William (aka Bill the Godfather)

William (aka Bill the Godfather)

Tuesday, July 31, 2012

Prop 8 Supporters Ask For Supreme Court Review

Backers of California's Proposition 8, intended to ban same-sex marriage in the state, asked the U.S. Supreme Court on Tuesday to take up their appeal after two lower federal courts found the measure unconstitutional.

The justices now face two gay rights issues: the Prop 8 appeal and two challenges to the federal Defense of Marriage Act.

Voters in California approved Prop 8 in 2008, less than six months after the state’s Supreme Court approved same-sex marriage. The measure was immediately challenged.
Read the rest here.

It has long been my belief that the government should get out of the marriage business entirely and require everyone who wants their particular domestic arrangements recognized to do so via a civil union and leave "marriage" as an entirely religious institution. But that aside; the matter is clearly a state's rights issue from a constitutional perspective. As such Prop 8 is fully legal and constitutional. And by the same rational DOMA is an unconstitutional usurpation of non-delegated powers by the Federal Government.

Prop 8 should be upheld and DOMA should be struck down. Moving on...

12 comments:

J.K. Baltzersen said...

The big question, sir, is whether the Supreme Court of those United States will declare the moon to be a green cheese.

Visibilium said...

Opening up the insurance industry to competition would hasten the recognition of non-martial relationships as private contractual matters. Because of regulatory barriers to entry, the insurance industry remains a hidebound lackey of governmental obsolescence. This gay marriage crap is mostly about health insurance and inheritance, anyway. The real issue is contact rights, not marriage.

Further, since Orthodox clergy have tended to be hidebound statist apologists for an extended period of history, I wouldn't await any flood of clerical applause for a State that facilitates contracts governing alternative lifestyles.

Visibilium said...

Marital, not martial. I'll delete and rewrite if the asymmetry offends.

John (Ad Orientem) said...

LOL if I had a nickel for every typo I had put up on here I could put the lottery out of business.

gabriel said...

How exactly does DOMA usurp state rights? Its main terms a) protect states from federal courts requiring them to recognize gay marriages and b) exclude gay marriages from federal recognition. Since when is the federal government required to recognize every "marriage" recognized by each of the 50 states?

John (Ad Orientem) said...

It effectively establishes a Federal definition for marriage. Congress has no such authority. Congress can refuse benefits to people. But if the criteria is something that is constitutionally defined by the states then Congress must yield or just refuse the benefits to everyone.

gabriel said...

It would be a very odd constitution that did not permit the federal government to define the terms it uses, and in fact, the constitution does not. That ability of a legislature to define its language is intrinsic to any legislature. DOMA establishes a definition that incorporates state definitions to a significant degree but not completely.

You seem to be implying that the federal government can incorporate the state definitions completely or not at all. That seems an untenable position.

J.K. Baltzersen said...

Gentlemen, Confucius told as: When words lose their meaning, people lose their liberty.

That does indeed say something about legislatures defining language itself.

The Anti-Gnostic said...

The reason government is in the marriage business is because it is the entity which chooses which unions will have legal validity for purposes of property, contracts, inheritance and duties of maintenance and support. The Church has no temporal authority over such matters. This is why the libertarian proposal of "getting government out of the marriage business" cannot work. Government IS in the marriage business because it's the entity which runs the courts. There are valid policy reasons for the government to adopt the same definition of marriage as the Church's. Even a tribal anarchy would have to make the same policy choices.

Visibilium said...

The government's according monopoly status to marriage contracts isn't working. We wouldn't be addressing the issue if it were working. Decent folks are getting screwed in insurance and estate matters, for one. That's why formalizing the framework for valid contracts governing alternative lifestyles--and having such contacts coexist alongside contracts governing marriages--would effectively "get the government out of the marriage business" by removing the marriage lifestyle's judicial monopoly. Further, by formalizing all sorts of relationship contracts--concubinage, homosexual, polygamy--we wouldn't have to dispute endlessly and frivolously with heterodox about what constitutes a marriage. We'd have our Orthodox marriage, and they'd have their...whatever.

The Anti-Gnostic said...

People already have freedom of contract in such matters. Requiring insurers, adoption agencies, governments (so long as we're going to have government), employers, etc. to recognize such unions means people have to accept as "marriage" unions with which they viscerally disagree. And again, even a tribalist anarchy would have to make the choice: which unions are we going to recognize as having the force of law?

Visibilium said...

I'm not understanding anything you're saying. For example:

People already have freedom of contract in such matters.

Last time I looked, no one had freedom to enter into a polygamous relationship with anyone. No one had a right to have estate property pass intestate to a domestic partner. No domestic partners had a right to receive health insurance on an equal tax footing with spouses.

Requiring insurers, adoption agencies, governments (so long as we're going to have government), employers, etc. to recognize such unions means people have to accept as "marriage" unions with which they viscerally disagree.

Who said anything about requiring anyone to agree with any particular relationship? The government (or "tribal anarchy") can set up a framework for governing relationship contracts--consent, duration, termination, duties to minor and incompetents, consideration, etc--without being informed about the particular content of any relationship. This would be especially true in a competitive environment in which various vendors supplying goods and services to relationships in which the partners highly value their privacy. That's why in my previous comments I focused on the insurance industry, which (1) seems to be a nexus of the "civil union" inequities and (2) faces many reasons, aside from civil union considerations, for becoming more competitive. You and I both know that the health insurance industry was a mess even before Obamacare. I'm talking about getting the government to stop favoring marriage over other relationships, not requiring universal consent to the content of any particular relationship.

Look at corporate charters. Within broad limits, no one gives a crap about the intended activities when they're formed. At minimum, the incorporator completes a boiler-plate form, files with the Sec of State, and files with the IRS. Bingo, instant association. Each state already has a framework governing corporate matters without being overly interested in whether the principals are engaging in likeable activities.