How is opposing redefining marriage (in the context of law) working to remove existing rights of people? Its framed in terms of removing rights/civil rights because it suits the cause. But this characterization is not supported by a dispassionate reading of the issue here.
In particular, both Prop 8 and the MMA failed to meet the Rational Basis test: http://en.wikipedia.org/wiki/Rational_basis_review
That is, both courts found that there was no rational basis for keeping gay people from getting married. The rationales offered by proponents didn't measure up.
Proposition 8: Section I. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
Section 2. Article I. Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
And ultimately, the courts are decided by majority vote, by being appointed by politicians that citizens vote for. A Supreme Court in Russia may find a rational basis for opposing gay marriage, and then write that in an opinion.
Seriously, go and read the decision on Prop 8, or the recent one on the Michigan Marriage Amendment. Both are clear and readable explanations of why gay people start out equal, and if you want to make laws against them, you have to prove that there's a rational basis for the state to do so.
Not being able to marry a same sex person is not "not equal" (pardon all the negatives). The fact that we have to rely on judges to offer strained arguments to cause any meaningful cultural shift is a bug in our system, not a feature. Judges should not be seen as the savior of the republic. The proper place for this to change is through legislation. All of this is assuming the definition of marriage being between a man and a woman was ever codified into law before this became a point of contention--not sure if I've ever actually seen such a thing.
Regardless, in the case of California, gay people could get married before Prop 8, so if you are worried about redefining marriage, it's Prop 8 that should be your problem.
Yes, gays were certainly free to marry opposite sex people if they chose to.
>you need a rational basis for doing so
Government has an interest in promoting "positive" social policy through the power of taxation. Seems like a rational basis to me. The question then becomes is an opposite sex marriage more beneficial to society than a same sex marriage. This is something that should be decided directly, not through the rational basis test.
According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.
This is a glib, assholish way of putting a point, a point that makes no sense if you phrase it more clearly. Civil marriage is about two people deciding to form a partnership together. For example, you could claim that an interracial marriage ban is perfectly equal, because a black person can marry any other black person they want, and a white person can similarly marry a white person. But that's gluing a thin paper smiley-face on over a white robe and hood; it deceives nobody.
> This is something that should be decided directly, not through the rational basis test.
I can't imagine what you mean by that. The rational basis test requires that laws have a... rational basis. That's a pretty low bar. If you read the MMA decision or the Federal Prop 8 decision, you'll see that those trying to prevent gay marriage had no rational basis for doing so. In particular, they could demonstrate no harm to society. They tried, but the science wasn't on their side.
> According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.
That is incorrect. Prop 8 initially stripped all marriage rights, exactly as it was intended to. The proposition was necessary because California's constitution provides for equal protection, so a constitutional amendment was required to make an exception so that gay people could be treated unequally.
Once it made it to the CA Supreme Court, civil union rights were restored, and it was only the term "marriage" that was left as a sop to the will of the voters. But even that was seen -- correctly in my view -- as a violation of the 14th amendment.
> Civil marriage is about two people deciding to form a partnership together
A marriage has traditionally been understood to be a partnership between a man a woman. Do you deny this? Yes, I'm aware of the muddled and unsavory history of the institution of marriage. But it most recently has been understood to be a partnership between a man and a woman. Society's views are evolving, as it has done in the past. But those who would prefer to keep the traditional understanding are not hateful monsters.
>The rational basis test requires that laws have a... rational basis.
That's not what it means (according to links you provided regarding the "rational basis test"). Its simply a question of whether the government has a basis/interest in the law in question. It's analogous to a jurisdiction test. The government certainly does have an interest in defining marriage since it confers certain benefits. To claim the government has no rational basis for defining who can receive tax benefits is highly suspect. It's also rather strained to reference one opinion from one court as the final word on a matter when there have been other opinions that did not claim a rational basis exclusion. Clearly, this isn't obvious or settled in any way.
People wanting society to be a certain way are not monsters. People using the power of the state to force their views on others to the detriment of families and children? That is a monstrous action, although I hope most people involved did it out of ignorance, not monstrous intent.
The government's interest must be rational; you can't just make laws against people because you don't like them. Which is basically what happened here. In California, none of the offered bases were found to be valid. Ditto in Michigan. If you don't like that, go argue with the federal judges involved.
It may not be obvious, but as the saying goes, "It's all over but the shouting." This is going the same way interracial marriage did, but faster. Gay people were in the closet out of fear, but they are not going back. The youth today know actual gay people, and won't be trying to force them back in, and they won't countenance treating them as second-class citizens. E.g.:
http://dannikanash.com/2013/04/07/an-open-letter-to-the-chur...
Nobody today would try to resurrect the laws against interracial marriage because it is now obvious bigotry. And if they did try, courts would strike it down because our once-clouded understanding of equal protection is permanently clearer. The same will be true with gay marriage.
In a generation, gay marriage will be part of traditional marriage. Kids born today will wonder why it ever was a problem, just like 20-year-olds today are shocked that racially mixed marriages were once illegal.
