What is an "inalienable" right?

[AntiFascist]

Watching the oral arguments before the CA State Supreme Court in the Proposition 8 cases, I was struck by the fact that no one could seem to define what an inalienable right is. State AG Jerry Brown's argument, as argued before the state Supreme Court, is that Prop 8 is unconstitutional because an amendment cannot be used to eliminate a fundamental right which falls out from the inalienable rights of liberty and pursuit of happiness which were spelled out when the state constitution was first established. Kenneth Starr, arguing in support of Prop 8, seems to argue that The People of the State have the inalienable right to eliminate anyone elses rights, whether they are a protected minority or not, because they hold the sole power to shape the Constitution as they see fit.

Many years ago I married my first same sex partner in a ceremony that was not recognized by the state of California. We exchanged rings and we wore the rings while we were married. I did not expect to be arrested or cited for getting married, but I did know that the state would not recognize the marriage. However, I maintain that I held the INALIENABLE right to get married in a private ceremony surrounded by friends whether it was acknowledged by the State or not. I felt that I had the liberty to participate in such a "marriage" ceremony (we did not want to call it anything else) and that this was a very important path to take in our pursuit of happiness.

Now, after being legally married last October, I and my partner have the privilege of being one of the few same sex couples in California whose marriage is recognized by the state. If this privilege is taken away on Tuesday, we will continue wearing our rings and referring to each other as spouses. This is what an INALIENABLE right is all about. The pursuit of happiness that we seek to achieve in this case cannot be taken away by outside parties, no matter how much they may wish to impose their religion on our lifestyle.

State imposed bigotry will not and cannot be allowed to stand. I encourage all of my gay and lesbian brothers and sisters to go out and get married if you feel that it is right for you. Demonstrate to your state and federal government that they cannot restrict your liberties or your pursuit of happiness. By all means, exercise your inalienable rights and don't allow others to stop you in the name of their own inalienable right or religious belief. Don't allow them to restrict your use of language...call it MARRIAGE!

[elleng]

1. Inalienable =

not alienable; not transferable to another or capable of being repudiated

[WillParkinson]

2. Unless you're gay...

And the Republicans say you haven't any.

[rock]

3. That is correct

In particular, note that you cannot give it up even for yourself.

[Towlie]

25. So says dictionary.com. Do you have it on your Google home page like I do?

http://dictionary.reference.com/search?q=inalienable

If that's correct then it has interesting implications. It means that in the case of inalienable rights, one can't argue that "he gave up that right when he did that", or "waived that right when he signed the document".

[elleng]

26. Correct.

.

[bluedawg12]

4. Interesting question.

"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." --Declaration of Independence as originally written by Thomas Jefferson, 1776. ME 1:29, Papers 1:315
" principles founded on the immovable basis of equal right and reason." --Thomas Jefferson to James Sullivan, 1797. ME 9:379

The basics: that among these, are life, liberty, and the pursuit of happiness.

Then comes government and the rule of law: that to secure these rights, governments are instituted among men.

Now, the problem. The conservatives say that laws are made by the people and in the case of Prop8 it is the will of the people to define marriage a certain way, so the people have exercised their rights.

But, not so fast.

There is another principle, where pre-existing laws have been established and those very laws are applied unequally.

This goes back to the tyranny of the majority, the “taking away of existing rights.”

"An equal application of law to every condition of man is fundamental." --Thomas Jefferson to George Hay, 1807. ME 11:341

"The most sacred of the duties of a government to do equal and impartial justice to all its citizens." --Thomas Jefferson: Note in Destutt de Tracy, "Political Economy," 1816. ME 14:465

"An equal application of law to every condition of man is fundamental." --Thomas Jefferson to George Hay, 1807. ME 11:341

"The most sacred of the duties of a government to do equal and impartial justice to all its citizens." --Thomas Jefferson: Note in Destutt de Tracy, "Political Economy," 1816. ME 14:465

