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If day one of the trial challenging Proposition 8 was all about setting the tone, yesterday was all about drawing the battle lines.

In reading through the liveblogs at FireDogLake and the Prop 8 Trial Tracker, it didn't seem as resounding a demolition for our side as day one did--but the equality side still seemed to win the day through superior organization and logic, if not through the gripping emotional detail of the testimony.

In a trial, each side has but two objectives: 1) to prove its case; and 2) to refute the case of the opposition. Olson and Boies have constructed their opening days of testimony around exactly this idea. Yesterday's testimony by the plaintiffs about the discrimination they have suffered by not being married was designed specifically to prove that their being banned from doing so violates the equal protection clause of the 14th Amendment. Today's testimony was dedicated to achieving the second objective.

The Defendant-Intervenor (proper legalese for the pro-bigotry side) argued in its opening Monday that, because marriage between a man and woman was an immutable and traditional societal institution designed specifically for the procreation and protection of children, it was not a violation of the 14th amendment to prevent homosexual couples from marrying--and that allowing those couples to marry would annihilate the purpose of marriage and destabilize society.

The plaintiffs sought to not only refute these arguments regarding this case specifically, but also to demonstrate that expansion of both marriage rights and gay rights have been on an expanding and converging course in the United States--and that those opposed to those expansions which are now deemed guaranteed by the Constitution have used the exact same arguments as the Defendant-Intervenor is using in this case. To do this, plaintiff's counsel continued--in an extension of yesterday's proceedings--the examination of expert witness on marriage, Professor Cott. Here, "B" stands for Boies, lead co-counsel for the plaintiff:

B: Good morning, Professor Cott. I have conferred with defendant-intervenor’s attorney regarding exhibits and they have objection (presents list to clerk) I would like to present another statemtn from the opposing counsel’s opening statement, wrt its central purpose being procreation and channelling, naturally procreative sexual activity between men and women into stable enduring unions.

B: What is your opinion?

C: Procreation is A purpose but no means the central purpose. Reminded me of the story of the seven blind men and the elephant: each sees something different, trunk/snake; side/wall; tail/vine. Procreation in a stable union is A purpose, but from the STATE’s perpective marriage has more to do with establishing a HOUSEHOLD and all that implies about social order and governance.

B: How is marriage an instrument of goverrnance?

C: Historically, I mean the regulatory purpose of marriage. Men were heads of household, responsible economically for all parts of their household. Giving benefits implied the sovereign could politically govern his realm in discrete sub-units, HOUSEHOLDS.

B: From a historical perspective, what benefits have accrued, and have they only accrued to procreative marriages?
C: No, barrenness or sterility has never been a barrier to a marriage. The FATHER of our country, George Washington, was sterile, being in a marriage with a woman who had borne children in her previous marriage. This was actually seen as an ADVANTAGE, since he could not pass on his presidency to an heir.

Now, as can be gleaned from yesterday's coverage, defense counsel had argued previously that while the rights of marriage had indeed been continually expanded to people of different races and socioeconomic classes--and that it was wrong to have forbidden it in the first place--the one immutable aspect was that marriage was always between a man and a woman in the legal tradition of the United States. The legal counterargument by Professor Cott is worth a read--with many thanks to Teddy Partridge at FDL for his tireless notes:

B: Is rthere a term for the role the state plays in marriage?
C: Yes, it comes from common law, called coverture, describing marital roles and duties. Upon marriage, the wife was COVERED by the husband’s legal definition and economic personhood. Jane Doe became Mrs John Smith; she was really no longer Jane Doe.
B: How did states justify that?
C: this was the MARITAL BARGAIN to which both spouses consented. The husband’s obligation was to SUPPORT his wife and his dependents. Her part was to serve and obey, lend him all her property, give him all her earnings, he would represent her in court. Highly assymetrical bargain, one we see now as very unequal. BUt it was not Dominant/submissive, it was freely consented to by the couple, although THE STATE SET THE TERMS. Assymetricality had everything to do with the sex difference seen in household roles.
Women’s work in the household was extremenly important, by difference might be socially enforced.

b; Did the sexual division of labor explain the sexual difference in marital couples we’ve seen through history?
C: Yes, the sexes were seen as so UNSUITED to the same type of work, work was particular to the sexes. Both types of work were seen as very important to the survival of society, which is why the state endorsed them.
B: Did these divisions ever come to an end?
C: Yes, fully in the 1970s but earlier as society mechanized, the nature of work, the sexual division of laborbecame far less rigid. In the 20th century, in our era, the sexual division of labor became no longer applicable. Came to be seen as increasinly archaic, states and SCOTUS stepped out of assigning work roles by gender. This did not however reduce the bargain. Currentyl,spouses roles are gender neutral. Most are obligated to support one another, but the law recognizes that one spouse may be the most economic supportive.
B: Why is the change in gender roles applicable to same-sex marriages?
C: Work roles within a household when gender specific required two genders. But now, with work no longer seen as gender specific, individual couples can decide the symmetry of their own gender roles. No longer enforced by the state. The presence of a marriage by members of the same sex no longer vioilates the states interst inmarriage.

