Wen stated:”Hey Michael Letterman, please name a country where there is gay marriage and where people can marry an animal.”

So in effect he asked:
1) a country where there is gay marriage
and
2) where people can marry an animal.

I did my best to answer your question and I suspect there is a bit of a language barrier if you could not tell that you asked two questions.

Such joining’s are not fundamental right, nor are they rights which should be granted. There are other unions that would be more acceptable such as domestic partnerships, commitment ceremonies and the concept of marriage free all which would be acceptable to many who defend marriage.

When all is said and done states will begin to reflect the needs and desires of the majority of their constituency. New York did this New Jersey did this and as we’ll see other states will do the same.

“This letter to the editor, published in the Feb. 27, 1976, edition of The Daily Princetonian, was written in response to an incident six days before, when eight students ransacked the dorm room of two gay students who were members of the Gay Alliance of Princeton. The letter was signed by 39 individuals, including Sonia Sotomayor ’76, history professor Nancy Weiss (now Dean of the College Nancy Malkiel) and politics professor Walter Murphy.”

The letter can be found at:
http://www.dailyprincetonian.com/2009/05/15/23734/

For a Latina at an almost all white male Ivy League university to support gay students in the 1970s says a lot, I think. So, even though there are no legal opinions indicating how she views gay issues, I believe that, given her views on privacy and women’s issues, that she would be a supporter of gay issues.

He thinks same-sex marriage ruins traditional marriage (whatever that is) and leads to the destruction of society. He is a straight man who gets his jollies from pretending to know something about the law, even though he does not understand how to read or brief a case. He reads a case like he is reading a Perry Mason novel. He fails to understand that you can look to the rationale to support the holding, and then apply that rationale to a different set of facts.

He is enamored (for unknown reasons) with Judge Kennard’s concurring and dissenting opinion in Lockyer v. City and County of San Francisco. A CONCURRING opinion which was not joined by any of the other 6 Supreme Court judges.

He fails to understand the limited scope of the precedential value of a summary decision by the US Supreme Court. He fails to understand that the precedential value of the summary disposition by the Supreme Court in Baker is to be confined to the exact facts of the case and to the precise question posed in the jurisdictional statement. The jurisdictional statement in Baker said that the case was one of GENDER discrimination. As we all know, Perry is about both sexual orientation and gender discrimination–two entirely different animals. Yet he maintains that Baker is controlling.

Keep in mind that James has read a lot of cases, but fails to understand the concept of rationale used to reach a conclusion.

Moreover, he said that he was going to but out, but here he is again–pestering us with his ill-founded “facts” and “prior judicial decisions” which support all his arguments (while failing to name the cases).

Are you even gay?

Uh, they’ve already done that in most places. That’s why my husband and I had to go to another state.

My views in this area are rather extreme, I admit. I don’t think the state should be involved in the marriage business (yes, that includes joint tax filing and a host of other things). Health and wealth concerns (as well as children) could be addressed on their own through a simplified contract, which would be available to all, not just romantic couplings. Civil marriage as we know it today goes beyond that and carries with it some baggage that I don’t think is a legitimate state concern.

However, since it IS involved in the marriage business (and that’s not going to change anytime soon), I don’t think the state can say no to gay marriage, but yes to straight marriage.

It might be worth noting that the California Supreme Court decision in May 2008 that allowed same-sex marriages until Proposition 8 shut it down dealt with more than just marriage, and marriage was the only thing Proposition Eight changed. In particular, the May 2008 ruling stated that LGBT people belong to a protected class, so the strict scrutiny standard applies under California law. The ruling also stated that religious groups were not required to perform marriage ceremonies that violated their beliefs (useful to know to counter various bogus arguments that same-sex-marriage opponents like to raise).

I hope you stick to your word, and keep your false claims and derogatory assumptions out of this. Odds are, though, that you won’t, most people who pull the ‘I’m taking my ball and leaving’ use it only to try to end a discussion they cannot win, and never really leave.

It is worth pointing something out from your last post:

“I understand you are frustrated and it is natural to want to insult a person’s intelligence when you disagree with them, but it really does not help your argument. It is a hot topic that you clearly have a biased interest in, so I can forgive you for that.”

