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Manhattan Diary by Cahir O'Doherty

Gay marriage foes have lost the argument

Posted on Friday, August 06, 2010 at 05:13 PM

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Sometimes the courts have to remind us that life, liberty and the pursuit of happiness are for every American, not just the one's who share our views.

This week, in a landmark ruling, California U.S. District Court Judge Vaughn Walker ruled that Proposition 8 violated the due process and equal protection clause of the 14 amendment of the constitution.

Walker's decision may be to your liking, or it may not, but there's no question the ruling is sound. Proposition 8 marked the first time in American history that citizens voted to remove rights, not protect them.

But rights are not enumerated by a 51% majority. We vote on a lot of things in America, but we should not vote on whether other Americans are equal under the law.

That's why it's galling that the same people who sat silent when the Roberts court ruled that corporations are people (and should be able to use their largess to secretly influence elections) are now shouting themselves hoarse about 'activist judges.'

If you can't be consistent, at least make a convincing stab at it, or you'll end up looking like a crank.

It's fair to say the Civil Rights Act of 1968 would not have been upheld had it been voted on - 72% of the public at the time opposed it; and it's fair to say that same sex marriage rights would not be upheld if put to a vote yet (all 31 states who voted on the issue voted against marriage equality).

The courts, however, have consistently ruled that marriage is a basic human right and for that reason same sex marriage is now legal in Iowa, Vermont, Connecticut, New Hampshire, Massachusetts, and Washington, D.C. The list will grow.

Walker's ruling is being dismissed by some as biased. Being gay, they say, he can't have any objectivity on issues affecting gay life. Apart from being presumptuous (he has never actually announced he's gay) if this this claim was followed to it's conclusion then American jurisprudence would grind to a standstill.

Despite what his critics are saying Walker was nominated to the federal bench by President Ronald Reagan, and renominated twice by President George H.W. Bush. He's no far left demagogue, he's a fierce and independent conservative who was initially opposed on those grounds.

The fact is that Proposition 8's defenders did not even come close to presenting persuasive evidence in court supporting their claim that gay marriages harm society and individuals. Two of their expert witnesses actually ended up agreeing they could point to no proof at all.

This is a significant and far reaching failure because for decades conservative activists have been predicting doom if same-sex marriage became legal. But it has become legal and they've become Chicken Little's, shouting louder because they've lost their audience.

'The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal,' Walker wrote in his exacting, 136-page opinion.

Children born in 2010 will reach voting age and be appalled to remember that America once deprived gays and lesbians of the right to marry. Because by 2028 it will be a settled fact of life.

This game is over. A longstanding injustice is being redressed.

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IrishAndProud | Aug 13, 2010, 08:09 PM EDT

So now you're thanking the Founding Father's that a representative republic has been replaced by a judicial dictatorship, and you view the majority as tyrants (and by default admitting that you are in fact in the minority, on this issue). I think, quite simply, that you finally reached the breaking point, Hollabackgurl, and are now being as openly defiant and offensive as you possibly can -- to hell with the facade, anymore. But at least you are openly expressing what I and others have already been saying about you for some time: you support fascism, and you've just now fessed up and finally, FINALLY admitted it openly -- and proudly too, while you were at it, since you felt you had nothing to lose anymore, by this point. The Supreme Court has not yet ruled a single, solitary time on homosexual 'marriage,' (what are you talking about, anyway?)...and the High Court agrees or DISagrees with a lower court judge -- that's the order it goes in, and not the reverse. And you responded precisely as I predicted about the Telegraph post, too (as if it's relevant where it's from). Funny how if something comes out of Europe that you agree with, suddenly it's all indisputable -- but if not (rapid little snickering effects, here), then it's to be ignored or impugned. Is it TRUE or not, is the question...and I might add, it is YOU caught in the Tea Party echo chamber (more like vice grip)...because that describes the majority sentiment in the USA. Trying to minimize a domestic giant over a foreigner merely noticing it is a wee bit futile, wouldn't you say? Conservative means right as much as liberalism means wrong -- and passe.

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hollabackgurl | Aug 13, 2010, 11:48 AM EDT

Thank Judge Walker and the Founding Father's for anticipating the tyranny of the majority and protecting against it. The Supreme Court has ruled 14 times that marriage is a fundamental right. Judge Walker agrees.

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DeaconJack | Aug 13, 2010, 10:32 AM EDT

Marriage is more a religious RIGHT than a CIVIL one,unless of course you camp with Barney Frank et als.

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hollabackgurl | Aug 13, 2010, 08:43 AM EDT

The greatest favor the GOP ever do is to consistently underestimate Barack Obama. Quoting the Telegraph proves that you're lost in a Tea Party echo chamber. I thought conservative meant cautious?

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IrishAndProud | Aug 12, 2010, 11:14 PM EDT

Incidentally, the GOP Senate candidate in California (Fiorina) is now ahead of Boxer in the polls, and conservatism is on such a national ascendancy in the USA that it's even being noted overseas. From today's Telegraph.co.uk, Nile Gardiner writes: "While the anti-establishment Tea Party movement has gained significant ground and is now a rising and powerful political force to be reckoned with, many of the president’s own supporters as well as independents are rapidly losing faith in Barack Obama, with open warfare breaking out between the White House and the left-wing of the Democratic Party. While conservatism in America grows stronger by the day, the forces of liberalism are growing increasingly weaker and divided." [END QUOTE] Barack Obama himself, btw, continues to oppose homosexual marriage.

