Summary Conclusion Overturning Prop 8 — Disapprobation ain’t enough

For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

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In the Finding of Fact portion of the 138-page document, p. 61, they quote my most-unfavorite but most entertaining constitutionalist, “Scalia, J” :

Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”);

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Now consider a couple of proponent reactions:

And now, some soapbox.

Both of these reactions present the same sort of ipse dixit (just because I said it) “evidence” as well as arguments with no evidence or support, arguments that are circular, and contradicting arguments that were presented at trial. A few of the things the judge pointed out:

  • A judge must work within the bounds of a case, that is …
  • The scope of the complaint
  • The evidence presented
  • The findings of law (what applicable laws and CA Supreme and US Supreme court rulings)
  • The findings of fact (all the relevant facts presented and applicable)
  • Reliance on witness and expert witness testimony, where “expert witness” has a very clear definition of what makes a person an “expert” in anything.
  • And logic: how well-formed are your arguments, and how true the premises they’re built on.

Anyone that comes to the court and has not the skillset to form and present well-reasoned points has the arrogance to think that one’s own intellectual underdevelopment is sufficient to judge other people and create laws to govern all people. That’s why we have judges, thankfully. So we aren’t subjected to half-baked injustices of people whose real motivation is fueled by bile and deceit, no matter the volume of their shrouded conviction.

He made a point of laying out out that this ruling did not involve a new right, but an existing right.  There is marriage, not “gay marriage.”  And as much as people might want to think that a judge is there to enforce the “will of the people,” he is not. He is there to uphold the rule of law such that the formation and practice of the law is in keeping with the foundations of our justice system and not the whim of personal revulsion or belief system.   According to the LA Times, “Senate nominee Carly Fiorina said simply that Californians had ‘spoken clearly’ at the ballot box and that she did not agree with the federal judge’s ruling.”  And therein lies the problem! Fiorina and people like her don’t understand that the people can speak, but to make a law, it has to be constitutional.  Is mind-numbingly simple.

His is not “judicial activism” of forcing a societal change as much as the proponents would like to claim vociferously. No one is forcing straight people to do anything; and no one is taking anything away from them. While they may claim the judge is forcing a definition of marriage, he is not. He has only extrapolated from current trends, especially society’s “change” in marriage that abolished the coverture and, thereby, abolished the “traditional” definition of roles and structure of marriage making the partners in the ‘bargain’ EQUAL.  If you want to maintain marriage between heterosexuals, then you need to re-establish the distinct roles between the sexes.  But that will be nigh onto impossible considering that women bloody well like equality.

And it has nothing to do with “the children,” but rather everything to do with a majority trying to create and enforce a law that cannot withstand scrutiny of the just foundations of law consistent with why this country was founded. Appealing to the welfare of “the children” has been revealed to be the specious, cheap, and slanderous tactic that it is. The empty cry to protect marriage against desinstitutionalization has been exposed as being equally without any foundation.

“Think of the children!!” “Defend marriage from the destruction by homosexuals!!” It is pure demagoguery to yell out an accusation and fire up the uncritical-thinking masses around an unsubstantiated hot topic. And it’s the only tactic that proponents of Prop 8 have! The force of their argument relies on the sensitivity of the nerves it plucks, not on anything for which there is evidence enough to create a law on.  Actually, the judge found that there isn’t even enough evidence to justify yelling “Think of the Children” and “It means the beginning of the end of the institution of marriage.”

Those who support this law — how it was sold to the public, what it does, how it was argued — should feel the weight of hypocrisy and shame. This country that you supposedly so love — with its Constitution and laws to ensure the freedom of everyone — you are so willing to stick a knife into the 14th Amendment in order to advance either your bigotry or your moral perspective. You show that you only conditionally love America, what it stands for, how it maintains its identity, etc.: as long as the laws and Constitution serve you, well that’s great. When suddenly the Constitution and Laws shine the light on your attempt to impose your religion or bigotry on others, well then it’s time to change the Constitution and laws. “[T]he Constitution cannot control [private biases] but neither can it tolerate them.” Otherwise, you turn the Constitution into merely a church canon or a shrine to bigotry. The real “good-bye America/Hello Iran.”

It’s the attitude of gutting the Constitution that is un-American. It’s the attitude that I’m going to impose my religious or other perspective on you because of my revulsion of you that is the opposite of what this country was founded for. Freedom from the tyranny of people like you or your “rulers.” Even Blankenhorn (non-expert witness for proponents) had this to say: “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before.”

What is “moral disapproval” if you can ONLY use unChristian tactics to further your perspective, to energize a vote. How do you ask God for forgiveness of bearing false witness (slander, manufactured stereotypes, and outright lies) so profoundly — or do you think that you’re forgiven automatically because of the presumed higher value in stomping on a greater sin (although all sins are just that, sin: none greater or lesser…they all result in the same consequence: hell)? Or are you merely solidly comfortable in astonishing hypocrisy?

Now with the overturning of this Proposition, for those who disagree, read the ruling and argue to its points … if you can … rather than continue to rave irrationally and vociferously as though your vitriol and volume can rightly substitute for reason, rationale, and the voice of “justice”.

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Some Counter Arguments to look forward to:

  • Edward E. Dolejsi, executive director of the California Catholic Conference, issued a statement expressing disappointment in the decision.

