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Prop 8 Lawyers: The Constitution Doesn’t Say We CAN’T Discriminate In Marriage

Prop 8Our Constitution does not mandate the traditional gendered definition of marriage, but neither does our Constitution condemn it. This Court, accordingly, should allow the public debate regarding marriage to continue through the democratic process, both in California and throughout the nation.

Legal counsel for proponents of California’s of Proposition 8,  in an opening brief submitted today, as reported by Buzzfeed. The Supremer Court is scheduled to hear arguments in Hollingsworth v. Perry, on March 26.

By:           Dan Avery
On:           Jan 22, 2013
Tagged: , , , ,

  • 18 Comments
    • hyhybt
      hyhybt

      It is not necessary to prohibit a thing itself explicitly when the principle on which it rests is disallowed.

      Jan 22, 2013 at 4:20 pm · @ReplyReply to this comment ·
    • mlbumiller
      mlbumiller

      I really do not give a damn if I cannot get married in some damn religious building; I just want my CIVIL RIGHT TO MARRY!!! Today those straights can get married in some resinous ceremony but it does not mead a damn thing if marriage license is not completed by one of the following…nowhere does it state does it state it you can only be married in a religious ceremony:
      California Marriage License, Registration and Ceremony Information; California Family Code, Section 400 states the persons authorized to solemnize marriage ceremonies in California are as follows
      ? A priest, minister, or rabbi of any religious denomination.
      ? A judge or retired judge, commissioner of civil marriages or retired commissioner of civil marriages, commissioner or retired commissioner, or assistant commissioner of a court of record in this state.
      ? A judge or magistrate who has resigned from office.
      ? Any of the following judges or magistrates of the United States:
      ? A justice or retired justice of the United States Supreme Court.
      ? A judge or retired judge of a court of appeals, a district court, or a court created by an act of Congress the judges of which are entitled to hold office during good behavior.
      ? A judge or retired judge of a bankruptcy court or a tax court.
      ? A United States magistrate or retired magistrate.
      ? A legislator or constitutional officer of this state or a member of Congress who represents a district within this state, while that person holds office

      Religious and civil recognition of a marriage are two different things. They can take the religious recognition and shove it up their collective a** and if need be the gawd or devil rim it out later.

      Jan 22, 2013 at 4:58 pm · @ReplyReply to this comment ·
    • 2eo
      2eo

      The American constitution doesn’t directly forbid building a robot body for a giant shark, which has chainsaws for arms and is controlled by a clone of Hitler’s brain.

      Therefore America doesn’t or does support this.

      Jan 22, 2013 at 6:30 pm · @ReplyReply to this comment ·
    • Caleb in SC
      Caleb in SC

      Do not lose your fucking mind’s over this quote. Remarkably, what the Prop 8 attorneys are saying is, “Let’s not go down the road of Roe v. Wade and decide this issue prematurely. Let’s see how things shake out in the states.” This is an argument for judicial restraint, which actually benefits the marriage equality movement since states are falling like dominoes. P.S.: Ruth Bader Ginsberg actually signaled this argument in other comments she made about two years ago, so the Prop 8 lawyers were just doing their jobs and working the entire bench, and not just those they felt were their allies. Sp, please, unclench.

      Jan 22, 2013 at 6:48 pm · @ReplyReply to this comment ·
    • Caleb in SC
      Caleb in SC

      Do not lose your fucking mind’s over this quote. Remarkably, what the Prop 8 attorneys are saying is, “Let’s not go down the road of Roe v. Wade and decide this issue prematurely. Let’s see how things shake out in the states.” This is an argument for judicial restraint, which actually benefits the marriage equality movement since states are falling like dominoes. P.S.: Ruth Bader Ginsberg actually signaled this argument in other comments she made about two years ago, so the Prop 8 lawyers were just doing their jobs and working the entire bench, and not just those they felt were their allies. So, please, unclench.

      Jan 22, 2013 at 6:49 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @Caleb in SC: States falling like dominoes? Let’s see how far that train of dominoes takes you south of the Mason-Dixon line. Yes, we had victories in 2012, but lest we forget, they were in Washington, Maine, and Maryland: relatively liberal states compared to the rest of the US. Lest we forget, none of those states passed gay marriage by more than 53%. The idea that popular sovereignty will help us in most of the south (and in my home state of AZ), at least in the next 10 years, is romantic at best. I genuinely think the courts are the fora in which we will make our greatest strides, although I do think more states will join us eventually.

      Having said that: the quote is a logical somersault that remind me what an analytically bankrupt enterprise the law can be at times.

      Also, hyhybt said it perfectly: The principle on which the prohibition rests is disallowed by the Constitution, therefore, the principle is unconstitutional.