> People using the power of the state to force their views on others to the detriment of families and children?
This is another framing of the issue that seems absurd to me. Who is denying you anything? You are free to do whatever you please with whomever you please. Your lack of government recognition of marriage does not prevent you from building a life with the person you love. Aside from doctors visits and a few tax breaks and whatnot (which can be handled tangentially to the issue of "marriage"), there isn't really any difference to one's life if government recognizes your relationship or not.
This is the key here. Marriage recognition isn't about you and your partner, its about forcing everyone else to recognize your relationship. This is a cultural battle, not a civil rights one. You want Billy-the-hillbilly in Tennessee to recognize your relationship as just as legitimate as John and Jane's. I get why this is important, and I'm sure I'd feel the same in that position. But this is a personal opinion that people should be entitled to, as far as anyone is entitled to hold stupid/backwards opinions. I don't accept this as a "civil rights" issue, or that the lack of such recognition as being damaging in some way.
You are taking one very particular aspect of "traditional" marriage (traditional for one narrow group) and seizing upon it, while ignoring all the rest of them. That women can't really own property. That they can't vote. That their husbands can beat them. That marriages were chosen by parents, and children had little say. That marriages happened much younger. That they were tied up in the church. That men kept mistresses. That marrying the wrong race or class could get you lynched. And on, and on, and on.
Regardless, even if you were right, which you aren't, tradition is not sufficient basis for law. Full stop.
That you personally don't see the problem with keeping from other people from marriage is in the "well, duh" bucket. Sure you don't. But your ignorance isn't justification for public policy. And knowing same-sex couples who have had to do all the legal paperwork to have children, you're also wrong. Many thousands of dollars in legal fees were spent, and what they ended up with wasn't as good as marriage. There are plenty of other scenarios, especially with adopted children, that can't be solved privately at all. See the MMA decision for a more detailed explanation of them.
For the record, I'm straight, so my relationship isn't at issue. And really, I can't force people to recognize my relationship as legitimate. For example, if I meet somebody in Vegas and get married the same day, people are free to mock me and call my relationship illegitimate. Billy the Hillbilly Preacher can think me a shocking fornicator and say so to my face. However, it does entitle me to certain legal rights, so, e.g., governments and hospitals can't deny me those.
To deny gay people the same legal recognition requires the various bigots to prove that the state has some legitimate interest in doing so. They have signally failed in that. And they will continue to fail. Because, like you, it's either "God said" or "it's traditional!" Meaning, even they don't really know why gays shouldn't be allowed to marry.
You are welcome, in the fullness of your ignorance of the topic, to continue to not recognize that this is a civil rights issue. 13% of the population still feels that way about interracial marriage, too. Maybe you can form a club with them. But California's Supreme Court and various federal courts disagree with you. You might give passing consideration that they know at least as much about the law as you, and perhaps a bit more.
Privileging one group of immigrants traditions has been the cornerstone of the US since its inception. It was a common theme to leave ones old culture behind and adopt the culture of the US when immigrating. This is nothing new. Cultural identity is important.
Every single argument on HN in the last few days regarding this subject insists on conflating the rights granted to a marriage with the marriage itself. It makes it impossible to have a meaningful discussion when you guys insist on doing that. Some people want to keep the traditional meaning to marriage. As long as there is another avenue to receive the legal benefits that go along with marriage (no one is entitled to tax breaks), this in no way can be a civil rights issue.
I think it's fine that some people want to keep to their particular cultural norm (although I will continue to dispute that those norms are really "traditional marriage" in any sense meaningful to US law or culture). People can want all sorts of things. But when they use the power of the state to discriminate against a group of people, that's where I have issues.
Stripping the term "marriage" from some people for reasons that don't meet the rational-basis test is a violation of their civil right to equal protection. If you don't agree, no point in telling me; it's the 6th and 9th federal circuits you have to convince.
http://www.volokh.com/2012/02/07/same-sex-marriage-bans-and-... http://www.slate.com/articles/news_and_politics/jurisprudenc...
Whenever a rephrasing of an issue can lead to the opposite conclusion, its clear that critical nuance is being stripped away. The fact is a marriage is a coupling of (at least) two people; one cannot meaningfully speak of an action of marriage of a single person. So framing the question in terms of what an individual can/can't do seems to be the error. Restrictions on marriage can only be meaningfully applied to the set of all individuals involved; and there is no way to phrase it in this way that leads to an equal protection violation.
Laws merely define approach to Rights.
What authority would that be?
A right necessarily entails a responsibility onto others. Without some framework of mutual agreement and enforcement, talk of rights is utterly impotent.
If the majority can simply redefine a Right, what is the point of elevating these things to the status of a Right?
But make no mistake, any of these "rights" will always be at the whim of the majority. The question simply becomes how big of a majority is required, and how well can your institutions withstand a serious attack on the minority by a (less than supermajority) majority. Speaking of "self-evident truths" will not save you in the face of such an assault. We must always be vigilant that the structure of our institutions are sound.