Arguments for US Supreme Court Ruling Prop 8 Constitutional/Unconstitutional?

[Sculpt]

What would be the legal arguments for the US Supreme Court declaring Prop 8 Constitutional/Unconstitutional?

I wanted to get some opinions. And I wanted to present an opinion. My arguments will not one of a trained constitutional lawyer, but of public opinion. Let me jump this off as a response to someone who posted (on a different forum), "I really don't see why we put peoples rights up for vote on the ballot anyways. It's just not smart to let the majority decide the rights of the minority."

To which I would say -- That's an interesting looking-frame you've put this law in. But it seems to me to be a bit disfiguring frame; or full of assumptions.

Consider, as the court will to this challenge, how your statement appears to demonstrate some odd broad assumptions that are in real contrast to the actual reality, and legal facts, concerning this law.

You say this law is letting the majority decide the rights of the minority. I will hand you outright, a HUGE and important assumption, simply for the sake of my first, and most important legal argument. The great assumption I will hand you is that one can "be" a "homosexual", and that homosexuals are a legal minority. And on the other side, that heterosexuals are the majority. Let's just say that is a fact...

Consider this, in actuality, the law is not saying anyone in that minority can't do, what anyone in the majority, can do. The law says it won't do something for anyone, no matter what group they're in. Both a member of this minority, and a member of the majority, can do the same thing, which is have the state recognize their marriage to one member of the opposite sex who is of legal age. Even if I was a member of the majority, "The Heterosexuals", the state would still not recognize my marriage to the same sex -- nor to my marriage to more than one person, nor to my marriage to an animal, spirit, or pet rock, etc. This law, in factuality, treats everybody exactly the same.


Not preventing living married-
Further more, consider something else very important -- this law does not prevent anyone having a huge public marriage ceremony, and living the rest of their life in marital bliss, with a member of the same sex (and of legal age). One can do the same with more than one person, a pet rock, a spirit, and many other things. You can marry an animal, but if you consider the sexual act an essential part of marriage, then I believe California considers that animal abuse and is illegal. It's just that the state will not legally recognize it as a state legal marriage.

Throughout 99-100% of all state history, the state recognizes common law marriage, which is between one man and one woman, although many societies' states also included one man and many women. Some have found the most remote, small and brief, and usually historically disputed, examples of a state recognizing other forms of marriage, but 'common' would certainly not be afforded it. And so, an argument for a polygamous marriage has a far greater legal argument than same-sex marriage. And yet all 50 states do not recognize polygamous marriage, and that legal distinction remains constitutionality strong.

This law is not unconstitutional. Nor does it say a minority cannot do what a majority can do. You have to make broad assumptions to say otherwise. Assumptions that, I would assess, as not legally provable/sound.


"Homosexuals" a legal group?-
Another subject, that I would think would be relevant, is whether or not "homosexuals" could ever be considered a legal group, or minority group. I would argue one, or the courts, could not make "homosexuals" as a legal group. What scientific irrefutable test can one perform to prove an individual is a "homosexual"?

How do you legally define a person as a homosexual, let alone for that distinction to afford one special rights? There is no genetic test for "homosexual" (and I can expound on why there will never be). And so there is no actual, or otherwise legal group, to be found there.

One can prove an individual is sexually attracted (sexually aroused) to something; which may be to an individual of the same sex, or to a sex toy, or image, or any number of objects; or of course, to any sort of physical stimuli, such as being stroked by any thing - a human, a machine, a branch blowing in the wind, etc. To form a legal group of "homosexual" with that, would be equivalent to creating a legal group who is sexually aroused by crickets (or only to particularly sexy crickets), or those sexually aroused by being touched on the toes. It's quiet ridiculous. And so there is no actual, or otherwise legal, group, to be found there.

