So, what will happen? Do our lesbian/gay sisters and brothers lose all their rights? Do they revert to second class citizens, as some ads suggest? You’ve probably seen the television ads portraying Proposition 8 as the same as denying civil rights to our African American sisters and brothers prior to the Civil Rights Act and Civil Rights Movement of the 40’s 50’s and 60’s. As best I can tell none of this is true. Rather, what will happen on November 5, 2008, should Proposition 8 prevail at the polls with a majority vote of California’s residents follows below the jump:
All our lesbian/gay sisters and brothers will:
Still have all their First Amendment protections. They will still have their freedom of speech, and the freedom to exercise their religious beliefs as they see fit.
Still have the right to keep and bear arms.
Still not be forced to quarter soldiers in any of their homes.
Be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.
No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Shall not be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.
None shall be subject for the same offence to be twice put in jeopardy of life or limb; nor shall any be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, all accused shall still enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.
They will still have the right to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The right of trial by jury shall be preserved, even if Proposition 8 passes by a popular vote of the people.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, even if Proposition 8 is successful.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, again, even if Proposition 8 is successful.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, will still be reserved to the States respectively, or to the people–even if Proposition 8 passes.
Everyone will still have the right to vote, and express their political opinions, just as several are doing this election season.
Specifically in California, all of our lesbian/gay sisters and brothers who love and cherish each other can, and should register as domestic partners. And, as registered domestic partners they will enjoy all the rights, privileges, and benefits California law bestows on men and women who are married:
Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.
They can continue enjoying the sexual relationships they desire. They can bequeath and devise real and personal property to any person they chose, including their domestic partner. They may execute powers of attorney, health care directives, wills and trusts just the same as men and women who are married. They may inherit under any testamentary document. They may visit each other in hospital rooms when one or the other is sick.
In short, Proposition 8, will not take away any substantive right that the law can bestow on them. The only thing that they cannot do, is appropriate the institution of marriage for a political agenda, which is as it should be. Marriage, predates California. It predates the United States. Marriage is ordained of God, has been, is, and will continue to be defined both by God and by the vast majority of the entire world as an institution between a man and a woman.
Californians spoke loudly and clearly on this subject eight years ago. Any redefinition (however foolish the idea) is something that can only legitimately be done either by the legislature or the people–as California’s constitution allows. It is and was an abuse of judicial power for four supreme court justices on California’s supreme court to re-define marriage in direct contravention of the vast majority of California’s voters. That judicial activist decision made the majority of California voters second class citizens. It took away our rights to make our will known at the ballot box. It is time Californians restored marriage’s definition. It is time Californians took back that which is the provice of the people to legitmately decide–the secular meaning and definition of marriage in California.
November 1, 2008 at 6:07 pm
Nope. They just get their marriages forcibly annulled. That’s all.
November 1, 2008 at 6:18 pm
Sorry–that was flip. You’re right. Gays will not lose any substantive protections. They will only lose one thing–the dignity of having their unions recognized as not only equal in substance but also in symbol and status as those of opposite-sex couples. If you say that’s no big thing, then why are you fighting so hard to protect a word? You know it’s a big thing. If interracial couples had been offered civil unions or domestic partnerships, would that have sufficed? I know we are unlikely to convince each other here, Guy, but please just don’t pretend that there are no trade-offs here.
November 1, 2008 at 6:38 pm
Per a Berkely prof as quoted on Wikipedia (airtight sources, I know!), “Constitutional scholars agree that the amendment cannot be effective retroactively.”
Nate W., I might conclude that Prop 8 opponents also know it’s a big thing, because their long-term plan is to marginalize and silence opponents to gay marriage the same way they’ve marginalized opponents to interracial marriage.