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IrishAndProud | Aug 12, 2010, 11:09 PM EDT

No, Hollabackgurl -- they were given A day in court, and that's what the appeals process is about, which in this case is already underway. Funny how when liberals lose a court case that they don't just quit and give up like you seem to think conservatives should do after a single court loss. There's the Circuit Court of Appeals and of course The Supreme Court, where the outcome is far less certain. And no, homosexuals are not being discriminated against because of whether they're a man or woman. They've been told by a majority of voters that marriage is between a man and a woman, like it's always been throughout human history. And what's with this 'tiny majority' stuff? Exactly how big is the majority supposed to be, before their word is legit? A majority is a majority, no matter by what margin. Is this a representative republic, or isn't it? And after decades of homosexual activism in California, they STILL don't have a majority on their side. Besides, seems to me libs don't really give a rat's fart how big the majority is anyway, regardless of the issue...if they don't like the outcome of a popular vote, then by god they'll just ram their agenda through anyway, via unelected courts -- which wraps right back to what I've been saying, below.

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hollabackgurl | Aug 12, 2010, 10:12 PM EDT

Yes, gender means a person's sex. And gay men and women are being discriminated against based on their gender/sex. And that's just wrong. Proposition 8 discriminated against gay people based on their sex/gender. A tiny majority of Californian's voted to discriminate against gay people based on their gender sex. That was unconstitutional and it was struck down. Anti-gay proponents were given their day in court to demonstrate how they were harmed by same sex marriage. They failed to make their case.

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IrishAndProud | Aug 12, 2010, 08:37 PM EDT

Plus, emcowtan...it's not for no reason that it's said: "If you're a conservative at 25, you have no heart...but if you're a liberal at 40, you have no brain." People who aren't already conservative when they're younger tend to grow more so as they get older. Plus, what's so 'new' and 'chic' about homosexuality? It's even older than the bible, because it had to pre-exist for the bible to even reference it, as it does. Ancient Greece had it, Rome had it...and centuries later came conservatism, as we know it, and which the American majority is, by 2-1 over liberalism...and it continues to GROW, not shrink. So to attempt portraying homosexuality as something 'new' is futile. It's not, like any number of other dysfunctional things.

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IrishAndProud | Aug 12, 2010, 08:32 PM EDT

hollabackgurl, 'gender' means a person's sex -- not what lifestyle they lead. And...if the majority of Americans support homosexual 'marriage,' then how come they've rejected it in EVERY...SINGE...STATE where it's ever been up for direct, popular vote? And talking about heterosexual marriage (a redundancy) being rejected is merely an attempt on your part to make it sound interchangeable with homosexual 'marriage' (an oxymoron). The only time a real, legitimate (i.e., heterosexual) marriage would be 'ended' by a 'majority' of voters, is if human culture, as we've always known it, ceased -- and it's not going to.

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emcowtan | Aug 12, 2010, 03:46 PM EDT

Judge Walker is not an admitted gay man. It is pure conjecture that he is gay. I don't think it is relevant to the arguement however. A CNN poll today shows 51% against, and 49% in favour of SSM, twenty years ago it was aver 70% against. If you look at voters under 50, 60% are in favour. This arguement is pointless, it is all over, or will be in just a few years. Just need a few more old homophobes to die off.

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hollabackgurl | Aug 11, 2010, 09:59 PM EDT

I'm saying marriage is a legal contract. And I don't think legal contracts should be denied you based on your gender. You're supporting gender discrimination, which puts you at odds with the majority of Americans. If a majority of voters voted to end your marriage would you simply shrug and concur with their decision? I doubt it.

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IrishAndProud | Aug 11, 2010, 08:51 PM EDT

hollabackgurl, the mormons didn't 'buy' the election (unless, again, you're calling blacks, hispanics and others STUPID for falling for it). Mormons and many others spent money conveying the message -- but even the mormons got the message right: marriage is between one man and one woman, and always has been -- and the majority of California voters agreed (and many of the black voters did so as they went to cast their vote for Barack Obama -- who also still opposes homosexual marriage).

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IrishAndProud | Aug 11, 2010, 08:48 PM EDT

Hollabackgurl, you're talking about REASONS for marriage, which have always been many and varied. I also noticed how you worded your opening sentence: 'marriage has OFTEN been between...' and then you rattled off several examples of marriage between...a man and a woman (or women), the way it's always been, exactly as I and many others have said!

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hollabackgurl | Aug 11, 2010, 10:43 AM EDT

Marriage has often been between one man and many women; or one man and one mistress and one concubine and one geisha. Marriage has been an economic arrangement, a political calculation, a regional peace offering, a royal ambition, a blatant power grab or whatever else the participants were in search of. It's a binding legal contract. It has been seen as such for thousands of years.

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hollabackgurl | Aug 11, 2010, 10:37 AM EDT

Again you say it, without offering an explanation: why should we overlook the fact that the Mormon Church in UTAH spent over $70 million dollars buying an election in California? No other religion or ethnic community made such a disproportionate push to influence the vote. Why are you trying so hard to overlook this fact? Are you Mormon?

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