These two arguments form the heart of the plaintiff's refutations of the Defendant-Intervenor. First, procreation by the married parties is not so central to the purpose of marriage as to defeat its purpose by extending it to those who cannot biologically procreate with each other; and second, because of the evolution of society, the state no longer has a vested interest in enforcing marriage only between male and female gender roles as essential to the maintenance of a household.

After refuting the arguments immediately at hand, the next task for plaintiff counsel was to further undermine the arguments of the defense by making the case that the same arguments had been used to defend restrictions now thought immoral and constitutional. Boies started by giving Professor Cott an opportunity to expound on the arguments made against 1967's Loving v. Virginia, which decriminalized interracial marriage:

B: At some point, the race restrictions were lefted? Were alarms sounded about how that threatened marriage?
C: These were state laws, there were cycles 1913 saw a lot of laws, and they recurred through US history. Even when SCOTUS in 1923 said marriage was a civil right, then in 1924 Virginia passed the most race-restricted in the nation. Called GOD’s PLAN, the natural law, the order of things. Because this was seen as such a hot-button issue, SCOTUS approached it extremely cautiously. THey could have taken a case in 1955, but they waited to decide a case in 1967 (Loving).

B: Did opponents of lifting these restirctions say marriage would be ruined?
C: Maybe not RUINED was used, but people thought and said their marriages would be less valued.

This train of thought continued in perhaps the most anger-inducing testimony of the day: that of Professor George Chauncey, an expert witness regarding the history of anti-LGBT discrimination in the United States. The entire testimony is painfully compelling, but particularly noteworthy is Dr. Chauncey's testimony regarding the campaigns led by Anita Bryant to repeal anti-discrimination ordinances protecting LGBT communities and its similarities to the messaging used by the proponents of Proposition 8. Here, S stands for Teresa Stewart, assistant attorney for the plaintiffs:

S: Dr Chauncey, would you tell the court generally about the themese of the SAVE OUR CHILDREN campaign that Anita Bryant led?

G: When they began, their polling showed support for the ordinance that forbade discrimination. They elected to focus on the CONSEQUENCES of the ordinance, one of them about children. They said allowing gay people to be open in jobs were they were exposed to children, as role models, and children could be easily swayed to homosexuality. They drew on stereotypes that homos were child molestors. Releasing homo predators onto children, in their presence, would be BAD. They were willing to tolerate homos, but didn’t want them open.

S: Was their literature about gays forcing themselves on normal people?

G: That was a central part of the SAVE OUR CHILDREN campaign.

C: read the language ascribed to Anita Bryant.

G: Some of the stories I could tell you of child recruitment and child molestation by homosexuals would turn your stomach. Homosexuals cannot reproduce so they must recruit. Who will they recruit? A 35 year old father? A mother of two? No, they will recruit a fresh young person, a boy entering manhood or an innocent young woman."

In short: "they're not only wrong, but they said the exact same thing to support other unconstitutional discrimination, so go figure."

The defense, meanwhile, was reduced to attacking the character and impartiality of the witnesses, and sent out a release claiming that they were successful in showing that the expert witnesses called by the plaintiffs were partial gay marriage supporters. Seriously.

So what's on tap for today? In addition to further testimony by plaintiff witnesses, we can expect a ruling from the SCOTUS no later than 1pm PST on whether television coverage of the proceedings will be permitted.

Further in-depth coverage:

Originally posted to Daily Kos on Wed Jan 13, 2010 at 08:00 AM PST.

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Comment Preferences

  •  Moliere could not have written it better. (4+ / 0-)

    What a farcical misrepresentation!

    They only call it class war when we fight back!

    by ezdidit on Wed Jan 13, 2010 at 08:11:11 AM PST

  •  Don't expect that anyone is going to tamper... (10+ / 0-)

    ...with the idea that gender is so easy to boil down to "man" and "woman".  Those of us with legally mutable gender just have to hope for the best.

    •  I agree Robyn (5+ / 0-)

      but this is massive progress, and it will dovetail for you and your partner too.  Transgendered will get their day I think, I want marriage equality to happen in general.

    •  Exactly... (3+ / 0-)
      Recommended by:
      rserven, Predictor, KentuckyKat

      it's taken for granted that gender is "male" or "female" with no gray areas or that there is no such thing as "legally mutable gender" as you say.

      Therefore, there only rationalization to bar same- sex marriages, or to determine that marriage is only between  a "man" and a "woman," is bigotry against same-sex marriages, where even "same sex" is mutable.

      Fox News in a Nutshell: IOKIYAR and INOKIYO (It's Not OK If You're Obama)

      by wry twinger on Wed Jan 13, 2010 at 08:22:33 AM PST

      [ Parent ]

    •  I've always wondered (2+ / 0-)
      Recommended by:
      TLS66, WillR

      what the bigots think about trans people getting married.

