[hackinthebochs]

>but if you are actively working to remove existing rights from other people

How is opposing redefining marriage (in the context of law) working to remove existing rights of people? Its framed in terms of removing rights/civil rights because it suits the cause. But this characterization is not supported by a dispassionate reading of the issue here.

[wpietri]

Untrue. If you read Judge Walker's decision against Prop 8, or the recent judgment against the Michigan Marriage Amendment, you'll see that both Prop 8 and the MMA failed because they violate the 14th Amendment's grant of equal protection: http://en.wikipedia.org/wiki/Equal_Protection_Clause

In particular, both Prop 8 and the MMA failed to meet the Rational Basis test: http://en.wikipedia.org/wiki/Rational_basis_review

That is, both courts found that there was no rational basis for keeping gay people from getting married. The rationales offered by proponents didn't measure up.

[fakeanon]

>All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Proposition 8: Section I. Title

        This measure shall be known and may be cited as the "California Marriage Protection Act."

    Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

        Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

Which part of this denies equal protection to someone under the laws?

[wpietri]

The part where gay people are treated as not as good as straight people. The state has a legitimate interest in promoting marriage. Basically, because families. If you want to exclude gay people from that, you can't just presume they're inferior. You have to demonstrate it.

[oberto]

Untrue. Courts have also upheld many Prop 8-like measures in other states - see Nebraska's Initative 216, which the Eighth Circuit ruled was acceptable (http://en.wikipedia.org/wiki/Citizens_for_Equal_Protection_v...). So the courts disagree, and you cannot simply cherry-pick the "right" cases where the preferred side wins, to say that courts (who are always right) support you.

And ultimately, the courts are decided by majority vote, by being appointed by politicians that citizens vote for. A Supreme Court in Russia may find a rational basis for opposing gay marriage, and then write that in an opinion.

[wpietri]

As far as I know, no recent court has found that there is a rational basis for anti-gay-marriage laws. The Nebraska decision hauled up a 1972 decision, back before much of the science was in. And the entire point of Prop 8 in specific was to strip a right from gay people by amending the CA State Constitution, so I'm going to stand by my assertion that marriage redefinition is not what's going on here. Indeed, it's Prop 8 that explicitly redefined marriage here.

[hackinthebochs]

I voted for gay marriage in the last election in my state, but honestly that rationale seems extremely strained. Yes, government has a legitimate interest in defining marriage as it confers certain benefits to certain people. The "rational basis" test should not be one that questions the validity of the exclusions/inclusions within the law, but rather if the government has a legitimate interest in law in question. It should not have been the burden of the proponents to prove that the government had a rational basis for excluding gays from marriage.

[wpietri]

If you think that's the case, then work to appeal the 14th amendment, which grants all people, including gay and lesbian ones, equal protection before the law.

Seriously, go and read the decision on Prop 8, or the recent one on the Michigan Marriage Amendment. Both are clear and readable explanations of why gay people start out equal, and if you want to make laws against them, you have to prove that there's a rational basis for the state to do so.

[hackinthebochs]

>Both are clear and readable explanations of why gay people start out equal

Not being able to marry a same sex person is not "not equal" (pardon all the negatives). The fact that we have to rely on judges to offer strained arguments to cause any meaningful cultural shift is a bug in our system, not a feature. Judges should not be seen as the savior of the republic. The proper place for this to change is through legislation. All of this is assuming the definition of marriage being between a man and a woman was ever codified into law before this became a point of contention--not sure if I've ever actually seen such a thing.

[wpietri]

There's no mystery here. Everybody starts out equal before the law. To pass a law that singles out a group of people, you have to at least have a rational basis for doing so. If the state is going to have civil marriage, then to exclude gay people from it, you need a rational basis for doing so. There isn't one. The majority doesn't get to have an opinion on whether group X is deserving of the right of equal protection; it they could it wouldn't be a right.

Regardless, in the case of California, gay people could get married before Prop 8, so if you are worried about redefining marriage, it's Prop 8 that should be your problem.

[hackinthebochs]

>Everybody starts out equal before the law

Yes, gays were certainly free to marry opposite sex people if they chose to.

>you need a rational basis for doing so

Government has an interest in promoting "positive" social policy through the power of taxation. Seems like a rational basis to me. The question then becomes is an opposite sex marriage more beneficial to society than a same sex marriage. This is something that should be decided directly, not through the rational basis test.

According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.

[dnr]

I'm curious what you think of this line of reasoning:

http://www.volokh.com/2012/02/07/same-sex-marriage-bans-and-... http://www.slate.com/articles/news_and_politics/jurisprudenc...

[hackinthebochs]

I'm not a fan of that reasoning. When framing the question in terms of "marrying opposite sex", it cannot be concluded that this rule violate equal protection (men and women are equally allowed to marry the opposite sex). When framing the question in terms of what an individual can do (Jane cannot marry Susan whereas John can), then it appears you violate equal protection. This scenario tells me one thing: that this reading of the issue is missing critical nuance.

Whenever a rephrasing of an issue can lead to the opposite conclusion, its clear that critical nuance is being stripped away. The fact is a marriage is a coupling of (at least) two people; one cannot meaningfully speak of an action of marriage of a single person. So framing the question in terms of what an individual can/can't do seems to be the error. Restrictions on marriage can only be meaningfully applied to the set of all individuals involved; and there is no way to phrase it in this way that leads to an equal protection violation.

[TheCoelacanth]

Gay marriage was legal in California until Prop 8, so Prop 8 removed some people's right to marry.

[clavalle]

Rights are not granted.

Laws merely define approach to Rights.

[hackinthebochs]

I don't believe in natural rights. I believe all rights worth writing down are granted.

[clavalle]

That suggests some authority is granting your Rights.

What authority would that be?

[hackinthebochs]

The collective might of society. The only natural right is "might makes right". Every "Right" we grant ourselves after that is simply a particular implementation of that initial principle. The key is to make sure your group of like minded folks have might on their side.

A right necessarily entails a responsibility onto others. Without some framework of mutual agreement and enforcement, talk of rights is utterly impotent.

[clavalle]

That flies in the face of the idea of a Democratic Republic where minorities Rights are protected from the whim of the majority.

If the majority can simply redefine a Right, what is the point of elevating these things to the status of a Right?

[hackinthebochs]

Within the framework of a society, whatever rules have been defined are law. Structuring society in such a way that minority rights are protected is a part of this. One doesn't have to reference some overarching 'natural rights' to have them protected: you simply write them down as one of the founding principles of your society. This is what the declaration of independence/bill of rights has done and its worked out pretty well so far. A right is always a reference to a constraint in behavior, agreed upon through some mutual framework, and enforced through the might instilled to that framework.

But make no mistake, any of these "rights" will always be at the whim of the majority. The question simply becomes how big of a majority is required, and how well can your institutions withstand a serious attack on the minority by a (less than supermajority) majority. Speaking of "self-evident truths" will not save you in the face of such an assault. We must always be vigilant that the structure of our institutions are sound.