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sometimes blue
DrewI am a thirty something married gay boy living in Sydney, almost on top of the gay scene but not in it! Why Sometimes blue?, because I love blue, but also I am sometimes blue :)
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Wednesday, January 13, 2010

The Constitutional Challenge

I think by now most people are aware of the high stakes case that arguing Proposition 8 violates the U.S. Constitution's Equal Protection and Due Process Clauses and that it discriminates and makes same-sex couples second-class citizens.

Many are looking to this case as being on the same level of importance as Roe Vs Wade or the overturning of segregation laws in the US.

I find it fascinating that the lawyers representing the case (for the constitutional change) are the lawyers who argued on opposite sides in the case that bought George Bush to power in the disputed 2000 elections.

It's expected that the case will end up in the US Supreme Court and if found in their favor will make it unconstitutional for any state to legally ban the recognition of same sex marriage.

The first and most interesting legal battle is the right to broadcast the proceedings over the Internet through Youtube.

It was originally allowed but then, the opponents of the case have appealed and we must wait until Wednesday to find out whether broadcasting the trial is legal or not.

The opponents argument for NOT broadcasting the trial is that witnesses in the case would be unfairly targeted and harassed for their 'beliefs'.

I say tough shit!

If you want to stand up and attack someone's rights in a court of law you give up your right to privacy.

The real argument is that the opponents of this case want to keep the case as quiet as possible so as to stifle debate. Sure they also might be worried that witnesses who are anti-gay may be harassed, but so be it.

After Proposition 8 was passed people who donated money and publicly supported the bill were harassed by gay groups. I laughed at this article which detailed the harassment of proponents of Proposition 8 - which 'included at least 1 death threat'.

Oh baby!

What about all the people who have been murdered for being gay? Or beaten up to within an inch of their lives? Or those people that get fired when their boss finds out they are gay?

Matthew Shepherd anyone?

Give me a break!

I wear my sexuality as plain as the day I am born, so don't give me bullshit about not broadcasting the trial because some witnesses may get harassed.

If you don't want to get harassed then give people their EQUAL RIGHTS and stop encouraging discrimination and hatred.

The case itself is complex and a very dangerous play for gay rights, if it fails and the US Supreme Court upholds that Proposition 8 is constitutional it will destroy any chance of same sex marriage for the foreseeable future.

Not just will it send gay rights backwards, BUT it could also legitimize discrimination against same sex people on a Federal level.

The case hinges on:

Proving that Proposition 8 violates the U.S. Constitution's equal protection clause by targeting gays and lesbians without any government justification for excluding them from California's marriage rights.

The opponents of the case are going to have to back up their claim that the state should reserve marriage to heterosexual couples mainly because of what they say is the procreative purpose behind marriage. - source

Mind you the opponents are playing a dangerous game as well, the main argument being used is that marriage is about producing children, which could backfire on them as well.

There is no real chance that the court will find that marriages in which couples are not able to procreate, (through age, disability etc) are illegal but it's an interesting thought.

I have been reading a lot of online articles on the case both from a pro and against perspective. The main thrust of the opponents seems to be all about religious freedoms, IE they will be forced to alter or change their religious beliefs.

Kind of a stupid argument in so far that up until the 1960s and 70s discrimination against women and the black community was a deeply held religious belief. Even apartheid invoked the religious beliefs of its proponents.

It is widely expected that this trial will go in favor of the plaintiffs, and even the defendants pretty much believe this too and are saving their ammunition for the US Supreme Court.

This is going to be a long and very drawn out process and I am pretty sure we are going to see HUGE protests and huge amounts of hand wringing and cries of 'what about the children'.

Some interesting articles are:


At Thu Jan 14, 08:28:00 AM EST, Anonymous BK said...

This case is confusing. The way the US law has it in terms of it being played out in the courts, as of right now the constitutional change stands and the only way that is going to be changed is if the plaintiff side (those who WANT gay marriage) can prove that the change is discrimitory. They have to build a case that can withstand the defendent (opposition side) cannot destroy. The plaintiff's best chance (again the pro-gay side) is by arguing first that this is not a moral question but a legal one (discrimination as a legal suit which is backed by the civil rights legislation specifically the section 504). The second prong should be the argument that marriage, while it started out as a religious standing, has been adopted by civil code and has now become a contractual partnership (just like a business deal. In the states, a marriage IS NOT official until it has been preformed by EITHER a magistrate of the state *county clerk, judge, etc.* or a person who is certified to preform the cerimony). Basically the main hinge factor is that since Marriage in the US is a LEGAL matter and officialy recognized by the state, that by not allowing two individuals to make a contract with one another is a violation of the Contractual clause of the American General (Federal) Government's Constitution.

One of the biggest issues that proponents to prop 8 (opposed to gay marriage) have cited as a reason to keep prop 8 is the "sanctity of marriage." This stems from the chruch's standpoint on non-reproductive sex (hence their stance on birth control). However, this stance takes into account only the Christian Church's view. Religion is a touchy subject, and in general it is assumed that religion=Christianity in the US. However, this question is not a religious question because, in conjunction to the reason cited above, religion simply entails different things to different people. This question is such an issue in American law, which is rooted in both Biblical law (citations from Augustine, Russeau, Aquinas, and others are common in the notes from the convention) as well as English Civil law which comes from precidence and has its origin in the Manga Carta, that the US Supreme Court established a test to aid in testing whether a law or statute is, for lack of a better description, too secular.

If Propisition 8 stands, it will set precidence (which is HUGE in US courts) for the government to get involved in business deals and basicially say "no, you two cannot do business" for whatever reason. Granted this outcome is a bit of a stretch, but stranger stuff has happened (Tomatos are scientificially a fruit, but legally in the US they are a vegetable).


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