Streams

Arguing Prop 8

Thursday, March 05, 2009

The California Supreme Court is hearing arguments over the validity of November's vote banning gay marriage in the state. William Eskridge, John A. Garver Professor of Jurisprudence at Yale and author of Dishonorable Passions: Sodomy Laws In America (Viking Adult, 2008), discusses the possible outcome.

Guests:

William Eskridge

Comments [71]

Carole from NYC

I am a lawyer in New York City. I am married and straight. I have a very simple solution that I believe would satisfy both liberals and conservatives on this issue.

This is a separation of church and state issue and that is the solution. People opposing "gay marriage" say that "the defintion" of marriage is the holy union of a man and a woman. If that is true, then why should the state offer such a "holy union" -- to gay couples or to straight couples, for that matter? I believe it should not. Every couple that wants the legal rights accorded by the state (inheritance, hospital visitation, child custody, etc.) should be offered some sort of civil union" from the state. Then they can be free, of course, to get a "marriage" from whatever religious institution they want. Or they can get on the "board' of their church and lobby to exclude gay marriage there, if they choose to do that.

Keep the religious ceremony and rights in the church, and keep the legal contract and legal rights in the state. Simple

It seems I agree with "R Lewis" who posted a similar comment yesterday.

Mar. 06 2009 11:36 AM
eva

In the run-up to the 04 and 08 elections, gay marriage scared away a lot of former and potential supporters from the issue, who didn't want a repeat of 04. (In 04, conservative churches out west were so successful at wielding the brickbats of abortion and gay marriage to whip up their voters that it 1) contributed to the re-election of W., and 2) set the cause of domestic partnerships/civil unions back in a significant number of states.)

I have no idea why the issue seemed so timed to the last two elections, but now that the 08 election is over, and liberals have won back the WH, it's gotta be time to set and hit some attainable goals on marriage equality, so we can all move forward on issues that, dare I say it, are more important, both to the gay and straight communities.

This requires action and in some states, just a little patience - if you look at the younger generation's perspective on gay marriage, you realize federal marriage equality isn't that far off. In fact, had the No on 8 campaign been managed better (my cat could have done a better job) Prop 8 could never have passed.

Mar. 05 2009 01:59 PM
Leigh Ann from ifton, NJ

I wish I could understand how we, as a nation, got to this point. I think all couples deserve the same rights my husband and I take for granted. And if they do not they should not have the same responsibilities. Why should a gay person pay into Social Security if their partner will not be able to claim benefits? Why should their children not be permitted to have married parents. And why is a committed couple considered morally wrong? What impact does gay marriage have on my marriage?? Maybe we should be more concerned with preventing abusive marriages not denying a whole group of people with a basic human right.

Mar. 05 2009 01:35 PM
hjs from 11211

truth
thanks for the vote

Mar. 05 2009 01:10 PM
the truth from Atlanta/New York

...Queen?

Mar. 05 2009 12:55 PM
the truth from Atlanta/New York

HJS if you were a Black man in Africa you would be a King.

Mar. 05 2009 12:54 PM
the truth from Atlanta/New York

"homo persons" LOL after all its just words righ HJS?? LOL

Mar. 05 2009 12:54 PM
hjs from 11211

jgarbuz
that is the craziest thing ever.
hetros do this also and since 95% of people are hetro, 95% of illegal adoption is done by hetro couples. please think up a new reason to deny human rights to homo persons. that one wasn't worth typing out!

Mar. 05 2009 12:41 PM
hjs from 11211

truth
minority IS anything outside of the majority
if i was a black man in Africa am i still a minority. marriage & minority are just words

Mar. 05 2009 12:30 PM
longstreet from NYC area

Gays will most likely win the day on this fight. Yet it will be a temporary victory, though, as the future belongs to "breeders" (like me). All of this will all be little more than an odd footnote 50 years from now. My side cannot lose in the long run.

Mar. 05 2009 12:27 PM
the truth from Atlanta/New York

Thank you #55 & #58...there is no magic in marriage. bah humbug!

