Political Diary: Democrats' Prop. 8 Veto - WSJ.com

Link: http://online.wsj.com/article/SB10001424127887324328204578569430263679950.html?mod=djemEditorialPage_h (via shareaholic.com)

Recall that both Mr. Brown and Ms. Harris declined to defend the initiative against a challenge in federal courts. Thus, the initiative's proponents took on the job, as permitted by the California Supreme Court. However, an ideologically mixed majority on the court (which included Chief Justice John Roberts and Justices Elena Kagan, Stephen Breyer, Antonin Scalia, and Ruth Bader Ginsburg) has ruled that they lacked standing to do so.

"Once the District Court issued its order," which was to strike down Prop. 8, "respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything," wrote the chief justice for the majority. Thus, the lower court's decision holds.
Many Californians are no doubt celebrating the decision. Public opinion has swung sharply in favor of same-sex marriage since a bare 51% majority of voters approved the ban five years ago. However, the decision is a huge blow to the principle of popular sovereignty, which underlies California's initiative process.
California's initiative system originated in 1911 to bypass entrenched and often unaccountable state politicians. As Justice Anthony Kennedy points out in his dissent (joined by Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor), "the initiative system 'grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.'"
As the California Supreme Court has determined, "this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding . . . Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State's governmental structure.
"And in light of the frequency with which initiatives' opponents resort to litigation"—over one-third of the initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court—"the impact of that veto could be substantial."
The court's ruling means that state officials and a single district court will be able to nullify initiatives on every thing from school choice to tax reform. The danger is particularly acute in California, where federal courts with jurisdiction are notoriously liberal, though the implications extend to any of the 26 other states with an initiative or popular referendum system.
Liberals may rejoice now, but perhaps they should consider the flip side: a Republican governor and attorney general who refuse to defend, say, an environmental initiative which is struck down by a federal court. Liberal proponents would no doubt want to appeal, but by the court's reasoning they couldn't.

The Prop 8 Case and the Infertile-Couple Canard - By Ed Whelan - Bench Memos - National Review Online

Link: http://www.nationalreview.com/bench-memos/344166/prop-8-case-and-infertile-couple-canard-ed-whelan (via shareaholic.com)

As Justice Kagan observed, there will, of course, be some opposite-sex couples whose infertility together may safely be presumed. But to imagine that that fact cuts against the development of marriage as a male-female union is to subject marriage to a level of hyper-exacting scrutiny that can't be justified. (Plus, as Chuck Cooper correctly pointed out—to the guffaws of snarkers like Dana Milbank who don't even have the decency to fairly recount what he said—even for an aged couple it is very likely that the husband retains his fertility, and the marital norm of fidelity operates to help ensure that he doesn't have children outside the marriage.)

Calif. court declares Prop 8 unconstitutional; Update: No ruling on fundamental marriage right � Hot Air

Link: http://hotair.com/archives/2012/02/07/breaking-calif-court-declares-prop-8-unconstitutional/ (via shareaholic.com)

Update 5 is interesting.  One of the arguments against Prop 8 was that it denied same-sex couples significant rights that were available to married couples.  If pp 39-40 do in fact state that the only thing Prop 8 did was bar same sex couples from obtaining marriage licenses and referring to themselves by the label "married", then I have to wonder why this right is so important.

UPDATE 2: (Jazz) Link to the full decision for your perusal.


