I was Mormon for a few years after converting, I have returned to Judaism - thus, this essay was particularly moving to me. As a member of a group with a long, long history of repression and persecution, I resonate deeply with the need to enshrine principles into law that prevent majorities, however well-intentioned they may believe themselves, from taking away rights from minorities that they would never deny to themselves. It's not about whether someone believes that homosexuality is evil, wrong, immoral, etc. Imagine if we lived in mediaeval Spain, where heresy was equally feared and vilified? It's not about what's true or orthodox in the abstract. It's about fundamental respect for the dignity of the human person to choose for themselves, despite the fact that others may disagree, even vehemently. That is what it means to believe in the inviolability of human conscience and autonomy. Those who think it's about morals fail to grasp this most fundamental moral issue of what it is that makes us human. It's not orthodoxy in religious matters. It's respect for the human condition.

2. http://www.sltrib.com/ci_12504762?source=most_viewed
This story from today's SL Trib shows that Mormons, who constantly say they are defending traditional marriage and oppose anything other than "one man, one woman" are simply not being consistent or frank. Current temple practice shows that the LDS church performs - and thus believes in - polygamy for marriages in the next world. Russell M Nelson is only one of many men who have been allowed to have a second wife sealed to them for eternity after their first wife, also so sealed, had passed. It's time the church was honest about its views on marriage and admitted that it does not believe in what Protestants and Catholics call traditional marriage. I doubt this will happen, however, because that fact would be most inconvenient in forming political alliances. If it did, however, it might be that acceptance of polygamy leads to great acceptance of homosexuality, rather than the reverse that others have described here. And perhaps that's why the LDS church will never admit this publicly.

Chris and Annalee Waddell said...

Re: Rick

Thanks for the links. I only started to read the first suggestion so I'm afraid I cannot comment fully to your remarks. If I may address this, though, and take a little license. You wrote:

"Polygamy advocates, gay or straight, are seeking something that is essentially different from the right to have a monogamous relationship granted legal recognition."

That word ESSENTIAL is significant to me because in my mind SSM is essentially different than heterosexual marriage. Yet here we are likening the two and trying to get them to be viewed the same. But, that's not what I really want to focus on here. What I really want to address is the "legal recognition," you mentioned. Traditional marriage advocates don't just view marriage as a legal matter. It is a spiritual matter as well. It is more than a legal convenience to them and it is necessarily exclusive (man and woman) because they believe God has designed and intended it to be so. They aren't trying to make homosexual lifestyles illegal or stop SS couples from living in loving, committed relationships. They are, however, sustaining their idea of what is right and good within the confines of the law.

Lori Ann said...

Lisa,

I haven't commented for a while, but I do love your blog because you are bold, and that is something that I aspire to. One thing you said did catch me off guard..

"Honestly I wish people would open a few books and consider different perspectives for a change. It doesn't hurt. I promise"

It doesn't help the respectful debate for either side to insinuate that the opposition is at best narrow minded, and at worst just fucking stupid.

I battled that perception all through graduate school, "oh you're conservative. Why don't you read a book, stupid?"

Anyway, I think I have said this before on your blog and people seem to kind of step away from discussion about it, but I seriously want to know...

What about civil unions or marriage or however you want to term it, for any two (or more) consenting legal adults?

Why should the privelege of marriage or civil union be given only to two people whose relationship is sexual?

Maybe that is something that will come in time, I dont know.

Thanks for making me think, as usual.

Ashton Emerald said...

Hi, my name is Ashton Emerald. I am new to the blog. Let me backtrack to the legal discussion of Loving v. Virginia and see if I can help.

Lisa wrote: “Yes I have read Loving v. Virginia, and it states in its official wording that marriage is a civil right. Period.”

Ashton: I think you need to analyze the text more in its historical context, as MOJ suggested. Let me quote from Loving the lines you seem to be referencing.

‘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. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.’

In determining what a court’s text means, we can’t merely look to the words outside of their historical context. Btw, note all of the sexist language here that also has to be properly understood in its historical context. The key term here for our purposes is ‘marriage’.

Prior to 1967, gay marriage was not included in either the denotation or connotation of ‘marriage’. This is especially the case when we look at what ‘marriage’ meant prior to the 20th century. Note here D. Michael Quinn’s work that suggests that homosexuality AS AN IDENTITY did not exist until the twentieth century, even if same-sex dynamics did exist.