Mar. 05 2009 12:26 PM
jgarbuz from Queens

Gay adoption opens up a market for babies purchased from poor families who can't afford to raise their child. In a small minority cases, it does include true orphans, or children genuinely abused, but in most cases it means breaking up a poor family because the rich gays can afford to buy one. It has gone international, but even other poor countries are now cracking down on having their babies sold abroad. This is my primary objection go Gay Marriage, that it can impinge on the natural rights of poor families to keep their children even if they are afflicted by poverty. Otherwise, I don't care who sleeps with whom, or what God thinks about it. That's their business. Society's interest is in preserving child production and keeping families from being destroyed just because they are poor.

Mar. 05 2009 12:25 PM
the truth from Atlanta/New York

SEE POST #1 - Have a good afternoon ALL - gay and not.

Mar. 05 2009 12:24 PM
jgarbuz from Queens

Government's interest in "marriage," or more precisely, is mainly in the production and rearing of the next generation of soldiers, workers and tax payers. That is why marriage was subsidized by various tax breaks for getting married and purchasing a home. Most people died relatively quickly after their children were raised. That has obviously changed.Today people get married for all kinds of strange reasons having little or nothing to do with child production and rearing. I personally don't understand why people want to do this, other than for property purposes, but I suppose there is some kind of "psychic reward" or need to feel they've got some kind of contractual or spiritual hold on the other party. Of course, that is no longer true in reality.

Mar. 05 2009 12:18 PM
the truth from Atlanta/New York

HJS it is all of that and that is just it I DONT CARE...I keep telling you all you are missing the point, marry a cow, I don't care, just don't liken yourself to a minority group!

Mar. 05 2009 12:16 PM
hjs from 11211

Suran 25
that must have been a joke but you didn't give us the punch line

Mar. 05 2009 12:13 PM
jgarbuz from Queens

Before there was such a thing as "property" there was no marriage. Who cared who's kid was who's or who was sleeping with whom? What did it really matter? The most powerful male got to impregnate all the females he could defend until a younger stronger challenger came along to dethrone him. But this eventually led to a lot of killing when we began to use tools and could now hit someone in the back of the head and kill the big guy. So some system of "more equitable" distribution began to emerge, and eventually became ritualized.

Mar. 05 2009 12:12 PM
Lance from Manhattan

Whether same-sex attraction is genetic or is a choice is a distraction. It's not relevant. The issue is whether government should deny a class a citizens equal rights under law.

Can government deny rights to people who choose to believe that the Bible is the word of God? Why should government be able to deny rights to people who "choose" to be attracted to others of the same sex?

Mar. 05 2009 12:10 PM
jgarbuz from Queens

Our bonobo chimp ancestors had no such thing as "marriage." Marriage is a MAN MADE (and I use the world "man" very explicitly) created to protects MAN's right to his children and property not being usurped by some cuckolder. That is why the ceremony includes an audience of witnesses to the ritual so that any offspring thereafter had better be that of the husband's or it was "curtains" for the wife! There was no DNA paternity tests in those days, so you had to know who was the legitimate heir to your property, and hopefully not the milkman's issue.
Marriage was really all about protecting man's right to children and accumulated property. The fact it was ritually or "relgiously" sanctioned is really incidental to give the imprimatur of "God's Will." But really it was man's will. But it also gave women a claim to the man's support as well.

Mar. 05 2009 12:04 PM
hjs from 11211

truth 28
what is "historical meaning of marriage"
where men "owned" women
where there was not divorce?
where blacks were not allow to marry white?

what in a word. why do u care who someone else marries

Mar. 05 2009 11:59 AM
the truth from Atlanta/New York

Josh my point is exactly that, no signing of a piece of paper is going to change negative human behavior. There is no magic potion for that, certainly not in legalizing gay "marriage".

I have a gay friend and all he wants is to have his gay union acknowledged on paper so he can get on his partners insurance benefits to get his hernia repaired,not my words his.

I'm just trying to open your eyes Josh.