November 1, 2008 at 7:16 pm
JimD:
Admitted. I wouldn’t have wasted energy on it if I didn’t think it was a big deal.
umm… isn’t the fact that opposing interracial marriage became socially unacceptable a good thing? And of course that’s what opponents and proponents of prop 8 want to do. This is 100% a question of social norms on both sides. The problem is that the Yes on 8 group, in choosing their tactics, took their eye off the ball: they conceded that the middle ground is domestic partnerships and civil unions. That has huge implications in other states. If the Church tries to argue elsewhere that the legal incidents of marriage should be reserved for opposite-sex couples (as they did in Utah in 2004), it would be seen as cynical because of its rhetoric in statements like this. In other words, if Prop 8 is passed, California’s domestic partnership laws are no longer liberal, they are centrist. Change is coming, and whether Prop 8 is passed or not, it will keep coming.
That would seem to be a problem, no?
November 1, 2008 at 8:22 pm
As a people, we have come a long way. We invented technology and we have been able to improve our skills with each generation. We have come a long way in understanding that justice and freedom are the key to success; they are, in fact, what our country has been built upon. We should respect everybody’s freedom to choose their own destiny and future
http://alpascual.com/blog/al/archive/2008/11/01/going-to-vote-no-on-prop-8-evolution-will-eventually-take-over.aspx
Cheers
Al
November 1, 2008 at 8:31 pm
Nate W #2
I could ask the same question of you, no?
I guess I just don’t get this analogy. I’ve heard it over and over and over again. I don’t see how interracial couples and genderless marriage are anywhere close to the same thing. Radically different history. Radically different focus. Only genderless marriage dealing with the definition of marriage. I’ve been wanting to do a post just on the racial aspects, and I’ve not had the time. Perhaps I will try and do that later tonight, and we can exchange some further ideas on that issue. Maybe I’m just dense and don’t get where you and others who make the analogy are coming from–don’t know.
True enough, on the convincing. I’m not really trying to convince you–or anyone. That has to come from within. I can’t do that. I am trying to get out a view point for others to consider. They will either convince themselves or not. It’s not really up to me.
I do agree there are trade offs. And, I’m not willing to accept the trade offs that go with a wholesale re-definition of marriage by the California supreme court’s invasion of the the legislative function.
Jim D #3
Perhaps so. I don’t know. A link would be helpful to see the argument. They may be right. We’re in uncharted territory here.
I disagree. I think the long-term plan or focus is to return the defining of marriage to the people where it belongs. I don’t see how genderless marriage proponents are marginalized. They have all the same legal rights, other than the court created right to marriage. It’s not the same as interracial marriage. They were not dealing with the re-definition of marriage in those cases. They were dealing with the improper criminalization of marriage through an improper racial classification. Those laws were properly struck down under sound constitutional reasoning.
November 1, 2008 at 8:44 pm
I’d like to show a whole side of Proposition 8 that isn’t being discussed. Having raised four children, I’ve been amazed at how increasingly difficult it was from the first child to the last. I only had to teach my older children that drugs were bad, and that sex prior to marriage was unacceptable. By the time I was raising the last child, I was calming her fears about standing up for what is right and moral. I had to send her to high school in fear of her own safety if she spoke on “the day of silence”. I had to explain to her that while we love those friends and family members who have chosen a different lifestyle, we still have to stand up for what is moral. If a family member embezzled funds, or robbed a bank, we would still love them, but we would not condone the action. It’s still okay to love them — but not the sin. I’ve had to teach my youngest child that even though people are bent on persecuting her for her beliefs, that God will protect those who stand up for what is right. While some would say that Prop 8 is bent on discriminating, I would put forth that some of us have been discriminated against for quite some time now and suffered in silence. Just another way of looking at things, folks.
November 1, 2008 at 9:06 pm
If Yes on 8 passes, “separate but equal” takes on whole new meaning – Plessy v. Ferguson lives again…
November 1, 2008 at 9:11 pm
Laurie, what are you talking about? Could you please explain? Where does theft and embezzlement come into it? Are you saying that gay marriage is equivalent to embezzlement? Good to know.
November 1, 2008 at 9:13 pm
Oh, yeah, Laurie, which beliefs is your daughter being persecuted for? Seriously, and how?
November 1, 2008 at 10:16 pm
Phouchg and djinn, Please go back and read my post. I didn’t say gay marriage was equivalent to embezzlement, and I didn’t say anything about segregation. This is not a race issue.
