
California's Prop 8 (gay marriage ban) ruled unconstitutional - zain
http://www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL
======
caryme
Proposition 8 "fails to advance any rational basis in singling out gay men and
lesbians for denial of a marriage license. Indeed, the evidence shows
Proposition 8 does nothing more than enshrine in the California Constitution
the notion that opposite-sex couples are superior to same-sex couples..."

~~~
yummyfajitas
I'd be curious to see if the courts will apply that same argument to other
laws.

For instance, will/should the courts eliminate all marriage benefits on the
grounds that marital subsidies simply enshrine into law the notion that
couples are superior to singles?

I'd also be curious to see if gay marriage supporters believe the courts made
the correct decision, and if they would apply the same logic to other
situations.

~~~
kjksf
You're using very simplistic and very wrong definition of what equality and
discrimination is.

For example, denying gay marriage discriminates against gays by denying a
specific, identifiable group (gays) the right to marry that is given to
everyone else.

You're trying to claim that the same logic applies to e.g. laws against
smoking which, in your naive interpretation, "discriminate" against smokers.
The crucial and not so subtle difference is that law against smoking bans a
behavior. It would be discrimination if we had laws that prohibits smokers to
marry.

So yes, the courts made the right decision I do want the courts to apply
constitution in the future to abolish laws that violate mine and yours
constitutional rights, equality being among them.

Using your reasoning serial killers are a minority and laws against killing
are discrimination.

~~~
yummyfajitas
Gays have the right to marry an opposite sex partner. They may not prefer
this, but they have the right to do it. Thus, laws prohibiting same sex
marriage discriminate against people who prefer same sex relationships.

Similarly, renters have the right to get a mortgage subsidy by buying a home.
They may not prefer it, but they have the right to do it. Thus, the mortgage
subidy discriminates against people who prefer rentals.

Should we therefore eliminate mortgage subsidies (or any number of other laws
which favor one preference over another) subsidies based on the same logic?

~~~
ubernostrum
_Gays have the right to marry an opposite sex partner. They may not prefer
this, but they have the right to do it. Thus, laws prohibiting same sex
marriage discriminate against people who prefer same sex relationships._

The right in question is not the generic right to marry someone, but rather to
marry _the person you want to marry_ (if that person will have you). And it's
pretty settled at this point, since the definitive ruling was over 40 years
ago; _Loving v. Virginia_ struck down "everyone is equally free to marry
someone of the same race as themselves" as discriminatory, and this case is
now simply following the logic to strike down "everyone is equally free to
marry someone of the opposite sex".

As to your mortgage examples: marriage is and has long been held in US law to
be a fundamental right. Renting a house, meanwhile, is not and has not been
held to be such a fundamental right. And specifically in the case of laws
which subsidize buying but not renting, such "discrimination" is allowable so
long as it serves a compelling government interest. Proposition 8 was found
not to serve any such interest; its sole purpose was to make law out of the
religious beliefs of a particular group, and this is not something government
legitimately can or should be doing.

~~~
yummyfajitas
So what is the compelling government interest in the case of, e.g., mortgage
subsidies? The common justification I've heard is that home ownership is _more
likely_ than renting to generate positive externalities (e.g., homeowners are
more likely to improve their communities).

If increased probability of positive effects is sufficient rational basis for
government acts, then it is very easy to come up with a rational basis for
supporting straight marriage (but not gay marriage) based on positive
externalities generated for children (e.g., straight couples are more likely
to have children than gay couples).

I came up with a rational basis given only a few minutes of thought. I'm now a
bit surprised that the judge couldn't come up with such an obvious rationale.
It's almost a if he was making a political decision rather than a legal one.

~~~
ubernostrum
_I'm now a bit surprised that the judge couldn't come up with such an obvious
rationale. It's almost a if he was making a political decision rather than a
legal one._

The argument presented to the judge was exactly the basis you've pointed out:
that the sole purpose of marriage is to encourage procreation and to provide a
stable environment in which to raise children.

If you'd actually read the ruling, you'd know that the evidence presented for
this was flimsy at best; it was not demonstrated that heterosexual parents do
a better job of raising children than homosexual parents, and it was freely
admitted that marriage licenses are granted to heterosexual couples who are
unable or unwilling to procreate. Thus the argument was rejected as legally
unproven, and the ban on homosexual marriage was found to have no legally
acceptable basis.