Mar. 05 2009 11:50 AM
Josh from Brooklyn

The truth, you miss the point. It doesn't matter if you think being Gay is equal to being black or not. The point is discrimination. You are discriminating against someone. Plain and simple. You are telling a person, no matter who they are, that they can't do the same thing you can. That makes you prejudiced. Civil Unions are not the same thing as marriage. also, why can't they use that word anyway? because you say they can't? Because the bible says they can't? because the church says they can't? Who gives you or them the right? What part of all men are created equal do you not understand?

Mar. 05 2009 11:43 AM
jgarbuz from Queens

To Josh from Brooklyn
I lived and was married (and divorced) in Israel back in the 1980s, and only too familiar with what goes on there. It doesn't matter if you are an atheist or whatever, if you want to get the status called "married" you have to do it under the aegis or the Rabbinate, or the Muslim authorities or your church. You do have the option of living "common law" in a recognized civil union which really accords almost all legal rights, or you can fly to a nearby country, such as Cyprus, that has civil marriage, and their marriage certificate will be recognized as valid by the State for most purposes. But the Rabbinate will not marry a Jew to a non-Jew. The Muslims will not marry a Muslim female to a non-Muslim. And I have no idea what churches do.

Mar. 05 2009 11:43 AM
Josh from Brooklyn

post 44, was directed at The Truth:

Mar. 05 2009 11:36 AM
the truth from Atlanta/New York

The issue is not in the word minority, majority or marriage.

There are many "unions" formed outside of marriage other than gay ones.

Gays want to legalize their specific union so that they can visit in the ICU, add partners to health benefits, inherit said benefits after partners death etc...I get that, you all keep missing my point, to be gay is never going to equal being Black, Latino, Asian ever!!!!

I hope you all get everything you are fighting for. If you can get more people to come out of the closet you will increase your odds but I suspect they are secretly voting with you anyways.

Mar. 05 2009 11:36 AM
Josh from Brooklyn

jgarbuz. In Israel (I can't speak for Arabs), Jews can choose for secular marriage. In fact, most Jews in Israel are secular, not religious. It is the religious jews actually who have to choose.

Mar. 05 2009 11:36 AM
Lance from Manhattan

Suran[25], if your parents truly no longer speak to you solely because you are heterosexually married, then they are bigots, and there is no excuse for their behavior. But surely there is more to your family's story.

Are you saying that the basis for your feeling uncomfortable with legalizing same-sex marriage is that only heterosexual couples can be good parents? For that matter, what does 'being a good parent' mean to you?

Studies have shown that children who grow up in families with same-sex parents are as well "adjusted" as those who grow up with opposite-sex parents. And most children of same-sex families turn out to be heterosexual.

Mar. 05 2009 11:34 AM
Josh from Brooklyn

you're point. What, straight married couples don't act this way? If not over sexuality, they'll be something else. I know plenty of people who don't speak to their parents who have difficulty. It could be alcholism, mental illness, or just plain bad parenting. Should we not allow them to marry too? is that what you're saying? Did you come from a norman rockwell painting. I sure didn't I went a long time having trouble. I'm white, professional, heterosexual, married in a synogogue. Oh, wait, its not a Catholic Church. Am I married?

Mar. 05 2009 11:33 AM
jgarbuz from Queens

In Israel and most Muslim countries, "marriage" is not a state or civil function. It is a religious function to be carried out by either the Rabbinate, Imammate, or the Church. However, "common law" civil unions of all kinds, heterosexual and homosexual are legal and binding
covering taxation, child subsidies, property issues and child custody issues by the regular secular courts. However marital issues are generally decided by the religious courts, be they Jewish, Muslim or other, unless the couple mutually agrees to having them decided by the regular secular court system.

Mar. 05 2009 11:32 AM
the truth from Atlanta/New York

SEE POST #25

Mar. 05 2009 11:27 AM
Brian Lehrer Show Producer from Varick St.

