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Prop 8 Ruling CA - Bad from O-ist POV

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ZSorenson
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<a href="http://www.cnn.com/2010/US/08/04/california.same.sex.ruling/index.html?hpt=T1">http://www.cnn.com/2010/US/08/04/california.same.sex.ruling/index.html?hpt=T1</a>

It should be obvious which side of the general issue of gay marriage an objectivist should take. The issue is a legal living arrangement between two consenting adults (or more theoretically).

I know the legal issue could be broader - it takes a male and a female to procreate, and it makes legal sense for biological parents to have a stake in their children (custody, for example). So a legal institution that is 'gender discriminatory' might itself be theoretically sound. But I'm not sure that applies to marriage.

Still, I don't want to discuss the legal or moral issue - rather the political issue is what I find significant. I'll discuss the issue broadly first, then address the Prop 8 situation.

I would say that while "Conservatism" is in many ways antithetical to Objectivism, Objectivists ought to really be more 'conservative' than 'liberal'.

First of all, any worldview based on reason would inherently be more conservative and less radical. For example, it would not make sense to eliminate 90% of the federal government overnight. Ignoring the issue of potential chaos in society, an individual has self-interested reasons for not desiring this. For one, many important components of 'life infrastructure' come through the government. If there's no Dept. of Transportation, or no FAA, and so forth, then there has to be something. A rational person would seek out that something - by demanding as a consumer certain standards - by contributing to private organizations - by settling matters of liability in the courts over time to establish precedent that takes the place of regulation - and so forth. Reason alone imposes a 'conservative' approach to politics - although it also demands some radicalism.

Secondly, in today's political culture, Objectivists have cause to be conservative. This is because the political opposition liberals come from an intellectual culture that seeks to destroy, eliminate, disintegrate, deconstruct.

And this is where Prop 8 comes in. Consider that, legitimately or not, the vast majority of California voters voted for Prop 8, and the entire legal and constitutional framework of the state support this outcome.

In that context, I tend to see this political battle (from the liberal point of view) as not necessarily an attack on the institution of marriage - but an attack on institutions!

Why would I say this, when the principle of individual rights is so clearly on the side of gays?

Because the same political coalition that would reveal private donors' addresses and threaten some amount of violence - at least go so far as to make a very big fuss, or campaign very aggressively - the same coalition that insists that the issue of rights trumps democracy and the proper function of political institutions (a vote, struck down, a constitutional ammendment voted on, struck down) - this coalition is aggressively and unitedly in favor of sweeping government control over healthcare, industry, energy, diet, and anything else you can think of.

Consider the judge in Arizona that struck down their immigration law. The issue legally was, "if the federal executive isn't enforcing law enacted by the federal legislature, then a state is not permitted to enforce that law." Which is ironic, because Obama Admin. says they're enforcing the law, but 'their' judge's argument rests with the proposition that they aren't.

I mention that example because I know Objectivism favors open immigration politically (more or less). Being in favor of open immigration doesn't mean legitimizing the deconstruction of political institutions that mostly uphold the law (by deporting criminal illegal immigrants). The Arizon example is almost as bad as the Obamacare situation where those in favor argued that a mandate wasn't a tax, but rather a cost-cutting measure. Then when a court said a mandate was unconstitutional (thank god, by a reasonable appeal to democracy, precedent, and the commerce clause of the constitution), the Obama lawyers say it's not a mandate, it's a tax!!!

A civilization cannot survive when its political institutions are so badly desconstructed.

At the end of the day, the most important thing the government can do is protect 1)Speech 2)Economics 3)What you do in your own home - from interference.

All other issues are secondary, and will ultimately be swept aside if the first are guaranteed.

My point is that while I wouldn't support Proposition 8, I cannot support this ruling, nor the Arizona ruling, unless and until the reason lies with an institutional respect for individual and property/economic rights within the judiciary.

And as far as I know, many institutional 'conservatives' aren't so worked up about gay marriage as you might thing (though admittedly a great many are very much so). But I just don't care so long as gay people have lower taxes, can freely express themselves, can do whatever they please economically and with their property, and are free to do what they want in their homes. What the hell is wrong with that?

That's why I see the political hysteria over getting 'gay marriage' for gays as much more of a post-modern deconstruction of societal institutions than an issue of individual rights. Which is specifically why the ruling of this judge is abhorrent. He isn't ruling, despite his language, in favor of individual rights, he's stabbing his own government in the nuts.

So, what's the political strategy I advocate? Cut down Atilla first, then strangle and starve out the helpless mystics. Law is anathema to Atilla - when it applies to him - and once Atilla is gone, the mystics lose power over law.

Edited by ZSorenson
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I would say that while "Conservatism" is in many ways antithetical to Objectivism, Objectivists ought to really be more 'conservative' than 'liberal'.

I think remaining radical is perfectly fine, after all in matters of being objectively right can you really be too radical? No.

"Objectivists are not “conservatives.” We are radicals for capitalism; we are fighting for that philosophical base which capitalism did not have and without which it was doomed to perish . . ."

The Objectivist Newsletter

U.S. District Judge Vaughn Walker overturned the votes of a great many people, defying democracy. Isn't this implying the upholding of individual rights

over the "collective" votes whom in effect say that might makes right and that with enough votes we can vote away anything that we please? What if universal

health care was denied due to championing and upholding the right to life. What if the Arizona law was repealed and freedom was upheld?

My point is that while I wouldn't support Proposition 8, I cannot support this ruling, nor the Arizona ruling, unless and until the reason lies with an institutional respect for individual and property/economic rights within the judiciary.