One can demonstrate an individual has preformed a homosexual act. One can argue this makes that individual a "homosexual". There really is no precedence for creating a legal group based on willfully preformed behavior, outside of criminal law. That is, if you murder, you can be said to be a part of the legal group of those individuals convicted of the criminal act of murder. An example would be laws restricting an individual's legal rights to drive a motor vehicle on public roads who were convicted of driving while intoxicated. This method of creating a legally recognized homosexual group is also rather ridiculous, as someone not sexually aroused by the same sex can willfully perform a homosexual act; making it a group anyone can choose to join. And an unwilling participate can be physically forced to preform a homosexual act. And so there is no actual, or otherwise legal, group, to be found there.

One can try a disabilities angle. One can declare themselves physically disabled, or otherwise, unable to be sexually aroused by an individual of the opposite sex -- and therefore they are a "homosexual". It would be more PC (Politically Correct) to say one is "heterosexually challenged", and therefore should have special legal accommodations. But of course, a physical lack of libido, or sexual function, can cause a lack of heterosexual arousal, as could finding everyone you've currently met sexually repulsive. But this in no way indicates you are sexually attracted to anyone of the same sex. In addition, an individual sexually aroused by anyone of the same sex, can be both operantly, but especially classically, conditioned to be sexually aroused by heterosexual stimuli, and vise-versa, and to most any object or stimli. And so there is no actual, or otherwise legal, group, to be found there.

Fact is, individuals find themselves sexually attracted, at various levels, to all sorts of individuals, or stimuli, for a wide range of voluntary and involuntary, and physical and psycho-sexual, conscious and unconscious, reasons. That is not going to be a legal basis, or responsible basis, for creating legal groups.

Thoughts?

[jimnyc]

What would be the legal arguments for the US Supreme Court declaring Prop 8 Constitutional/Unconstitutional?

I wanted to get some opinions. And I wanted to present an opinion. My arguments will not one of a trained constitutional lawyer, but of public opinion. Let me jump this off as a response to someone who posted (on a different forum), "I really don't see why we put peoples rights up for vote on the ballot anyways. It's just not smart to let the majority decide the rights of the minority."

We pretty much do the same for voting for president and tons of other referendums. Voting is the democratic way which allows for all citizens to equally have their say at the ballot box. I know the presidential elections go by the electorate vote, but it still primarily comes down to total votes within states.

To which I would say -- That's an interesting looking-frame you've put this law in. But it seems to me to be a bit disfiguring frame; or full of assumptions.

Consider, as the court will to this challenge, how your statement appears to demonstrate some odd broad assumptions that are in real contrast to the actual reality, and legal facts, concerning this law.

You say this law is letting the majority decide the rights of the minority. I will hand you outright, a HUGE and important assumption, simply for the sake of my first, and most important legal argument. The great assumption I will hand you is that one can "be" a "homosexual", and that homosexuals are a legal minority. And on the other side, that heterosexuals are the majority. Let's just say that is a fact...

And it's not just heterosexuals versus homosexuals per se, it's collectively all eligible citizens voting on what they think is best for our country and society.

Consider this, in actuality, the law is not saying anyone in that minority can't do, what anyone in the majority, can do. The law says it won't do something for anyone, no matter what group they're in. Both a member of this minority, and a member of the majority, can do the same thing, which is have the state recognize their marriage to one member of the opposite sex who is of legal age. Even if I was a member of the majority, "The Heterosexuals", the state would still not recognize my marriage to the same sex -- nor to my marriage to more than one person, nor to my marriage to an animal, spirit, or pet rock, etc. This law, in factuality, treats everybody exactly the same.

Exactly, but homosexuals and their supporters will argue otherwise, with futility, as what you just stated is 100% correct.

Not preventing living married-
Further more, consider something else very important -- this law does not prevent anyone having a huge public marriage ceremony, and living the rest of their life in marital bliss, with a member of the same sex (and of legal age). One can do the same with more than one person, a pet rock, a spirit, and many other things. You can marry an animal, but if you consider the sexual act an essential part of marriage, then I believe California considers that animal abuse and is illegal. It's just that the state will not legally recognize it as a state legal marriage.

I still stand firm in my belief that if a handful of judges overturn such laws and allow homosexual marriages throughout the nation, you will see further repercussions as a result. See my thread in the current events section regarding children being taught about anal sex for homosexuals in the 5th grade.