      Their bigoted argument is usually that, say, a MTF isn't "really" female...so does that mean they'd be on board with her marrying a woman, since in their mind it would be an opposite-sex couple, despite what appearances (and the law) would have to say about it?  Something tells me no.

      I suspect their preference would be for trans people not to be allowed to marry at all, but I wonder how they could possibly rationalize that, since they're typically the ones insisting that gender is immutable.  So the person must be either a man or a woman, and therefore should be allowed to marry a woman or a man, right?

      I guess they're not generally known for being rational, so I should probably give up on trying to understand them.

      •  Well, post-op trans folk... (1+ / 0-)
        Recommended by:
        Kimball Cross

        ... those who chose to go thru sexual reassigment, are pretty much legally allowed to marry a person of the gender opposite their newly 'phenotypical' sex.

        As far as I know.

        Guess conservatives are more willing to go along if people are willing to step into a pre-determined box.  I'm sure they don't like it much, but i just makes the point that they are all about conformity above all else.

        "The sudden disappointment of a hope leaves a scar which the ultimate fulfillment of that hope never entirely removes." Thomas Hardy

        by Timoteo on Wed Jan 13, 2010 at 09:29:26 AM PST

        [ Parent ]

        •  Yeah, I know they legally allowed to. (0+ / 0-)

          I just wonder how the bigots deal with the cognitive dissonance of it, since they don't want trans folk to be able to have their gender legally reassigned in the first place.  But like I said, I guess I shouldn't expect rationality.

        •  Depends on the state, Timoteo. (1+ / 0-)
          Recommended by:
          Marja E

          My gender varies as I move from state to state.  Hence would the validity of any marriage.

          •  LOL - somehow, I suspected... (1+ / 0-)
            Recommended by:
            rserven

            ... my answer would be way to simplistic!

            My gender varies as I move from state to state.

            Hmmm ... they way you say that, you almost make it sound exciting! (Sure that was not your meaning, tho')

            And of course, when people are married, and one has their physical gender altered, it's that whole other legal quandry ... can they now be two persons of the same gender still married?

            Honestly, my fond hope is that getting the 'same-sex' marriage mess resolved will just help us short-cut through the potential complexities of marriage for trans/inter & other queer folk.   Our language lacks the ability to make the discussion clear and simple.  

            "The sudden disappointment of a hope leaves a scar which the ultimate fulfillment of that hope never entirely removes." Thomas Hardy

            by Timoteo on Wed Jan 13, 2010 at 10:11:54 AM PST

            [ Parent ]

        •  Courts have ruled that post-op trans (2+ / 0-)
          Recommended by:
          Timoteo, Marja E

          people can engage in male-female marriage when living in their gender of choice. The decisions go back to the 1970's, IIRC.

          As an M2F who is a Lesbian in her gender of choice, that leaves me in an ambiguous position. I have a dog in this legal fight. I want Prop 8 dead.

          I have flow thru Detriot in recent months and the number of TSA women in hijab is alarming. It's like the foxes are overseeing the chicken coop -- A RW blogger.

          by Kimball Cross on Wed Jan 13, 2010 at 10:19:34 AM PST

          [ Parent ]

      •  They would prefer it if we didn't. (3+ / 0-)

        After I transitioned in Arkansas, inquiry of the County Clerk's office about me getting married returned this quote from a judge:  "He can't get married.  He's a woman now."  I had not, at the time, specified the gender of the hypothetical spouse.

        •  Yeah, that's kinda what I figured. (2+ / 0-)
          Recommended by:
          rserven, Marja E

          Either way there's an intolerable level of cognitive dissonance.  If you marry a man, then, since they're incapable of dealing with your transition, they can't help but view it as two dudes getting hitched -- yuck!  But if you marry a woman, they have to accept that same-sex marriage is legal, since even they have to admit that you're legally female.  One creates an emotional disconnect and the other creates an intellectual disconnect.

          So, like in Wargames, the only way to win is not to play.  The psychology of bigots would confound M.C. Escher.

    •  The whole 'fair' vs 'incremental' argument... (3+ / 0-)

      ... we all struggle with.

      I think this case will be historic for the entire LGBT community - regardless of final result after appeals, etc. - because it will be an example of our legal system requiring fact-based arguments to justify anti-LGBT discrimination.

      The ruling by the Iowa Supreme Court last year basically boiled down to "marriage equality opponents could not present the court with a single fact to support their position..."

      By moving the debate about LGBT equality into the realm of fact, we make progress for everybody.

      "The sudden disappointment of a hope leaves a scar which the ultimate fulfillment of that hope never entirely removes." Thomas Hardy

      by Timoteo on Wed Jan 13, 2010 at 09:26:01 AM PST

      [ Parent ]

      •  But the Iowa Supreme Court (1+ / 0-)
        Recommended by:
        Kimball Cross

        was also comfortable saying that homosexuals are a quasi-suspect class (and, in fact, they even laid the groundwork for recognizing them as a full suspect class, even if they decided to pull back at the end).