[[BL Moderator Writes: This is a difficult and controversial subject. In general, this message board has been productive, but please remember to refrain from name calling and uncivil posts. Thank you.
-BL Show-]]

Mar. 05 2009 11:26 AM
soren from brooklyn

"The Truth," gays ARE "people who are experiencing real issues of discrimination." We all know you're film on this. We feel your, um, passion for the issue. Are you also firm on the earth being flat? You're actually incorrect. You're firm on a fallacy!

Mar. 05 2009 11:25 AM
longstreet from NYC area

Nice try, again, Leo. You are lost in the fog.

Mar. 05 2009 11:21 AM
Leo from Queens

The Truth: I must say you have been brainwashed and made ill by whomever taught you your values. I believe it's YOUR choice to be bigotted and ignorant

Mar. 05 2009 11:21 AM
Josh from Brooklyn

If gay is not a minority, why can't they share in the majority's rights? The majority can marry, if gays are now in the majority and not a minority, it stands to reason they can marry.

Mar. 05 2009 11:21 AM
Benny from Jersey City

Leo, "It is up to the states and that is what gays are fighting for, to remove these restrictions that do not exist in the constitution"

But we can't RELY on the states. The states are incapable of changing FEDERAL LAW. There are some 1100 laws we have no access to even if we ARE legally "married."

And for the person saying we need "another word," that's fine and dandy but we need the same exact rights. This is NOT an argument over the "word." That is a Republican red-herring.

Mar. 05 2009 11:20 AM
the truth from Atlanta/New York

Phoebe I believe you and I have had this conversation before and I still say EVERYONE is entitled to their civil rights and to be respected as a human being in general.
Life Liberty and the Pursuit of Happiness, yada, yada...BUT..stop trying to line this marriage argument up with people who are experiencing real issues of discrimination based on race, skin color, gender etc. I am firm on this..being gay is not like being a minority unless you are a minority as well as gay.

Mar. 05 2009 11:19 AM
Josh from Brooklyn

The truth:

Why should gays adopt anything. Don't they have the right as human being to participate in society. What gives you the right to tell them what they have to do or can't. This arguement of the "historical meaning of marriage" is bogus. We're talking about the present. Gays are human beings. Gays are tax paying law abiding citizens. Gays want to marry. You have absolutely no right to tell them they can't. period. you say they can't because you don't like sharing a word with somebody. Get over it you bigot

Mar. 05 2009 11:18 AM
Benny from Jersey City

Listen we are only GAY because YOU say we are. It is a cultural definition assigned to people that are attracted sometimes or always to the opposite sex.

This divide would irrelevant if we didn't have all this marriage dogma.

Mar. 05 2009 11:15 AM
jtt from nyc

I guess the truth won't set you free...

Mar. 05 2009 11:13 AM
Leo from Queens

Longstreet #15 : Thank you for making the argument for me. The US Constitution was not created to restrict rights for sets of people and it was not created to legislate what people can and cannot do in the privacy of their homes. Therefore sodomy does not figure in the Constitution and there IS NO NEED to modify the constitution to either legalize or restrict sodomy. There also is no need to change the constitution to grant a specific right to marry to a group of people when the constitution makes no restrictions on marriage. It is up to the states and that is what gays are fighting for, to remove these restrictions that do not exist in the constitution
It is people like you who go about every time there is an election instilling fear in people by pushing for amendments to the constitution to RESTRICT rights against specific groups of people!.

Mar. 05 2009 11:12 AM
Phoebe from NJ

Truth: That is as bigoted as claiming genetic inferiority for other races. Have you examined where you got these views as they are not scientific or rational.

Mar. 05 2009 11:12 AM
Josh from Brooklyn

Besides, what difference does it make whether it is genetic. Does that mean they're any less of a person? or did you not read the constitution "all men are created equal"

Mar. 05 2009 11:11 AM
the truth from Atlanta/New York

There has got to be another word the gays can adopt for what they want to do, do not change the historical meaning of marriage, between a hetersexual male and a heterosexual female.

I belive this is about insurance benefits, inheritance, and taxes.

Mar. 05 2009 11:10 AM
soren from brooklyn

The Truth from Atlanta! I love it. I guess that is the truth in Atlanta.