UPDATE 4: (Allahpundit) I can't copy/paste the key part for some reason, so scroll down to the bottom of page 46 of the majority opinion and read from there to the bottom of page 48. The Ninth Circuit could have gone four ways here: (1) They could have found a fundamental right to marry whomever you wish regardless of gender; (2) they could have found that gays are a historically persecuted "suspect class" and therefore laws discriminating against them are invalid unless there's a very compelling state interest at stake; (3) they could have found more narrowly that Prop 8 serves no rational purpose in advancing any state interest, in which case they wouldn't have to reach any of the big questions about gays or marriage to find the law unconstitutional; (4) they could have upheld the law.
Number four was never going to happen with a court this liberal, but numbers one and two were possibilities. Instead, they went the third route, which was the tamest possible way to strike Prop 8 down as a violation of the Equal Protection Clause. The key Supreme Court precedent here, and the subject of most of the jousting between the majority and the dissent, is the 1996 case Romer v. Evans, in which Anthony Kennedy wrote for a majority of six in striking down a Colorado law that expressly barred any "special rights" from being granted to gays. Kennedy also took the tame option in that case, passing on the issue of whether gays are a "suspect class" and finding instead that Colorado's law was invalid because there was no rational purpose to its discrimination. The question before the Ninth Circuit was whether there's a rational purpose to discriminating against gays specifically in the context of marriage; read the opinions yourself for the back and forth about marriage and procreation on that. I'm intrigued, though, as to why the famously liberal Stephen Reinhardt wasn't more aggressive in his majority opinion. Did he want to find that gays are a "suspect class" under the Equal Protection Clause, which would therefore have warranted strict judicial scrutiny of Prop 8, but couldn't get the other judge in the majority to go along? Or was this a strategic decision, figuring that if he followed Kennedy's logic in Romer v. Evans closely, this ruling would have a better shot of being upheld by the Ninth Circuit en banc and, eventually, by the Supremes themselves? If the goal was to force the High Court to rule on it, then the strategy should have been to be as bold as possible and create a circuit split on the core constitutional issues at stake. Reinhardt didn't do that. Curious.
Update 5: (Allahpundit) The other key passage, I think, starts on page 39 of Reinhardt's opinion and runs through page 40. He notes that Prop 8 did nothing to deny gays the rights traditionally associated with marriage, which are granted under California's domestic partnership law, but merely the designation of "marriage" itself. That's key to the ultimate ruling that Prop 8 served no rational purpose in advancing a legitimate state interest. If all you're doing is denying gays the label and not the attendant benefits of marriage, then what is there to the law except pure stigma?

The compulsion to label & belittle gay marriage opponents

Gay Patriot's B. Daniel Blatt looks at...The compulsion to label & belittle gay marriage opponents:

Perhaps the most depressing thing about the debate on gay marriage is the dedication of gay marriage advocates to demonizing those who oppose state-recognition of same-sex marriages.  With their childish “No H8″ campaign, they contend that people oppose their view because they hate gay people.
No, there are, I grant, some folks who oppose state recognition of same-sex marriages because of their animus against homosexuals, but they do not represent all such opponents.  Many oppose such recognition because they believe marriage should be reserved for different-sex couples.  Indeed, a good number of these folks (but, alas not all) support state recognition of civil unions, similar benefits, different name.
Should we call the legislators in Rhode Island and Illinois “haters” because they moved forward to recognize civil unions for same-sex couples without calling them marriage?
In fact, some who oppose same-sex marriage treat gay people with dignity.  Such individuals have, for example hosted me in their homes, listened to my arguments, stood with me in hours of difficulty and even let me play (unsupervised) with their kids.  They know gay people aren’t demons; they don’t disapprove of us, it’s just that their understanding of marriage differs from that of gay activists.
Which brings me to the Senate Judiciary Committee Hearing earlier this week on the Respect for Marriage Act, a bill (that I support) which repeal the Defense of Marriage Act (DOMA).
While I believe Senator Charles Grassley (R-IA) is wrong to oppose the Act pending before the current Congress, he’s spot on when he takes issue with another supporter of the measure:

One of the witnesses before us today says that DOMA was passed for only one reason: “to express disapproval of gay and lesbian people.”  I know this to be false. Senators at the time such as Biden, Harkin, Kohl, and you, Mr. Chairman, and Representatives at the time, such as Schumer and Durbin, did not support DOMA to express disapproval of gay and lesbian people.  And neither did I.

Instead of demonizing DOMA supporters and questioning their motives, we should be challenging their arguments.
All this leads me to wonder — and not for the first time — why certain gay marriage advocates insist on seeing all those who disagree with them as harboring some kind of animus against gay people.

Because it's easier than making the case for redefining marriage?

Acknowledge Same-Sex Marriage — Or Else

From The American Spectator: Acknowledge Same-Sex Marriage — Or Else: "

Are libertarian-leaning Republicans responsible for legalized same-sex marriage in New York State? Gary Bauer addresses that question in Human Events today. It’s a case study in the tension between libertarianism and traditional conservatism.

It’s a tension that needn't exist. Capital “L” libertarians — as in, the Libertarian Party — typically take an active stand in support of same-sex marriage on the basis of individual freedom and expression. I’ve found that small “L” libertarians — those who identify with the philosophy, not necessarily the party — tend to ignore the issue in favor of fiscal matters.