        If the U.S. Supreme Court doesn't agree (and I don't think they do, unfortunately), then the opposition doesn't really need facts -- even the flimsiest excuse will do.

  •  Looks good for our side. (4+ / 0-)

    Our arguments seem more logical than there arguments.  But then, I guess that's to be expected.

    Democrats are the sleeping giant.

    by GMFORD on Wed Jan 13, 2010 at 08:15:31 AM PST

  •  I would like to see some history (7+ / 0-)

    of marriage here in this trial, for example the book 'Marriage, a History' by Stephanie Coontz.  Here is a link to a recent-ish op-ed in the NYT she wrote:  http://www.nytimes.com/...

    Marriage historically has been nothing at all like what the Prop 8 supporters claim.  Might as well go back to the concept of Biblical marriage: between one man and as many women as he can buy.

    Real plastic here; none of that new synthetic stuff made from chicken feathers. Stupidity is a condition; ignorance is a choice.

    by triplepoint on Wed Jan 13, 2010 at 08:16:34 AM PST

    •  Quibble (2+ / 0-)
      Recommended by:
      Kimball Cross, wonderful world

      As many women as he can support might be better. Women sometimes came with dowries, after all.

      But, yes, the basic idea is that rich guys get the chicks and poor guys get nada.

      We've come so far since then ... well, maybe not.

      In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

      by blue aardvark on Wed Jan 13, 2010 at 08:19:55 AM PST

      [ Parent ]

      •  but once he has the dowries... (3+ / 0-)

        the women can be profit centers.  I hestitate to use the profit/prophet pun in Biblical matters, no matter how tempting.

        Now I happen to know many East African Muslims who are polygamous.  A good friend has two wives in long term relationships (oldest kids in 20's) who run businesses in Senegal while he scouts deals.  The wives seem to be happy (I've met them both) and my son who spent a summer with them seems to think it works out pretty well at least in this case. He sends his kids, both sons and daughters to universities (mostly in France) and is pretty modern in outlook.  No idea about any dowries there, but all members of the family pull their weight.

        Real plastic here; none of that new synthetic stuff made from chicken feathers. Stupidity is a condition; ignorance is a choice.

        by triplepoint on Wed Jan 13, 2010 at 08:34:32 AM PST

        [ Parent ]

    •  Marriage History was Cott's testimony (4+ / 0-)

      Go to the links above and read the live blogs summaries.  

      Prof. Cott had the end of the first day and beginning of the second.  She did an effective job describing the origination of marriage laws in our country, how women were at first assumed into the man's authority, but over time became equal to him in the 1970s.  

      Seriously, this is good stuff and super important.  Other than the plaintiffs testifying how Prop 8 harms them, the testimony has been about the history and changing institution of marriage in the U.S., and the history of persecution of homosexuals in the U.S.  Stuff everyone should understand prior to forming an opinion.

      The defense tried to paint the purpose of marriage laws to support biological children as the main purpose, but Prof. Cott shot that down.

  •  This is a nice synopsis (5+ / 0-)

    and Olsen made some salient arguments.  I guess his Libertarian view has captured his senses which to me, is good.  Yeah, he hates taxes, but he argued for the value of fairness for everyone.  I so hope Prop 8 is another place to get rid of DADT.  It's time!

  •  The most frustrating thing ... (18+ / 0-)

    ...is that doing what's right in this matter seems so obvious to most of us on the left. And yet we've seen 18 states ban gay marriage (and 10 of those also ban civil unions) in the past six years. My fingers are crossed, my heart is hopeful, but my head is filled with worry over what this extremely important ruling will mean.  

    Don't tell me what you believe. Tell me what you do and I will tell you what you believe.

    by Meteor Blades on Wed Jan 13, 2010 at 08:17:56 AM PST

    •  Yes, MB (4+ / 0-)

      it is state by state, and I wish it were more broad.  I've been saying for a long while that it should be another and better ERA, but...and you since you have been in the fight longer than I.

    •  And that's why politics matters (3+ / 0-)
      Recommended by:
      Spoc42, Kimball Cross, I T

      I know plenty of people who can't comprehend how anyone could allow gays to marry.

      We need to be able to talk about these things - because the alternative is fighting about them. And I don't mean metaphorical fighting, I mean the kind where people bleed and die.

      In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

      by blue aardvark on Wed Jan 13, 2010 at 08:21:35 AM PST

      [ Parent ]

    •  One of those states gave in a bit (2+ / 0-)
      Recommended by:
      Meteor Blades, Kimball Cross

      Wisconsin

      The Wisconsin Supreme Court tossed out a direct challenge to the law, although like the bad guy/gal in any decent thriller, the other side will likely rise up at some point again.  But, for now, it's a bit of progress in a state that outlawed same sex marriage and the substantial equivalent.

    •  Authoritarian Religion is Imperialistic and (2+ / 0-)
      Recommended by:
      Meteor Blades, Kimball Cross

      aggressively expansionist.