I think the Judge acting in this way is a step in the right direction.What is the difference between a group vote that votes away rights and a government that sweeps a bill into legislation. In the end if individual rights are not upheld we all lose.

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What "institutions" are being undermined by the judge's ruling on gay marriage?

Only democracy, the rule of law in general. His argument is specious. At this moment in time, his political movement happens to think gay marriage should be allowed. Didn't my reference to Obamacare register with you?

If this was an instance of individual rights being upheld by a judiciary that does so consistently, I would be more than happy about it. But the decision, in light of the broader liberal agenda in America, is capricious - it's all about rule by whim.

The political institutions - judiciary, legislature, executive, the constitutional structure that acts as an interface between democratic sentiment and law must guard against whim so that the rational have the capacity to act towards the preservation of their interest.

True, that makes this an odd case - because the proponents of Prop 8 are themselves in error - but the decision to rule against Prop 8 was made for reasons that destroy, not preserve, the institutional safeguards against whim.

The difference is that the whim of an elite took precedent over the masses. Reason and objective judgment by the elite is supposed to be the last bulwark against the masses.

Our government is so illegitimate that I don't expect it to consistently stand up for all individual rights - but I do rely on it to protect those that exist. I need the government to be institutionally sound for that to happen. Otherwise, you get Obamacare and that sort of thing - which a judge could easily rule in favor of because 'morally healthcare is a right despite the constitution' which is essentially what this judge did regarding gay marriage - our system of government doesn't explicitly designate many rights beyond a few ammendments. So I do rely on democracy to protect some rights. At least then there is a process to advocate for rights and make changes - but when you convince a million minds of the importance of rights, what good is it when one elite has the power to overturn you? The process is destroyed, made arbitrary, and you can only hope that whatever it is that is popular with the government-academia crowd will be in favor of your rights. But chances are it won't, for reasons as obvious as those demonstrated in Atlas Shrugged.

But I think you're just being a smart aleck - "institutions" in quotes implies that you are mocking my concern. Which means that either you aren't intelligent enough to extrapolate from my earlier comment what I meant - or it means that you did, but you live in some unserious world where you choose to pidgeonhole any and all opinions into convenient labels to be referenced for the sake of convincing yourself incorrectly that you have the intellectual high ground.

Please, if you're going to make a comment like that - especially after a fairly long and articulate post - provide more details. If you disagree, then explain why you don't think any important institutions are threatened by the legal mentality behind this particular ruling.

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That's why I see the political hysteria over getting 'gay marriage' for gays as much more of a post-modern deconstruction of societal institutions than an issue of individual rights. Which is specifically why the ruling of this judge is abhorrent. He isn't ruling, despite his language, in favor of individual rights, he's stabbing his own government in the nuts.
Despite the extremely verbose and wide-ranging post on zillions of topics of law and modern politics, I do not see a shred of evidence to support this assertion. Not a single statement quoted from the decision to support your conclusion. Why is that?
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I think remaining radical is perfectly fine, after all in matters of being objectively right can you really be too radical? No.

...

I think the Judge acting in this way is a step in the right direction.What is the difference between a group vote that votes away rights and a government that sweeps a bill into legislation. In the end if individual rights are not upheld we all lose.

Thanks, good reply.

I think there is a risk of viewing this ruling from a pragmatic 'ends justify the means' attitude. When in fact the remaining institutions in our political system that barely still protect any individual rights are being dismantled and undermined. I see this ruling as a victory for one right, but a defeat for potentially many others because of the continuing political implications of a judge justifying an argument on specious grounds merely because he supports the political issue.

I'm not a legal expert, so my argument lives or dies on this next point depending on the legal reality. I could only be for this ruling if its specific justification for overturning democratic and constitutional outcome is based on an appeal to individual rights in general that could then legally become a more or less binding precedent that would apply in more broad situations. That's they only way this is a victory.

But I doubt this ruling will have any bearing on: eminent domain, environment regulation, enactment of Obamacare, even free speech in the UC higher education system (the politically incorrect kind). It seems like it's the judge deciding this time on this issue that individual rights apply, by whim. That is a mockery and defeat of the principle of individual rights.

That is also why I mentioned the Arizona ruling. Again, a controversial issue - but it seems that the judge ruled by political whim more than anything else.

When politics enters the judiciary, it's a big problem, because that's when rights die. No, Objectivists are not conservatives - but that's just a basic conclusion of the law of identity. Please don't conclude that my use of 'conservative' and my discomfort with this ruling means that I am implying that Objectivists should be in favor of 'traditional institutions like marriage' and against 'radical, uncouth, repugnant mockeries of tradition like gay marriage'. I can see that connection being made. But that is absolutely not what I'm saying at all.

I'm saying that the protection of rights is an achievement of society. The 'institutions' I refer to are the result of centuries of political discoveries, hours and months and years of hard work and study by professionals, and a lucky combination of social forces that support and uphold these institutions. Objectivists ARE radicals, but not anarchists. In today's political climate, being 'conservative' in that context - of defending the institutions we have today from that which threatens them today - is something I think is consistent with objectivism.

In other words, in this political climate, Objectivists should oppose Prop 8, and they should advocate for a judiciary that regards and respects individual rights more. But they should not support a ruling that is justified in a manner not consistent with that attitude after a fair and free debate and vote on the issue. While the 'system' supports rights in general - if it hasn't gotten to the point where revolution is necessary - then it is proper to put up with the rights the system does not allow.

But if only this issue were that broad. It's so obvious and narrow - a judge ruling by whim and not principle is not good for individual rights - even when he rules in their favor!!

