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.
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.
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. Some have found the most remote, small and brief, and usually historically disputed, examples of a state recognizing other forms of marriage, but 'common' would certainly not be afforded it. And so, an argument for a polygamous marriage has a far greater legal argument than same-sex marriage. And yet all 50 states do not recognize polygamous marriage, and that legal distinction remains constitutionality strong.
This law is not unconstitutional. Nor does it say a minority cannot do what a majority can do. You have to make broad assumptions to say otherwise. Assumptions that, I would assess, as not legally provable/sound.
"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"?
How do you legally define a person as a homosexual, let alone for that distinction to afford one special rights? 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.
One can prove an individual is sexually attracted (sexually aroused) to something; which may be to an individual of the same sex, or to a sex toy, or image, or any number of objects; or of course, to any sort of physical stimuli, such as being stroked by any thing - a human, a machine, a branch blowing in the wind, etc. To form a legal group of "homosexual" with that, would be equivalent to creating a legal group who is sexually aroused by crickets (or only to particularly sexy crickets), or those sexually aroused by being touched on the toes. It's quiet ridiculous. And so there is no actual, or otherwise legal, group, to be found there.
One can demonstrate an individual has preformed a homosexual act. One can argue this makes that individual a "homosexual". There really is no precedence for creating a legal group based on willfully preformed behavior, outside of criminal law. That is, if you murder, you can be said to be a part of the legal group of those individuals convicted of the criminal act of murder. An example would be laws restricting an individual's legal rights to drive a motor vehicle on public roads who were convicted of driving while intoxicated. This method of creating a legally recognized homosexual group is also rather ridiculous, as someone not sexually aroused by the same sex can willfully perform a homosexual act; making it a group anyone can choose to join. And an unwilling participate can be physically forced to preform a homosexual act. And so there is no actual, or otherwise legal, group, to be found there.
One can try a disabilities angle. One can declare themselves physically disabled, or otherwise, unable to be sexually aroused by an individual of the opposite sex -- and therefore they are a "homosexual". It would be more PC (Politically Correct) to say one is "heterosexually challenged", and therefore should have special legal accommodations. But of course, a physical lack of libido, or sexual function, can cause a lack of heterosexual arousal, as could finding everyone you've currently met sexually repulsive. But this in no way indicates you are sexually attracted to anyone of the same sex. In addition, an individual sexually aroused by anyone of the same sex, can be both operantly, but especially classically, conditioned to be sexually aroused by heterosexual stimuli, and vise-versa, and to most any object or stimli. And so there is no actual, or otherwise legal, group, to be found there.
Fact is, individuals find themselves sexually attracted, at various levels, to all sorts of individuals, or stimuli, for a wide range of voluntary and involuntary, and physical and psycho-sexual, conscious and unconscious, reasons. That is not going to be a legal basis, or responsible basis, for creating legal groups.
Thoughts?
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.
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.
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. Some have found the most remote, small and brief, and usually historically disputed, examples of a state recognizing other forms of marriage, but 'common' would certainly not be afforded it. And so, an argument for a polygamous marriage has a far greater legal argument than same-sex marriage. And yet all 50 states do not recognize polygamous marriage, and that legal distinction remains constitutionality strong.
This law is not unconstitutional. Nor does it say a minority cannot do what a majority can do. You have to make broad assumptions to say otherwise. Assumptions that, I would assess, as not legally provable/sound.
"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"?
How do you legally define a person as a homosexual, let alone for that distinction to afford one special rights? 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.
One can prove an individual is sexually attracted (sexually aroused) to something; which may be to an individual of the same sex, or to a sex toy, or image, or any number of objects; or of course, to any sort of physical stimuli, such as being stroked by any thing - a human, a machine, a branch blowing in the wind, etc. To form a legal group of "homosexual" with that, would be equivalent to creating a legal group who is sexually aroused by crickets (or only to particularly sexy crickets), or those sexually aroused by being touched on the toes. It's quiet ridiculous. And so there is no actual, or otherwise legal, group, to be found there.
One can demonstrate an individual has preformed a homosexual act. One can argue this makes that individual a "homosexual". There really is no precedence for creating a legal group based on willfully preformed behavior, outside of criminal law. That is, if you murder, you can be said to be a part of the legal group of those individuals convicted of the criminal act of murder. An example would be laws restricting an individual's legal rights to drive a motor vehicle on public roads who were convicted of driving while intoxicated. This method of creating a legally recognized homosexual group is also rather ridiculous, as someone not sexually aroused by the same sex can willfully perform a homosexual act; making it a group anyone can choose to join. And an unwilling participate can be physically forced to preform a homosexual act. And so there is no actual, or otherwise legal, group, to be found there.
One can try a disabilities angle. One can declare themselves physically disabled, or otherwise, unable to be sexually aroused by an individual of the opposite sex -- and therefore they are a "homosexual". It would be more PC (Politically Correct) to say one is "heterosexually challenged", and therefore should have special legal accommodations. But of course, a physical lack of libido, or sexual function, can cause a lack of heterosexual arousal, as could finding everyone you've currently met sexually repulsive. But this in no way indicates you are sexually attracted to anyone of the same sex. In addition, an individual sexually aroused by anyone of the same sex, can be both operantly, but especially classically, conditioned to be sexually aroused by heterosexual stimuli, and vise-versa, and to most any object or stimli. And so there is no actual, or otherwise legal, group, to be found there.
Fact is, individuals find themselves sexually attracted, at various levels, to all sorts of individuals, or stimuli, for a wide range of voluntary and involuntary, and physical and psycho-sexual, conscious and unconscious, reasons. That is not going to be a legal basis, or responsible basis, for creating legal groups.
Thoughts?