      Both wings want to rule sex related behavior throughout society and one is just working to take over the country lock stock and barrel.

      There's no debate or issues to this, ultimately.

      We either defeat them, contain them, or they do the same to us.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Wed Jan 13, 2010 at 08:35:39 AM PST

      [ Parent ]

  •  If homosexuals recruit (10+ / 0-)

    I am still waiting for my invitation.

    C'mon, fellahs - make me an offer!

    I've been straight for decades, so asking me to step out of my comfort zone will take a good offer. And I really don't care for Bette Midler, so that has to be part of the deal.

    What am I bid?

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Wed Jan 13, 2010 at 08:18:21 AM PST

  •  If things were just we wouldn't be here (4+ / 0-)

    Because Prop8 wouldn't have passed.

    But given the Prop8 and Qstn 1 campaigns, we can see exactlywhere they are going with this:  same old same old:  the children!  the schools!
     

    •  And "will of the people" of course. (2+ / 0-)
      Recommended by:
      Hillbilly Dem, I T

      If the court strikes down Prop 8 on Equal Protection or any other grounds, they cry will go up that the elite is against Majority Rule.

      A teachable moment:

      Majority rule is a good thing. It's how a democracy selects public officials and passes laws. But majority rule does not apply to basic rights. Rights belong to all, including unpopular minorities.

      I have flow thru Detriot in recent months and the number of TSA women in hijab is alarming. It's like the foxes are overseeing the chicken coop -- A RW blogger.

      by Kimball Cross on Wed Jan 13, 2010 at 09:25:36 AM PST

      [ Parent ]

      •  The older I get (0+ / 0-)

        the more I think that relying on "the will of the people" should be avoided as much as possible.

        Making parts of the government beholden to the electorate is a necessary check against government abuses, but I'm increasingly of the opinion that it's a mistake to regard it as the cornerstone of government.  The entire idea of the Republic, of a representative rather than direct democracy, is that some people are more fit to govern than the general population.

  •  Really? (3+ / 0-)

    ..immutable and traditional societal institution designed specifically for the procreation and protection of children..

    I'm no attorney, and not fluent in the nuances of legalese, but is that what they're basing their argument on.

    Really?

    Post menopausal women shouldn't be allowed to marry either? Impotent men?

    They had best drag out that "allowed to marry an Scottish Terrier or a doorknob argument" too, since their current premise makes exactly the same amount of sense.

    Bad things can happen if you walk a mile in another man's shoes if you took his only pair of shoes.

    by Anthony Page aka SecondComing on Wed Jan 13, 2010 at 08:24:03 AM PST

    •  Yes (2+ / 0-)

      That seems to be their main argument.  So far the plaintiffs have been pretty successful in presenting actual evidence that that is not true.  Also, that those claims are reflective of similar hate and fear tactics used historically.

    •  That's their argument (2+ / 0-)

      but I think they're just throwing it out there in a "see what sticks" kind of way.  That's the same logic the Iowa Supreme Court gave a huge thrashing to last year, and they weren't wrong.

      I don't think any court could keep a straight face at the procreation argument -- I think they'll see right through it and understand that, yes, it's really about them dirty homersekshuals.

      What I'm less optimistic about, however, is that they'll think there's anything wrong with that attitude, constitutionally speaking.  I think we're going to be disappointed if it gets to the Supreme Court, because they don't seem prepared yet to declare that sexual preference is a suspect classification.  In particular, I don't think they'll agree that it's an immutable property, or that gays are politically powerless.

      Obviously, most of us here will accept both of those as no-brainers, but some of the higher federal courts, unfortunately including the Supreme Court, seem pretty dunderheaded about it.  I predict a victory in this trial and again on appeal, but a big disappointment when it goes to the Supremes.

    •  And it is an unsubstantiated assertion (1+ / 0-)
      Recommended by:
      Kimball Cross

      Claims are easy to make. Backing them up with evidence? Not so much.

  •  My answer to "It will destroy 'normal' marriage." (13+ / 0-)

    Had a guy pitch that line at a convenience store yesterday.

    I asked him: "Have you ever wanted to have sex with a man?"

    "Hell, no!"

    "If gay marriage had been legal before you got married, would you have married a man?"

    "Are you kidding? I just told you I'm not gay!"

    "So people who are hetero will continue to be hetero and will marry members of the opposite sex, whether gay marriage is legal or not, right? So 'normal' marriage will still continue, right?"

    He didn't have an answer to that one.

  •  I'm no legal expert... (7+ / 0-)

    But I think the testimony about coverture (something I did not know about until yesterday) was a legal pivot point.  The fact that gender rolls were deemed as not of the state interest is significant.  Very fascinating stuff.

    To the WH: "It's your job to f*ck-up power; it's Fox's job to f*ck-up truth.' - Jon Stewart

    by RichM on Wed Jan 13, 2010 at 08:28:47 AM PST

  •  Mr. Olson & Mr. Boies Were on Rachel Maddow's (6+ / 0-)

    show last night; they are a damn odd combination to be teaming up on this issue. Y'all can't tell me that Ted Olson's hate mail component in his "in box" hasn't increased dramatically! I hope they are successful.

