Tuesday, January 26, 2010

Bill and Bob Martin: No, They're Not Brothers!

Lawyers in California are defending proposition 8. If you don’t know what proposition 8 is, it is the ban on gay marriage in California. Why would lawyers need to defend it? Because this new-age argument is under-fire once again.

With the rise in gay and lesbian political support, religious leaders fear marriage laws will be changed.

The notoriously liberal state of California is the expected spot for this fight's forefront. With polls being neck and neck, nearly 52 percent of voters voted in favor of limiting marriage to heterosexual couples. Surprisingly, the plaintiff will not have an easy time convincing the court. Gay and lesbian leaders feel that the rules against gay marriage have oppressed the political power of the gay community. They feel that a basic right to marriage being taken away from them is a crime. To them, marriage is no longer just a union of two people who are in love, it is also, and maybe more importantly, a sign of political clout. My question is, is marriage a basic right? If marriage is a religious ceremony then why does it have so much political clout? Also, being a religious tradition, would the limitations on marriage be held to the moral standards of the religious community?

In the trial, there was much evidence from the defense in which they suggest that gays and lesbians have a lot of political say so. From video tapes to expert witnesses, the defense showed that the gay community has a huge political backing. In proof of their backing, before the ballot, a campaign for the establishment of gay marriage raised $40 million for the cause. Of course, calling it a cause suggests that the prevention of gay marriage is an injustice.

In order to win the case the gay community must show “suspect class” status. In order to do this they must prove two things: 'that sexual orientation is an immutable trait, like race or ethnicity, and that gays and lesbians are unable to protect their interests via the political process.'"One videotape included a pastor suggesting that legalized gay marriage could lead to polygamy and bestiality." many suggest that comments like this show predjudice towards gay couples. The lawyers fighting for proposition 8 disagree saying that these are examples of prejudice separate from the decision by the state to enforce proposition 8. In fact, the lawyers argue that their intention for proposition 8 was never made to oppress a certain people saying, "the marriage ban was not motivated by animus but only about protecting traditional marriage." The defense upholds the position that the law was never religion based. Both sides have something to say, and both sides are not telling the whole truth. The motivation behind proposition 8 seems to be withheld from the public, and the plaintiff fails to deliver an opposition that is solely based on political agenda.


Isaac Weiner said...

From my brother, Jay (a lawyer):
"The plaintiffs could also prevail on a rational basis theory (if the court's unwilling to find that sexual orientation is immutable and thus can't support a suspect class finding). Even at rational basis, the law must be reasonably related to a legitimate state interest (and, under "reasonable basis plus" which the USSC more or less applied in Romer and Lawrence, the state must show that its reasonable basis is not predicated on animus). There's an argument to be made (and that has been made, by among others, David Boies, one of the plaintiffs' lawyers in the case - see http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot) that, as the law provides no tangible benefit to anyone, that it can't survive even rational basis."

Claire said...

The article states, “State supreme courts in California, Iowa, and Connecticut that have allowed gay marriage have already decided that sexual orientation should be considered a suspect class.” I think that it is upsetting that the lawyers have had to defer to a “suspect class” ruling over the rational basis theory mentioned in Isaac’s comment. It seems to me that the gay community should have enjoyed the legal rights that come with marriage long ago. I am also disturbed by the videotape included a pastor suggesting that legalized gay marriage could lead to polygamy and bestiality. In my opinion, to equate gay marriage with bestiality is incredibly degrading towards the gay community.

Lauren P said...

The meaning of “marriage,” just like the historical meaning of “religion,” must be seen to be a changing and culturally specific one. Marriage as a social institution has changed over time in the United States as modernization has occurred. What has been, and still is, considered “traditional marriage” does not allow “liberty and justice for all” as stated in our Pledge of Allegiance. The ban in California on gay marriage by Proposition 8 excludes homosexuals from the rights that legally married couples enjoy and consider their constitutional right. I agree with Proposition 8 opponents who intend to show that gays and lesbians are more vulnerable to discrimination and thus merit greater legal protection against discriminatory laws. If the court decides that gays and lesbians should fall under “suspect status” in this case, a new legal precedent will be established declaring homosexuality to be immutable like race and gender. Consequently, this would make it much more difficult for any state to continue to utilize the “traditional marriage” definition and our Pledge of Allegiance to our country will truly apply to every citizen no matter their race, ethnicity, or sexual orientation.

Shannon H. said...

I personally feel that the religious argument in this case is absolutely ludicrous. Not only are there religions, including Christian churches, which will perform gay marriages (and have gay clergy, for that matter), but any basis on Christian values or the Bible is completely irrelevant anyway. Obviously I believe that the government cannot force any religion to perform marriages that it opposes, but conversely religious leaders cannot force the federal government to discriminate against a subsection of its citizens. Some people say that marriage began as a Christian institution and the American conception of marriage is based on that religion, but in truth marriage has been around long before Christianity, and if the state is issuing marriage licenses, which it is not necessarily required to do, it has the responsibility to issue them to all of its citizens.

Bethanie H said...

I’m glad that you chose to write on this topic because I was actually thinking about Proposition 8 while reading the first part of Gordon’s The Mormon Question this week. I am a registered California voter so the details of this issue are fresh in my mind. The first part of Gordon’s book points out some of the different arguments used by both sides of the polygamy issue in the 19th century. As I was reading through them I wondered: “how many of these arguments parallel the arguments being made on both sides of the present day gay marriage issue?”
Gordon points to what may be referred to as the “instability issue” used by antipolygamists. Antipolygamists feared that allowing polygamy would threaten the order of the established society. Gordon cites a popular antipolygamist, Metta Victor: “whatever corrupts [the] moral, intellectual, and physical well-being [of the people] is inimical to the well-being of society, to the State, to the whole country” (Gordon 30). It was assumed by Victor that polygamy would threaten the well-being and stability of society. It seems that this same argument is made by the defendants in this case: protecting marriage and everything it stands for in society.
On the other side, gays argue that the right to marriage is part of their natural right to liberty. Gordon demonstrates that the main argument utilized by Mormons in the 19th century in order to defend polygamy in legal terms made use of the liberty set forth by the constitution. Although these are not perfect parallels, they are nonetheless interesting to consider.