Throughout 99-100% of all state history, the state recognizes common law marriage, which is between one man and one woman, although many societies' states also included one man and many women. Some have found the most remote, small and brief, and usually historically disputed, examples of a state recognizing other forms of marriage, but 'common' would certainly not be afforded it. And so, an argument for a polygamous marriage has a far greater legal argument than same-sex marriage. And yet all 50 states do not recognize polygamous marriage, and that legal distinction remains constitutionality strong.

This law is not unconstitutional. Nor does it say a minority cannot do what a majority can do. You have to make broad assumptions to say otherwise. Assumptions that, I would assess, as not legally provable/sound.

Agreed

"Homosexuals" a legal group?-

Another subject, that I would think would be relevant, is whether or not "homosexuals" could ever be considered a legal group, or minority group. I would argue one, or the courts, could not make "homosexuals" as a legal group. What scientific irrefutable test can one perform to prove an individual is a "homosexual"?

How do you legally define a person as a homosexual, let alone for that distinction to afford one special rights? There is no genetic test for "homosexual" (and I can expound on why there will never be). And so there is no actual, or otherwise legal group, to be found there.

One can prove an individual is sexually attracted (sexually aroused) to something; which may be to an individual of the same sex, or to a sex toy, or image, or any number of objects; or of course, to any sort of physical stimuli, such as being stroked by any thing - a human, a machine, a branch blowing in the wind, etc. To form a legal group of "homosexual" with that, would be equivalent to creating a legal group who is sexually aroused by crickets (or only to particularly sexy crickets), or those sexually aroused by being touched on the toes. It's quiet ridiculous. And so there is no actual, or otherwise legal, group, to be found there.

One can demonstrate an individual has preformed a homosexual act. One can argue this makes that individual a "homosexual". There really is no precedence for creating a legal group based on willfully preformed behavior, outside of criminal law. That is, if you murder, you can be said to be a part of the legal group of those individuals convicted of the criminal act of murder. An example would be laws restricting an individual's legal rights to drive a motor vehicle on public roads who were convicted of driving while intoxicated. This method of creating a legally recognized homosexual group is also rather ridiculous, as someone not sexually aroused by the same sex can willfully perform a homosexual act; making it a group anyone can choose to join. And an unwilling participate can be physically forced to preform a homosexual act. And so there is no actual, or otherwise legal, group, to be found there.

One can try a disabilities angle. One can declare themselves physically disabled, or otherwise, unable to be sexually aroused by an individual of the opposite sex -- and therefore they are a "homosexual". It would be more PC (Politically Correct) to say one is "heterosexually challenged", and therefore should have special legal accommodations. But of course, a physical lack of libido, or sexual function, can cause a lack of heterosexual arousal, as could finding everyone you've currently met sexually repulsive. But this in no way indicates you are sexually attracted to anyone of the same sex. In addition, an individual sexually aroused by anyone of the same sex, can be both operantly, but especially classically, conditioned to be sexually aroused by heterosexual stimuli, and vise-versa, and to most any object or stimli. And so there is no actual, or otherwise legal, group, to be found there.

Fact is, individuals find themselves sexually attracted, at various levels, to all sorts of individuals, or stimuli, for a wide range of voluntary and involuntary, and physical and psycho-sexual, conscious and unconscious, reasons. That is not going to be a legal basis, or responsible basis, for creating legal groups.

Thoughts?

There is already technically legal precedence about certain minority groups not being legally recognized and afforded the same rights as others. In all but one state, obesity is not a protected right and an employer can fire someone as a result. A convicted felon is afforded no special rights. Smokers are afforded no special rights - hell, an employer can legally fire someone for NEVER smoking at work but doing so on their own time at home. I know these things are pertaining to employment law and the ADA, but it shows that not all "different" groups are treated equally, and IMO shouldn't be afforded any special rights.

[PostmodernProphet]

It's just that the state will not legally recognize it as a state legal marriage.

precisely.....it has nothing to do with choice of lifestyle....it has everything to do with forcing others to accept your choice......