    Dems, get some guts, or we'll KICK YER BUTTS!

    by CityLightsLover on Wed Jan 13, 2010 at 08:28:56 AM PST

    •  This was a very courageous move on (1+ / 0-)
      Recommended by:
      CityLightsLover

      Ted Olson's part, whatever we may think of his position on other issues, including the execrable Gore v. Bush.

      I have flow thru Detriot in recent months and the number of TSA women in hijab is alarming. It's like the foxes are overseeing the chicken coop -- A RW blogger.

      by Kimball Cross on Wed Jan 13, 2010 at 10:21:24 AM PST

      [ Parent ]

  •  Seems to me a large part of the issue is (9+ / 0-)

    the fact that gay marriage was at one time legal in California - if only briefly - and that once those rights vested with the citizenry, it became an unconstitutional act for anyone - even the majority - to strip citizens of those rights.

    This also created an equal protection under law argument with respect to gay couples who were married during the window of opportunity . . . they now enjoy rights denied to other similarly situated persons.

    "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

    by bobdevo on Wed Jan 13, 2010 at 08:29:01 AM PST

    •  Do We? (9+ / 0-)

      We that are still legally married have maybe a thimblefull of rights that we can enjoy WITHIN THE CALIFORNIA STATE LINE. We have basically NO rights outside the state.

      If I got ill in a red state and were hospitalized, and the hospital refused my husband admission to my room, our perfectly legal marriage license would be meaningless. Instead of having every state in the union recognize our legal marriage (hetero couples don't even have to produce their license, do they?), we would have to have our lawyer FAX our Living Will showing that we make primary decisions in each other's care. We have spent thousands and thousands of dollars executing legal documents to create a "legal marriage"-like state for ourselves. And we STILL have no access to the 1,100+ FEDERALLY-DEFINED rights and responsibilities of marriage. We still have to file separate tax returns. We are still treated as "less than" when acting as a married couple in public situations-- except amongst our closest friends and family.

      I'm not complaining about being married-- I have the best husband in the world!--, but the fact that nothing has really changed thanks to the right-wing fascists really pisses me off.

      Face it, right-wingers, you screwed it up. And we have to fix it despite your whining. So SHUT UP. REPUDIATE GAY APARTHEID. NOTHING LESS THAN FULL EQUALITY.

      by CajunBoyLgb on Wed Jan 13, 2010 at 08:49:18 AM PST

      [ Parent ]

  •  One question to come is the immutability (6+ / 0-)

    of being gay.  I think our side needs to be careful.  We know that sexuality exists on a continuum, and ranges from the gay guy who KNEW at age 4, to the middle aged lesbian who divorced her husband when she figured it out at age 40.  

    They've already said (the bad guys) that they were cross-referencing DP and marriage licenses in an effort to prove being gay is a choice.  (Of course what they never explain is why they think we "choose" it.)

    but even if you take a characteristic that is completely a choice, like religion, we still offer protections.   So hopefully we can spike those guns.

    The other thing I'd like to see is a robust refutation of the procreation argument....lots of us have kids, I believe plaintiff Perry has FOUR, and it's been shown that marriage equality helps kids!  I'd like to see that come up too!

  •  Increasingly it becomes clear (4+ / 0-)

    that they've got nothing.

    Marriage for procreation only can be refuted by any reasonably articulate 8 year old. Traditional marriage (defined by what? The Bible?) has gone through so many changes over the millenia that it is essentially useless to rely on any argument using it. The only remaining argument is 'teh gay = icky' and I don't think any judge will go for it in this day and age.

    The anti-equal marriage group is going to wish they'd never gotten involved in this trial. They already look petty and none too bright. As seeing themselves as others see them is not their strong point, I'm sure they will pursue this (when the decision goes against them) to the next level, but they have no good arguments to bring along. It is my hope that the SCOTUS -- when the case reaches that level -- will judge on legal merit alone and that equal marriage will become the law of the land.

    The right-wingers will plotz when their own Supremes become 'the activist judges' that they fear and loathe!

    "No, it's all right," said the prospective diner. "The slugs have formed a defensive ring." -- Moving Pictures. Terry Pratchett.

    by wonderful world on Wed Jan 13, 2010 at 08:30:22 AM PST

  •  Based on Rachel Maddow's interview (2+ / 0-)
    Recommended by:
    celdd, Kimball Cross

    of Olsen and Boise last night, it was my impression that another central feature of their argument is that the ban on gay marriage causes harm to homosexual couples, but does no harm to heterosexuals that are married.  This is critical because, I believe, it is necessary to show that the discrimination has negative consequences for those discriminated against.  No foul, no harm kinda thing.

    The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt. Bertrand Russell

    by accumbens on Wed Jan 13, 2010 at 08:31:28 AM PST

  •  Tiny Point (2+ / 0-)
    Recommended by:
    celdd, Spoc42

    n a trial, each side has but two objectives: 1) to prove its case; and 2) to refute the case of the opposition.

