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Better ad Against Prop. 8

The folks at “No on 8″ have decided to take a different tack in opposing the ballot measure.  Instead of reassuring us that the parade of horribles described by the “Yes” ads won’t come to pass (if Proposition 8 is defeated), they’re now challenging the Proposition itself.  I’m how sure how effective this ad will be, but at least it won’t be counterproductive as was the second “No” ad:

This ad quotes various interest groups and newspapers who oppose the initiative.  The last third is perhaps the most effective part, with the narrator saying, “Because regardless of how you feel about marriage, it’s wrong to treat people differently under the law.”

Including that line seems to be a good strategy.  On Monday, I spoke with a friend who is phone-banking for the “No on 8″ campaign.  Unlike some callers, she doesn’t lash out against those ambivalent about the initiative.  She asks their concerns and has learned that some voters remain undecided because while they believe marriage is between a man and a woman, they don’t want to eliminate a “right.”

To that end, the line I quoted above may help push some of these currently undecided citizens to vote “No” on November 4 as it addresses their ambivalence. The question remains:  how well the “Yes” ads resonate?

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40 Comments

  1. Off the top of my head – This ad at least demonizes Prop 8 itself, more than its supporters. And it gets to the point: Prop 8 is wrong, so vote no on it. Those are a couple steps forward from the last ad.

    On the other hand: It sort of appeals to people’s ignorance of what Prop 8 is. It just tells them “It’s wrong”, without explaining any of the issues. It studiously avoids all mention of gay marriage, and I am not sure whether that omission is a good thing or a bad thing; on the whole, it is probably bad as the No on 8 people tacitly confess that gay marriage is not a ‘product’ they know how to ‘sell’ to the average voter in the political center.

    The ad basically says, You should vote No on 8 because a bunch of liberal papers and interest groups say you should. If I were a gay marriage skeptic in the political center, I don’t think I’d be super impressed by that.

    Comment by ILoveCapitalism — October 15, 2008 @ 6:18 pm - October 15, 2008

  2. This initiative overrules the California Supreme Court’s May 15 decision that allowed same-sex marriage, and would amend the state constitution to reserve marriage licenses only for a man and a woman.

    The initiative is a response to a judicial decision, and THAT is why it is going to pass. When are advocates of gay marriage going to accept that you have to convince the people of the validity of your argument first, before using the courts to overcome opposition in the Legislature? If you believe it is a civil rights issue (and it is clear that you do), then you must convince the people first that it is a civil rights issue.

    As for me, I don’t much care either way about gay marriage myself. But I do care, deeply, how liberal judges are corrupting the normal process by which citizens rule themselves. The inevitable backlash from such judicial decisions cannot be avoided.

    Comment by Mike Devx — October 15, 2008 @ 7:34 pm - October 15, 2008

  3. “Because regardless of how you feel of how you feel about marriage, it’s wrong to treat people differently under the law.”

    I’ve always wondered: are you people dishonest, or just stupid?

    Because changing the definition of marriage (which is what SSM does) has absolutely nothing to do with “treating people differently under the law.”

    You want to get married? Great, find someone of the opposite sex who isn’t currently married, is over the age of consent, and wants to marry you, and you can get married with him / her.

    That’s true whether you’re gay or straight. Everyone’s treated the same.

    So, you keep chanting that slogan, if it makes you feel good. Just understand that only the brain-dead and the dishonest “believe” it.

    OTOH, it’s an excellent reason for opposing all “hate crimes” laws. Because punishing someone less for beating up a random individual, than for beating up a random individual who happens to be gay, is an example of “treating people differently under the law.”

    Comment by Greg Q — October 15, 2008 @ 7:37 pm - October 15, 2008

  4. I’m tired of the supporters of Prop 8 saying, “gays can get married, as long as it’s to the opposite sex”, its very sarcastic and they are just trying to push their beliefs on everyone else.

    So I guess if Prop 8 passes, will getting a sex change allow you to marry the one you love? Why is gender so important? Not everyone wants to have children or are able to.