[Missileman]

What would be the legal arguments for the US Supreme Court declaring Prop 8 Constitutional/Unconstitutional?

I wanted to get some opinions. And I wanted to present an opinion. My arguments will not one of a trained constitutional lawyer, but of public opinion. Let me jump this off as a response to someone who posted (on a different forum), "I really don't see why we put peoples rights up for vote on the ballot anyways. It's just not smart to let the majority decide the rights of the minority."

To which I would say -- That's an interesting looking-frame you've put this law in. But it seems to me to be a bit disfiguring frame; or full of assumptions.

Consider, as the court will to this challenge, how your statement appears to demonstrate some odd broad assumptions that are in real contrast to the actual reality, and legal facts, concerning this law.

You say this law is letting the majority decide the rights of the minority. I will hand you outright, a HUGE and important assumption, simply for the sake of my first, and most important legal argument. The great assumption I will hand you is that one can "be" a "homosexual", and that homosexuals are a legal minority. And on the other side, that heterosexuals are the majority. Let's just say that is a fact...

Consider this, in actuality, the law is not saying anyone in that minority can't do, what anyone in the majority, can do. The law says it won't do something for anyone, no matter what group they're in. Both a member of this minority, and a member of the majority, can do the same thing, which is have the state recognize their marriage to one member of the opposite sex who is of legal age. Even if I was a member of the majority, "The Heterosexuals", the state would still not recognize my marriage to the same sex -- nor to my marriage to more than one person, nor to my marriage to an animal, spirit, or pet rock, etc. This law, in factuality, treats everybody exactly the same.


Not preventing living married-
Further more, consider something else very important -- this law does not prevent anyone having a huge public marriage ceremony, and living the rest of their life in marital bliss, with a member of the same sex (and of legal age). One can do the same with more than one person, a pet rock, a spirit, and many other things. You can marry an animal, but if you consider the sexual act an essential part of marriage, then I believe California considers that animal abuse and is illegal. It's just that the state will not legally recognize it as a state legal marriage.

Throughout 99-100% of all state history, the state recognizes common law marriage, which is between one man and one woman, although many societies' states also included one man and many women. Some have found the most remote, small and brief, and usually historically disputed, examples of a state recognizing other forms of marriage, but 'common' would certainly not be afforded it. And so, an argument for a polygamous marriage has a far greater legal argument than same-sex marriage. And yet all 50 states do not recognize polygamous marriage, and that legal distinction remains constitutionality strong.

This law is not unconstitutional. Nor does it say a minority cannot do what a majority can do. You have to make broad assumptions to say otherwise. Assumptions that, I would assess, as not legally provable/sound.


"Homosexuals" a legal group?-
Another subject, that I would think would be relevant, is whether or not "homosexuals" could ever be considered a legal group, or minority group. I would argue one, or the courts, could not make "homosexuals" as a legal group. What scientific irrefutable test can one perform to prove an individual is a "homosexual"?

How do you legally define a person as a homosexual, let alone for that distinction to afford one special rights? There is no genetic test for "homosexual" (and I can expound on why there will never be). And so there is no actual, or otherwise legal group, to be found there.

One can prove an individual is sexually attracted (sexually aroused) to something; which may be to an individual of the same sex, or to a sex toy, or image, or any number of objects; or of course, to any sort of physical stimuli, such as being stroked by any thing - a human, a machine, a branch blowing in the wind, etc. To form a legal group of "homosexual" with that, would be equivalent to creating a legal group who is sexually aroused by crickets (or only to particularly sexy crickets), or those sexually aroused by being touched on the toes. It's quiet ridiculous. And so there is no actual, or otherwise legal, group, to be found there.