      Jan 22, 2013 at 7:42 pm · @ReplyReply to this comment ·
    • marc sfe
      marc sfe

      @Caleb in SC: Do not now, nor ever tell me to “not lose my fucking mind…” I will clench whenever I goddman feel like it. I’m old and I’m tired so I will lose my shit any damn time I feel like it.

      Jan 22, 2013 at 7:42 pm · @ReplyReply to this comment ·
    • marc sfe
      marc sfe

      meant goddamn

      Jan 22, 2013 at 7:43 pm · @ReplyReply to this comment ·
    • Caleb in SC
      Caleb in SC

      @jwrappaport: It is all good! I understand that the US Constitution also mandates “full faith and credit.” Again, unclench. And, marc sfe, I am 47, which is gay old age, so get off of my dick. If the conservative US Supreme Court were to decide the issue today, it may not turn out so well. Guess what? President George W. Bush’s appointees fucked us. We now have a conservative majority on the Court. Get real.

      Jan 22, 2013 at 7:54 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @Caleb in SC: And a couple of years sgo might well have BEEN too soon… but a lot has happened since then. Consistently favorable surveys, actual votes in four states, nine total allowing with that many more trying to move over this year: it’s now clear to anyone where this is going, quickly. It’s clear that even without intervention we’d have a majority of states in very few years, and also that the rest will hang on until forced by court action.

      Jan 22, 2013 at 8:41 pm · @ReplyReply to this comment ·
    • Billysees
      Billysees

      @mlbumiller: 2

      You make very good points.

      I wonder how this’ll turn out though, if courts get to decide ?

      Jan 23, 2013 at 8:09 am · @ReplyReply to this comment ·
    • Spike
      Spike

      @2eo: But why build a shark if it’s not going to have fricking laser beams attached to their heads?

      Jan 23, 2013 at 11:16 am · @ReplyReply to this comment ·
    • Charles175
      Charles175

      The US Constitution is normally used to make sure laws apply equally to everyone. That the law is to be fair to all people. If it does not, then it is unconstitutional. Prop 8 not only took away a right given to the people but it singles out one group above the other. That’s prejudicial. This SHOULD be a no brainer at the supreme level, at any level for that matter.

      Jan 23, 2013 at 1:23 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @Charles175: I agree in principle, but it’s more complicated than that. The Constitution has many purposes, but I would argue its primary purpose, aside from being a blueprint for government, is protecting individual rights against the coercive power of the federal government. There is an argument (a tenuous one, I think) to be made that the essence of the Constitution vindicates Prop 8, as it was a duly passed law that the federal government is being asked to strike down. To empower nine unelected judges to effectively disenfranchise our largest state and turn the democratic process on its head is not a “no-brainer,” although it would be just here largely for the reason you stated.

      The argument centers around the tension between respecting the will of the people and checking it when the expression of that will undermines fundamental democratic principles, namely the railroading of insular minorities. I typically favor putting gay rights in the hands of judges than the people, but we should be wary lest their counter-majoritarian power be leveled against us some day.

      Jan 23, 2013 at 1:49 pm · @ReplyReply to this comment ·
    • Charles175
      Charles175

      On the other hand if a prejudicial and divisive law like this were allowed to stand, then this newly created foundation would allow other prejudicial laws to be passed. As long as the first one stands, the others built upon that foundation will also stand. In another part of the US Constitution something like this has already begun. The constitution forbids ex-post-facto laws. That is laws written and enforced after the fact. The clause says: Article 1 Section 9, C.3 states: ‘No Bill of Attainder or ex post facto Law shall be passed,’ It’s the Power of mass public fear of recent times that has allowed this to happen. The Patriot Act is but one early example. The severe infringing laws over the right to bear arms is the most recent. For that one the US Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This is so that the people can protect themselves from the rise of a tyrannical government as well as general self defense. Not for “duck hunting” as so many have said.

      Jan 23, 2013 at 1:53 pm · @ReplyReply to this comment ·
    • Charles175
      Charles175

      @jwrappaport: I agree.

      Jan 23, 2013 at 1:57 pm · @ReplyReply to this comment ·
    • loren_1955
      loren_1955

      The argument is too weak. Had the issue of inter-racial marriage been left to the public debate, we may still to this day have states refusing to accept those marriages. Time for the Supreme Court to step up and do what is right.

      Jan 24, 2013 at 4:56 pm · @ReplyReply to this comment ·
    • Billysees
      Billysees

      @loren_1955: 17

      But will they do the right thing or will they do something else ?

      I’m a tad nervous.

      It would be so disappointing to see the hopes and dreams of multitudes and future multitudes be determined by human beings who wear black robes.

      Jan 25, 2013 at 5:03 am · @ReplyReply to this comment ·

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