Taking an honest assessment of the political playing field, which side in the equation is more freedom loving, the liberal or the conservative?

Bauer provides a few examples of same-sex marriage advocates’ anti-freedom inclinations:

Same-sex marriage is already having a chilling effect on religious freedom. In states that have legalized civil unions or gay marriage, Catholic adoption agencies have been shuttered or lost their tax-exempt status for refusing to let gay couples adopt children.

Last week in Illinois, Gov. Pat Quinn affirmed a decision by the Illinois Department of Children and Family Services not to renew adoption contracts with Catholic Charities for the same reason because of the state’s law recognizing same-sex civil unions.

The radical homosexual rights movement is also trumping parental rights. In California last week, Gov. Jerry Brown signed a first-of-its-kind bill that requires public schools to add lessons about gay history to their social studies classes. Other states have incorporated the homosexual agenda into their curricula. In 2007, a federal judge ruled that Massachusetts public school students would not be able to opt out of lesson plans that normalize the homosexual lifestyle and promote same-sex marriage.

Even more, recall the outright harassment, threats, and intimidation that supporters of California’s marriage amendment have faced in recent years. The idea is to erase any public disapproval of homosexual behavior (or any exaltation of traditional marriage), through any means necessary.

Already, First Amendment freedom of speech and freedom of religion protections are falling under the homosexual-marriage juggernaut. Which freedoms do Libertarians value more? Soon, will any public disapproval of same-sex marriage be rendered “hate speech,” and sanctions enforced through the hand of state and federal government?

It’s intellectually inconsistent, and self-defeated to their cause, for Libertarians to support that shift. Same-sex marriage never has been about a desire among homosexual couples to enter into long-term, committed relationships. They can do that now in all 50 states without punishment or sanction. Rather, it’s been about forcing society, through government mandate, to put homosexual relationships on par with heterosexual marriage — through a marriage license.

And it will have that exact effect. The question is, will homosexual relationships be elevated to the level of heterosexual marriage, or will heterosexual marriage be brought to the level of all other relationships?

Judge Walker and Supposed Lack of “Evidence” of Marriage’s Procreative Purpose

Did the supporters of Prop 8 really tell Judge Walker they didn't need to prove their contention of a State interest in marriage being male-female only? It seems if you remove enough context, you can cast a witness as saying anything. Ed Whelan in Bench Memos at NRO offers this: Judge Walker and Supposed Lack of “Evidence” of Marriage’s Procreative Purpose - By Ed Whelan - Bench Memos - National Review Online

Among the many distortions and falsehoods that Judge Vaughn Walker has tried to propagate through his anti-Prop 8 ruling is his claim that the Prop 8 proponents—who intervened as defendants in the case and valiantly carried out the role of defending Prop 8 when the state defendants abandoned their duties to do so—“failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” .... But in fact the Prop 8 proponents offered a thorough case that Walker almost entirely ignored—a case resting on a broad array of judicial authority, recognized scholarship in various academic fields, extensive documentary evidence, and elementary common sense.

One stark illustration of Walker’s massive distortion on this broader matter is his assertion (slip op. at 9-10) that “When asked [during closing arguments] to identify the evidence at trial that supported [the] contention [that ‘responsible procreation is really at the heart of society’s interest in regulating marriage’], proponents’ counsel [Charles Cooper] replied, ‘you don’t have to have evidence of this point.’” The clear—and utterly misleading—implication that Walker tries to leave through his grossly out-of-context quotation is that the Prop 8 proponents did not offer meaningful (indeed, overwhelming) evidence and other authority on this point. And plaintiffs’ counsel Ted Olson has compounded the falsehood with irresponsible public statements like this (from his interview on “Fox News Sunday With Chris Wallace”):

In fact, they [Prop 8 proponents] said during the course of the trial they didn’t need to prove anything, they didn’t have any evidence, they didn’t need any evidence.

1. Let’s begin by putting Cooper’s statement in its proper context:

At the closing argument in June, Cooper began by stating that “the historical record leaves no doubt … that the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.” (3028: 13-19.) Cooper cited numerous Supreme Court (and other) cases that reflect this understanding. (3027-3028.)

When Cooper stated that “the evidence shows overwhelmingly that … responsible procreation is really at the heart of society’s interest in regulating marriage” (3038:5-8), Walker asked, “What was the witness who offered the testimony? What was it and so forth?” (3038:14-15.) Cooper began his response:

The evidence before you shows that sociologist Kingsley Davis, in his words, has described the universal societal interest in marriage and definition as social recognition and approval of a couple engaging in sexual intercourse and marrying and rearing offspring.