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Only democracy, the rule of law in general. His argument is specious. At this moment in time, his political movement happens to think gay marriage should be allowed. Didn't my reference to Obamacare register with you?

If this was an instance of individual rights being upheld by a judiciary that does so consistently, I would be more than happy about it. But the decision, in light of the broader liberal agenda in America, is capricious - it's all about rule by whim.

zSorenson, the pragmatic judge acted in favor of upholding individual rights against the votes of the majority. The minority, the one that is in align with the constitution have their

rights being infringed on. Acting in favor of freedom, even in this pragmatic whim worshiping way is one step closer to eliminating the over-legislating government and bringing it back

to their one purpose:to protect and uphold individual rights. Every step closer to this sets the context for the next consistent step to be taken. You don't want the environment to be ripe

for a flamboyant dictator to cash in and take over do you?

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Only democracy, the rule of law in general.

If you're referring to the United States of America, this statement is an inherent contradiction.

What we should be praising is not "Democracy". The judge ruling against the votes of many is exactly what our founding fathers intended - they wanted a society in which elected representatives vote on laws, because having citizens vote on laws would be a stupid idea.

Edited by Black Wolf
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Despite the extremely verbose and wide-ranging post on zillions of topics of law and modern politics, I do not see a shred of evidence to support this assertion. Not a single statement quoted from the decision to support your conclusion. Why is that?

Mostly because this is a discussion forum, not a debate forum. While proper dialogue between individuals should be factual, logical, and logically consistent, the format of a discussion is one in which facts are brought into the discussion by more than the one party.

For instance, you say there is not a shred of evidence to support this assertion. I had assumed, by my reading of the issue, that there was plenty of evidence - at least enough to justify a discussion on the issue.

But, since you have failed to see any evidence on your own, it is proper for me to present some clearly. It appears, then, that this discussion could be taking the form of a debate.

This is unfortunate, because despite being verbose and touching on zillions of political and cultural issues, I thought it was pretty obvious from my post that my main point was that political actions justified by political whim over consistent principle are never good for individual rights. I see how this might not have been clear to some, but I would expect many to understand. One reason to touch on a million issues as well as to mostly imply one's main point is to foster discussion.

A person can be asked to clarify his position on an issue, or whatever point he was making, but to mock a point or rule a point irrelevant by narrowing the context of a discussion to specific debate terms on the validity of specific arguments is to destroy the purpose of discussion. This purpose is to allow ideas to freely enter a conceptual space, and then allow the participants to come to conclusions as they examine those ideas from a variety of different contexts.

In your reply, I can assume you are not innocently asking for more information. "Despite" "verbose" "zillions" "a single shred" and then reiterating the same point clearly made, over again, is what I read. Then, a question: "Why is that?" While I wouldn't necessary assume that the final question is rhetorical and malicious, the language I pointed out beforehand leads me to believe it is.

In a previous post I used some aggressive language against another poster, so I would personally justify the use of aggressive language in retaliation. For this, then, I cannot blame you. Nevertheless, your argument is completely shallow, and someone stuck-up. It's as if you can flame and call for a proper debate standard at the same time.

Still, legitimate concerns about what in this ruling in particular is of concern to me - specifically - I will address in the next post. Keep in mind that after a vigorous, or even a short discussion, it may become clear that this most recent Prob 8 ruling is not the best example of the principle I had wanted to discuss. I think it is, with the knowledge I currently have, but the discussion is still relevant and useful. Finding out that this ruling doesn't apply to the principle I've set forth to discuss would be a good conclusion to the discussion, as would finding out that it does. The purpose, though, isn't to come to a conclusion on the board - but to provide an opportunity for board participants to come to their own conclusions. That is one thing that differentiates this format from a debate - where an outcome is sought, if not achieved.

I will contradict (seemingly only) what I wrote earlier, and say that Objectivists ought to be intellectually 'liberal'. Yes, establishing concretes is important, but assimilating broad ideas is a necessary part of tying concepts to reality. That means that incessant criticism is a bad policy in a discussion - and I think that I have been too aggressive in my response to it. By criticism, I mean a consistently critical approach whereby one consistently attempts to point out the flaws in any given argument, and generally seems to view discussion as a competition. This is different than seeking understanding.

In other words, "I cannot comment on your post until you have provided a more detailed description of what specifically you find wrong in this particular ruling." would have sufficed.

I will address that issue in the next post.

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Here is the transcript:

<a href="http://www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL">Prop 8 Ruling</a>

I think that the judge's reasoning is critically flawed, and dangerous.

What I think he did -

I think the judge basically is saying, "These heterosexual people have this marriage thing, so homosexuals should have it too for that reason alone." Cultural Marxism.

He accepts - which is perhaps legally proper - the institution of marriage in all its implications:

"The right to marry has been historically and remains the

right to choose a spouse and, with mutual consent, join together

and form a household."

"The freedom to marry is recognized as a fundamental right

protected by the Due Process Clause. See, for example, Turner v

Safely, 482 US 78, 95 (1987) (“[T]he decision to marry is a

fundamental right” and marriage is an “expression[ ] of emotional

support and public commitment.”); Zablocki, 434 US at 384 (1978)

(“The right to marry is of fundamental importance for all

individuals.”); Cleveland Board of Education v LaFleur, 414 US 632,

639-40 (1974) (“This Court has long recognized that freedom of

personal choice in matters of marriage and family life is one of

the liberties protected by the Due Process Clause of the Fourteenth

Amendment.”); Loving v Virginia, 388 US 1, 12 (1967) (The “freedom

to marry has long been recognized as one of the vital personal

rights essential to the orderly pursuit of happiness by free

men.”); Griswold v Connecticut, 381 US 479, 486 (1965) (“Marriage

is a coming together for better or for worse, hopefully enduring,

and intimate to the degree of being sacred. It is an association

that promotes a way of life, not causes; a harmony in living, not

political faiths; a bilateral loyalty, not commercial or social

projects. Yet it is an association for as noble a purpose as any

involved in our prior decisions.”).