Your second sentence is an insult about someone’s intelligence, and so it qualifies as the very thing you complain about in the first sentence. You then repeated the technique several subsequent times.

Reminder: If you post again on this subject, your statement “Rather than start trading insults with you, I will politely back out.” will be a lie several times over.

“For the record, I disagree strongly with the idea that marriage is a fundamental right,”

You’d change your mind in a millisecond if voters, or a legislature, or a court, stripped you of ability to marry the person you love, protect that person through a binding, legal contract.

So, you are lying. That’s what I thought.

GLBTQ people are prevented from marrying someone they want to marry.

My bad. Year should be term. I wish this site had an edit function.

Oh, and I think those who wish he would recuse himself fail to grasp how extreme expression of a viewpoint can push a moderate, such as Kennedy, in the other direction. This has happened in cases in the past where Scalia went too far. It also happened with Thurgood Marshall and William Brennan. Some of their rhetoric pushed O’Connor and Kennedy to the right in certain cases.

Anyway, I think at least five justices on the Court will be receptive to an equal protection argument. Call it a hunch, but I would put Alito in with Thomas and Scalia in this area. Roberts, on the other hand, will be interesting to see. I have a feeling that he would’ve joined the majority in Romer, but that doesn’t guarantee that he’s on board for marriage. (Example: Justice O’Connor’s concurrence in Lawrence.) If he is in the marriage majority, I hope he assigns himself the opinion. I abhor Kennedy’s writing.

The federal Prop 8 challenge is obviously going to the US Supreme Court in a year or two. There are 4 conservatives and 4 liberals on the Court and 1 Justice (Kennedy) who is moderately conservative. However, Justice Kennedy wrote the opinion in Lawrence v. Texas which overturned the sodomy statutes. Kennedy also wrote the opinion in Romer v. Evans in which the Court overturned a Colorado constitutional amendment which selected gays to discriminate against (it forbid the enactment of any gay rights statutes or regulations and voided the existing 3 gay rights law.) Romer overturned this constitutional amendment, with Kennedy writing that any law which picks out gays for discrimination is constitutionally suspect.

So Kennedy seems to not be afraid to deal openly with gay issues. Also, Kennedy likes to look at what foreign jurisdictions are doing as a guide to what direction the law is evolving. With 5 countries supporting gay marriage and with Portugal coming on line in February or March, and with about 25-30 European countries supporting civil unions, I think it bodes well for gays as far as Justice Kennedy is concerned (at least he won’t be hostile).

Here is the interesting info about Chief Justice Roberts. Roberts was not on the Supreme Court when Romer was decided; he was in private practice, working for a law firm that required its attorneys to do pro bono (free) legal work in addition to their regular work. Chief Justice Roberts worked on the Romer case, helping the gay attorneys.

When you have a case before the Supreme Court, the attorneys have practice sessions in which they “play act” the oral arguments in order to refine their arguments and to make them sharper. In the Romer case (which protected gays from discrimination) Chief Justice Roberts pretended to be Justice Scalia and asked the gay attorneys the questions that he thought Justice Scalia would ask at oral argument. Doing this really helped the gay attorneys to make their arguments stronger and more succinct. And, of course, the gay attorneys won.

So here’s the question: Chief Justice Roberts is a noted conservative who incidentally helped out gays to win a landmark gay ruling. So how is he going to rule on a gay marriage case? I’m sure this is one of the things Olson and Boies have considered in their planning of the federal Prop 8 case.

This is why it is important for an attorney to know more than just the law; if you know what piques the interest of a judge or if you know how they interpret foreign legislation and court decisions, the attorney can frame his or her argument to get the judge’s attention.

Ted Olson has argued 55 cases before the US Supreme Court, and David Boies has argued 10 cases before the Court. 99% of attorneys in the US would give their eye teeth to argue just 1 case before the Court. It is the epitome of a legal career to argue a case before the Court. So, obviously, both Olson and Boies know the inclinations and interests of all the Justices and will frame their arguments to pique the interest of the Justices. And I’m sure they already know how Scalia is going to question them at oral argument and are preparing for that even though it is a year off.

‘Honestly though, there is not a two-tiered set of rights… you have the same rights as domestic partners do… just a different label on the relationship. You don’t have any federal rights that are restricted from domestic partners either… but that is a whole different problem with the DOMA.’