    Comment by Christie — October 15, 2008 @ 8:20 pm - October 15, 2008

  5. ILoveCapitalism pointed out several days back that what SSM proponents need to do is tell people how SSM benefits society. He(?) is right.

    Or, rather, he(?) would be right, if SSM actually did benefit society.

    Should we take the complete silence WRT this approach to indicate that there’s simply no reason to believe that SSM does benefit society?

    Comment by Greg Q — October 15, 2008 @ 8:26 pm - October 15, 2008

  6. its very sarcastic and they are just trying to push their beliefs on everyone else.

    Gosh, and it’s not like you are trying to force your beliefs on everyone else, by trying to force everyone to pretend that a homosexual marriage is the same thing as a heterosexual one.

    No, you are just trying to get everybody to understand “the truth”. No forcing your opinions on others, at all.

    /sarcasm

    Comment by Greg Q — October 15, 2008 @ 8:29 pm - October 15, 2008

  7. Greg Q:

    Here’s the conservative case for same-sex marriage:

    Same-sex marriage benefits society by providing important benefits to individuals, including emotional stability and economic security. Marriage also benefits society by encouraging deep commitments between individuals, promoting the healthy rearing of children, and preserving the bonds among individuals and communities that maintain social stability (and enable the individual pursuit of happiness).

    Gays and lesbians are unsuited for opposite-sex marriage, but there is no reason why gays and lesbians could not receive the same benefits from same-sex marriage that straights receive from opposite-sex marriage. Allowing gays and lesbians to marry would aid society by encouraging them to live more stable, mainstream lives. Allowing gays and lesbians to marry would promote the institution of marriage by making marriage the societal ideal for all citizens.

    So, Greg Q, over to you: how exactly does same-sex marriage harm society? Not change society, but harm it?

    Comment by Invariant Memory — October 15, 2008 @ 8:38 pm - October 15, 2008

  8. “The initiative is a response to a judicial decision, and THAT is why it is going to pass. When are advocates of gay marriage going to accept that you have to convince the people of the validity of your argument first, before using the courts to overcome opposition in the Legislature? If you believe it is a civil rights issue (and it is clear that you do), then you must convince the people first that it is a civil rights issue.”

    That’s not how anti-miscegenation laws were defeated in this nation. Generally speaking, anti-miscegenation laws were stricken via judicial decision, overriding popular support. Elitist judges in black robes declared that the rights of unpopular minorities (interracial couples wishing to marry) could not be abridged by the majority (California citizens uncomfortable with race mixing). That’s what gave us Perez v. Sharp, ’48 (a 4-3 decision by the Supreme Court of California) and Loving v. Virginia, ’67 (a unanimous decision by the U.S. Supreme Court).

    Why, exactly, would it be acceptable for racist laws to be stricken by the judiciary (against the will of the majority) but unacceptable for homophobic laws to be stricken by the judiciary (against the will of the majority)?

    And, by the way, as regards your citation of “opposition in the Legislature”… please note that the California legislature, twice, has voted to legalize marriage equality for all Californians, including same-sex couples. Same-sex marriage in California no longer encounters “opposition in the Legislature.”

    “…changing the definition of marriage (which is what SSM does) has absolutely nothing to do with “treating people differently under the law.” You want to get married? Great, find someone of the opposite sex who isn’t currently married, is over the age of consent, and wants to marry you, and you can get married with him / her. That’s true whether you’re gay or straight. Everyone’s treated the same.”

    The State of California made almost that same argument in ’48, and the State of Virginia, likewise, in ’67: that anti-miscegenation laws don’t discriminate against negroes because negroes have the exact same right that white people have: to marry someone of their own race, and only someone of their own race. Both states were rebuked by the respective courts for the sophistry of that argument.

    As best put in the former case, by Roger John Traynor, Chief Justice of the Supreme Court of California:
    “A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains. The right to marry is the right of individuals, not of racial groups.”