...

The parties do not dispute that the right to marry is

fundamental. The question presented here is whether plaintiffs

seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right. To determine whether a right is fundamental under the Due

Process Clause, the court inquires into whether the right is rooted

“in our Nation’s history, legal traditions, and practices.”

Glucksberg, 521 US at 710. Here, because the right to marry is

fundamental, the court looks to the evidence presented at trial to

determine: (1) the history, tradition and practice of marriage in

the United States; and (2) whether plaintiffs seek to exercise

their right to marry or seek to exercise some other right."

"Marriage has retained certain characteristics throughout

the history of the United States. See FF 19, 34-35. Marriage

requires two parties to give their free consent to form a

relationship, which then forms the foundation of a household. FF

20, 34. The spouses must consent to support each other and any

dependents. FF 34-35, 37. The state regulates marriage because

marriage creates stable households, which in turn form the basis of

a stable, governable populace. FF 35-37. The state respects an

individual’s choice to build a family with another and protects the

relationship because it is so central a part of an individual’s

life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun,

J, dissenting)."

The judge then argues that marriage is not related to child-bearing, and previous restrictions based on race have been struck down, and that gender roles are no longer considered in marriage - all appealing properly to precedent. His conclusion then, is:

"The evidence shows that the

movement of marriage away from a gendered institution and toward an

institution free from state-mandated gender roles reflects an

evolution in the understanding of gender rather than a change in

marriage. The evidence did not show any historical purpose for

excluding same-sex couples from marriage, as states have never

required spouses to have an ability or willingness to procreate in

order to marry. FF 21. Rather, the exclusion exists as an

artifact of a time when the genders were seen as having distinct

roles in society and in marriage. That time has passed.

The right to marry has been historically and remains the

right to choose a spouse and, with mutual consent, join together

and form a household. FF 19-20, 34-35. Race and gender

restrictions shaped marriage during eras of race and gender

inequality, but such restrictions were never part of the historical

core of the institution of marriage. FF 33. Today, gender is not

relevant to the state in determining spouses’ obligations to each

other and to their dependents. Relative gender composition aside,

same-sex couples are situated identically to opposite-sex couples

in terms of their ability to perform the rights and obligations of

marriage under California law. FF 48. Gender no longer forms an

essential part of marriage; marriage under law is a union of

equals."

This is my problem: the judge is claiming that marriage has some historical role worthy of state sanction, while at the same time claiming that it should be free from state sanction and its historical role. He says that views on gender have evolved - appealing to his own sense of society - when there was a very decisive democratic vote that explicity expressed the view of society on this matter. Making matters worse, the judge is saying that when society wants to view genders as equal (in his estimation of societal opinion) that's okay, but when voters seek to establish heterosexual relationships as above homosexual ones, that's entirely inappropriate. Both standards appeal to 'society's attitudes', but he chooses which one he prefers.

This might be okay if there is an overriding standard. Say, one based on the rights of the individual. That is what matters here.

From earlier:

"The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due

process of law.” US Const Amend XIV, § 1. Due process protects

individuals against arbitrary governmental intrusion into life,

liberty or property. See Washington v Glucksberg, 521 US 702, 719-

720 (1997). When legislation burdens the exercise of a right

deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US 374, 388 (1978)."

How is marriage not in violation of this? So how can one differentiate? I'll tell you how: through a popular vote, or through the opinion of a judge. Both throw rights out the window, one maintains institutional stability (a government that works by rules). When a judge appeals to society's 'viewpoint' a popular vote should be his most objective and first source of evidence on that viewpoint. Note: I say "when" a judge appeals to society's viewpoint.

And here's the equal protection argument:

"Plaintiffs challenge Proposition 8 as violating the Equal

Protection Clause because Proposition 8 discriminates both on the

basis of sex and on the basis of sexual orientation. Sexual

orientation discrimination can take the form of sex discrimination.

Here, for example, Perry is prohibited from marrying Stier, a

woman, because Perry is a woman. If Perry were a man, Proposition

8 would not prohibit the marriage. Thus, Proposition 8 operates to

restrict Perry’s choice of marital partner because of her sex. But

Proposition 8 also operates to restrict Perry’s choice of marital

partner because of her sexual orientation; her desire to marry

another woman arises only because she is a lesbian.

"

This is so awful - because a man can't marry a man because he's a man, too. This isn't a question of equal protection, it's a question of state power visavis the individual. Women and men are equally discriminated against (separate isn't equal, true, but read the next two paras).

Second, worse, is the sexual orientation argument. The court is saying that this person's desire to marry another woman airses only because she is a lesbian. So much for volition!!!!

In the first half of the paragraph, he's trying to say that your identity shouldn't matter - what is a woman that she should have some 'special' reason to mate with a man (vagina?). But then he appeals to identity and says lesbians - by their nature - only desire women.

That's fucked up.

Let me set some things strait for the haters. My point of view is that you have to treat individuals as individuals. Any attempt to do anything else will lead to whim-based decisions that are needed to resolve contradictions.

I could just as easily say: "Her desire to marry a woman is a personal choice only, and the law does not permit people to volitionally defy it. Also, women biologically mate with men, so by their nature it is appropriate to objectively single out men as appropriate potential mates."

Whim chooses which one is preferred.

...