One can demonstrate an individual has preformed a homosexual act. One can argue this makes that individual a "homosexual". There really is no precedence for creating a legal group based on willfully preformed behavior, outside of criminal law. That is, if you murder, you can be said to be a part of the legal group of those individuals convicted of the criminal act of murder. An example would be laws restricting an individual's legal rights to drive a motor vehicle on public roads who were convicted of driving while intoxicated. This method of creating a legally recognized homosexual group is also rather ridiculous, as someone not sexually aroused by the same sex can willfully perform a homosexual act; making it a group anyone can choose to join. And an unwilling participate can be physically forced to preform a homosexual act. And so there is no actual, or otherwise legal, group, to be found there.

One can try a disabilities angle. One can declare themselves physically disabled, or otherwise, unable to be sexually aroused by an individual of the opposite sex -- and therefore they are a "homosexual". It would be more PC (Politically Correct) to say one is "heterosexually challenged", and therefore should have special legal accommodations. But of course, a physical lack of libido, or sexual function, can cause a lack of heterosexual arousal, as could finding everyone you've currently met sexually repulsive. But this in no way indicates you are sexually attracted to anyone of the same sex. In addition, an individual sexually aroused by anyone of the same sex, can be both operantly, but especially classically, conditioned to be sexually aroused by heterosexual stimuli, and vise-versa, and to most any object or stimli. And so there is no actual, or otherwise legal, group, to be found there.

Fact is, individuals find themselves sexually attracted, at various levels, to all sorts of individuals, or stimuli, for a wide range of voluntary and involuntary, and physical and psycho-sexual, conscious and unconscious, reasons. That is not going to be a legal basis, or responsible basis, for creating legal groups.

Thoughts?

A very well written argument that clearly indicates your contentment with a society and situation where both the minority and majority share the exact same rights. If the law is changed to read a person can marry another (of legal age) regardless of gender, then the situation where the minority and majority have identical rights remains unchanged and you should be quite content with that, no?

[jimnyc]

A very well written argument that clearly indicates your contentment with a society and situation where both the minority and majority share the exact same rights. If the law is changed to read a person can marry another (of legal age) regardless of gender, then the situation where the minority and majority have identical rights remains unchanged and you should be quite content with that, no?

So long as the law is changed by allowing ALL citizens to vote on the change, and not by a judge speaking for the entirety. If we share the same exact rights then we should all have the right to vote on the change, and not allow activist judges to "vote" for us.

[Missileman]

So long as the law is changed by allowing ALL citizens to vote on the change, and not by a judge speaking for the entirety. If we share the same exact rights then we should all have the right to vote on the change, and not allow activist judges to "vote" for us.

A position held by the majority does not necessarily equal constitutional.

[jimnyc]

A position held by the majority does not necessarily equal constitutional.

Nor does the position of a handful of judges voting against the will of the people. All decisions by judges are capable of being appealed, and the only fair way to determine what this country wants is the democratic way - which is an equal vote by all of its citizens. Of course even that can be challenged, and then once again the nation is left with judges deciding what they think is best for our country, and ignoring the democratic process.

And speaking of constitutional, which the constitution does not guarantee that homosexuals can enter into a legal marriage, the only way would be an amendment to the US Constitution. This will require votes from the house of representatives and congress. I believe it would take 2/3 of the voting representatives to allow an amendment to pass. Thousands of amendments have been proposed in the past and only 27 have been ratified.

[KarlMarx]

I wanted to get some opinions. And I wanted to present an opinion. My arguments will not one of a trained constitutional lawyer, but of public opinion. Let me jump this off as a response to someone who posted (on a different forum), "I really don't see why we put peoples rights up for vote on the ballot anyways. It's just not smart to let the majority decide the rights of the minority."

The 10th amendment states that those rights not enumerated in the Constitution shall be left to the states to decide. That's why ballot initiatives are constitutional.

The same goes for abortion. Up until Roe vs. Wade, individual states decided whether abortion on demand would be legal. It took only 9 justices (which seems a minority to me) to take away the right to decide whether abortion should be legal in their state or not from 300 million people.

Come to think of it, the abolition of slavery and women's suffrage was also decided by popular mandate. If gays want to marry, then why don't they push for an amendment to the Constitution to allow them to marry? Abolitionists and suffragists did the same thing. The reason is obvious to me. They don't push for a Constitutional Amendment because most people don't want such a thing.