    But where did *that* elitist guy in that black robe get off, countermanding the will of the people, huh? When are mixed-race couples gonna accept that you have to convince the people of the validity of your argument first, before using the courts to overcome opposition in the Legislature?

    Patrick Meighan
    Culver City, CA

    Comment by Patrick Meighan — October 15, 2008 @ 9:00 pm - October 15, 2008

  9. No, I’m not trying to force my views on anyone. I know that people feel differently on this issue. Gay marriage isn’t traditional, it is different, and I don’t expect people to accept it. Interracial marriage was opposed for a long time because people were prejudice, but that was wrong. Marriage is about love and gay people want to be able to celebrate their love with a wedding. The people will decide, I just think it would be nice if people would focus less on telling people who they can marry, and more on issues like abortion (at least more restrictions) and affordable healthcare.

    Comment by Christie — October 15, 2008 @ 9:06 pm - October 15, 2008

  10. #2: “When are advocates of gay marriage going to accept that you have to convince the people of the validity of your argument first, before using the courts to overcome opposition in the Legislature?”

    Liberals will accept that concept right after Roe v. Wade is overturned.

    Comment by Sean A — October 15, 2008 @ 9:22 pm - October 15, 2008

  11. Interracial marriage was opposed for a long time because people were prejudice, but that was wrong

    And interracial marriage is also against tradition. Most rural cultures across the old world tend to marry within their own clan/tribe/village. Marrying someone from another village was (and in some cultures still is) frowned upon, and something as radical as interracial marriage was unthinkable. The only real social group that really went out to marry someone outside the country were sovereigns and nobles, primarily for political reasons, and even at that, it turns out that they would already have existing blood relations and would not go as far as marrying outside the faith. Simply put, appeal to tradition is a weak argument when it is against the rights and freedoms of minorities.

    Comment by Rob — October 15, 2008 @ 10:49 pm - October 15, 2008

  12. Generally speaking, anti-miscegenation laws were stricken via judicial decision

    Based on teh 14th Amendment, which was passed with the understanding that it would stop States from discriminating against people based upon the color of their skin.

    When was it that the US, or even CA, passed a Constitutional Amendment understood by the voters to be preventing discrimination based upon sex?

    There hasn’t been one? The ERA failed?

    Well, then, it’s perfectly acceptable, Constitutionally, to discriminate based upon sex.

    Comment by Greg Q — October 15, 2008 @ 11:32 pm - October 15, 2008

  13. No, I’m not trying to force my views on anyone. … Gay marriage isn’t traditional, it is different, and I don’t expect people to accept it.

    Yes, you are, and yes, you do. Because if you didn’t, you wouldn’t be supporting the 4 jerks on the CA Supreme Court who rewrote the CA Constitution to include a right to SSM, and you wouldn’t be opposing Prop 8.

    Because Civil Unions gave you all the rights and privileges of being married. It just didn’t let you try to force other people to believe your relationship is a real marriage.

    The whole point of this is to try to force your redefinition of marriage on those who disagree with you. Because if you didn’t care about that, you’d just say “I’m married”, and not worry about whether the State, or other people, acknowledged it.

    Comment by Greg Q — October 15, 2008 @ 11:37 pm - October 15, 2008

  14. And interracial marriage is also against tradition.

    Oh, bullshit. There have been interracial marriages as long as there have been marriages, and people of mixed races in close proximity.

    Up until, what, 10 – 20 years ago there were no same sex marriages anywhere in the world. “Unions”, yes. Marriages, no.

    Comment by Greg Q — October 15, 2008 @ 11:41 pm - October 15, 2008

  15. My cousin is a lesbian who’s been in a long-term relationship with her partner for years. They have a son together, they would have adopted but that’s not an option in Georgia. Her partner had to use a donor for them to have a child. He’s 3 years old, beautiful boy with blonde hair and blue eyes :) They would love to get married, but that’s never going to be a reality. I think its sad that I could get married whenever I wish, for any reason really, but they can’t. I just don’t feel that’s fair.