(and again the parallels with racial bans are striking: it was argued, once
upon a time, that interracial couples would produce inferior children and that
the government thus had an interest in preventing such couples from marrying.
Such arguments were similarly unproven, and ultimately unprovable)

~~~
yummyfajitas
_If you'd actually read the ruling, you'd know that the evidence presented for
this was flimsy at best;..._

The evidence doesn't need to be anything other than flimsy to constitute a
rational basis. Courts are not supposed to evaluate the facts _at all_ , but
should merely determine if there is any rational basis for the law given the
most generous possible interpretation of the facts.

"[A] legislative choice is not subject to courtroom factfinding and may be
based on rational speculation unsupported by evidence or empirical data."

<http://www.law.cornell.edu/supct/html/92-351.ZO.html>

[http://volokh.com/2010/08/05/more-on-whether-the-facts-
matte...](http://volokh.com/2010/08/05/more-on-whether-the-facts-matter-in-
perry-v-
schwarzenegger/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+volokh/mainfeed+\(The+Volokh+Conspiracy\)&utm_content=Google+Feedfetcher)

If the job of the courts was factfinding, a huge number of laws would be
eliminated. For example, could you prove in court that the Bush tax cuts,
obamacare, minimum wage laws, gun control laws, or any other law are
beneficial? I rather doubt it.

As long as one can imagine a scenario in which health insurance is related to
health, Obamacare passes the rational basis test. And as long as one can
imagine a scenario in which straight couples make better parents than gay
couples (even if only in a probabilistic manner, i.e. 95% of straight couples
are fertile compared to 0% of gay couples), then Prop 8 also has a rational
basis.

~~~
ubernostrum
Don't conflate different concepts. Rational basis review is a whole 'nother
beast.

The ruling correctly states that, due to the nature of Proposition 8, strict
scrutiny would normally be the appropriate level of review. It concludes,
however, that strict scrutiny isn't needed because Proposition 8 doesn't even
survive rational basis review, and goes through each proposed rationale:

1\. Heterosexual marriage is traditional. As Judge Walker points out, this
fails as a rational basis since "the state must have an interest apart from
the fact of the tradition itself."

2\. Overturning Proposition 8 would phase in a social change. But California
has already, in the past, permitted same-sex marriages, so: "The evidence
shows that allowing same-sex couples to marry will be simple for California to
implement because it has already done so; no change need be phased in."

3\. Opposite-sex parenting is better than same-sex parenting. This fails
because California already permits same-sex couples to adopt and raise
children, and because "Proposition 8 does not affect who can or should become
a parent under California law."

4\. Proposition 8 protects the free-speech rights of those who oppose same-sex
marriage and want to teach their children to be opposed to it. But Proposition
8 is only concerned with permitting or forbidding certain marriages, not with
allowing speech or education concerning marriage: "as a matter of law,
Proposition 8 does not affect the rights of those opposed to homosexuality or
to marriage for couples of the same sex."

5\. Homosexual and heterosexual relationships are different, and must be
classified differently. This fails because "same-sex and opposite-sex unions
are, for all purposes relevant to California law, exactly the same."

There's also an alleged "catch-all" interest. I'll just quote that one in
full:

 _Finally, proponents assert that Proposition 8 advances “[a]ny other
conceivable legitimate interests identified by the parties, amici, or the
court at any stage of the proceedings.” Doc #605 at 15. But proponents, amici
and the court, despite ample opportunity and a full trial, have failed to
identify any rational basis Proposition 8 could conceivably advance._

The important thing to remember in reading the above is that rational-basis
review, while not particularly demanding, is not the same as no review. "I say
there's a rational basis, therefore there is" doesn't hold up in court; you'll
have to make an argument and it will have to actually make sense. The
arguments advanced for a rational basis for Proposition 8 failed -- they
either did not assert a valid basis for legislation or were contradicted by
other established law or by Proposition 8 itself.

------
seldo
I know this isn't really hacker news, but as a gay hacker, I beg you not to
flag this story :-)

~~~
derefr
Why not? Not to sound mean, but there are plenty of places online where people
could discuss this news; why does HN have to be one of them? Does this
community have unique insights into Californian law or gay rights that other
communities don't? Does this same news item really need to appear on every
online social news site, everywhere, no matter the focus?

I guess it's possible that there are people who _only_ read HN, and don't have
any other news source whatsoever, and that those people _would_ otherwise miss
out on this bit of news—but then, I think those people have chosen to filter
out other news sources for a reason :)

Edit: I'm just asking for a justification here—if it explicitly _isn't_ Hacker
News, what made you want to post it?