As for persecution — where should I begin, and with which child? Do I begin with the horrible anti-Mormon movie that was made some years back and that was being shown with regularity in our area. I was afraid for my children’s safety each day I sent them to school during that time. Then there was the anti-Mormon hate mail we were receiving on a fairly regular basis which was there to greet my children when they came home from school because they got home before I did. We had to get an attorney to make it stop. Then there was the day my youngest came home from school asking me if she had to go to school during “day of silence” because she was afraid for her safety. During all of this, we taught our children to forgive, and to love their neighbors. All four of my children have gay friends. They have a gay cousin. One of their favorite adult leaders in a youth organization they belonged to was gay. But we believe that marriage is ordained by God between one man and one woman. There’s a time to stand up for what’s right — even in the face of persecution.
November 1, 2008 at 10:55 pm
This is what the CA Supreme Court concluded:
1. Marriage is a fundamental, substantial human right.
2. Gays and lesbians are to be treated as a constitutionally protected suspect class.
3. Homosexual couples must not be treated differently from heterosexual couples.
What Proposition 8 will and will not do:
The voter’s guide to Proposition 8 reads: “Changes the California Constitution to eliminate the right of same-sex couples to marry. Provides that only marriage between a man and a woman is valid or recognized in California.”
Should Prop 8 pass it will NOT overturn the conclusions of the CA Supreme Court:
1. Marriage will still be considered a fundamental right.
2. Gays and lesbians will still be treated under the law as a protected, suspect class.
3. The constitution will still require that civil statutes apply equally to both homosexual couples and heterosexual couples.
Possible outcome
Remedy A – Withhold marriage from all.
Remedy B – Rule Proposition 8 as a “revision” to the constitution, in which case it may be ruled impermissible as an amendment.
November 1, 2008 at 11:06 pm
Guy:
I think you’re playing coy. I know you’ve read the Stewart and Duncan article–you paraphrase from it a good deal. So you at least know their strawman characterization of the Loving analogy. And I assume your arguments about why the two situations are nothing alike will come from them. So to aid our readers at home, I will link to the article (pdf) and answer the argument upon which all the others rest.
Interracial marriage and same-sex marriage are disanalogous because marriage is an inherently opposite-sex institution. Why? They don’t give any reason (beyond an appeal to tradition) as to why the core meaning of marriage means man-woman relationship. Why is that more important than the status of those two individuals with respect to each other? Until very recently, the doctrine of coverture meant that a couple was one legal entity. The repeal of coverture laws was a dramatic shift in the legal definition of marriage. Are you telling me that changing from “two become one” to “two remain two” is less significant from a substantive perspective than the identity of the two? I think because institutions are not static, the ultimate question is what do we as a society desire marriage to mean. This requires argument and evidence that says that if marriage is recognized as two consenting adults entering into a state sanctioned relationship, x would happen/stop happening. If there is no evidence, at least a plausible theory that doesn’t resort to other independent variables would be helpful to evaluate the claim.
I’ll reserve the other answers if and when this conversation develops.
November 1, 2008 at 11:12 pm
Remedy A – Withhold marriage from all
This is the only legitimate solution. The government has no business in our personal lives. There should be no legal benefit or detriment associated with any personal relationship or marital status. No matter what is done, marriage will continue as it has through the ages–it will just lose any pseudo-political status which has been falsely applied to it.
I can’t wrap my head around the hypocrisy involved in attempting to legislate away the right of a group people to marry who they choose just because we don’t believe the way they do. Maybe I should take that back–as a people we’ve shown such scorn for history that repeating it seems to have become a karmic inevitability. The only difference is this time we play the role of the oppressors. The more things change…
Let them marry who, where, or what they may.
November 1, 2008 at 11:30 pm
If Prop 8 wins on Tuesday, I will anticpate that its eventual death at the hands of the CA Supreme Court will be of a more definite nature than a simple vote of “no” by the populace could ever be. The people alone might be able to employ garlic and crosses in order to scare the vampire off for a time, but only the Supreme Court is capable of driving a stake through its heart for good.