Cooper then cited Blackstone’s statements—which were also in evidence submitted at the trial—that the relation of husband and wife and the “natural impulse” of man to “continue and multiply his species” are “confined and regulated” by “society’s interests”; that the “principal end and design” of marriage is the relationship of “parent and child”; and that it is “by virtue of this relation that infants are protected, maintained, and educated.” (3038-3039*.)

As Cooper proceeded to work his way through “eminent authority after eminent authority”—all in evidence submitted at the trial—Walker interrupted him to ask the bizarre question, “I don’t mean to be flip, but Blackstone didn’t testify. Kingsley Davis didn’t testify. What testimony in this case supports the proposition?” (3039:16-18.)

Cooper responded to Walker’s question:

Your Honor, these materials are before you. They are evidence before you.… But, your Honor, you don’t have to have evidence for this from these authorities. This is in the cases themselves. The cases recognize this one after another. [3039:19-3040:1]

Walker: “I don’t have to have evidence?” [3040:2]

Cooper: “You don’t have to have evidence of this point if one court after another has recognized—let me turn to the California cases on this.” [3040:3-5]

Note that only the underlined portion of the passage is what Walker quotes in his opinion.

And there's more, including:

2. Walker’s question—“What testimony in this case supports the proposition?”—wasn’t just flip. It was downright stupid—amazingly so, from a judge who has been on the bench for more than two decades. Even if one indulges the mistaken assumption that there was any need for a trial in the case (rather than its being disposed of, one way or the other, on summary judgment, with competing expert and documentary submissions), live witness testimony is merely one form of trial evidence. Exhibits submitted in evidence at trial are another form. And a judge is of course free to, and expected to, take judicial notice of certain facts.

Gender has never mattered in marriage...

The Anchoress comments on the recent decision overturning Proposition 8. Gender No Longer Essential to Marriage

My first thought: the churches–any of them who wish to remain able to practice their faith in relative freedom–will have to seriously consider getting out of the business of acting as “duly recognized” agents of the state in legalizing marriages. The alternative will be inevitable lawsuits charging “discrimination” for disallowing church weddings, a diminution of our constitutional right to free worship, and a further emptying of church coffers as settlements and fines are levied.

Time for separation of marriage and State, it would seem.

Bias in the Media

Another Karl at Patterico's Pontifications looks at "manufacturing dissent".

Why was the establishment media so slow to recognize the turnaround in the Iraq war? Why did they largely rush to judgment when the Duke lacrosse team members were accused of rape? Why did they get the Jena 6 case wrong? Why was the establishment media narrative about Hurricane Katrina built on myths, including grisly fables about violence and death in the Superdome? And why is the establishment media celebrating it?

These examples are but the tip of the establishment media's "faux news" iceberg. Folks on the far left probably have an entirely different list, but that is the point — the establishment media's center-left epistemic closure produces the same problems critics identify in the conservative media. That the critics are only concerned about closure in conservative media — and dismiss the theory that conservative media closure is partially caused by the establishment's marginalization of conservatives — suggests they are less interested in solutions than they are in further marginalizing the right.

As with the epistemic closure obsessives, don't hold your breath waiting for the center-left to consider that that their shrill stereotyping only adds to the problem. And as with the epistemic closure obsessives, the offense they give to everyone else is fueled in part by the double or triple standards at work. If you think the Ground Zero mosque is a bad idea (as I do), you are deemed a religious bigot, or are empowering religious bigots. In contrast, if you think Fred Phelps and the Westboro Baptists protesting at military funerals (or Bill Keller setting up shop near Ground Zero) is a bad idea (as I do, for many of the same reasons), the center-left does not unleash the same gushing firehose of vitriol. When the passage of California's Proposition 8 caused people to engage in anti-Mormon protests and boycotts, and to practice the politics of personal destruction against Miss California, the center-left was not denouncing it as religious bigotry. And to bring it full circle, if the folks behind the Ground Zero mosque are not entirely gay-friendly, the center-left media ignores it.

Historical basis of marriage

B. Daniel Blatt at Gay Patriot finds something in his dissertation research that has some bearing on the news:

I read this in Carl Kerényi’s The Heroes of the Greeks:

We are told that [Kekrops] discovered, as it were, the double descent of human beings, that they come not only from a mother but also from a father. He founded the institution of marriage between one man and one woman, which was to be under the protection of the goddess Athene.