For those of 1967 and before, the sex (whether male or female) of those in a marriage was not a trivial aspect of the meaning of marriage. Rather, the sex of those in a marriage was part of the core aspects of the term. So, when the court uses the word ‘marriage’, we can plausibly assume that the court meant opposite-sex marriage.

Applying this understanding to the text of Loving, the court held that the following: opposite-sex marriage is a civil right.

Lisa seems to recognize this point later, she writes, “Loving v. Virginia and Perez v. Sharp were not dealing with gay marriage. I'm not stupid. But cases like these are used as precedence. This sort of extension happens often as it must when direct precedence does not exist.”

Ashton: There are different kinds of precedent—not all precedent is equal. You are correct to say that “this sort of extension happens often”. However, it does NOT always happen. Importantly, whether it “must” happen or whether it should happen is a matter that is hotly contested in jurisprudence. So, whether Loving should serve as legal precedent for any case on same-sex marriage depends on one’s jurisprudential commitments about what constitutes precedent and the role, if any, precedent should play in judicial decision-making.

Note here that there are two questions at play. (Q1) How SHOULD the Supreme Court interpret the relevance of Loving? (Q2) How WILL the Supreme Court interpret the relevance of Loving. Q1 is a controversial question of jurisprudence, which I was identifying in the previous paragraph. Q2 is speculative (we might need a crystal ball) and is the point that MOJ was making in his post that Lisa was responding to. Let me quote for everyone’s convenience.

[contd in next post]

Ashton Emerald said...

MOJ: “THAT will be the issue when the Supreme Court grants certiorary [sic] to a gay marriage case. Will the Court consider Loving? Of course, but which way will they go on the Loving holding? They MIGHT say "We decided, in Loving, that marriage was a fundamental right, so this naturally applies to gay marriage too." Or, they might say, "We decided, in Loving, that marriage was a fundamental right, but this does not apply to gay marriage because..." Courts constantly distinguish precedential case law based on what they consider material differences in the facts of the case. Here, supporters of gay marriage obviously argue that there is no material difference between gay and heterosexual marriage (and, thus, Loving justifies gay marriage), while opponents of gay marriage obviously argue that there is a material difference (and, thus, Loving does not justify game marriage). The Supreme Court ruling, consequently, will depend upon which of those arguments it finds most compelling.”

Ashton: To make any plausible projection on how the current Supreme Court will consider Loving, one would have to analyze each justice’s prior decisions to see if one could find a pattern or theory behind their judicial decision-making. Savvy lawyers would do so before arguing before the Court. Perhaps, no consistent pattern could be found.

Since what the Court did in Loving did not recognize same-sex marriage, AND how the Court should use Loving as precedent in any future decisions is hotly contested, AND what the Court will do in any such case is unknowable, then the issue of whether same-sex marriage is a legally recognized civil right is an open question.

This type of legal conclusion is often called ‘black letter law’. Hence, the black letter law is that only opposite-sex marriage is a (legally recognized) civil right.

SURPRISINGLY

Lisa then makes her argument circular by what she states as follows.

Lisa: “Look, the point at the end of the day is that marriage is a civil right.”

Ashton: I think that Lisa is making a legal claim here--not a moral claim. So, restating what she wrote in these terms, Lisa believes, ‘marriage is a legally recognized civil right’.

But, this is exactly the point to be decided. Here Lisa is stating it as a conclusion.To put the point more precisely Loving declared that ‘opposite-sex marriage is a civil right’. Whether same-sex marriage is also a civil right is legally an open question. So, if we use the term ‘marriage’ to mean both opposite-sex marriage and same-sex marriage, we cannot conclude correctly that ‘(opposite-sex and same-sex) marriage is a legally recognized civil right’. Once again, LEGALLY whether same-sex marriage is a civil right is an open question.

Morally speaking, whether the law or the courts should recognize same-sex marriage may be a conclusive (closed) question depending on one’s moral commitments. But, the moral question on what the law or the courts should do is separate from the legal question of the significance of Loving. To that extent, we cannot uncontroversially conclude that same-sex marriage is a legally recognized civil right.