November 2, 2008 at 2:17 am
The reason why Proposition 8 is destined to fail is because supporters of Prop 8 are building their argument on a bed of half-truths, distorted facts, and outright lies. You know that, right? You understand that, right? You realize that the TV ads and e-mail campaigns are deceptive, right? Even if Prop 8 passes, it will be an empty victory because it will not have been an issue that was won honorably. If you cheat to get to the finish line, did you really win?
I’d also like to point out that people have a right to their own opinions, but, when those opinions serve to discriminate against an entire class of people, it creates a climate–and a country–in which this happens. It’s all connected, whether you choose to believe it or not.
Many people are voting NO on Proposition 8. The measure will be defeated. Learn to live with it, and learn to love thy neighbor–or did you forget that?
November 2, 2008 at 4:52 am
Guy,
Out of your entire list of rights that gays and lesbians won’t lose, could you do the same for straights and religions? I know I can.
November 2, 2008 at 9:31 am
African Americans had rights to water and public transit, but they had to sit at the back of the bus and drink from a different fountain.
November 2, 2008 at 9:42 am
I’d like to thank President Monson and the brethren for taking this action to vigorously support Prop 8. Whether the brethren have realized it or not, their actions have caused us to realize there are so many like-minded people who are opposed to Prop 8 and that we are standing up and making our views known. I’m sure this is not what the leadership of the church wanted to hear, but their actions have made all this possible! It is very possible that Prop 8 will fail due to the intervention of the LDS church. Hooray for free agency, free speech and free minds.
November 2, 2008 at 11:05 am
“Still have the right to keep and bear arms.”
But probably not for long. See AB 1471 and its definition of what it would mean to be a “not unsafe” handgun as just one of the latest chicaneries in California’s long assault on gun ownership and use.
November 2, 2008 at 11:29 am
I am stunned at the suggestions being made in the comments that the CA Supreme Court can nullify an amendment to the State Constitution.
If the Court was to do so, it would remove the last fig leaf of legality to the Courts actions. They would essentially have declared their power to overrule the will of the people based not on the State Constitution, but on the merits of their own judgment.
That would be an act of sedition against the sovereign power of the people. Violent revolution could quickly become the only cure.
The lack of understanding of the philosophy of government displayed by these comments astounds me. Do you really want to go down such a road?
November 2, 2008 at 12:01 pm
Cicero:
How about you do some research on the California State Constitution before you start with your rant? There’s a difference in California between amending and revising the constitution. The relevant portions of the California Constitution are here. An amendment to the constitution can occur by initiative, but a revision to the constitution must start by the legislature approving a a revision commission ballot question. The ballot question must be approved by a general election of the state, then a revision commission writes a new constitution, then the constitution must be supported by a majority at another general election.
Absent that process, the California Supreme Court can rule that the subject matter of a proposed amendment would amount to the revision of the California Constitution and so much go through the more rigorous process. An explanation of the difference between an amendment and a revision is written here, a portion of which I have excerpted below:
If you’re interested, the petition that was denied earlier in the year is printed here (pdf).
November 2, 2008 at 12:10 pm
Cicero, I only see one comment (#15) that seems to infer that the CA Supreme Court may “nullify” an amendment to it’s own constitution. I’ll admit that I would be interested in further elucidation by Mark N.
I expect that the court will be asked to interpret the new clause in the constitution and propose a solution to the conflict between the equal protection required under the law and the new exclusionary clause. As I have tried to show in my post above, nothing in the language of Prop 8 directly overturns the conclusions of the CA Supreme Court in re Marriage Cases. So, someone will need to sort out the clear contradiction in the constitution. Would that be the California court or the U.S. Supreme Court?
November 2, 2008 at 2:32 pm
If proposition 8 wins on Tuesday…
…the LDS church and its members will have the blood on their hands of every suicide of a gay Mormon teen in California.
November 2, 2008 at 2:37 pm
Phouchg:
Seriously–that talk does our side no favors. Cut it out.
November 2, 2008 at 2:39 pm
If you are interested in what True Christians believe, please see RavagedFaces.com
and Baytzim.com. Thanks!