No, people in a domestic partnership dont have the same rights as married people. In Holland, where Im from, there is the option to a registered partnership (both for gay and straight) and for marriage (both for gay and straight), and RP isnt the same as Marriage. And btw, in Holland, there is the evidence that gay marriage hasnt harmed marriage, nor society.
But apart from this, everyone knows domestic partnership isnt the same as marriage. If you cant even see that factual difference, then I dont understand how you can even debate the marriage issue.

‘It is not a mistake- prior to Prop 8 and after, any man could marry any woman, and any woman could marry any man (with limitations to age, relationship status, and now gender). Nobody is prevented from marrying…. the argument is over what a “marriage” is.’

Really? So any gay Californian can marry their samesex partner now in California. Gosh, when did that happen?

Ummm…

*re-reads the mind-boggling posts, mind still boggled*

Ted Olson and David Boies – I wish you guys the best of luck!

Ouch…

*staggers off to get some aspirin. And some coffee*

What part don’t you understand?

In the Baker/Nelson case, a same-sex marriage was an abstract concept. Not a single license had every been issued.

In the present situation, it’s different. A state court had ruled that same-sex marriage was legal (and in fact a right) under the state constitution. Marriage licenses were issued to same sex couples.

At that point, “husband/wife” were no longer, as you put it, “heterosexual terms.”

The law was amended — EX POST FACTO — to exclude LGBT people from a legal status that they had heretofore enjoyed.

Your refusal to acknowledge this simple fact (which will be the pivot point for the whole case) doesn’t change the fact that you’re wrong. Period.

I suppose you think the same of everyone that opposes your point of view on this issue, including all the attorneys and judges who have successfully made these same arguments and rulings that have left us with a valid amendment to our state Constitution that defines marriage as between a man and a woman. Surely you are right and they are all wrong. Perhaps you should have been trying the case and things would be different?

As I said above, we can argue til we are blue in the face- it does not matter. Very reputable people argue this issue on both sides, but their reputations do not matter, and do not make their arguments any more true or false. Judge Walker’s ruling will not matter. This case issue will find its way to the Supreme Court in a few years, and only their opinion will matter. The existing cases that control the outcome, whichever ones they may be, will not change between now and then. One court will continue to overrule another, and rulings will be appealed no matter what they are. There are no other cases ahead of this one that will alter its eventual outcome. We will just have to wait.

I’ve made my points very clearly, as have you. We disagree, as do most people on this issue. Rather than start trading insults with you, I will politely back out.

This is what you fail to understand about court decisions and how they apply to a different set of facts. For example, you fail to understand how Lawrence v. Texas applies to gay marriage cases (incidentally, you are wrong when you state “including the specific statement in the ruling that it is not meant to address government recognition of relationships.” Lawrence provides, at pages 3-6 the following: “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

Because of your lack of a legal education, you fail to understand how Romer applies to the federal Prop 8 challenge being brought by Olson and Boies (Perry v. Schwarzenegger). In Romer, the Court struck down on equal protection grounds a Colorado constitutional amendment prohibiting governmental action to protect gay and lesbian individuals against discrimination because the measure withdrew form homosexuals, but no others, specific legal protection and imposed a special disability upon gays alone. That is precisely what Prop 8 does; it is a California constitutional amendment prohibiting governmental action to protect gay and lesbian individual against discrimination. Prop 8 withdraws from homosexuals, but no others, specific legal protection and imposes a special disability on gays alone. Using the Equal Protection argument in Romer, you reach the same conclusion as the Court did in Romer:
Prop 8 is unconstitutional.

Because of your lack of a legal education, you also fail to appreciate the arguments presented in Perry or in Baker v. Nelson. You stated: “the heart of the Perry case, the argument that the California amendment violates the equal protection clause of the 14th amendment of the US Constitution, is identical to the same argument made in Baker.”

That is patently false. You have misread Baker or else you don’t understand the case. Baker presented an equal protection challenge based ONLY on sex discrimination and therefore cannot conceivably foreclose the claim in Perry that Prop 8 discriminated against gays on the basis of their sexual orientation. The pleadings in Baker (in the Jurisdictional Statement) specifically state: “The discrimination in this case is one of gender.” (For your edification, gender is not the same as sexual orientation. Your gender is male and your sexual orientation is heterosexual. Quite a difference.