    The Right (as in wing not as in correct) in this country work on the basis of do a good enough job on number 2. And you don't even have to worry about number 1.

    I am taking refute to mean in the court of public opinion not science, logic or truth.

  •  If Upheld Party for Procreation, Elderly Marriage (3+ / 0-)
    Recommended by:
    celdd, Kimball Cross, Noamjunior

    should be outlawable on the same grounds.

    Maybe on a suit, courts would need to outlaw elder marriages in anti-gay-marriage states.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Jan 13, 2010 at 08:32:59 AM PST

  •  now thought immoral and constitutional (1+ / 0-)
    Recommended by:
    Kimball Cross

    s/b "now thought immoral and unconstitutional." in the paragraph introducing Loving.

    History will not forgive us if we do not try and convict the neocoms for their crimes, every last one of them...

    by Jesterfox on Wed Jan 13, 2010 at 08:34:25 AM PST

  •  It is, I believe, of profound significance that (3+ / 0-)
    Recommended by:
    celdd, Kimball Cross, Mad Biologist

    ... this issue is bringing to light the dark history of the social injustice towards the LGBT community, but also, the dark history of the social injustice towards women.

    ~we study the old to understand the new~from one thing know ten thousand~to see things truly one must see what is in the light and what lies hidden in shadow~

    by ArthurPoet on Wed Jan 13, 2010 at 08:35:19 AM PST

  •  Riddle me this- law people (1+ / 0-)
    Recommended by:
    Kimball Cross

    how is requiring a man-woman signature on a marriage licence any less descriminatory by the state  than requiring a man to cosign a drivers licence for a woman.

    You could even make the same illogical argument supporting man-woman driver's licence as they do for man-woman marriage licences.
    From the chariots, to the stagecoach, to the clipperships and the locomotive - clearly our society has an immutable tradition of male drivers. Also accidents have increased since woman have been allowed to drive.  

    •  I'm not sure how this applies to marriage? (0+ / 0-)

      A marriage is contract between two people and the state.  It's not that one is cosigning for the other, it's that they're entering into the agreement together, like two roommates signing a lease.

      •  my point being (0+ / 0-)

        how is a state gender requirement OK on a marriage licence but not on ANY other government issued licence or document?

        maybe a better example would be like in the 1800's - when women who owned property needed a man to cosign a property sale

        •  Oh, I absolutely agree (0+ / 0-)

          that denying same-sex marriage is discrimination on the basis of sex as well as on the basis of sexual orientation (in legalese: it's de jure discrimination on the basis of sex and de facto discrimination on the basis of sexual orientation).

          But I don't think your "cosign" argument really makes sense.  It's not that the woman (if any) is being considered as lesser somehow; it's just that there are restrictions about what choice of gender they're allowed to pick.  Which I agree is a legal no-no, but a different beast from needing a male cosignature.

          •  not following you (0+ / 0-)

            " It's not that the woman (if any) is being considered as lesser somehow; it's just that there are restrictions about what choice of gender they're allowed to pick.  Which I agree is a legal no-no, but a different beast from needing a male cosignature."

            not sure what you mean by  "it's just that there are restrictions about what choice of gender they're allowed to pick'

            historically, our country has required a man to co-sign property licences for women- we sensibly gave that up yet still allow discrimination in the form of gender requirements on marriage licence

            my point being- requiring a man and woman signature on a marriage licence is no less descriminatory than requiring men to cosign for a woman's driver's licence or a property transfer- a slippery slope argument that if the state can descriminate on the basis of gender in issuing licences, they can do so in any situation.

            •  I'm afraid I'm not following either. (0+ / 0-)

              Marriage licenses aren't anything like cosigning for a loan or property transfer, so I don't understand the comparison.

              When a man and a woman sign a marriage license together, the man isn't cosigning for the woman, any more than the woman is cosigning for the man.  They're entering into the agreement together.  It's not really a case of sexism, because it's symmetrical.

              It is, however, a case of sexual discrimination, and objectionable on those grounds, but I don't think it's really comparable to the example you're giving.

              •  the comparison is in the descrimination (0+ / 0-)

                can the state require a specific gender for signing state issued or recognized documents - and thus descriminate on the basis of gender?

                the requirement of a specific gender on a document is by definition- gender descrimination

                to my knowledge a marriage licence is the only state-recognized document with a gender requirement

                •  Sure, we're in agreement on that. (0+ / 0-)

                  The part I don't get is how the cosigning argument fits in.  Even though marriage licenses are currently discriminatory, they're not really sexist in the same way that cosignatures for property transfers and such were.  They don't imply that women are lesser than men or anything like that.

                  •  by the way - thanks for the convo (0+ / 0-)
                    " Even though marriage licenses are currently discriminatory, they're not really sexist in the same way that cosignatures for property transfers and such were"- I would argue they are, in a less obvious way that we dont see becasue we are participants in the culture that condones it.

