Prop 8 Court Case

On the radio this morning there was a discussion of the arguments being presented in the Prop 8 case. I was astonished that the defenders of Prop 8 seem to be basing their entire case on the idea that marriage is a tool for procreation and therefore must be between a man and a woman.

Does this argument have any chance of succeeding in a federal court?

I listened to a pretty long piece about it yesterday on NPR and they were skeptical that the defense (of Prop 8) had much of a chance with that argument. They also mentioned the relatively high powered legal team for the other side, and how that would play into this.

Here is the running story on it:

Here is the audio piece I heard:

One thing I found funny was that the defense didn’t want the judge to be able to allow this to be seen on YouTube. Which I thought was a little hilarious. So it’s okay for those who are gay and want to push for marriage to be on YouTube, but you want to defend yourself as anti-gay and not be seen? Lol-worthy.

Errr… Maybe not in the 9th Circuit, but have you looked at the make up of the Supreme Court lately?


Frankly, I don’t think this Supreme Court would get the Scopes trial right. Which means not much has changed in 85 years.

Yeah, IANAL, but that seems like a terrible argument. I would think the obvious counterargument is that straight people are allowed to marry even if they have no intention of ever procreating.

The biggest issue I see with the whole prop 8 thing is that I am not sure how a constitutional amendment, something that legally changes the constitution, can somehow also be unconstitutional in that same state. I wish prop 8 had never passed and I fully support the right for gays to marry, but I dont see the legal merits of the whole constitutionality fight.

So, in your mind, it’s essentially mob rule. If 51% of people vote to kill all arabs in this country (something that you might be able to get passed), that should make it law?

It’s being tried in a Federal court, though. The US Constitution trumps the State Constitution, if the two are in conflict.

Because it’s a federal lawsuit. They’re arguing Prop 8 violates the US Constitution, not the California one.

Ive never said that, I just struggle with how something that is part of the constitution can legally be deemed unconstitutional in the same state. Can you at least comprehend how legally and logically that doesnt make much sense?

I was under the impression that at one point they were also suing in state courts to have it declared unconstituional. If that has changed, and I have not seen anywhere that they are not also pursuing that course, my question still stands.

Amendments to the California Constitution that run afoul of the United States Constitution cannot have legal effect, just as state law that runs afoul of COTUSA can be held invalid. The United States Constitution is the supreme law of the land.

There really aren’t any advantages to marriage anymore that aren’t covered by a civil union if we would just punch up the estate and whatnot portions of a civil union (i.e. - if a man dies and has no will, his wife gets everything simply because of the marriage document; but if a gay man in a civil union dies without a will, his possessions don’t necessarily pass to his partner in the union).

I’m not saying this in a “gays should be happy with civil unions and leave marriage to straight people” way, I’m saying this in a “we should stop recognizing marriage as a legal entity altogether and make everyone file for a civil union instead” way.

They’re casting it in those terms because of the precedent on which they will try to rely. In order for marriage restrictions to be valid under the Constitution, they have to be rationally related to a legitimate state goal. The Supreme Court has held on various occasions that states have a legitimate interest in promoting population growth. The Prop 8 defenders will then argue that restricting marriage to heterosexual couples furthers that goal, without overly burdening anybody in particular.

Of course, they’re pretty much fucked here. The case against Prop 8 is being argued by Ted Olson (former Solicitor General and argued on behalf of Bush in Bush v. Gore) and David Boies (brilliant litigator and argued on behalf of Gore in Bush v. Gore). And recent Supreme Court precedent basically compels the conclusion that restrictions on gay marriage are unconstitutional. I’m quite fond of Scalia’s statement in dissent in Lawrence v. Texas (where the Court held that a Texas law banning homosexual sodomy was unconstitutional):

It’s two different suits brought by two different groups of people. The state level case was sort of a procedural argument, not to declare prop 8 unconstitutional, but to argue that certain kinds of changes to the State Constitution had to be made legislatively, not by ballot initiative.

Their argument would preclude sterile couples, old couples, couples who don’t want to have children, anyone who has had a vasectomy or hysterectomy or tubal ligation or terrible industrial accident, seen HD porn that is too HD (if you know what I mean)…ect ect ect

I really don’t. Can you spell that one out for us?

I would draw you a picture, but once seen some things cannot be unseen.

That was the same opinion as the guy who spoke from NPR. The legal team arguing against Prop 8 was pretty powerful, and the recent history of legal cases is on their side.

I agree. It seems to me that one natural conclusion from their argument is that post-menopausal women should also not be allowed to marry.

[Edit:] Yeah, what BlueJackalope said. (minus the HD porn bit, which I have not in fact seen and like Lux, I’m not sure what he’s talking about!)

I was scanning a church website today in which the biography of the pastor included statements that he and his sweetheart joined in the “corporate relationship of marriage” on such and such date and since then had “procreated three times resulting in two sons and one daughter”. That’s a paraphrase from memory, but not by much.