In Mandel v. Bradley, the US Supreme Court held that the Supreme Court’s summary dismissals are binding on lower courts only “on the PRECISE issues presented and necessarily decided” by the Court. Hence, the Prop 8 challenge is entirely different from the challenge in Baker.

Based on your lack of a legal education, you state: “I have pointed out Judge Walker’s own public statements that he knows his court can’t rule on the issue, and that he only wants to establish a record in federal court so that the federal appellate court will have something to review. I’ve also explained how Walker’s dismissal of the Baker motion applies to his prior statements, and that he can still hold trial and not rule against Baker, staying within his bounds.

You are naive if you believe that. If Judge Walker believed that Baker was controlling and failed to grant the Motion for Summary Judgment, he would be sanctioned by the Court in a New York minute. No judge withholds a decision for the sole purpose of creating a record for review. It is against the Judicial canons of ethics for which you would be severely sanctioned by the Court.

Judge Vaughn, appointed by Reagan and reappointed by Bush I in 1989, is a well-thought-of judge; he is very reputable. He has been the Presiding Judge since 2004. Believe me, he wouldn’t even think of “pretending” to rule that Baker was not controlling so that he could develop a record for appeal. I can’t imagine where you ever got such an idea; it certainly wasn’t from any formal legal schooling.

We all have differing opinions- that is what the courts are for. In the end, the only thing that matters is the court’s ruling. We can all cite cases and make predictions, but essentially, all we are doing is guessing. We can’t predict the future.

Regardless of how this case goes in the District Court, it will wind its way through the system to the Supreme Court. It won’t be until then that we really find out if Baker v Nelson still applies, if the 14th Amendment is a factor, or anything else.

Don’t be encouraged or discouraged by anything that happens until the Supreme Court finally rules- and that will be a few years from now at the soonest.

And yet, gay and lesbian couples in California are not allowed to enter into the civil contract of marraige.

Are you lying, James, or in error?

I have clearly explained why Lawrence provides a poor argument, including the specific statement in the ruling that it is not meant to address government recognition of relationships.

I have addressed Romer, which was a very broad amendment meant to obstruct legal protections across the board from homosexuals. Romer was not ruled the way it was because of what it did- it was ruled that way because of how far-reaching it was. Moreover, it did not address marriage in any way whatsoever.

Neither of these cases impacted the issues addressed in Baker.

I have provided a very thorough statement from California Justice Joyce Kennard, who supports same-sex marriage, that explains the binding precedent of Baker upon lower courts, and acknowledges that it still applies. I have also referenced Wilson v Ake, only a few years old, that cited Baker as controlling precedent in its dismissal. There have been no developments in federal law since these rulings that would alter Baker.

I have pointed out the the heart of the Perry case, the argument that the California amendment violates the equal protection clause of the 14th amendment of the US Constitution, is identical to the same argument made in Baker, where it was ruled that state laws restricting marriage to a man and a woman did not offend the US Constitution.

I’ve pointed out that the court in Baker found that Loving did not apply, since it dealt solely with the issue of race, and even Loving assumed the male/female relationship.

I’ve pointed out that Brown v Board of Education does not apply, as the courts had noted, because it addressed the issue of racial segregation in public schools. No court has found that the “separate but equal” discrimination argument applies here, though it is repeatedly argued.

I have pointed out Judge Walker’s own public statements that he knows his court can’t rule on the issue, and that he only wants to establish a record in federal court so that the federal appellate court will have something to review. I’ve also explained how Walker’s dismissal of the Baker motion applies to his prior statements, and that he can still hold trial and not rule against Baker, staying within his bounds.

I’ve pointed out that while a few states have recently allowed same-sex marriage, over the last decade more than half of the United States has passed legislation forbidding it- but at the same time extending benefits to same-sex couples through domestic partnership/civil union legislation. One of those states that recently passed legislation to allow same-sex marriage, Maine, struck it down a few months later. So which way is the trend really going? For those that have allowed it, that is there right per the 10th Amendment. However it is a pretty tough sell to argue that the trend is toward legalizing same-sex marriage.