So, if marriage is a right, then divorcing someone against their will also be a violation of their rights. That happens all of the time. How would you square the two?

[Missileman]

Nor does the position of a handful of judges voting against the will of the people. All decisions by judges are capable of being appealed, and the only fair way to determine what this country wants is the democratic way - which is an equal vote by all of its citizens. Of course even that can be challenged, and then once again the nation is left with judges deciding what they think is best for our country, and ignoring the democratic process.

And speaking of constitutional, which the constitution does not guarantee that homosexuals can enter into a legal marriage, the only way would be an amendment to the US Constitution. This will require votes from the house of representatives and congress. I believe it would take 2/3 of the voting representatives to allow an amendment to pass. Thousands of amendments have been proposed in the past and only 27 have been ratified.

I don't believe there's any provision in the Constitution that covers straight marriage, so I don't see how it will take an amendment to make it happen. Judicial rulings will likely fall under equal protection clauses.

[KarlMarx]

I don't believe there's any provision in the Constitution that covers straight marriage, so I don't see how it will take an amendment to make it happen. Judicial rulings will likely fall under equal protection clauses.

How does the inability to marry someone constitute an unequal protection under the law? It does not.

By the way, straight people cannot marry people of the same sex, either. Also, gays are not forbidden to marry people of the opposite sex.

Nor, for that matter are gays because they are gay forbidden from owning property, voting, holding office, petitioning the government over grievances, etc. Gays have all the rights that straights have, so they are equally protected.

Since marriage is not enumerated as a right in the Constitution, the argument that marriage is a right is not valid.

[Missileman]

How does the inability to marry someone constitute an unequal protection under the law? It does not.

Gay couples are not afforded equal protection under federal tax law for one.

By the way, straight people cannot marry people of the same sex, either. Also, gays are not forbidden to marry people of the opposite sex.

Not to worry, if the law is changed, you too will have the right to marry someone of the same gender.

[SassyLady]

What would be the legal arguments for the US Supreme Court declaring Prop 8 Constitutional/Unconstitutional?

I wanted to get some opinions. And I wanted to present an opinion. My arguments will not one of a trained constitutional lawyer, but of public opinion. Let me jump this off as a response to someone who posted (on a different forum), "I really don't see why we put peoples rights up for vote on the ballot anyways. It's just not smart to let the majority decide the rights of the minority."

As opposed to the minority deciding what is best for the majority?

As our legal system and government are doing right now. This was put to a vote and the people who actually took the time to vote made it abundantly clear that they don't want gay marriage. Now, a few people in the minority are working diligently to overturn what the majority want.

I say that if you are that determined to have your gay marriage recognized, then move to a state that already has the law on their books.....don't force the majority of people living in CA to accept something they clearly are against.

Everyone wonders why CA is going to hell in a hand basket ..... it's because the idiot lawyers (who later become politicians) think they know what is best, don't listen to voters............and do what "they" feel is best for their political future.

Up until lately the radical gays have been on the public platform and were shocked that their opponents are no longer going to sit idly and quietly by and watch them destroy the institution of marriage. They tried shame and intimidation before the election and then thumbed their noses at the people, found some lawyers and judges to listen and are now going to force it down our throats. The more they do this the less tolerant I am of their "rights".

[PostmodernProphet]

Gay couples are not afforded equal protection under federal tax law for one.

are you in favor of equal protection for a man and woman living together while unmarried?

are you in favor of equal protection for two men sharing an apartment as roommates?

[SassyLady]

So long as the law is changed by allowing ALL citizens to vote on the change, and not by a judge speaking for the entirety. If we share the same exact rights then we should all have the right to vote on the change, and not allow activist judges to "vote" for us.

[KarlMarx]

Gay couples are not afforded equal protection under federal tax law for one.

That's an argument for having the tax laws changed rather than allowong gay couples to marry. And, after spending all weekend preparing my tax return, I think there are a LOT of good reasons to change the tax laws.