    “That the judge should find the marriage — civilizations’ longstanding public policy — irrational and discriminatory does a great injustice to the institution itself and ultimately will further encourage the disintegration of mother-father families. Homosexuals certainly have every right to the love, companionship and support of another person — but the courts do not have a right to distort the meaning of marriage.

  • Austin R. Nimocks, senior legal counsel for the Alliance Defense Fund who fought to uphold Proposition 8 in Walker’s court, said they would appeal.

    “We’re obviously disappointed that the judge did not uphold the will of over 7 million Californians who made a decision in a free and fair democratic process.

The thing about these counter arguments is that the Judge already touched on them.  And to appeal the findings the judge meticulously laid out requires the opponents to find better findings to counteract or annul what was used in the decision.

Good luck with that.

UPDATE – 8/12/10: http://www.youtube.com/watch?v=EJwSprkiInE.  This was aired on Fox News, obviously because they expected this particular attorney to argue for the Fox News hypocritical agenda.  The guy argues calmly and cogently that a right is a right, simple as that.  There is no judicial activism going on; and saying that communities have the right to enshrine discrimination into their local constitutions is hypocritical using the example of Fox New’s right to free speech — if 7 million people voted to prohibit that for Fox News, it would have to be struck down.

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3 Responses

  1. One comment from the Facebook posting of this post:

    We have separation of State and Church and in the past we always pointed at this law whenever the Church tried to interfere in politics. In this case the State is clearly trampling the Church. I’m just thinking out loud here, and I do not opposed same sex couples, but maybe what needs to be done is a complete separation of these two institutions. No more “filed jointly” taxes. No more divorce courts. No more family tax credits. Then, if you want to marry you just get married and nobody is discriminated against. In the 30’s people did not marry worrying about a prenuptial or alimony; they married so they could survive and get through this world with another whom they loved. Instead of having the State spend the next 50 years making laws and changing laws why not take them out of the picture? Legally, should they really be involved anyway?

    My reply:

    But that’s just it [name of person], the State is *not* trampling the church. Marriage has always, in this country, been regulated by civil law; the sacrament part of it, always the church. The church is in no way required to recognize or give sanctification to any marriage it finds outside its bounds.

    And you make an amazing point that I didn’t think about and that is conspicuously absent either from my memory or the decision itself, although the judge did identify that Prop 8 had as its motivation and substance only “personal opinion”: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Once it was established that Prop 8 was a legislation grounded in the precepts of a religion, then “no law respecting an establishment of religion” would have kicked right in.

    But I don’t think it is that simple. It is a logical fallacy to point at the background and interests of a proponent and say something like “well, of course they would do that; and therefore their arguments must be doing that.” (The two most significant and largest backers were the Mormon Church and the Catholic church, united in an unprecedented block, organized by people whose mission is to “to protect marriage and the _faith communities_ that sustain it.”) Rulings of law have to rely strictly on the merits and facts presented.

    An aside: in the old days that you refer to, “whom they loved” was not a necessary part of entering the legal “bargain” of marriage, and the religious part was to seal it (up) before God, who apparently had more influence back then. “What God has united let no man put asunder.”

    Then there is the “separate but equal” idea. The decision explored that in great detail. First, that type of apartheid has not show to ever work. And secondly, the two — separately named — institutions (marriage vs. domestic partnership) absolutely are *not* equal because society gives significantly more weight to the label “marriage” than it does “domestic partnership.” And equal protection under the law is what this case is about.

    I re-read your comment, and you (intelligently) touch on another idea, about taking marriage out of the “legal” equation. This, also, was explored in the decision. The State has a clearly identifiable interest in encouraging “stable households” for a variety of social and economic reasons. The secular (State) reasons and the religious/conservative reasons for marriage have a significant intersection in their motivations, and those that they don’t share are not fatal to the concept of marriage as an institution.

    So, to answer the question about whether the State should be legally involved, I think that it must absolutely be involved: because of the compelling social/economic issues that surround the organization and welfare of all citizens in an “ordered” society.

  2. […] station” that proponents of Prop 8 of California are arguing for opposite-sex marriage: majority disapprobation, regardless of individual reasons for opposing same-sex marriage or preserving opposite-sex […]

  3. Tautology — the majority of definitions you’ll find for this concept is “needless repetition” of a term or its equivalent or, more in the logical sphere: the form of an argument where any arrangement of terms is true without regard to terms being true or false. Basically, it is a proposition that is already true by definition, not because of any logical deduction. It cannot be false. “A crow is black, or it is not-black.” I could contend that the crow was more purple than black, and the original statement would be “true.”

    Tautological arguments aren’t in themselves fallacious, however there is a nuance in tautology which is difficult to detect but which can make an argument fallacious. This happens when the truth of a term or of a statement is assumed to be true, and all other assertions with regard to the term or statement basically just support the assumption.

    This is also argument petitio principii, begging the question, or circulus in probando, circular reasoning.

    No patriot would disagree that Obama is destroying the Constitution.

    Recast a different way: All patriots would agree that Obama is destroying the Constitution. Now let’s say that Ron says, “Destroying the Constitution requires that you disregard or subvert the principles of it, and Obama is not doing that.” Have I demonstrated Ron to be a non-patriot?

    The tautology here is in the definition of patriot in the first statement which requires agreement that Obama is destroying the Constitution. In other words, you have to already agree that Obama is destroying the constitution in order to proceed to the conclusion that Ron is a non-patriot. This is the circle.

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