I have pointed out that marriage is an issue reserved to the states by the 10th Amendment, and that the federal DOMA conflicts with state rights. I’ve acknowledged that the DOMA unfairly discriminates against married same-sex couples and domestic partners because the DOMA imposes its own definition of marriage over the states and distributes benefits unequally. I’ve pointed out that every time people talk about the 1200-1300 rights that they are not allowed, they are talking about a federal problem, not a state one. California state laws regarding domestic partnership are very good, and way ahead of most other states, if not all. Regarding STATE law, the only difference between the two is the name applied to them. Refer to California Family Code 297.5 and note how it repeatedly uses the term “the same” as it compares the two. The problems presented by the DOMA are for a different court, and require an entirely different argument that what is being made in Perry.

I correctly identified how we ended up with our current mess of marriages in California, which was by the CA Supreme Court failing to issue a stay on their order following the Marriage Cases ruling. Yes, I call it a goof, and that is my opinion, but it is still the cause. The initiative was already in motion, and may have already been qualified for the ballot, and being such a hot issue it seems it would have been wise to wait it out rather then put people in legal limbo.

I’ve pointed out that your continued argument of strict scrutiny does not apply. Only the California Supreme Court recognized same-sex couples as a suspect class. That does not carry over to federal court, where the standard is a rational basis. And again, no, according to Baker and the the US Supreme Court, there is no 14th Amendment violation that would apply strict scrutiny.

I’ve explained why the existing same-sex marriages were allowed to stand- because the law can not be applied retroactively. They exist because the Supreme Court created a window and could not lawfully void those that managed to get through in time. The same reason applies to the bill that was passed later.

I’ve stated that it is not “the fundamental right to marry the person of one’s choice” that is the specific issue- but rather what a “marriage” is that must be decided. The definition of that term effects the meaning of the phrase. If a marriage is only between a man and a woman then logically, “the fundamental right to marry the person of one’s choice” is applied with a heterosexual definition, in the traditional sense of bride and groom, man and woman. It could not be interpreted any other way.

I’ve explained, correctly, that same-sex marriage started in other states because those states did not have a structure in place that provided the same rights and benefits to same-sex couples. California has offered domestic partnerships for over a decade and has continued to expand that legislation over the years. California was not facing the same Constitutional problems that MA and other states have.

I have explained, correctly, that the California Supreme Court never said that restricting same-sex marriage was unconstitutional. The court only ruled that the existing statute (Prop 22) was not strong enough law to do so, and therefor Prop 8 was born, inserting the exact same language of Prop 22 into the Constitution.

I’ve pointed out the the Marriage Cases ruling is essentially moot following the passage and upholding of Prop 8. The only significant part that stands is the recognition of a suspect class under state law.

I’ve explained, correctly, that the 14th Amendment protection of citizen’s rights only applies to those federal rights in the Constitution, not to rights reserved to the states. I’ve also pointed out that those protected rights CAN be be taken away with “due process of law”, the part that everyone likes to leave off when they quote it.

I’ve also noted, correctly, that the Prop 8 amendment did not take away the right to marry from anyone. The amendment defined what marriage is, as it had been defined in the statute before. Every man and woman still has the right to marry, with certain restrictions of age, relationship status, and gender. Why is the gender restriction any more significant than the age restriction? Why is it any more significant than the restriction on marrying relatives, or marrying multiple times? Not all discrimination and limitations are unlawful.

If you want to argue that I am not providing any reasoning in my statements then you are apparently skipping the parts you do not agree with- which is probably all of it. I’ve provided plenty, and my reasoning is the same as has been provided by other recent rulings, my favorite being that of Kennard’s in Lockyer since she is a supporter of same-sex marriage. I have a lot of respect for her applying the rule of law in these cases, making note of the binding precedent of Baker, and not allowing her personal opinions to influence her judgment on the law. She voted in the affirmative in Marriage Cases, and she stood up for the Constitution in Strauss though she still noted she did not agree with the amendment.

Too bad Judge Walker does not have the same convictions that Kennard does. Walker has an agenda. Time will tell if he has the courage to attempt to overrule the Supreme Court or not. The end effect is going to be that he allows many people to get their hopes up as they tune in to daily proceedings… and he will either dismiss the case as he should, or issue a ruling that will promptly be crushed a la Marriage Cases.

