The Bright Coast

Progressive Thoughts from San Diego Alums on Law, Politics, and Culture

Prop 8

Posted by brightcoast on October 27, 2008

They started running the No on Prop 8 ads recently. I’ve been thinking that of all the states in the Union, California is up there, at least in theory, with the most progressive, and therefore, this constitutional amendment should not pass. The two biggest problems I have with it are this: 1) constitutions shouldn’t be amended every time people get upset with a court decision they disagree with– if it’s truly that bad, then at least give it some time to work itself out in the real world and see what happens, contrary to many people’s thoughts, gay marriage will not be the end of the world; 2) seriously, what is the big deal? I understand that people don’t agree with or support gay marriage, but what I don’t understand is why they have to prevent people who obviously care for each other just as much as heterosexual couples do from enjoying the same legal rights. And let me tell you, a civil union is the separate and inherently unequal akin to that Brown addressed, albeit in a different context.

Because I can’t bear to leave the state if this were to pass, I’m hoping I can convince those who are so opposed to it to leave instead. Then I can enjoy the tolerant, progressive Golden State that I love so much. There are, what, 48 other states (maybe 47) that should give those yes on Prop 8’ers their intolerant fixes.

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6 Responses to “Prop 8”

  1. I’ll give you some rest on the subject, then.

    Argument 1: But Same-sex marriage is CURRENTLY LEGAL in California. Prop 8 will end that!

    Fact 1: Same sex UNIONS have been. First, the term, ‘Same-sex Marriages’ is recent and is the conflict of opinions. Second, ‘Civil Union’ is the proper term of two people of the same gender coming together. Marriage in the dictionary is “the union between to people of the opposite sex.”. Therefore doing so will only make the term ambiguous and would not help people define marriage.

    Argument 2: Voting NO on Prop 8 WILL NOT force schools to teach same-sex marriage

    Fact 2: “The California Department of Education’s own website says that 96 % of public schools provide instruction under the Comprehensive Sexual Health and HIV/AIDS Prevention Act (Educ. Code Sec. 51930, et seq.) and every school that provides instruction under that Act must provide instruction and materials that teach about marriage. Additionally, the Department of Education’s own checklist for instruction under the Act confirms that instruction about marriage is required for the school district to be in compliance with state law.” (from http://forums.contracostatimes.com/topic/schools-must-teach-marriage)
    Therefore the argument is bogus. In fact the idea that “you love someone” is not enough to marry. If the reason for marriage is that, then why stop from there? Why not allow multiple wives/husbands and marry animals? And lets go farther and say you can have group marriages and marry children, regardless their age!
    So then you would cause havoc in the school curriculum and cause kids to both not be able to identify their gender, and make ambiguous the reason to marry in the first place. Thus unsafe activity would be increased (licentious behavior is a pool for AIDS)

    Argument 3: Voting NO on Prop 8 WILL NOT force Churches to recognize same-sex marriage and they WILL NOT lose their tax-exempt status

    Fact 3: Although this is true, one simply has to look around at the places that do and you’ll find that is will be done so anyways. Take recently how when two physicians, Dr. Christine Brody and Dr. Douglas Fenton, refused to artificially inseminate her when she asked for the procedure.
    Benitez said they denied her because she is gay; the doctors argued it was because she was not married.
    Robert Tyler, the doctors’ attorney, has said his clients, who are Christian, suffered a “crisis of conscience” when asked to perform the insemination and play a role in creating life.
    The court found that federal and state constitutional rights to religious freedoms and free speech do not mean that doctors can violate California’s Unruh Act, a set of civil rights laws that govern businesses, “even if compliance poses an incidental conflict” with a doctor’s religious beliefs] [Source: http://www.nctimes.com/articles/2008/08/18/news/sandiego/z610a19d73f733d1a882574a9005cec65.txt%5D
    Or how about when a church refused to allow a same-sex wedding on their own property? The church got sued because they wouldn’t allow it on their property, ‘the nerve of them’! [http://www.npr.org/templates/story/story.php?storyId=91486340]
    It’s nice to think positively on things like this, but loopholes through laws are just the thing that happens. Good intentions just can’t measure up to lost liberties, or the opportunity to lose them.

    Argument 4: Domestic Partnership and Marriage ARE NOT the same

    Fact 4: Again, the correct term is civil unions, and they have the same rights as married couples, from visitation rights to power of Atterny. Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, “domestic partners shall have the same rights, protections, and benefits” as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.
    In fact, it is a myth for that to come up as an argument since their own advocates were the ones who helped create the said laws!

    Argument 5: Banning same-sex marriage is unconstitutional and un-American

    Fact 5: This not only was not what the constitution was speaking of (since it refereed to individuals) but the theory is completely flawed. It is not anyone’s right to do anyone harm or take advantage of someone’s weakness. You never have the right shoot someone for nothing, you know.
    Again, refer to the above fact.

    (: Gov. Arnold Schwarzenegger, Lt. Gov. John Garamendi, Sen. Barack Obama, Sen. Joe Biden, Sen. Dianne Feinstein, Sen. Barabara Boxer, Sacramento Mayor Heather Fargo, Los Angeles Mayor Antonio Villaraigosa and many more are all AGAINST Prop 8.)
    Fact 6: Two-thirds more agree and most are from California. Check out some of the list on ProtectMarriage.com: [http://www.protectmarriage.com/endorsements]

    [The Teacher’s Association did not ask their own people whether they agreed but used their money for the opposition to Prop 8. Also, many group OUTSIDE California have been giving money to an issue that concerns Californians alone]

    Argument 7: The Supreme Court overturned the ban on same-sex marriage because it was UNCONSTITUTIONAL

    Fact 7: The Ban had nothing to do with the so-called constitution. In fact, marriage as an idea of between one of each sex has been around before recorded history and is apart of both this physical world and our psychological well-being. The decision should have therefore been up to the people as our founding father’s had intended such “trivial” things to be.