My analysis is that this ruling basically 'redistributes' a phony 'right' from one identity group to another. It is not based on the principles of individual rights despite its use of that language when convenient.

Legally - and I'm not trained - it seems valid though. And the argument that gender roles don't matter in marriage any more so why should sexual orientation - that's what I call a good argument! But it's an argument for the legislative floor. Because the fact is, that if the state decides that a certain living arrangement - with preferential tax treatment etc. etc. - is appropriate (thereby HEAVILY discriminating against single people), then it sure as hell can specify the terms of that arrangement (man and woman, or even race). And, it's pretty obvious that historically marriage has been between a man and a woman in the United States (polygamy mind you being legally outlawed), and otherwise generally in the history of the world or at least the West. My point is, the judge's appeal to history is bullshit. And it forms the basis of my opinion that this is a form of 'redistribution' of rights. Because the judge reasserts the institution of marriage and its validity in order to give it to new people.

Why would he do this? I imagine, like SOME supporters of gay marriage, to legitimize homosexuality in society. Is that a problem? Not generally, and I think that as long as there is marriage, homosexuals should be able to have it. But declaring marriage a right is dangerous:

<a href="http://www.queerty.com/new-mexicos-frightening-court-ruling-that-demands-christian-photographers-must-shoot-gay-weddings-20091217/">Forced to do Business</a>

And so the issue isn't 'the issue'. The issue is how the courts and political institutions (legislatures, dept. of justice, ag's, etc.) treat the issue of individual rights.

My position, therefore, is that rights are not, nor have been for many decades, properly protected philosophically by political institutions. What protection there has been, has been a result of the conservative and limited nature of these institutions built into their structure. Notice, for example, that this judge had to use very rational and pretty compelling arguments in his ruling - despite the outcome.

I think this ruling represents a power grab - an attempt to let the private political viewpoint of the judge or of an agenda take precedence over a constitutional framework.

The current 'interpretation' of indiviudal rights should allow states to specify that marriage is between a man and woman. So any attempt to reverse that, outside of fixing the interpretation, I view as an attack on the functionality of our political institutions.

The same people who want to 'give' marriage to gay people, many of them, also want to make housing, and healthcare, and vacation, and education and so on and so forth all 'rights' to be given too. Democracy is not a proper way to decide right and wrong - what it properly is, is a 'check' against government power. The government is a 'check' against popular will.

This ruling is not a 'check' against popular will, because it doesn't properly appeal to individual rights. Instead, it deconstructs the vitality of the 'check' the people have against government.

That is why I'm against it.

Also, I want to mention that I've read that this argument is 'maximalist' which means it is broader than the issue at hand (perhaps provoking a SCOTUS ruling). I don't know if that's true, but I'd be delighted to see SCOTUS decide that - well, hell, marriage itself violates due process and equal protection.

Would they? Yes, if the only alternative was to declare marriage a 'right' by which future activists can claim 'rights' - justifying more government intrusion into private life in the name of rights.

Or they could just rule on whim, too. Sigh.

Edited by ZSorenson
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First of all, any worldview based on reason would inherently be more conservative and less radical.

Nonsense. As soon as something is proven it ought to begin to be adopted. Conservatism is more akin to the three Monkeys refusing to see, hear or speak "evil" until they are dragged kicking and screaming toward the new reality, usually by reforms instituted while they were out of power.

It is just as conservative to refuse to dismantle the Public education system today as it is "progressive" and many of the arguments are the same.

I really don't understand the soft spot many Objectivists seem to hold for conservatism. It is just as wrong and just as irrational and just as poor at making headway toward individual freedom and rights as the progressive liberals. They might vary in their methods, they might have differing pet causes but each of them is as damaging as the next.

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I think the judge basically is saying, "These heterosexual people have this marriage thing, so homosexuals should have it too for that reason alone." Cultural Marxism.
Since you actually have located the ruling and were able to extensively cut and past from it, you ought to stick to what is actually contained in the ruling, rather than psychologizing and inventing a basis that simply does not exist there. You have completely misrepresented his ruling.
He accepts - which is perhaps legally proper - the institution of marriage in all its implications:
Yeah, now you're implying that the legal state of marriage has a dubious moral and legal status, without offering a single piece of evidence or rationalization to disparage the propriety of marriage. It is of course entirely proper on all grounds that the judge accept the fact that marriage qua legal state exists, and could not possibly rule otherwise since that is not the issue before the court.

The essential point is (110.5) "The freedom to marry is recognized as a fundamental right protected by the Due Process Clause". Furthermore, the right to marriage is a single right, and is not limited to "those of the same race" or "those wishing to create children". Therefore, the ability to exercise that very right extends to all citizens, under the 14th Amendment.