Legend held Kekrops to be the first king of Attica (Athens).

Further evidence that marriage is an institution based on sex difference. This is not to say that it always must remain so, but a reminder that sex difference, to borrow an expression, is at the “historical core” of the ancient (and honorable) institution.

If we seek to expand its definition so that it encompasses same-sex relationships, let’s not tinker with the cultural record by pretending that it has always been a mere union of loving individuals. State recognition of same-sex marriage represents a real social change. And that change should not be treated lightly nor dismissed casually as some judges have been wont to do.

I find it interesting that Marriage is under Athene, not Aphrodite or Hera.

How Good is Judge Walker's Evidence?

From MercatorNet,

And there's a lot of activity in the comments.

Meese on Prop. 8 ruling

Short version: He doesn't like it.

Edwin Meese III - Prop. 8 ruling ignores precedent, evidence and common sense

By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker's is a clear exception because the U.S. Supreme Court has spoken on whether a state's refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court's action establishes a binding precedent in favor of Proposition 8. But Judge Walker's ruling doesn't mention Baker, much less attempt to distinguish it or accept its findings.

During a trial, litigants from both sides introduce various types of evidence, including witness testimony, documentary evidence and legal opinions that involve "judicial notice" of certain well-known or legally controlling facts. Sound judicial opinions consider the facts and evidence on both sides of an argument, apply them fairly to the dispute at hand and determine which legal cases are on point.

Yet Walker's opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the "legal union between one man and one woman as husband and wife."

Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker's opinion denied the relevance of that biological fact. That difference has been the main reason civilization recognized the uniqueness of marriage as between a man and woman, and why courts have repeatedly relied on that common-sense truth.

Despite voluminous evidence and common sense pointing to the contrary, the judge also declared that opposite sexes were never part of the "historical core of the institution of marriage"; "evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different than opposite-sex couples"; traditional marriage is an "artifact"; and, also without reference to the monumental evidence to the contrary, that it is beyond "any doubt that parents' genders are irrelevant to children's developmental outcomes."

These assertions appear in the opinion's "findings of fact" section, yet they are not facts. These "findings" derive from arbitrary and capricious non-analysis and are forcefully contradicted by evidence in the court record. No appellate court should allow the ruling to stand.

Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted "without reason" and demonstrates "a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples." Nothing in Proposition 8 supports such conclusions, particularly since California law grants same-sex couples all the benefits and protections that apply in traditional marriage.

People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have "no rational reason" to oppose gay marriage.

Even the usually liberal U.S. Court of Appeals for the 9th Circuit has reservations about immediately implementing Walker's exercise in judicial social engineering. A three-judge panel of the court issued a stay late Monday to prevent California's law from being cast aside before a panel can fully review the matter. It was right to do so. The rule of law demands more careful consideration of this important issue than Walker's decision delivered.

Judge Walker and CDD

Gay Patriot deems Judge Walker clueless about the history of marriage.

While Judge Walker is right about one thing in his discussion of marriage, but dead-wrong about another:

Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. . . . Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

“Miscegenation” laws prohibiting marriages between individuals of different races were a statutory invention. The historical (as well as literary, see, e.g., Othello) record is full of such marriages.

Sex difference, however, has always been at the core of the definition of marriage – long before governments recognized such unions. If you don’t believe me, I suggest you study the marriage rituals of any culture; you’ll find that each treats the bride and groom differently.

Or, look at the cultures which have recognized same-sex unions. They either called them something other than marriage or required that one spouse live in the guise of the opposite sex — at a time when sexual roles were far more stratified that they are today. In Native American cultures (called either berdache or Two-Spirit), that meant that in male-male unions partner not only had to dress like a woman, but perform or social roles as well.

The Native American culture is frequently cited as an example of a culture recognizing same-sex marriage. What this is evidence of is a culture that based sex differentiation on something other than genitalia.

Questions about Same-Sex Marriage

Dafydd at Big Lizards offers some responses to questions asked by supporters of SSM: Big Lizards: “The Distinction Goes Sub Silentio”

The Question is, of course, "If you applaud the courts overturning anti-miscegenation laws in Loving v. Virginia, how can you decry the courts overturning anti-gay-marriage laws in Perry v. Schwarzenegger? Doesn't everyone has the right to marry the person he or she loves?"

