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Proposition 8

California’s proposition to outlaw gay marriage was struck down today.  Before I comment let me say that I don’t have a strong opinion one way or the other about this issue, I don’t think the government should have anything to do with marriage one way or the other but don’t mistake this as an argument against gay marriage, the issue is much more important than that.

Here are som excerpts from the judges decision.  Of particular interest is this one

Proposition 8 has had a negative fiscal impact on California and local governments.

Is the job of a judge to apply the law or is it to decide that certain laws are too expensive?  This is a question we should consider carefully.  More disturbing, however, is the following language.

Proposition 8 . . . enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

Notice what is happening here.  When presented with a law passed by the voters of California, this judge is divining their intentions and the reasons they come to the conclusions they did, and declaring those reasons incorrect and striking down the law on this basis.  In other words, it is obvious to this judge that the people who passed this law were confused and misguided so he is going to save them from their own ignorance.  This has nothing to do with interpreting the constitution.  So ask yourself: if the courts are just making laws or striking them down based on whether or not they think the law is misguided, who is left in government that is defending the constitution and the rule of law?

P.S. There is another frightening thing that I think I heard was in this decision but I am still looking for documentation.  I will post it if I find it.

Categories: Uncategorized
  1. W. Knowlton
    August 5, 2010 at 1:59 am

    The purpose of a republic is to prevent the desires of the majority from taking away the liberty of the minority. It isn’t that the people who passed the law are confused or stupid, they simply shouldn’t be allowed to take away the liberty of the minority (to just marry another consenting person, benefits aside).

    Allowing the ban to pass seems to me to be the above problem more so than it getting overturned because “voters are too stupid”.

    Government should be taken out of the equation sure, but right now that’s a long way off and homosexuals likely don’t want to wait for “surfdom” to come and go before getting hitched. 🙂

    • Free Radical
      August 5, 2010 at 4:00 pm

      You’re right about the purpose of a republic but the purpose of a judge is to interpret the law not decide whether the people who made the law did so for a good reason. And more importantly, they use things like this to get otherwise liberty-minded people (like you) to compromise on the fundamentals of how government works because you think it’s for a good cause. It’s not worth it. When the courts make arbitrary decisions based on thier individual views and override laws that they don’t like just because they don’t like them the rule of law is lost. And the rule of law is far more important than the word the government uses to refer to gay couples.

      • W. Knowlton
        August 5, 2010 at 8:11 pm

        The right to marry, as the institution currently stands, is a liberty. To ban gay marriage means that some individuals are depriving other individuals of the liberty to marry (whom they choose). To allow gay people the liberty to marry doesn’t adversely affect the former at all. To ban gay marriage does adversely affect the latter.

        To ban gay marriage is to have a law depriving some individuals of a liberty which doesn’t adversely affect the unalienable rights of others and is based nearly entirely on opinion and prejudice.

        An unnecessarily oppressive law which nobody benefits from (except perhaps religious institutions getting an ego stroke) is not a good constitutional law. A justice wouldn’t overturn such a law because “people who wanted it are stupid” but rather because it isn’t fit for a free society. It isn’t a good law. And not everyone wants it. To give credence to such frivolous laws is to degrade the legal system.

        I should hope if a nonsensical ban on atheists eating strawberries ever passes, that a justice would overturn it as well, since there isn’t a good reason for such a law.

        I can’t wait for this convo.

      • May 15, 2017 at 3:51 pm

        God, I actually feel sick.I knew they’d be soft, but 5% isn’t soft it’s a total copout, and setting a maximum of 15% if the rest of the world plays ball is just utter bullshit. So much for mr -ex-diplomat leading the world.And the massive amounts of handouts of free permits and cash to the industries we need to change the most.And the massive lost opportunity to kick-start Australia as a leading carbon neutral, innovative ecFu.myoonck, fuck fuckity fuck.This is simply indefensible.

      • May 31, 2017 at 5:11 pm

        Pretty radical of Starbucks to wimp out and just follow local law. Like many others, I'm not a fan of their over-priced coffee, but I'll be there in my NRA jacket and H&K cap.MAJ Mike

  2. Free Radical
    August 8, 2010 at 11:02 pm

    There is no activity that the government prevents gays from doing. They can live together, sleep together, kiss in public, walk down the street holding hands, they can enter into binding contracts with each other. The only issue here is what the government calls them! This is not in conflict with any unalienable rights! That’s the whole point of this. These kind of issues get you to distort your own understanding of rights and liberty to justify the government doing things you want. And obviously a large majority of people do think that it adversely effects them. The judge and you are basically saying that these people are wrong and they just don’t realize it so I’m going to correct their decision. That’s not the job of a judge and it’s certainly not in the constitution.

    Also, a note on the equal protection clause: This is not the same as preventing blacks from marrying, as much as the left would like to drag race into this issue (and every other issue). The behavior which government chooses to encourage (it’s not preventing any behavior) is straight marriage (most places). If it encourages this behavior to a different extent for different people that would not be equal protection. But that’s not what’s happening here. Gays are free to engage in the same behavior and reciever the same benefits it’s just that they don’t want to engage in that behavior. A gay marriage is different behavior. They are just saying that it’s the same so they can make a discrimination claim. This argument would apply to someone who wanted to marry an animal or a pipe wrench. Supporters of gay marriage would say that this is ridiculous and this would never happen and that would be correct but it misses the point which is that their argument is flawed. You can’t say that if the government encourages some behavior it must encourage similar behavior. This would would cause endless bickering about what is similar to what. Oh wait! That’s what we are doing all the time. If only there was another way. Maybe we could just say that the government shouldn’t encourage any behavior…..

    • May 15, 2017 at 3:42 pm

      Did you actually find photos of swedish Cents with three counter weights on the fume extractor? I know we discussed it, since I thought I’d seen it soemrhewe.. But I haven´t found anything in my meager collection of Centurion info./E

    • May 31, 2017 at 6:13 pm

      nov27 Your writer has a very interesting way of posing differential views and making them coincide with the overall viewpoint of the subject. Thank you for an interesting and informative article.

  3. Free Radical
    August 8, 2010 at 11:06 pm

    By the way this position that the government shouldn’t be involved in marriage but since they are they have to allow gays to marry is kind of (kind of exactly) like saying “I don’t believe there is a god but I’m going to go around converting Muslims to Christianity because I think that if you do believe in a god the Christian god is the only right one.” There’s only one right answer here. Any attempt to defend one wrong answer against another answer you think is wronger is just a diversion from the pursuit of the right one.

  1. August 22, 2010 at 4:27 am

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