    Comment by Christie — October 16, 2008 @ 1:59 am - October 16, 2008

  16. Furthermore, what is ignored is that, even before Loving, the majority of states had already repealed anti-miscegenation laws or had never had them in the first place — which means that the majority of them had already been dealt with through the legislative process.

    Finally, since the argument here is that you must automatically be granted the privilege to marry anyone you “love”, will the people who are saying exactly that please state that the state has no right whatsoever to limit marriage in any respect and that marriage licenses must thus be granted to pedophiles and the children they “love”, polygamous people and the multiple individuals they “love”, and incestuous individuals who “love” each other?

    Comment by North Dallas Thirty — October 16, 2008 @ 2:59 am - October 16, 2008

  17. Christie, there is still LOTS of things your friends could do to secure their relationship, and if they’re not doing them, they’re at fault.

    P.S. I smell astroturf.

    Comment by ILoveCapitalism — October 16, 2008 @ 9:17 am - October 16, 2008

  18. Gays and lesbians are unsuited for opposite-sex marriage… Allowing gays and lesbians to marry [each other] would aid society by encouraging [gays] to live more stable, mainstream lives [and] promot[ing] the institution of marriage by making marriage the societal ideal for all citizens.

    *That* is the conservative case for gay marriage. Forget what you said about “providing important benefits to individuals” – Or if you care about doing that, then fight for lower taxes and offshore drilling.

    Comment by ILoveCapitalism — October 16, 2008 @ 9:22 am - October 16, 2008

  19. Based on teh 14th Amendment, which was passed with the understanding that it would stop States from discriminating against people based upon the color of their skin.

    Yet this understanding did NOT include segregation, which was in place both North and South prior to, during and AFTER the Civil War. This was affirmed by SCOTUS in Plessy v. Ferguson. Segregation was not viewed as being discriminatory and the 14th Amendment argument was rejected. Well, that is until decades later in decisions like Brown vs. Board of Education. You are viewing this from a perspective that developed far later than the origins of the 14th Amendment and one which was largely influenced by the courts.

    When was it that the US, or even CA, passed a Constitutional Amendment understood by the voters to be preventing discrimination based upon sex?

    Why do we need one? I wish I could find the reference, but Susan B. Anthony made a great argument that this is covered by the 14th Amendment which refers to “persons” and “citizens” without respect to sex thus rendering further amendments unnecessary. Obviously her reasoning wasn’t accepted until about a hundred years later.

    Comment by John — October 16, 2008 @ 9:54 am - October 16, 2008

  20. Up until, what, 10 – 20 years ago there were no same sex marriages anywhere in the world. “Unions”, yes. Marriages, no.

    Just out of curiosity, does this mean that you believe state bans against civil unions are unconstitutional?

    Comment by John — October 16, 2008 @ 9:57 am - October 16, 2008

  21. will the people who are saying exactly that please state that the state has no right whatsoever to limit marriage in any respect and that marriage licenses must thus be granted to pedophiles and the children they “love”, polygamous people and the multiple individuals they “love”, and incestuous individuals who “love” each other?

    Who said that the state has “no right whatsoever” in limiting marriage? The argument here is that the state has no compelling interest in refusing to allow same-sex marriages, not that any and all limits are unconstitutional. Now you can argue that the does has such an interest and people can dispute either way, but don’t turn this into an absurd argument that isn’t being made. The most obvious tired example you give here is pedophiles marrying children, the latter of whom are incapable of granting consent under the law.

    Comment by John — October 16, 2008 @ 10:08 am - October 16, 2008

  22. Hey, Greg Q, I told this to American Elephant & I’m also telling you: DO NOT, I repeat, DO NOT have a gay man or lesbian marry someone of the opposite sex!! It will be a marriage based on lies & deceit. Give the gay community civil unions, if not marriage. Yes, I have a bee in my bonnet on this issue. Telling gays & lesbians to marry straights is a recipe for disaster. Shame on you!!

    Comment by Jimbo — October 16, 2008 @ 10:40 am - October 16, 2008

  23. The argument here is that the state has no compelling interest in refusing to allow same-sex marriages, not that any and all limits are unconstitutional.