~~~
seldo
Statistically speaking, somewhere between 4% and 8% of the HN population will
be very interested in this news. I'll bet that's a bigger percentage than
actually care about Erlang, and we're always hearing about that :-)

But seriously, there is no reason, other than it being a really nice piece of
news that, as a member of a community, I would like to share with the rest of
that community.

(And to clarify: I didn't post it, I just voted it up :-) )

~~~
derefr
I don't think we should be allowing any argument that would also justify
people posting cat pictures :) I agree that it's a nice piece of news; I just
sometimes wish that HN had the same sort of #foo, #foo-offtopic division that
specialized IRC channels usually do.

(And I realize—I was addressing the original poster in the context of your
comment. :)

~~~
zain
To answer your question, I posted this on HN because I felt it would lead to
interesting comments. The ruling is certainly cause for celebration, but it's
also one of the most publicized cases of a judge overturning a majority vote.
I wanted to hear how other hackers settled the internal debate of forcefully
eliminating bigotry vs. lessening government intervention.

------
adammichaelc
I am likely a minority voice on HN on this topic and with so many strong
feelings about this I will likely be down-voted for these arguments, but in
the spirit of bringing out another side to the debate so that a full
discussion can happen, I'd like to bring up a few thoughts against the court-
ruling.

I rarely hear about how state-approved same-sex marriage will impact freedom
of religion. Personal feelings aside, religous groups should have the freedom
to practice their religion according to their conscience. They each have a
right to preach their interpretation of right and wrong, and shouldn't be
forced into the current policially correct view.

For example, I could see a pastor or rabbi or other religous leader feeling
uncomfortable about marrying 2 people of the same sex, and then being sued for
a civil rights violation with the full force of the state to back up the
couple's lawsuit.

Another example that comes to mind is religous colleges that offer married
student housing being forced to let a same-sex couple live in the housing; in
this situation the school could be sued for discrimination and potentially
lose tax-exempt status unless they comply.

These 2 examples are compelling to me because they are realistic scenarios
post-today's ruling and they represent a power-grab by the government over a
religion's conscience-driven decisions about what is right and wrong. We
shouldn't hand over these religious decisions to bureaucrats.

It seems that by officially sanctioning same-sex marriage, we are heading
towards a collision course between church and state, which is troubling from a
religious-freedom perspective. In an ideal world, marriage wouldn't be a
state-driven issue at all, but left to the religions themselves to define.
Obviously this isn't an option; at the very least we should be careful about
how much more power we want to give the government about our individual
conscience-driven religous choices.

~~~
ubernostrum
No religious organization is being forced to recognize same-sex marriage. No
religious organization will be required to endorse same-sex marriage. The case
is solely concerned with the question of whether _the state of California in
its capacity as a state of the United States_ has grounds to refuse such
recognition. And, under the 14th Amendment, it does not. That's the whole
thing.

As to college housing and other situations, the real question is whether such
colleges accept government funding. That puts you in the same situation as
accepting _any_ funding: the entity providing the funds has the right to
attach conditions, and you have the right to accept or refuse (and if you
refuse, you don't get the money). And the US government and state governments
are constitutionally barred from providing funding to any entity which engages
in certain types of discrimination, so that's the condition attached to the
funding.

------
jblochjohnson
What makes Hacker News cool is that the link is to the actual ruling, which is
far more interesting than the articles about this I've seen so far. If you
just glanced at the headline, I suggest you dig in...

------
tome
Are there any non-religious anti-gay-marriage arguments?

~~~
yummyfajitas
I'm against gay marriage and my reasons are completely non-religious.

Currently, marriage consists of a default package of contractual rights given
from one partner to another (e.g. default will, medical proxy) and I have no
problem extending this to gays. In fact, this part of marriage can already be
pieced together with a few legal documents.