This is my problem: the judge is claiming that marriage has some historical role worthy of state sanction, while at the same time claiming that it should be free from state sanction and its historical role.
You completely misunderstand, I regret to inform you. The function of a judge is to evaluate the evidence advanced by the parties and to judge the relevance to drawing a legal conclusion. The anti-rights party advances the legally irrelevant argument about historical trends, which the judge dismisses as being irrelevant and inapplicable. See Tara Smith's "Why Originalism Won't Die" for an excellent dismantling of the concrete-bound mentality of originalism and the arbitrariness of specific historical opinions in defining concepts.
He says that views on gender have evolved - appealing to his own sense of society - when there was a very decisive democratic vote that explicity expressed the view of society on this matter.
To quote from the opinion (116.25) "That the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'" Your infatuation with democracy -- mob rule -- is clouding your judgment w.r.t. individuals rights.
Making matters worse, the judge is saying that when society wants to view genders as equal (in his estimation of societal opinion) that's okay, but when voters seek to establish heterosexual relationships as above homosexual ones, that's entirely inappropriate. Both standards appeal to 'society's attitudes', but he chooses which one he prefers.
You entirely misread the ruling. The judge did not rule that since society now holds that it's okay to have gay marriage then it's okay. He stated that it is irrelevant that society was largely mistaken in the past.
This might be okay if there is an overriding standard. Say, one based on the rights of the individual.
It looks to me as though you either didn't read or don't understand the parts on Equal Protection, and all of those references to rational review versus strict scrutiny. The entire matter depends on there being an individual fundamental right to marriage, which the judge went to some pains to demonstrate exists. And then he argued that because this is a fundamental right, the standard for government infringing that right is much higher -- strict scrutiny -- than it is for ordinary government restrictions. (And furthermore, the case for prohibiting marriage to gays fails to even meet the standard of rational review). So it is all about the rights.
How is marriage not in violation of this? So how can one differentiate? I'll tell you how: through a popular vote, or through the opinion of a judge.
I repeat: "That the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'"
This isn't a question of equal protection, it's a question of state power visavis the individual.
It is exactly a question of equal protection. Given the fact (which you surely will not deny) that legal marriage exists, that it is a legal convenience which enables individuals to exercise their rights with fewer encumbrances, then it is precisely a matter of equal protection that certain irrationally-identified individuals are denied access to this means of exercising their rights.
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That marriage exists as a fundamental right legally was well demonstrated. But there is plenty of good cause for arguing that marriage is defined as between a man and a woman. Access to marriage - to a man/woman relationship is NOT restricted along gender lines. Men and women have equal right to enter a man/woman relationship, as do homosexuals.

I personally think marriage itself violates the due process and equal protection rights of singles if only for certain tax and other implications.

So to defend marriage as a fundamental right - while legally proper - also legitimizes marriage along lines of tradition and so forth (which was clearly part of the legal foundation of the right).

This same reasoning bears nothing against defining marriage as a man/woman relationship.

The legal logic is flawed - marriage can be defined as man/woman - and the reason for it not to be is arbitrary - UNLESS there is a higher standard that is appealed to. This higher standard would have to question the legitimacy of state sanctioned marriage. The judge clearly argued the opposite.

Is marriage a man-woman relationship? If you appeal to legislation, tradition, democracy, precedent, and so forth, it is. You cannot, as this judge has, appeal to a historical and established 'right' but then pick and choose which components of that right your sociological worldview prefers. The historical precedent is either legitimate or not.

Both mobs and elites are defeated by rules, and both are served by arbitrary decisions. The idea that two homosexuals would want to enter into a strong sacred relationship is a view. The state has two options: totally allow individuals the right to their views or pick a view and stick to it. Marriage falls in the latter category. It shouldn't, but it does. So you can advocate and vote, but cannot celebrate an arbitrary ruling.

If I was on this court I would recognize that my job is to uphold the law, whether I voted for it or not. Gender roles might be the same in marriage, but that is not strict enough to establish that gender is irrelevant in marriage. If precedent is what I'm obliged to follow, and the law and the constitution, then I would approve of Prop 8. Hell I wouldn't have voted for it!

Again, the law impedes Atilla. When Obamas are in power, their only restraint is the strict law. Judges cannot inject their arbitrary opinion - no matter how seemingly virtuous - into a ruling or else the law is defeated, and Atilla wins.

I will read up on Objectivist anti-originalism. It seems to me most of the concern is over courts that used to implicity defend property rights, but no longer do. This seems more of a constitutional flaw than a judicial flaw, but I will read more.

In any case, I think disagreement on this issue hinges on whether you think the application of due process and equal protection concerning homosexuals and marriage is arbitrary or not. I think it is.

Because marriage is a certain something - defining it is essential to treating it as a 'right'. And the judge chose his preferred definition over the legal one.

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The judge justified the decision with the 14th Amendment's Equal Protection Clause. That's a pretty straight forward argument, and I see nothing wrong with it. I would've made the same exact decision and basic argument.

That marriage exists as a fundamental right legally was well demonstrated. But there is plenty of good cause for arguing that marriage is defined as between a man and a woman.

You haven't named any. I can name a good reason for defining marriage the way this judge defined it. Th concept of marriage is dependent on the concept of sexuality (including sexual orientation). Marriage is a long term commitment between sexual partners.

Defining marriage as a straight partnership either ignores the fact that there are any gays, or ignores the fact that gays do not have straight relationships. Either way, it is not a valid concept.

Access to marriage - to a man/woman relationship is NOT restricted along gender lines. Men and women have equal right to enter a man/woman relationship, as do homosexuals.

Only if your definition of marriage ignores the existence of gays. By a definition that acknowledges the existence of people who do not engage in straight sexual partnerships, let alone marriage, but engage in gay sexual partnerships, you are denying some people the rights you are affording straights.