    But, if marriage is not a constitutionally-guaranteed right, then the expressed will of the voters is sufficient to constitute a compelling interest.

    The state does not exist independently of the voters; that is the whole point of the “We the People” that leads off the US Constitution. What is trying to be argued here is that the people have no right to vote and make decisions on their own constitution and their own laws because their end result is inconvenient.

    Comment by North Dallas Thirty — October 16, 2008 @ 1:04 pm - October 16, 2008

  24. But, if marriage is not a constitutionally-guaranteed right, then the expressed will of the voters is sufficient to constitute a compelling interest.

    This is essentially academic as long as the Loving decision is in place, since part of the ruling finds that marriage is a “fundamental right” that the state must have a compelling interest in denying. However, if we take the above line then it is incumbent to answer what the limits are, if any, in your view. Are anti-miscenegation laws okay under the Constitution again? Can marriage between people of differing religious faiths, or where one potential spouse holds no faith, be banned if a majority choose this? Etc. I realize that someone might cite the First and Fourteenth Amendments to defend the current status for both these case, but that is no different than denying both amendment protections to same-sex marriages. After all, a white person isn’t discriminated against by being denied marriage to a black person. They can always marry someone of their own race. A Catholic isn’t discriminated against by being denied marriage to a Sikh. They can always marry another Catholic. There is so much tyranny of the majority that is packed into this that it makes “rights” guaranteed by the Constitution meaningless.

    The state does not exist independently of the voters; that is the whole point of the “We the People” that leads off the US Constitution.

    Indeed. Part of that is that there are certain basic rights guaranteed to us all that the majority cannot take away.

    What is trying to be argued here is that the people have no right to vote and make decisions on their own constitution and their own laws because their end result is inconvenient.

    No, what is being argued is that the people do not have a right to vote unequal protection and access under the law since this violates the Constitution. Now you can argue that the use of this is flawed when applied to same-sex marriage and that’s certainly up for debate, but don’t mischaracterize what the real disagreement is.

    Comment by John — October 16, 2008 @ 2:56 pm - October 16, 2008

  25. John,

    Yet this understanding did NOT include segregation, which was in place both North and South prior to, during and AFTER the Civil War.

    Yep. Which was why, at the time, Plessey was a reasonable ruling.

    However, as Bork pointed out in The Tempting of America, while the people who approved of the 14th Amendment apparently didn’t see a conflict between “separate” and “equal”, they wrote “equal” into the Constitution. Which is why proof that “separate but equal” wasn’t was sufficient to kill it.

    Me: When was it that the US, or even CA, passed a Constitutional Amendment understood by the voters to be preventing discrimination based upon sex?

    You: Why do we need one?

    Because We The People are sovereign. If we (or our predecessors) didn’t put it into the Constitution, then it’s not there. If ti’s not there, then we get to decide what the law should be, not some oligarchy.

    Comment by Greg Q — October 16, 2008 @ 4:12 pm - October 16, 2008

  26. I don’t think it’s going to work too well. The differences between the voiceover reading the text and the text on the screen (there are several) is poking my “disbelieve” center. It might just be me, but people seem to pick up on discrepencies like that pretty fast, and that kind of skepticism you don’t need in the home stretch. And, given the orientation (politically) of many of the people you are trying to convince, ILC is right. The only people likely to convince centrists and conservatives in that ad is the California Nurses Association.

    The Thorons and other families like them would probably make better ads. Real men and women not only addressing the problems other real people will face should Prop 8 win, but going after the idea that Prop 8 will somehow protect their heterosexual marriages from all of the pressures that cause them stress and failure.

    Comment by Rob — October 16, 2008 @ 7:19 pm - October 16, 2008

  27. Part of that is that there are certain basic rights guaranteed to us all that the majority cannot take away.

    But again, John, you try to argue that marriage is a basic right that is guaranteed to all and that the majority cannot take away; therefore, you are saying that the state has no right whatsoever to limit marriage and that any refusal to extend marriage to anyone who asks for it is an unconstitutional violation of rights.