Marriage also consists of laws which force single people to subsidize married
couples, for instance the non-working spouse of a worker gets SS benefits that
neither spouse paid for. Gay marriage supporters are in the unique position of
thinking about this issue and recognizing the unfairness of it. But rather
than advocating for fairness, they simply want to be allowed to join the
favored class. I'll draw an analogy to the civil rights: think of an Asian
American in 1960 saying "I'm not against Jim Crow, I just want Asians to be
classified as White rather than Colored."

As a single person, I'm in the same boat as gay couples. Gay marriage
supporters want to throw me overboard in order to join the favored group,
forcing me to subsidize a slightly larger group of people. Why should I do
anything but oppose that?

Marriage fairness (i.e., no subsidies), I'll get behind. Gay marriage, no.

[edit: I thought my last line was clear enough, but from the responses it
apparently was not. I favor ending marriage, or at least ending the subsidies
for it. I also favor ending the penalties for it, which apply in certain
circumstances.]

~~~
madair
Regarding the social security benefits...in actuality married people in the
U.S. pay what's euphemistically called the _Marriage Tax_ , because the rules
as codified actually require married people to pay more than if they filed
separately.

Regarding the rest of your arguments, I suppose they work assuming an
extremely weak social contract. Or at least, in my opinion it would require a
very weak one. It's hard question to test in relation to marriage since
marriage is a legally sanctioned relationship in all countries, but i am most
certainly not well read on this topic.

~~~
yummyfajitas
That's true for some couples, but not all by any means. It also completely
ignores the marriage subsidies.

According to the CBO, 51% of married couples received a marriage bonus, and
only 42% paid a marriage tax. In total, $32.9B was paid in marriage bonuses,
and $28.8B was paid in marriage penalties. Data is from 1993, sorry, a quick
google search couldn't find anything better.

[http://www.cbo.gov/doc.cfm?index=7&type=0](http://www.cbo.gov/doc.cfm?index=7&type=0)

Note that in 2004, Bush eliminated the marriage penalty for everyone besides
the rich, so I expect the numbers are more skewed now.

------
qhoxie
Anyone seeing 500 errors - S3 has all but died in the last few minutes. We are
working with them to get things back up and running.

Sorry for the inconvenience.

<http://status.aws.amazon.com/>

------
fuzz579
How long 'til it gets to the supreme court?

~~~
mattlanger
Heads next to the Ninth Circuit, which will doubtlessly uphold the ruling.
Then it'll be on to the SCOTUS, which is a very different court from the '03
bench that ruled on Lawrence v. Texas.

~~~
erikpukinskis
Why would the SCOTUS want to get involved? Are they in the business of
deciding whether state supreme courts are correctly interpreting their state
constitutions?

~~~
Locke1689
Actually, had you actually read the ruling, you would have noticed that the
primary foundation for the ruling was not the California state constitution,
but the Due Process and Equal Protection clauses [US Constitution, Amendment
XIV § 1].

------
redstripe
Excellent news. I think gay people deserve the right to be just as miserable
as us straight people.

------
afterburner
The system works!

~~~
shotmaker
no it didn't. The people lost.

~~~
rewind
He's getting downvoted, but he's right. The majority voted for this, but the
majority didn't get what they voted for. "The System" DID NOT work for the
majority in this case (although for the record, I'm very happy with the
outcome).

~~~
theBobMcCormick
At one time, the majority in the US supported discriminating against people
based on the color of their skin. Do you _that_ should have been upheld
also?!?

~~~
rewind
Jeez, read my comment. I'm happy it was overturned, so the answer to your
question is obviously no. My comment was about a democractic system and how it
doesn't always work to give the majority what they want. I never said the
majority should get what they want or that they're correct when they have a
majority.

~~~
theBobMcCormick
Doh! (smacks self upside head). :-)

------
cj
How did this leave the front page so quickly? Hm...

------
gigafemtonano
I don't get scribd. Why wouldn't you link to the government website hosting
this PDF or to a press report conveying this information? My eyes are bleeding
from all the ads...

~~~
mcn
I had the same reaction, except that I found a bar that moves to be even more
distracting than the adds.

Hitting full screen (in the middle of the bottom bar) and turning off autohide
(move the right toggle up) made it usable for me.

------
gcb
i wonder if the mormons try to get polygamy going amidst all that gay marriage
talk

that would be interesting.

~~~
cynest
Only a subset of mormons (fundamentalist LDS). Also, I doubt they'd want to
legally marry their wives: single mothers collect more benefits.