(Answer: No, no more than everyone has the right to be the most popular person on campus.)
....
Paul [Mirengoff at PowerLine blog] answers the question as would a lawyer, oddly enough:

Loving v. Virginia did not implicate the definition of marriage. The largely regional ban on inter-racial marriages was not founded on the belief that such unions cannot be marriages under the nearly universal understanding of what a marriage is (i.e., between a man and a woman). Rather, the ban was based on the notion that, although it is possible for blacks to be married to whites under that understanding -- just as it is possible for blacks to sit on the front of a bus -- such marriages represented an undesirable mixing of the races.

The decision in Loving no more changed the definition of marriage than allowing James Meredith (a black) to attend the University of Mississippi changed the definition of "student," or requiring the lunch counter at Woolworth's to serve blacks changed the definition of "customer." But recognizing a marriage between two men (say) changes the definition of "wife" (say). [And changing the definition changes the concept itself. --DaH]....

...nobody in his right mind can argue that there is no intrinsic or essential distinction between men and women. Any parent knows that boys are worlds apart from girls; any human being knows (excepting only hermits who have never met anyone of the opposite sex) that women and men think differently, react differently, argue differently, take revenge in different ways, hate differently, and yes, love differently.

Marriage has always been, by definition, the union of opposites -- man plus woman (or some number of women); the synthesis is more than the sum of its parts. Thus, same-sex marriage is logically inconceivable... like a monochrome checkerboard, a coin with only one side, or a debate between proponent and proponent: By its very nature, marriage requires at least one member of each sex, or else it isn't a marriage... it's just a partnership or merger.

Get it?

I see nothing wrong with sexual, emotional, and financial partnerships of all sorts; enjoy! But such unions that involve only one sex are not marriages -- and redefining the word "marriage" won't change that fact.

If you call a cow's tail a leg, how many legs does she have? Four, of course, because calling a tail a leg doesn't make it one.

In another post, Dafydd writes:

I do not support a putative "right" to legally marry anybody one "loves", without exception or qualification. Marriage comes with a host of restrictions that bind everyone:

1. You cannot marry a person without his or her consent.
2. You cannot marry your sibling, your parent, or your close cousin.
3. You cannot marry a child.
4. You cannot marry multiple people at once (group marriage).
5. You cannot marry someone who currently is already married (bigamy).
6. And... you cannot marry a person of the same gender as you.

That last restriction applies equally to heterosexuals; consider two old biddies, best girlfriends, both widowed, and both completely straight, but who want to marry for the financial benefits. Sorry, ladies, you cannot. We forbid you to abuse the legal status of being married.
....
...marriage is not a private affair; it's a public, communal celebration and societal endorsement of a relationship; it says, "This is a special relationship that we, in this state, believe is better than other types of relationships. Thus, to encourage this type of relationship, we will reward it above and beyond other relationships." Given that description, state citizens have the right to decide what particular types of relationships we will so celebrate and endorse.

We can decide how close a relationship must be in order to put that person off limits. We can decide how old a person must be to get married. If we so choose, we can decide to allow polyamorous marriage. And if we so choose, we can decide to allow SSM; but by the same token, if we choose -- which we have done -- we can likewise decide to disallow it. And until and unless we have the same legal infrastructure anent marital rights for gays as we had the 1940s-1960s anent civil rights for blacks, no damned court has the power to overturn the people's law and make its own law.

If it did have that power, then America would no longer be a constitutional republic... we would instead be a kritarchy, ruled by unelected, robèd lords with lifetime tenure.

Obama the Homophobe

From the San Francisco Chronicle: Prop. 8 judge makes strange charge

A federal judge in San Francisco ruled Wednesday that President Obama is a bigot. And not just the president. Joe Biden as well, and Hillary Rodham Clinton and Sandra Day O'Connor. And maybe you, too.
....
This was a strange ruling. The U.S. Supreme Court decided in 1971 that an identical challenge to the traditional definition of marriage was meritless. Nor has the Supreme Court ever suggested that its 1971 decision was wrong. Wednesday's ruling relied primarily on a constitutional doctrine that forbids laws having no conceivable rational purpose or no purpose except to oppress a politically unpopular minority group. After a lengthy trial, the judge found that the people of California must have adopted the traditional definition of marriage because of moral or religious contempt for homosexuals and their relationships.
....
Until very recently, same-sex marriage was unknown in human history, and it is opposed today by many progressive leaders, like Obama and Clinton. Can this be explained only by irrational prejudice or religious zeal? No. Only unions between men and women are capable of producing offspring, and every civilization has recognized that responsible procreation is critical to its survival. After the desire for self-preservation, sexual passion is probably the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally and only after nine months.