    Comment by North Dallas Thirty — October 17, 2008 @ 2:26 am - October 17, 2008

  28. The latest Protect Marriage Yes on 8 television ad in California shows an incredibly cute 8 year old Hispanic girl bringing the book King and King home to her mother saying “Guess what I learned in school today. . . I can marry a princess!”

    That’s gonna leave a mark.

    Comment by V the K — October 17, 2008 @ 10:19 am - October 17, 2008

  29. I also hear that ACORN has registered the eight year old hispanic girl to vote, like, 20 times….

    Comment by V the K — October 17, 2008 @ 10:20 am - October 17, 2008

  30. Yep. Which was why, at the time, Plessey was a reasonable ruling.
    However, as Bork pointed out in The Tempting of America, while the people who approved of the 14th Amendment apparently didn’t see a conflict between “separate” and “equal”, they wrote “equal” into the Constitution. Which is why proof that “separate but equal” wasn’t was sufficient to kill it.

    Remarkable, even more so since you reference Bork. What happened to “strict constructionalism”? So like liberals, conservative jurists feel free to ignore the original intent of the text and impose a different meaning? I can understand how Bork would be loathe to appear to argue in favor of segregation, even if that were not his intent, but what we have here is his adopting a LIBERAL method of interpretation for expediency and attempting to give it a thin veneer of conservative covering. As for “separate but equal” it may have been mandated by law but was actually never seriously tried. Instead this was used as an excuse to give non-whites substandard facilities and unequal treatment, even though “separate”. So what you are telling me is that instead of the Court requiring schools to provide equal facilities for non-whites, which it had not done, it was free to ignore the original intent and essentially re-write the Amendment cited?
    It boggles the mind how much conservative AND liberal folks do mental gymnastics to defend their point of view rather than be consistent on some things. I’m not exactly pointing fingers here because I’m guilty of this too. In the case of “separate but not equal”, I’m fine with the results since ultimately segregation is antithetical to what we today hold to be American ideals regardless of the intent of the Founders or authors of the 14th Amendment.

    Because We The People are sovereign. If we (or our predecessors) didn’t put it into the Constitution, then it’s not there. If ti’s not there, then we get to decide what the law should be, not some oligarchy.

    You’ve just said that the Courts are free to ignore the will and intent of the People, at least when it comes to things that We The People today consider repugnant like segregation. What is different here? We The People established a system wherein our will is expressed through the Legislature, not through polls, and the Judiciary interprets our basic governing document. If the People do not like how the Judiciary is performing its job, they are free to abrogate the Constitution and start over, which of course means revolution/civil war, or work through the established process and reform it.

    But again, John, you try to argue that marriage is a basic right that is guaranteed to all and that the majority cannot take away; therefore, you are saying that the state has no right whatsoever to limit marriage and that any refusal to extend marriage to anyone who asks for it is an unconstitutional violation of rights.

    Actually, that was the argument of SCOTUS in Loving vs. Virginia. I agree with that reasoning but none of our rights are free from limits when the state has a compelling interest in imposing them. The latter is what is being disputed here in the case of same-sex marriage. In the absence of compelling interest, the state has no such power to limit this right.

    Again, if you are going to take the position that the State can impose restrictions as it sees fit onto marriage than why are anti-miscenegation laws and those prohibiting interreligious marriages unconstitutional?

    Comment by John — October 17, 2008 @ 11:25 am - October 17, 2008

  31. I also hear that ACORN has registered the eight year old hispanic girl to vote, like, 20 times….

    Ha! :-)

    Comment by John — October 17, 2008 @ 11:26 am - October 17, 2008

  32. Again, if you are going to take the position that the State can impose restrictions as it sees fit onto marriage than why are anti-miscenegation laws and those prohibiting interreligious marriages unconstitutional?

    For religion, it’s because of the First Amendment and the logical fact that the religion of the two people involved has no effect on the primary purpose for which the state privileges marriage — the production and raising of a couple’s own children.