"To unequal privileges among members of the same society the spirit of our nation is, with one accord, adverse." --Thomas Jefferson to Hugh White, 1801. ME 10:258

" best principles secure to all its citizens a perfect equality of rights." --Thomas Jefferson: Reply to the Citizens of Wilmington, 1809. ME 16:336

"In America, no other distinction between man and man had ever been known but that of persons in office exercising powers by authority of the laws, and private individuals. Among these last, the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar." --Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:8

"Of distinction by birth or badge, had no more idea than they had of the mode of existence in the moon or planets. They had heard only that there were such, and knew that they must be wrong." --Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:89

The legal status of marriage is a civil right granted by States. It is unclear to me how those rights can be granted for some and yet denied to others, without cause.

What cause could deny such rights?

They already exist, laws about marriage between first degree relatives, a minor and an adult, multiple adults, adults and animals. So, the “Santorum man and dog argument” is none sense fear baiting.

What is the compelling justification that would abridge the rights of two consenting adults to marry, wether of the same sex or of different sex?

None.

DOMA denied those rights to entire class of people on a nationwide, Federal level.

Proposition8 actually overturned rights - abrogated existing laws.

Taking away an existing rights is even more despicable than denying them in the first place. That alone has created havoc in the lives of 18,000 couples legally married in California, that is clearly removing an inalienable right, legally granted to all, extended to clarify that it should be inclusive of same sex couples then abrogated by the shifting will of the so called majority. Shifting, because now written into law, the very mood of the people is changing, while Prop8 is codified, the will of the people is not. That’s why laws taking away existing rights, or taking away inalienable rights should not be subject to the will du jour of the majority. PropHATE8 should have been illegal and unconsitutional.

[AntiFascist]

5. Exactly...

I found it somewhat distressing while watching the oral arguments that some of the justices seemed to refer to AG Jerry Brown's theory as "quaint" or outdated, yet at the same time they admit that this is a novel question where they have never been asked to rule on an issue like this before. At least they seemed to be able to reach a consensus that they are being asked to rule whether or not it is legal for The People to remove a FUNDAMENTAL right from a protected minority (SUSPECT CLASS) of people (without good cause) through an amendment. One of the points of Jerry Brown's argument seems to be that this is more than just a typical fundamental right, it is one of the core inalienable rights that goes straight to the heart of protection of liberties that is at the basis of the constitution.

Another problem is that we have allowed the religious right to frame this argument for so long. We have allowed them to label gay marriage as being legal or illegal, rather than as an issue of whether the state should recognize gay marriages or not. Now, many gay people feel that they shouldn't get married simply because it is not legal, and many are talking about referring to their union as a civil union. When it comes to an inalienable right, what the state dictates and what people actually do can be two separate things. We have also allowed the religious right to stake the claim that gay marriage is somehow an infringement on their inalienable right to practice religion. Are we so brainwashed that we will let them get away with this? Unfortunately Kenneth Starr was very eloquent in slipping this into his arguments.

[bluedawg12]

17. The Court should hold fast to their original view, that rights of a minority cannot be denied.

The way I understand the hierarchy of rights is that over arching are human rights: life, liberty and the pursuit of happiness.

Under those very broad terms come specific definitions. The right to codify a relationship between two people as a civil marriage. That comes under pursuit of happiness or fullness in life. Civil marriage is a contract conferring certain rights and obligations and protections and benefits. For example, heirs, children, property and so on down the line to include over 1,200 Federal benefits and many local State benefits.

That seems to me to be why marriage exists under civil jurisdiction and has for a long time. Historically ,it had nothing to do with love, romance, or religion it was a contract and it was the “union” of two houses, or families and ensured inheritance and property issues. In modern times marriage has come to symbolize love and commitment as people do get married and either cannot have children and heirs or opt not to do so, yet they enter into a civil marriage contract.

Given that marriage does exist as a civil right in the United States, it then seems unreasonable to withhold that same right from a minority without good cause and that’s where I see their biggest hypocrisy in failing to extend that civil/legal right.