James also states: “As far s state laws are concerned, married couples, regardless of sexual orientation, do have the same rights, as do domestic partners.” In re Marriage cases, at pages 42-44 and footnote 24 list examples of where heterosexual couples have rights which gay couples do not have.

He further states: “Under California state law, there is virtually no difference in rights offered to couples whether married or domestic partners… as the court noted, the difference is in name only.” How about the situation of a gay married couple getting a divorce and wanting to remarry in California? A heterosexual can remarry; a homosexual cannot remarry in California. I love how James uses the word “virtually”, thereby dismissing all the examples of where they are not the same.

In an amazing statement, James says: “The right to marry the person of one’s choice has not been obstructed to anyone in any way. It is the very definition of what a marriage is that we are debating. Marriage is between a man and a woman- every man in California can marry any woman (with certain restrictions on age and relation) and every woman can marry any man. The emphasis is not on “person of one’s choice”, but rather on “marry”. Strict scrutiny does not apply, and no court has even hinted that it applies. Strict scrutiny does not apply, and no court has even hinted that it applies.”

This is wrong on numerous levels. One, in 1948, in Perez v. Sharp, the California Supreme Court held: “Since the right to marry is the right to join in marriage with the person of one’s choice,…” I don’t know how much clearer the courts can make the issue. Secondly, since marriage is a fundamental right, strict scrutiny DOES apply. Any first year law student can tell you that. As to whether or not any court has hinted that strict scrutiny applies to the fundamental right to marry, I need only cite one of hundreds of cases: In Zablocki v Redhail (1978), the Court struck down a Wisconsin law that required persons under obligations to pay support for the children of previous relationships to obtain permission of a court to marry. The Court reasoned that marriage was “a fundamental right” triggering “rigorous scrutiny” of Wisconsin’s justifications under the Equal Protection Clause. For additional cases, consult with any first year law student.

James also states: “The question of how same-sex marriages harm other marriages is misstated. The question should be asking how same-sex marriages are harmful upon a healthy society. They break down tradition and established norms, grating against the social structure.”

This is mind boggling. It is the proponents of Prop 8 who assert that a compelling governmental interest in maintaining heterosexual marriage is that homosexual marriages will harm society. When asked how, the attorney for Prop 8 stated: “I don’t know.” The Iowa Supreme Court, in Varnum v. Brien, in holding Iowa’s heterosexual marriage law unconstitutional, declared that tradition and established norms are not valid reasons to uphold the law. The California Supreme Court has held likewise. James gives no examples of how a homosexual marriage harms society other than claiming, erroneously, that established norms (whatever those might be) would be harmed. What established norms?

In Loving v. Virginia, MR. CHIEF JUSTICE WARREN of the US Supreme Court delivered the opinion of the Court. He wrote:

“This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.”

The question posed by gays is: whether a constitutional scheme adopted by the State of California to prevent marriages between persons solely on sexual orientation classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It seems to me, to numerous legal scholars such as Lawrence Tribe of Harvard University (the foremost constitutional scholar in the US), and to Olson and Boies that such a constitutional scheme cannot stand consistently with the Fourteenth Amendment.

If you’re talking about Strauss v. Horton, you’re wrong. The CASC ruled that Prop 8 carved out an exception to the constitutional right to privacy and the due process and equal protection guarantees of the state constitution. Carving out exceptions to fundamental constitutional rights is a loss of rights.

The Marriage Cases ruling is for the most part moot- the amendment made it Constitutional.

In re Marriage Cases are most decidedly not moot. The CASC repeatedly in Horton stresses that it is still valid law.

There is still no federal violation. The inequality between marriage and domestic partnership is due to the DOMA, not any state law.

The state-level inequality is because of Prop 8, not DOMA. Your comments here have not demonstrated that there is no violation of the US Constitution, just because you say there isn’t.

I notice you’ve not even attempted to offer a legal basis for your theory about the effect of SSM on “traditional society”. In that you are much like the lead attorney defending Prop 8, who when asked point-blank how SSM did any harm to “traditional” marriage, stated that he did not know of any harm that it caused.

The Marriage Cases ruling is for the most part moot- the amendment made it Constitutional.

There is still no federal violation. The inequality between marriage and domestic partnership is due to the DOMA, not any state law.