    For race, it’s because of the Thirteenth, Fifteenth, AND Fourteenth Amendments, both of which create the same general prohibitions against discrimination based on race that the First does for religion. Next is the logical fact that the race of the two people involved has no effect on the primary purpose for which the state privileges marriage — the production and raising of a couple’s own children. Miscegenation laws were based on the outdated premise that the mixing of races produced an inferior product.

    For gay marriage, neither that legal underpinning or that primary purpose exist.

    Comment by North Dallas Thirty — October 17, 2008 @ 12:49 pm - October 17, 2008

  33. Other than voters wishes, right or wrong, being tossed by judges I could care less if gay folks want to get married. As long as the rights of those that do not wish to participate in it, churches and other businesses, are not held to task for it. The market will provide plenty of businesses that will participate. Forcing those that do not wish to participate is as bad as preventing gay marriage IMHO.

    There is another reason to vote against prop 8 that I have not heard to much about. Sharia Law is already weaseling it’s way into the west. And if you think US law is anti-gay Sharia Law will push gays not into the closet but into the grave. Any law or lack thereof that functions as a trip wire alerting the populace to Sharia Law encroachment is fine by me. Kind of like the enemy of my enemy is my friend. Since I do not see gay people as enemies though some people do and I know they will be enemies of Sharia Law and that makes them friends, in my case doubly so (gays are not the enemy, repeata for favore).

    Vote NO on prop 8!

    Lan astalem,

    GoingThere

    Comment by GoingThere — October 17, 2008 @ 4:05 pm - October 17, 2008

  34. Remarkable, even more so since you reference Bork. What happened to “strict constructionalism”? So like liberals, conservative jurists feel free to ignore the original intent of the text and impose a different meaning?

    Not at all clear where you think you’re coming from. Bork has convinced me that “original understanding” is the correct way to interpret Constitutional text. IOW “what did The People” think that the Amendment meant when it was passed.

    Now, to consider one of your earlier comments:
    Why do we need one? I wish I could find the reference, but Susan B. Anthony made a great argument that this is covered by the 14th Amendment which refers to “persons” and “citizens” without respect to sex thus rendering further amendments unnecessary. Obviously her reasoning wasn’t accepted until about a hundred years later.

    Amendment 19
    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

    If the 14th Amendment could be validly interpreted to deal with sex discrimination issues, there would have been no need, at all, for the 19th Amendment. Yet, there it is. Why? Because people like adding totally unnecessary Amendments to the Constitution?

    Or because the 14th had nothing to do with sex discrimination, or anything else besides discrimination based upon skin color?

    Comment by Greg Q — October 18, 2008 @ 2:42 am - October 18, 2008

  35. For religion, it’s because of the First Amendment and the logical fact that the religion of the two people involved has no effect on the primary purpose for which the state privileges marriage — the production and raising of a couple’s own children.

    Surely you jest? Putting aside that you are repeating yourself by citing the First Amendment, which I’ve already addressed, can you honestly say that conflict in the religious backrounds of the parents has no effect on the institution of marriage let alone the children that may be produced? I don’t recall if such were ever legally prohibited in our history, but they certainly have been in Western tradition.

    For race, it’s because of the Thirteenth, Fifteenth, AND Fourteenth Amendments, both of which create the same general prohibitions against discrimination based on race that the First does for religion.

    Again you repeat yourself, though interestingly add the 13th & 15th Amendments. I personally have no problem with your overall argument against anti-miscenegation laws but this interpretation of these amendments differs greatly from their authors. You do recall original intent and strict construtionism, right? This is the one detail you keep failing to discuss, i.e. that a later view of all that these amendments address was written in place of the original.

    For gay marriage, neither that legal underpinning or that primary purpose exist.

