Father Time
I'll be Still Alive
- Nov 29, 2008
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What would be the legal arguments for the US Supreme Court declaring Prop 8 unconstitutional?
I wanted to get some opinions. And I wanted to present an opinion. Let me jump this off as a response to someone who posted (on a different forum), "I really don't see why we put peoples rights up for vote on the ballot anyways. It's just not smart to let the majority decide the rights of the minority."
To which I would say -- That's an interesting looking-frame you've put this law in. But it seems to me to be a bit disfiguring frame; or full of assumptions.
Consider, as the court will to this challenge, how your statement appears to demonstrate some odd broad assumptions that are in real contrast to the actual reality, and legal facts, concerning this law.
You say this law is letting the majority decide the rights of the minority. I will hand you outright, a HUGE and important assumption, simply for the sake of my first, and most important legal argument. The great assumption I will hand you is that one can "be" a "homosexual", and that homosexuals are a legal minority. And on the other side, that heterosexuals are the majority. Let's just say that is a fact...
Consider this, in actuality, the law is not saying anyone in that minority can't do, what anyone in the majority, can do. The law says it won't do something for anyone, no matter what group they're in. Both a member of this minority, and a member of the majority, can do the same thing, which is have the state recognize their marriage to one member of the opposite sex who is of legal age. Even if I was a member of the majority, "The Heterosexuals", the state would still not recognize my marriage to the same sex -- nor to my marriage to more than one person, nor to my marriage to an animal, spirit, or pet rock, etc. This law, in factuality, treats everybody exactly the same.
This is the same bs I heard over inter racial marriage laws. Marriage laws grant rights, tax breaks etc. to couples. A homosexual couple does not get any of this.
Not preventing living married-
Further more, consider something else very important -- this law does not prevent anyone having a huge public marriage ceremony, and living the rest of their life in marital bliss, with a member of the same sex (and of legal age). One can do the same with more than one person, a pet rock, a spirit, and many other things. You can marry an animal, but if you consider the sexual act an essential part of marriage, then I believe California considers that animal abuse and is illegal. It's just that the state will not legally recognize it as a state legal marriage.
And thus will not grant the couple the same deal they grant hetero couples.
Throughout 99-100% of all state history, the state recognizes common law marriage, which is between one man and one woman, although many societies' states also included one man and many women.
This is completely irrelevant to the matter at hand.
"Homosexuals" a legal group?-
Another subject, that I would think would be relevant, is whether or not "homosexuals" could ever be considered a legal group, or minority group. I would argue one, or the courts, could not make "homosexuals" as a legal group. What scientific irrefutable test can one perform to prove an individual is a "homosexual"?
Nothing same as you can't perform any tests to prove that someone is a Christian, or a Muslim, or straight or liberal or conservative ...
How do you legally define a person as a homosexual, let alone for that distinction to afford one special rights?
How the holy hell would this be special rights? If gay marraige passed you would not have to prove that you were gay to marry someone of the same sex, so heteros will get the same right.
There is no genetic test for "homosexual" (and I can expound on why there will never be). And so there is no actual, or otherwise legal group, to be found there.
Nor is there one for Christian, Jew etc.
Thoughts?
Give us the precedent on what makes something a legal group, or show us your legal credentials.
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