First, offer proof that the society in which we live is a “healthy” one. Second, explain how “they break down tradition” or “grating against the social structure” constitutes “harm” from a legal perspective. If your theory is true, then we should have seen some indication by now that the “social structure” was in peril we’d have seen some evidence of that peril in the Netherlands, where same-sex marriage has been legal for over eight years. Yet the Netherlands seem to be ticking right along…

The California Supreme Court has already found that same-sex couples have not lost any rights under the new amendment,

In what decision did the CASC find that “same-sex couples have not lost any rights under the new amendment”?

clearly noting that the only difference between domestic partnership and marriage is in name only- that the rights included with each are virtually the same.

In fact the court found in the In re Marriage cases that the two-tiered system violated several constitutional provisions, including the right to privacy, and that the right to marry itself was fundamental in California. You acknowledge yourself that DP and marriage are not equal, noting that the rights are “virtually” identical. “Virtually” identical is not identical.

Romer is not going to cut it. Romer found that the Colorado law was too far-reaching. We are dealing here with a law specifically addressing marriage in California, not a law preventing a group of people from equal protection in any situation.

The California Supreme Court has already found that same-sex couples have not lost any rights under the new amendment, clearly noting that the only difference between domestic partnership and marriage is in name only- that the rights included with each are virtually the same. The argument that rights were revoked/stripped is weak.

Clearly, married same-sex couples in California do not have the same rights as married heterosexual couples in California, and this discrepancy is due to the federal DOMA, not any state law. As far s state laws are concerned, married couples, regardless of sexual orientation, do have the same rights, as do domestic partners. The problem is clearly in the federal DOMA.

The right to marry the person of one’s choice has not been obstructed to anyone in any way. It is the very definition of what a marriage is that we are debating. Marriage is between a man and a woman- every man in California can marry any woman (with certain restrictions on age and relation) and every woman can marry any man. The emphasis is not on “person of one’s choice”, but rather on “marry”. Strict scrutiny does not apply, and no court has even hinted that it applies.

The existing same-sex marriages were allowed to remain intact because the amendment could not lawfully be applied retroactively, nor can any other law. The question of how same-sex marriages harm other marriages is misstated. The question should be asking how same-sex marriages are harmful upon a healthy society. They break down tradition and established norms, grating against the social structure.

The new legislation taking effect regarding marriages performed elsewhere is limited to the time frame that the marriages were legal in California… between June 16 and November 5, 2008. Again, because the law can not be applied retroactively.

As for MA law, the argument for same-sex marriage was successful because MA did not have a system in place as California does that provide the same rights under domestic partnership. If California did not offer domestic partnership then the courts would have allowed same-sex marriages quite easily.

The 1300 rights that 1EqualityUSA mentions are federal rights, restricted by the DOMA. Those rights have nothing to do with the case at hand and will still be restricted regardless of the outcome of this case. Under California state law, there is virtually no difference in rights offered to couples whether married or domestic partners… as the court noted, the difference is in name only.

The separation of church and state argument is an absurdity, and has no basis. The voters of California defined a legal term. This is not a situation of the government endorsing one religion over another.

Andrew- it appears you do not understand the 14th Amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” means that states can not create laws that conflict with those rights specifically given to US citizens in the Constitution, and there is extensive case law on that topic. Marriage is not a right enumerated in the Constitution, which is why marriage laws are reserved to the states (10th Amendment). It sounds like you should also read the Baker v Nelson ruling from the Minnesota Supreme Court, which the US Supreme Court essentially affirmed with its dismissal of the appeal. Also, the amendment did not strip anyone of the right to marry. The amendment defined what a marriage is. All men and all women in California had, and still have, the right to marry. Andrew, it seems what you are missing is a thorough understanding of the difference between state and federal law, and that you are also missing the part of the 14th Amendment that states “without due process of law.”

If the issue was really cut and dried… we would not be having the debate. Truth is, existing law is on the side of the amendment. Proponents of same-sex marriage have a huge mountain to climb. Personally, if they are going to be climbing mountains, I believe they should be climbing the real beast, which is the DOMA. It has a much better chance of being defeated.

As to the professor’s framing of questions, I would argue that the question is still wrong. The question should more appropriately be, “What is a legal marriage?” The next question should be, “Does the US Constitution protect a marriage, or is a marriage subject to state laws under the 10th Amendment?”