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But there is plenty of good cause for arguing that marriage is defined as between a man and a woman.
There is not a single good argument that marriage is "defined" as between a man and a woman, any more than there is a good argument that marriage is "defined" as between people of roughly the same age, same religion, or same race. To even raise this question of definitions implies the primacy of definitions. Read up on the Objectivist theory of concepts, and you will see that the purpose of a definition is to efficiently express the essential defining property of the concept, which implies all of the concrete instances. Definitions do not serve as gatekeepers, admitting only those units that pass the definitional test. The adequacy of the definition is tested by seeing whether it correctly identifies the units actually subsumed by the concept. You have inverted the relationship between definition and concrete.
I personally think marriage itself violates the due process and equal protection rights of singles if only for certain tax and other implications.
No, this is not a problem with marriage, it is a problem with taxation. Specifically, the tax provision that allows less theft through taxation to married couples is what might violate due process and equal protection. (Though in fact they do not, but that's a more advanced problem).
The legal logic is flawed - marriage can be defined as man/woman - and the reason for it not to be is arbitrary - UNLESS there is a higher standard that is appealed to.
There is a higher standard, which I would have assumed that you're familiar with. Marriage is basically on a par with the UCC, in stating a regular set of assumptions in agreements. There is no compelling reason for the state to make any kind of agreement more convenient, and it could theoretically demand that all contracts be written, signed and notarized (thus bringing ordinary business to a halt). Once a convenient, regularized legal relationship is recognized it should be recognized universally. It would thus be a violation of equal protection to hold that unwritten contracts such as exist when you buy a gallon of milk are recognized only between whites. We need not get into questioning the legitimacy of state-sanctioned sales.
So you can advocate and vote, but cannot celebrate an arbitrary ruling.
However, I am celebrating a righteous principled ruling. Not the least of which is that even when the mob arbitrarily demands it, the state cannot rightfully impede the exercise of individual rights by an arbitrarily specified population. Strict law, especially strict adherence to the Constitution, demands that Prop 8 be ruled unconstitutional, as it was.
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I'm sorry, is there a coherent thought that the OP has? Can he sum it up in six sentences? I'm not sure I get what he's saying at all.

It appears to me that the OP is essentially saying that the ends don't justify the means. Whilst gays should be able to marry (due to their individual rights) the ruling in California was nevertheless wrong and mistaken - the decision of the court was based on a 'gay rights' agenda (i.e. collectivist) rather than on the principle of protecting the individual rights of people who happen to be gay. Therefore, he is arguing that it does not establish a rights-protecting precedent that extends to other areas, but rather reinforces the subjective within jurisprudence which could have widespread problems down the line - i.e. the example he uses is of some judge deciding that the Federal government has to run free hospitals because of his or her own political views or feelings that everyone has a right to healthcare. However, I don't know enough about the ruling to comment on whether he is right or wrong in his contention.

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Whilst gays should be able to marry (due to their individual rights) the ruling in California was nevertheless wrong and mistaken - the decision of the court was based on a 'gay rights' agenda (i.e. collectivist) rather than on the principle of protecting the individual rights of people who happen to be gay.

...

However, I don't know enough about the ruling to comment on whether he is right or wrong in his contention.

A propos which, here is the legal essence of the ruling. Infringement of a fundamental right requires justification with a compelling government interest (e.g. national security), it must narrowly tailored to that interest, and it must be the least restrictive means to achieve that interest. All individual rights fall in the category of fundamental rights. Examples are the right to equal protection under the law, the right to speech, the right to property, to form contracts and, in a related vein, to marry. A government can create a new pseudo-right, i.e. an entitlement such as the right to healthcare or a home, but these are not fundamental rights. Walker rejected the (false) claim that plaintiffs were seeking a new right, and recognized that they were seeking the exercise of the same old fundamental right that has been recognized as long as there has been civilization. Thus he rejected the separate concept "gay marriage", and his ruling is founded on individual rights.

The interesting thing, though, is that his ruling did not depend on the fact that marriage is a fundamental right subject to the strict scrutiny standard of review; instead, he concluded that Prop 8 did not even survive rational review (the weakest standard, only requiring a showing of a rational relationship to legitimate government interest).

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I like what many have added.

If DavidOdden doesn't mind correcting me, this is how I'm interpreting his analysis of this ruling:

1) By legal precedent, marriage is a fundamental right.

2) Also by precedent, this right has been more and more narrowly defined as a spiritual union between two individuals (or whatever it explicitly said) - as previous legal barriers to marriage between races, as well as legally recognized gender roles, and the role of childbearing, etc., have historically been removed from the definition of marriage according to the law.

3) Therefore, what remains of the legal definition of marriage as a fundamental right is something that does regard gender by any rational standard.

4) As a consequence, preventing woman from marrying woman because of her gender is to deny her access to this right as it has been legally defined. And so forth...

END

I'm inclined to accept that, with only one caveat. The key issue is how you define 'marriage'. It is a something, and if it is considered a right, that right must be something. Jake Ellison defined it as, "... a long term commitment between sexual partners." (since he did not use the word 'definition' I do not hold him accountable for this quote as a definition, I am only putting forth one example of a possible definition of marriage)

That is one definition of marriage I can agree with. What definition best fits the sort of relationship that ought to be protected as an Objective right is another discussion.

What concerns me is how the state determines its definitions - particularly when it comes to rights. In this case, precedent and the legal evolution that has been accepted by society, has defined Marriage (state sanctioned with capital M) in a way that makes gender itself irrelevant (pragmatically). So the point the judge makes about using gender as a lever to discriminate against gays is very accurate.

Even so, Marriage is not a right - it cannot be construed to be one.

Marriage has:

1)Certain legal benefits which can be bestowed.

2)A legal status (a title, certificate, documented and official something or other)

And it's America's damn fault for sticking to a legal institution that is so convoluted.

Do homosexuals have a right to Marriage - with all that it subsumes even going into the future - or do they have a right to the same benefits and status as their fellow citizens? THAT'S my concern. Courts must restrain government, not direct it.

**If** the ruling grants individuals the right to marry people of any gender, where marriage is defined as Marriage - a floating and living concept capable of subsuming greater legal privileges in the future,

THEN

I am against a court deciding this.