Without marriage, men often would be uncertain about paternity or indifferent to it. If left unchecked, many men would have little incentive to invest in the rearing of their offspring, and the ensuing irresponsibility would have made the development of civilization impossible.

The fundamental purpose of marriage is to encourage biological parents, especially fathers, to take responsibility for their children. Because this institution responds to a phenomenon uniquely created by heterosexual intercourse, the meaning of marriage has always been inseparable from the problem it addresses.

Homosexual relationships (and lots of others as well), have nothing to do with the purpose of marriage, which is why marriage does not extend to them. Constitutional doctrine requires only one conceivable rational reason for a law, and the traditional definition of marriage easily meets that test.
....
Recently, a few states have begun to experiment with same-sex marriage. Maybe this will work out well, and the more cautious states eventually will catch up. But some experiments fail. Our democracy allows different states to change their marriage laws and to abandon experiments that don't succeed. But if this judge's ruling is upheld on appeal, that will be that, and every state will be forced to conform, for good or ill.

Here is a roundup of commentary The Chronicle has published.

David Boies: One of those most invidious of the state-sponsored discriminations against gays and lesbians is the prohibition of same-sex marriage. http://sfg.ly/d67zD4

Maggie Gallagher: Same-sex marriage is a government takeover of an institution the government did not make, cannot in justice redefine and ought to protect. http://sfg.ly/aOsQW2

Debra J. Saunders: Although Prop. 8 opponents style themselves as champions of tolerance, they've chosen judicial fiat over the surer route of persuasion. http://sfg.ly/aswF8N

Jeremy Adam Smith: This this new civil rights struggle has something to teach us all about the value of commitment and family. http://sfg.ly/c1Xlxa

Brian S. Brown: The basic civil rights of millions of Americans to govern themselves taken away by judge. http://sfg.ly/9l4OV7

Hank Plante:The governor who vetoed same-sex marriage legislation twice now announces he is in support. http://sfg.ly/bOBz66

Prop 8 overturned

Prop 8 has been overturned for now. It will be appealed to the 9th Circuit. It may make it to the Supreme Court.

I'm thinking, if the Proposition stays overturned, maybe the next initiative should be one stating that marriage is a purely religious institution, and the State of California does not support a civil version, on First Amendment establishment grounds.

What does "equal rights" mean?

From David Friedman's blog:

Ted Olsen ... is one of the attorneys trying to persuade the Supreme Court that California's failure to permit gay marriage is an unconstitutional violation of the principle. His view, widely shared by supporters of gay marriage, is that current California law fails to provide homosexuals the same right it provides to heterosexuals—the right to be married to the partner of their choice.

An opponent could respond, with equal logic, that it is consistent with equal rights. Both homosexuals and heterosexuals have the right to marry a partner of the opposite sex, neither has the right to marry a partner of the same sex. Seen from this standpoint, the difference is not in what rights different people have but in what rights matter to different people. Current California law provides both homosexuals and heterosexuals with the marital right that heterosexuals value and provides neither with the marital right that homosexuals value.

For those readers who see this as merely a rhetorical quibble, I put the following question: Is a law forbidding discrimination against gays in housing or employment also a violation of equal rights? Seen from one standpoint, it provides the right to hire or rent or sell to the person of one's choice to those people who are not prejudiced against gays but not to those who are—a violation of equal rights. Seen from the other, it provides both groups the right to decide who to deal with on grounds other than sexual preference and provides neither the right to make the decision on grounds of sexual preference. It's just that the right it denies is valuable to one group and worthless to the other. The logic is exactly the same as in the case of California marriage law.

All of which suggests to me that that the principle of equal rights is a great deal less clear than it may at first seem.

Tactics against big Prop. 8 backer go too far

Tactics against big Prop. 8 backer go too far, says Chip Johnson at the SF Chronicle.

Like 2 out of 3 Oakland voters, I voted against the same-sex marriage ban. For me, it was because it nullified rights already conveyed on California citizens, and that was wrong.