    Argument 8: The California Supreme Court Justices ARE NOT activists!

    Fact 8: Judicial activism – an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court)
    These judges fit the said definition, regardless of whether they are moderate or not. Our Founding Fathers were the most brilliant people on the subject and should be listened too (Only one true Democratic Republic has lasted so long), therefore to ignore them because of mere opinions and feelings, which is inserting your own ideas as absolutes, is the most arrogant thing to do, in our argument.

  2. brightcoast said

    In response to Fact 7– the issue was decided on Equal Protection grounds. Not allowing same sex couples to marry discriminates against them unfairly based on sexual orientation and does not allow them the same– EQUAL– right to enter into marriage. This is a constitutional issue. Separate but equal is inherently unequal, see e.g. Brown . I recommend reading Loving v. Virginia for a history of the issues decided in the case, as well as an informative background.

    Re #2– I find that logic particularly interesting. If they teach about HIV/AIDS, a.k.a. sex ed, then they have to teach about marriage. Hmm, isn’t that what the right advocates? Sex only after marriage? Oh, but here since it doesn’t forward the conservative agenda exactly par for the course, we’re going to argue against the teaching of marriage connected with sex ed. Well, eliminiating the requirement that marriage be taught along side of sex ed is perfectly fine with me. I think such intimate matters are better left to parents anyway. And anyway, you are referring to the requirement that marriage materials be made available which is not the same thing as being required to teach .

    In regards to Domestic Partnership being the same as marriage, the only thing equal about it is the statement in the Family Law Code saying that it will be the same. In practice, however, this is simply not true. Here are just some of the examples submitted in a brief for the case lifted from a discussion of the topic by yours truly.

    “The Respondent’s supplemental brief listed the following differences between heterosexual marriage and domestic partnership under the CFC: no issuance of marriage certificate, license, or solemnization requirement to enter into a domestic partnership; effect of declaring sexual orientation upon entrance; ease of dissolution of domestic partnership including relaxed residency and judgment requirements; requirement to share a residence prior to registration; no exception for minors to enter into a domestic partnership; a state wide central, public, searchable record of all domestic partners (whereas marriage licenses lists only available on demand, county by county) ; preclusion from the state sponsored long-term care benefits for the domestic partners of state employees generally available for purchase for themselves, spouses, parents, and their spouses’ parents; inability to obtain confidential domestic partnerships; no state constitutional guarantees against the assessment of property taxes based on transfers within the partnership or protection of separate property; no state funded debt relief for the publicly funded (e.g. Medicaid) nursing home care for domestic partners; inapplicability of the putative spouse doctrine; no severance of former obligation to pay alimony upon entrance into domestic partnership; heightened disclosure requirements for employers/ requirement of affidavits to prove sanctity of domestic partnership; lack of equivalent benefits available through private employers (because of the distinction between domestic partners and spouses); lack of recognition of domestic partnerships by other states; lack of standing to seek equal treatment under federal laws; and other various discrimination because of the lack of wide-spread information about what domestic partners are legally entitled to.”

    FN: “1. What differences in legal rights or benefits and legal obligations or duties exist under current California law affecting those couples who are registered domestic partners as compared to those couples who are legally married spouses? Please list all of the current differences of which you are aware….”California Court of Appeal, First Appellate District, Div. 3—Nos. A110449/A110450/A110451/A110463/A110651/A110652 Supplemental Brief Order at http://www.courtinfo.ca.gov/presscenter/newsreleases/MA17-07.PDF

    FN: ” Respondent’s brief answers to question number 1 at 1-17 available at: http://www.aclu.org/lgbt/relationships/31363lgl20070817.html

  3. Yes, they have to teach about marriage. It is actually quoted what’s on their website. 96% of the public schools teach about marriage right now, so yes, they would.

    Again, for civil unions (the proper term), they have the same rights because, as I said, their OWN advocates were the ones who helped make those laws.
    Everything the opponents have claimed that they don’t receive is wrong. They get power of attorney, they get visitation rights, they get to buy houses together. They even get recognition by the government.
    Again, they get to form civil unions, just not have the term marriage applied (since marriage simply means, “the formal union of a man and a woman, by which they become husband and wife”
    Any short comings are a lack of the gays’ own advocate groups, not bigotry.

  4. brightcoast said

    You are correct in quoting the Family Law Code. However, like I said, and like the statements above reveal, in practice this separate but equal regime is inadequate and not the same as marriage. It is not just the title, but all of the rights attaching thereto. I take issue with denying Equal Protection to Californians, or Americans for that matter. I see no compelling governmental interest to justify this denial of equality.

  5. Therefore you would agree that this is a decision for the people of this Great State and not a few judges who think they know what’s best.

    Let them fix any issues they have in the civil unions. I see no problem in making sure they have their rights there (as I would not deny a felon of his rights) while still maintaining ours. We have the Constitution that allows this, do we not?

  6. brightcoast said

    Deciding that the Domestic Partnership regime in CA violates the EPC is a decision correctly interpreting EPC jurisprudence and history.

    Can you clarify your second question?

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