    Now you are touching on it. So are you saying then that the State has a compelling interest in preserving marriage to only heterosexual couplings which produce offspring? If so, that is where your argument needs to rest and not all this other stuff. As I said before, none of our rights guaranteed by the Constitution are without limits so feel free to make a case that will withstand judicial scrutiny. Just screaming about judicial activism will not take you but so far when our history is filled with such that have produced good along with the bad.

    Comment by John — October 19, 2008 @ 8:36 pm - October 19, 2008

  36. Not at all clear where you think you’re coming from. Bork has convinced me that “original understanding” is the correct way to interpret Constitutional text. IOW “what did The People” think that the Amendment meant when it was passed.

    Ok, let’s take one example: do you honestly believe that the authors of the 14th Amendment didn’t believe that anti-miscenegation laws were constitutional? I’d like to see you make that case beyond a very small handful of radical abolitionists. This amendment never would have been passed in the North if this part of package and you know it. They had what to them was a perfectly constitutional reason for these laws that was in no way conflicting with the 14th Amendment. Yet which amendment was cited a century later in abolishing such laws? Why the very same one. Again, I personally have no problem with this but given your reasoning here I must ask once more: what happened to original intent and strict constructionism?

    If the 14th Amendment could be validly interpreted to deal with sex discrimination issues, there would have been no need, at all, for the 19th Amendment. Yet, there it is. Why? Because people like adding totally unnecessary Amendments to the Constitution?

    No, because at the time SCOTUS didn’t buy Susan B. Anthony’s argument that the 14th covered this as well. It does now of course and has the 19th as well.

    Or because the 14th had nothing to do with sex discrimination, or anything else besides discrimination based upon skin color?

    Thank you, you’ve just made my argument for me. By your “original understanding” anti-miscenegation laws are valid as is segregation, neither of which were addressed by the 14th Amendment. Neither were addressed at all by this amendment and it was only MUCH LATER they were incorporated in. This was done in a way it should be obvious that that would have shocked the authors of this amendment. So much for “original understanding”.

    Comment by John — October 19, 2008 @ 8:55 pm - October 19, 2008

  37. John,

    Do you honestly believe the authors of the 14th Amendment believed they were requiring states to treat women equally to men? Gays equally to straights?

    Do you honestly believe that the legislators who voted for the Amendment believed that?

    Do you honestly believe that the voters who elected the legislators believed that?

    Do you believe that our government should be a democratic republic? Or do you think it should be a “judicial” dictatorship / oligarchy?

    If you believe the latter, I have nothing more to say to you, because such a belief would mark you as a worthless human being.

    If you believe the former, then you must believe that things only get added to the Constitution by “We The People”. If the people who added something to the Constitution “didn’t realize it was there”, then the best way to understand the situation is that it isn’t there.

    Now, as I’ve mentioned previously, while the people of the time clearly thought that “separate” and “equal” were both possible, what they added to the Constitution was “equal” with respect to “race”. Since they added that, we get the consequences of that.

    Why should “We The People” get the “consequences” of something that no democratic majority decided to inflict upon us? Just because you want it, Herr Dictator?

    Comment by Greg Q — October 20, 2008 @ 5:38 pm - October 20, 2008

  38. [...] that end, as I expressed in this post, this line in the latest ad against 8, “Because regardless of how you feel about marriage, [...]

    Pingback by GayPatriot » Briefly Undecided on 8 — October 20, 2008 @ 5:53 pm - October 20, 2008

  39. Greg: We seem to be talking past one another and you keep missing the forest but for the trees by continually making my point without realizing it or acknowledging such. While I thank you for the first part of that, this round and round and now the addition of ad hominem in the latter here makes further discussion here pointless. That’s cool, this thread is quickly moving to older posts now anyways.

    Comment by John — October 20, 2008 @ 8:28 pm - October 20, 2008

  40. [...] on the merits of gay marriage.  The closest we came was the first ad against the initiative and one line in the the third.  Basically we’ve just seen each side focusing on winning the battle rather than engaging [...]

    Pingback by GayPatriot » Campaign on 8 Doesn’t Address Merits of Gay Marriage — October 26, 2008 @ 11:08 pm - October 26, 2008

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