Mar. 05 2009 11:10 AM
Sara from Jersey City

Noah from Crown Heights:

"Why has marriage become to forefront of queer activism? "

Well I'm in it because I need to marry my boyfriend because he is a Foreign National. The idea is that if the government recognized our unions rather than BANNING them we will open the door for more acceptance. Those things you mentioned are not being denied anyone.

Mar. 05 2009 11:09 AM
Suran from Jackson Heigths, Queens

As the only straight child of a gay couple, I pause at the idea of gay marriage: often it is used to reinforce the coercive decision to "raise your family 'gay'". My parents have a very hard time accepting my heterosexuality: they no longer speak with me now that I am heterosexually married. Growing up hearing tons of "breeder" and anti-woman jokes at the supper table, I wonder if gay marriage will not entitle and entrench these ugly prejudices, sweeping them under the carpet of "domestic affairs".

Mar. 05 2009 11:09 AM
Josh from Brooklyn

The Truth:

Are you gay? So how do you know whether it is genetic or not. You're just a bigot who wants to discriminate against what you don't understand. Are you an addict? I don't think you should be able to vote, but if you stop being an addict you can.

Mar. 05 2009 11:07 AM
soren from brooklyn

"truth," you're simply incorrect on this one. read up on the subject. that you believe something doesn't make it so.

Mar. 05 2009 11:07 AM
jtt from nyc

theres no "vaginal intercourse in the missionary position" clause either.

That's because it's no one's damn business.

Mar. 05 2009 11:06 AM
Josh from Brooklyn

I don't understand how people can be such bigots. Since when can the church, or anyone for that matter, tell someone else how they can live. Who decided that the church had the monopoly on marriage? I don't believe in the bible, does that mean I'm not entitled to be a person because they say I can't? I once had a girlfriend whose parents were catholic and protestant and he was married before. The catholic priest said he'd marry them if they paid the church a $10,000 "fine", since the bible said so.

Mar. 05 2009 11:03 AM
the truth from Atlanta/New York

It is NOT built in like melanin. It is not genetic. I believe you have certain cells when born male or female, they maybe altered in your youth by sexual abuse, short circuiting the natural urge and preferences towards sex, but I believe it is most certainly a choice, NOT like skin color.

You can NOT be gay anymore, one can not choose to have more or less melanin in their skin.

Mar. 05 2009 11:02 AM
Noah from Crown Heights

Why has marriage become to forefront of queer activism? How have upper middle class white men and women co-opted a radical movement that sought to end homophobia, provide health care for homeless HIV/AIDS positive youth, and celebrate our sexuality not try and contain it in the capitalist heteronormative institution of marriage?

Mar. 05 2009 11:01 AM
Sara from Jersey City

"Perhaps you can point me to the sodomy clause of the Constitution?"

That would be in the 14th amendment.

Mar. 05 2009 11:00 AM
soren from brooklyn

is this a joke? does your guest really have to differentiate between polygamy and gay marriage for the bigoted caller? ridiculous. it's always the same: "soon they'll be marrying dogs and dead people!"

Mar. 05 2009 10:58 AM
78t6


gay marriage fine
polygamy fine
dog-man marriage fine

i just don't want to pay for it or see any of it on tv!

This is america -- who cares!!!

Mar. 05 2009 10:56 AM
longstreet from NYC area

Leo:
Nice try. Perhaps you can point me to the sodomy clause of the Constitution? Oh, wait, it's not there. What is there, is a mechanism to amend the constitution, which you don't want to to do because it's too hard.
That's you're problem, not mine.

Mar. 05 2009 10:56 AM
Sara from Jersey City

If this fails then this can move up to the Federal level?

Mar. 05 2009 10:56 AM
Phoebe from NJ

Truth: Being gay is on a "sexual preference". It is in-built, the same as the color of one's skin. There is nothing more hurtful that those who have fought hard for their own civil rights, refusing to recognise those of others.

Mar. 05 2009 10:56 AM
Jesse from Ridgewood

The other argument from conservatives is that Gay people are not being denied the right to marry (women) or heterosexually.