                     

  •  What this really boils down to is far more ugly (2+ / 0-)
    Recommended by:
    Spoc42, Kimball Cross

    under the surface, and it has nothing to do with sexuality, per se, nothing to do with man, woman marriage. The whole battle is really waged on the "traditional marriage" side over historic property rights, inheritance by blood line, and dowries. These people do not want their assets to go to anyone not of their combined bloodlines. Think of all the "illegitimate" children who were cut out of any inheritance right just because they did not have the bloodlines of both of the marriage partners. This whole battle boils down to money and where it is to go after death. As always, if one wants to really understand something, follow the money trail.

    The Justice Department is no longer a credible defender of the rule of law or the Constitution.

    by Overseas on Wed Jan 13, 2010 at 08:47:03 AM PST

    •  Combined bloodlines (1+ / 0-)
      Recommended by:
      Overseas

      That sounds an awful lot like it's connected to incest to me.

      Which might explain their stupidity.....

      P.S. I agree with the money quote

      The Prince of Peace has been usurped by the God of War.

      by Spoc42 on Wed Jan 13, 2010 at 09:01:36 AM PST

      [ Parent ]

      •  It was traditional (0+ / 0-)

        in aristocratic families for cousins to marry in order to keep the family fortune within the family. I strongly suspect that part of the reason for the American taboo on first-cousin marriage (a taboo that doesn't exist in the rest of the Western world) was a concern that European noble families might try to establish themselves in the US (a concern also addressed by the requirement that the President be natural-born, the prohibition on the granting or acceptance of titles, and the estate tax).

        There is nothing so practical as a good theory—Kurt Lewin

        by ebohlman on Wed Jan 13, 2010 at 11:23:44 PM PST

        [ Parent ]

  •  will "traditional Marriage" crowd introduce prop9 (3+ / 0-)
    Recommended by:
    Spoc42, CajunBoyLgb, Eddie L

    that requires the bride's father's concent for all marriages, sets the minimum and maximum amount of required dowry, and regulates the size of the rocks to be thrown at adulterers in the public square.

  •  big problem with "procreation" argument (1+ / 0-)
    Recommended by:
    Kimball Cross

    there is no statutory requirement for procreation.

    •  In the 3rd Reich, a marriage could (0+ / 0-)

      be annulled if one of the partners could be proved to be sterile. Somebody's gotta make the next generation of Soldaten.

      A fine precedent. (snark)

      I have flow thru Detriot in recent months and the number of TSA women in hijab is alarming. It's like the foxes are overseeing the chicken coop -- A RW blogger.

      by Kimball Cross on Wed Jan 13, 2010 at 10:26:24 AM PST

      [ Parent ]

  •  The flip side--fewer missionaries (1+ / 0-)
    Recommended by:
    Kimball Cross

    The argument from the Pro-Prop 8 folks seems to be that increasing participation and access to the institution of marriage will degrade it and reduce it's ability to effectively perform what they characterize as it's core functions. If that's the case will they stop trying to recruit folks to their religious institutions by expanding participation and access through evangelism? Just wondering...  

  •  This boils down to one issue: (1+ / 0-)
    Recommended by:
    Kimball Cross

    Do you believe being gay is a choice?

    •  I posted something to that effect (1+ / 0-)
      Recommended by:
      Kimball Cross

      on another diary... that is the main issue here.

      I can tell you I sure as hell didn't CHOOSE it.

      "I hope they'll know that fools with megaphones or runny mouths just don't count." - Donal Og Cusack

      by Texas Blue Dot on Wed Jan 13, 2010 at 11:18:02 AM PST

      [ Parent ]

    •  If it were, why would anyone choose it? (0+ / 0-)

      This fear that straight kids will be gay if they see us....how fragile is their own sexuality?  Or are they all just closet cases?

      Really it makes no sense.

    •  The interesting thing is that the IA SC (0+ / 0-)

      disposed of that question quite nicely, ruling that even if it were possible for people to change their sexual orientations, demanding that they do so would be an extraordinary demand beyond the legitimate powers of government.

      There is nothing so practical as a good theory—Kurt Lewin

      by ebohlman on Wed Jan 13, 2010 at 11:26:12 PM PST

      [ Parent ]

  •  and RIGHT HERE is where the "threat" (2+ / 0-)
    Recommended by:
    Dante Atkins, I T

    C: Work roles within a household when gender specific required two genders. But now, with work no longer seen as gender specific, individual couples can decide the symmetry of their own gender roles. No longer enforced by the state. The presence of a marriage by members of the same sex no longer vioilates the states interst in marriage.

    ... to "traditional" marriage lies.  The de-coupling of roles from gender, is a profound threat to patriarchy.  Gay rights are, in this respect, an outcome of feminism.

    No wonder they hate me -- I'm trying to rob them of their dishwasher cum bondservant! Not by seducing her, but by demonstrating that she need not comply.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Wed Jan 13, 2010 at 12:39:34 PM PST

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