November 2, 2008 at 4:02 pm
Why?
November 2, 2008 at 5:32 pm
I am stunned at the suggestions being made in the comments that the CA Supreme Court can nullify an amendment to the State Constitution.
If Prop 8 wins, do you not seriously believe that a lawsuit will immediately be filed on behalf of all of those who will have lost their right to a marriage?
Where do you think the lawsuit will end up?
Have you read the ruling of the court on Prop 22? They have made no secret of the fact that the majority of the CA Supreme Court justices subscribe to the idea that certain modifications are not up to the voice of the people to determine:
So, good luck on that Prop 8 thing lasting very long if it passes.
November 3, 2008 at 7:58 am
Guy, I am astounded at your faith and your ability to put up with the ridiculous comments on this thread and many others. Thank you from the silent majority of Church members who appreciate your efforts.
November 3, 2008 at 8:33 am
Guy, I too am astounded, but for entirely different reasons. Thankfully we’re just a day away now.
Randy B.
~member of the (usually) silent minority
November 3, 2008 at 9:16 am
OK, Laurie, that sounds scary. But was the persecution related to how you feel about Gay marriage?
November 3, 2008 at 9:18 am
Re-reading your post, it sounds like the prosecution is coming from Evangelicals, is that right? I confess to not knowing what the Day of Silence is.
November 3, 2008 at 10:10 am
Nate W.
Keep it up Phough,
We all need to know the honest intents of you apostats.
November 3, 2008 at 11:04 am
See http://www.dayofsilence.org for those who don’t know what it was about.
November 3, 2008 at 10:56 pm
The day of silence is a day in high schools that children are allowed to not speak all day in support of the gay and lesbian community. (Right, we don’t teach about these things in schools.) The problem with this is that if a child does speak, say in an effort to actually learn something in class, it is taken as an afront to the gay and lesbian community — thus leading to the possibility of said child getting his or her head blown off after school by some nut case with a gun (and there are definitely guns in our neighborhood high school). As parents, we have the option of taking our children out of school for the day for their safety, or sending them to school to stand up for what they believe in with the possibility that they may not return home — or return home damaged. Tough choice.
November 4, 2008 at 12:21 am
Have we learned nothing since Columbine? Laurie, the Day of Silence is intended to make schools safer for all children and bring about awareness of the danger of violence and bullying in our schools.
November 4, 2008 at 9:14 pm
My daughter was reading over my shoulder. Her comment (she just graduated in June): “It doesn’t make it safer for the kids who aren’t silent.” The intent is NOT the reality. The day of silence is a dangerous day to send your child to school.
November 4, 2008 at 10:59 pm
Sorry Laurie, your anti-gay bigotry isn’t really funny, but I just have to laugh at the thought that anyone feels “unsafe” because of the day of silence. Maybe you could point us to some recorded instance of someone being attacked for speaking on one of these days? Really you should be embarrassed to twist the truth of who feels threatened and which kids really are the victims of violence and intimidation in schools in such a disgusting way.
November 4, 2008 at 11:20 pm
Spend just one day at McClatchy High School — just the day of silence — then you tell me.
November 5, 2008 at 2:05 am
But doesn’t, “Just get a civil union” sound a lot like, “Just move to the back of the bus, Rosa Parks!”?
It’s separate but equal. It’s bigotry.
November 5, 2008 at 2:54 pm
Marriage began with two people, who happened to be heterosexual. Later others came and we were filled with diversity that we (should have always) embraced. Marriage never changed, but other relationships were added to society.
Never abandon truth, never crumble to lies.
Can you really say the origin of marriage was not religious based? And then say that religion has nothing to do with this? Go read a history book.
November 5, 2008 at 9:16 pm
What you have writing, is almost true, but not quite.
Like blacks have rights, but are still discriminated in housing, employment and by half the population on the street.
Marriage has served many purposes in history, most of them were not for love.
If it is religious based, then it has no place in government and no ones marriage should be a legal affair.
Gays are a minority, and since they are a minority, they need protection from the majority.