But at the same time, I need to know that the guy next to me, who voted for it, won't be marginalized, ostracized or excluded because of it.

California on trial

It has been said that if elections actually had the power to change anything, they'd be illegal. 

Now, from the Ruth Institute:

Advocates of same sex marriage are so convinced of the rightness of their cause, they believe they only have to accept elections when they agree with the outcome of the elections.  This trial itself is not just a trial of Proposition 8. The voters of California themselves are on trial, for having the temerity to vote in favor of natural marriage.  When Ted Olson calls the campaign managers of Prop 8 to the witness stand, he is, in effect, calling the voters of California on to the stand. It is every person who voted yes on 8 who is on trial here. Make no mistake about that.  

Perhaps now you can see why I chose the quotation from Eric Voegelin for the opening of this column. Let me give you the full quotation, without the elipses, and note that Dr. Voegelin wrote this in 1938.

They (the theorists of German National Socialism and Italian Fascism, both drawing on the vocabulary of German Romanticism) reject the political determination of will by the people– again especially in the German theory, where the Fuhrer is the only carrier of the people's will. In the teaching on the plebiscite, the idea that the act of voting is an act of national will is decisively rejected.  The plebiscite is to express and enforce the concordance between the objective will of the people embodied in the Fuhrer and the subjective convictions of the people. The plebiscite is a declaration of loyalty to the Fuhrer, not an announcement of an individual's will. … The god speaks only to the Fuhrer, and the people are informed of his will through the mediation of the Fuhrer. (66-7)

Voting invalid unless it conforms to the "national will:" this is not the kind of political system we want to live under. 

The Conservative Case For Gay Marriage - Newsweek.com

In Newsweek, Ted Olson offers what he calls The Conservative Case For Gay Marriage.

Don't call people bigots just because you disagree with them'

Jeff Jacoby writes: Don't call people bigots just because you disagree with them

When it will occur to supporters of same-sex marriage that they do their cause no good by characterizing those who disagree with them as haters, bigots, and ignorant homophobes? It may be emotionally satisfying to despise as moral cripples the majorities who oppose gay marriage. But after going 0 for 31 -- after failing to make the case for same-sex marriage even to voters in such liberal and largely gay-friendly states as California, Wisconsin, Oregon, and now Maine -- isn't it time to stop caricaturing their opponents as the equivalent of Jim Crow-era segregationists? Wouldn't it make more sense to concede that thoughtful voters can have reasonable concerns about gay marriage, concerns that will not be allayed by describing those voters as contemptible troglodytes?

I oppose same-sex marriage for reasons I have explored in previous columns. I think it would be reckless to jettison the understanding, as old as civilization itself, that society has a deep interest in promoting families anchored by a married man and woman. It seems to me nonsensical to claim that men and women are utterly interchangeable, or to deny that children are likeliest to thrive when they are raised by both a mother and a father. I believe that timeless moral standards must not be casually overturned, and that doing so is apt to have unintended and unfortunate consequences. And I am sure that legalizing same-sex wedlock would fuel demands for further radical change -- legalizing plural marriage, for example.

But strongly opposing gay marriage doesn't mean I can't understand why many people just as strongly favor it. I can sympathize with committed gay and lesbian couples who feel demeaned by the law's rejection of same-sex marriage, or who crave the proof of societal acceptance, the cloak of normalcy, that a marriage license would provide. I don't regard the redefinition of marriage as a civil rights issue; nor do I buy the argument that laws barring same-sex marriage are comparable to the laws that once barred interracial marriage. But I recognize that many people -- sincere and decent people -- do. By my lights they are mistaken, not evil.

Why do so many same-sex marriage advocates find it so hard to see marriage traditionalists in the same light?

In a recent paper for the Heritage Foundation, Thomas Messner surveys the "naked animus" that was directed against supporters of Proposition 8, the California marriage amendment that voters approved last year. His meticulously footnoted study makes chilling reading, with example after example of the blacklisting, vandalism, intimidation, loss of employment, anti-religious hostility, and even death threats to which backers of Prop 8 were subjected.

Of course not all proponents of same-sex marriage display such vehement intolerance toward those who insist that the purpose of marriage is to unite male and female. But far too many do to shrug it off as insignificant. And voters don't have to be paranoid to wonder: If this is the kind of abuse that opponents of gay marriage can be subjected to now, how much more intolerance will dissenters face if gay marriage becomes the law of the land?