That is not exactly correct. If I a gay man were to try and marry a foreign national female and indicated I was a homosexual I would be denied sponsorship rights for her.

Mar. 05 2009 10:55 AM
Alex from Queens

Boo-Hoo! This is California's own fault for making it so easy to change their constitution. You can't now say that this proposition is unconstitional when it changes the constitution itself. One side lost and one side won. Now, both sides go back and prepare for round two.

Mar. 05 2009 10:54 AM
Bo from Brooklyn

Hey "Truth" from Atlanta...when exactly did you decide you "preferred" your sexuality? It's not a preference...a preference is a decision.

Mar. 05 2009 10:54 AM
Jesse from Ridgewood

Mark - The difference is GAY is NOT ALWAYS A CHOICE!

Mar. 05 2009 10:54 AM
the truth from Atlanta/New York

Tired of talking about this. Civil Right yes, for racial minorities, not for sexual preferences. Stop this.

Mar. 05 2009 10:53 AM
Bo from Brooklyn

Matrimony is a religious ritual. Marriage is a civil contract. Never the twain shall meet. Churches shouldn't even be involved. If you want a church blessing, that ought to be separate. Otherwise the constitution is explicit about equal protection, equal rights. I pay my taxes...I want my rights.

Mar. 05 2009 10:52 AM
RLewis from The Bowery

Thinking outside the box: this should be a seperation of church and state issue.

There should be legal proceeding to join 2 people just like seperating them no matter who or what they are. And then churches should be able to marry whomever they like.

As long as church and state share the rules of this issue, it's gonna be a big ole problem for all of us.

Mar. 05 2009 10:52 AM
Jed Justiniani

You can watch the oral arugments live on http://calchannel.com/.

Mar. 05 2009 10:52 AM
Leo from Queens

Longstreet #1 - I believe gays, as most other minorities, need to go to the courts and continue to fight for their civil rights because usually the majority of Americans, like you, do not understand the principles and values enshrined in the US constitution. People like you usually enjoy having groups of people under their foot with fewer rights than the majority in order to drag them out once in a while and use them as scapegoat for whatever ill affecting society at the time. It's always good to have someone to abuse. Thus minorities have to constantly fight for their basic rights.

Mar. 05 2009 10:49 AM
Josh from Brooklyn

here lies the problem. Gay marriage is not a "social values" question. It is a civil rights problem. Aren't they human beings like everyone else. Not too long ago, interracial marriages were illegal. Slaves were considered 3/5ths of a person. Gays are not second class people. They deserve the same treatment as everyone else. Civil unions don't count. Its the same thing as separate but equal, which was also deemed illegal. By the way, all these problems were corrected by the courts, not legislation. people, the courts are for allowing redress. That's the whole point of them. Do you have any idea how hard it is to pass amendments? its rigged to the ultra majority.

Mar. 05 2009 10:48 AM
Betty Anne from UES

I can't for the life of me understand where this all ends. Even if this is ruled "invalid" what is stopping future votes to ban gay marriage again? It seems to me the battle for gay marriage is being lost because both Democrats and Republicans presume it is a state issue and then leave it at that. Marriage is above all a FEDERAL ISSUE and it is protected by the Equal Protection Clause in the constitution (see 'Loving vs. Virginia).

When will gay marriage cases reach federal courts? I can't sponsor my partner of 6 years and immigration laws are FEDERAL. Why are people "married" in churches but divorced in courts if this is NOT a civil rights issue?

Mar. 05 2009 10:23 AM
longstreet from NYC area

There is no case here. Prop 8 passed, and gays lost. These outcomes happen all the time and people lick their wounds and move forward, give up or try again. Apparently that's not how it works anymore, though. No, as usual gays must always go to judges to circumvent the democratic process and jam their agenda down our throats (sorry to titillate).
This case should be dismissed. It's a farce, but, then again, that is congruent with the trajectory of this country.
Given that, the hope here is that CA's extra tear gas and riot gear is being acquired with stimulus money!

Mar. 05 2009 09:45 AM

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