The court is telling future legislatures that all subsequent definitions of Marriage must conform to a certain form regardless of the changing definitions society produces (to an extent).

**If** the ruling decides that current marriage law discriminates arbitrarily, illegally, unconstitutionally against certain individuals, and therefore must be discarded until better.

THEN

I am totally okay with this.

I love the idea of a court wiping out government activity.

That's basically my final word, and I do not know for sure which alternative this ruling fulfills - though I suspect the former and hence my apprehension.

I agree with the ruling that Prop 8 is not acceptable, I have been convinced of that. But my discomfort with a court defining a legal standard rather than merely upholding one remains. If it wasn't clear, my stance on this issue is that the judge should strip back PRECEDENT and LEGISLATION until he arrives at the last LEGISLATIVE STATUS QUO that meets constitutional standards. That may be impossible, but here's the thing - no matter what your personal view is, Marriage exists as a legal institution because of a moral and religious foundation in America. You can transform the institution to be defined somehow else, or discard it. The majority of people want "Marriage" for those religious/traditional reasons. By extending the 'right' to those to whom it doesn't ethically or morally apply - according to the foundational standard - is to discard the foundational standard.

That's fine with me. My problem is that accepting part of the foundational standard while rejecting another is a contradiction - only resolved by, like I said, subsuming into the 'right to marry' newer/other definitions. This means that the legal institution of Marriage has no societal genesis, and is this cancerous thing on government that any official or judge in the right position of power can add to or subtract from.

I have one last thing to say, in the next comment.

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I want to mention what I would find as an acceptable outcome for this situation.

I think the society, through the State must choose - does human nature imply that an individual human is very to more than likely to choose a second human, a (1) companion for an extended living commitment during his/her lifetime? Or does that constitute an infringement on the rights of the individual?

That's the question to be answered. No definition of Marriage otherwise is constitutionally acceptable (provably so at that).

If the State institutionalizes something like this, then it has to respect the rights of the individual. This new 'Marriage' could not provide any benefits beyond the obvious that arise from a permanent living arrangement. No tax breaks. Yes shared power of attorney. It would be a collection of legal arrangements possible to individuals anyway - just combined into a convenient form.

Now, relating back to Prop 8 - if the State had such an institution as I have described, then rights might be extended through a court to disallowed uses (ie, illegalising polygamy as unconstitutional). This is because the foundational rights and purpose, legislated into the institution, are still being met: a legal arrangement to benefit people who enter into a long term living arrangement. The twist in my example being that the legislature presumed that monogamy was the only place such an arrangement applied, but the court decides it logically extends.

But that's not what happened in California. Ostensibly, marriage is a 'spiritual living arrangment' (I don't mean the religious sense of spiritual) between committed individuals. But legally it isn't. Legally it's a million things, and has been tweaked and refined.

The voters of California recognized that the foundational purpose of the law was to recognize a religious/moral institution. Their attempts to pass Prop 8 were specifically TO PRESERVE THIS DEFINITION. That means they didn't want the religious/moral definition to apply to gays legally through the State. A judge can strike down the original definition, but cannot extend it against its purpose. That's the problem.

Given the alternative, these same voters might choose to have no institutionalized marriage ('civil unions' instead), rather than have 'gays' be given a title to marriage. It's fucked up, and evidence in my book for deleting marriage from the lawbooks altogether and starting over. Still, as they say two wrongs don't make a right.

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I'm inclined to accept that, with only one caveat. The key issue is how you define 'marriage'.
This is the essence of the intersection between Objectivism, Smith's "Originalism" paper, and this case. That is, "how you define" is never a key issue. On occasion, a law can be misstated because it uses a word that does not mean what the lawmakers intended, but only a Kantian theory of law tolerates the business of saying that legislators or judges can redefine words. The fact is that marriage is a massively pre-common law right, and "definitions" of marriage are irrelevant. Jake's characterization of marriage is correct, from what I can see.
What concerns me is how the state determines its definitions - particularly when it comes to rights.
That's a valid concern. As it happens, I've drafted a paper on the topic; again, I refer you to Smith's Originalism paper because this is the crux of the matter, w.r.t. legal interpretation. The core insight which Smith had was that the courts must identify the relevant concepts. This yields the stable, time-invariant interpretation that a rational legal system requires.
Even so, Marriage is not a right - it cannot be construed to be one.

Marriage has:

1)Certain legal benefits which can be bestowed.

2)A legal status (a title, certificate, documented and official something or other)

And it's America's damn fault for sticking to a legal institution that is so convoluted.

Note that you have also characterized "contract". I assume that you do not dispute the right to enter into a contract.
Do homosexuals have a right to Marriage - with all that it subsumes even going into the future - or do they have a right to the same benefits and status as their fellow citizens?
Walker held that the latter is the case. If he had held the former, I doubt the ruling would survive the first appeal.

I need to point out that the possibility of creating an unjust welfare state entitlement based on the fact of being married is also there for any other existing concept, or linguistically-stateable definition. The possibility that a man will kill his neighbor with a knife does not mean that it is right to ban knives. So of course we have to be vigilant in combating the consequences of philosophical corruption, where "right" comes to mean "entitlement". We can and should support this extension of proper moral concepts of agreement as applied to contracts, partnerships, and in this case marriages, but that does not mean that we should support creating new welfare rights for gays.

If it wasn't clear, my stance on this issue is that the judge should strip back PRECEDENT and LEGISLATION until he arrives at the last LEGISLATIVE STATUS QUO that meets constitutional standards.
Walker did that. The actual bottom line of his ruling is line 13 of p. 136, permanently enjoining the enforcement of Proposition 8. Nothing more, and nothing less.
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