Anti-fascist, you are right, the RRRwing has framed it in many ways and none hold water.

1.) Infringement on religious beliefs- not true.

2.) Gays don’t have kids - not true.

3.) Gays make for bad parenting–the “protect our kids” argument. Not true.

As you say, a suspect class, an oppressed minority has been denied a civil right without any plausible justification for society in doing so.

I think by now I have heard most of the arguments against marriage equality and none hold up to scrutiny, so much so, in fact, that the CSSC struck down the law barring same sex marriage and then by dint of a popular vote (HATE8) by a small and ever changing majority they ran around the Court and passed an entirely new law PropHate8 taking away those rights. If the CSSC has any decency, instead of playing games with the meaning of “Proposition” and “Constitutional Amendments,” they should stand up and hold fast to their original opinion that such discrimination is illegal and passing a new illegal law is not a viable end run.

[AntiFascist]

18. Playing devil's advocate for a moment...

the Court argues that their power is limited compared to the power of The People. One justice brought up the ruling against capital punishment, where the Court decided that the death penalty was morally reprehensible and infringed on the individual's inalienable right to life. The People later passed an amendment essentially "overruling" the judgement of the court and allowing the death penalty to continue.

I think the main point to argue against the above paragraph is that the class of homosexuals is not the same as the class of criminals, who have limited rights to begin with. If the people really were motivated to exercise their power, then they could do so through the procedure for passing a Revision to the state constitution. The Religious Right probably feels that this would be far to difficult to achieve. Unfortunately, the case history for ruling amendments as being revisions to the state constitution is very limited, so the justices are treading on new ground.

[bluedawg12]

21. There is no compelling social reason to deny marriage equality.

They have used capital punishment as a red herring, a distraction about granting of civil rights. In the first instance it is about removing a civil right, in the second instance it was (before Hate8) about granting a civil right.

Capital punishment is their proxy for demonstrating, "Look, the people can take away inalienable rights. Look they voted in favor of capital punishment."

There are two counter- arguments:

1.) If capital punishment takes away an inalienable right and that is Unconstitutional then re-litigate it, Mr. Starr. Don’t use a law that violates law as an example of how to violate another law.

-Or-

2.) If capital punishment takes away an inalienable right and that is Constitutional - then show a compelling reason for society why it is Constitutional.

Likewise, in the case of marriage rights - if they want to justify removing those rights, then, show a compelling social reason. I’m still waiting. Haven’t heard any.

On the one hand we cannot say that rights are intrinsic and inalienable, and then, argue that except for criminals who have lost some of their rights. That is their trap. Allthough, that is what Thomas Jefferson said ( see below re: social contract).

They would say, “So, criminals have abridged rights? In fact, society can take away the most fundamental right? Life? See, there are no inalienable rights.” That was Starr’s red herring.

It’s a red herring, in the same way as bringing up polygamy or marrying a donkey is when discussing marriage equality.

Capital punishment should then be re-litigated, if that’s what Mr. Starr suggests. :sarcasm: (Which of course law and order Ken does not want).

It seems to me that the best argument is not in criminal law but in civil law.

Staying on message and reminding people and the Court that matters of civil rights and the equal application of existing laws have been litigated already.

There is a legal frame work to rely on, look at Loving v. Virginia or the CSSC’s own decision in 2008 about why marriage equality is legal.

The Justices (IMHO) or the petitioners, the pro-marriage rights attorneys should have stayed focused on the Court’s own 4:3 decision as this matter had already been tried once.

The rightwing is good at word games, they have played at distractions for so long and it often works. What they did was give those Justices who needed an out an argument to hide behind by bringing up the death penalty.

The other argument is this, let’s assume that the Justices agree that the voters have the right to pass Capital Punishment into law and thus deny an inalienable right, surely there was some debate about why and what the compelling interest was for society.

In this case, denying a civil right must still show a compelling reason to “protect society.”
There is no compelling reason.


BTW- just a quick peek at the death penalty. Good discussion A-F, I am learning a lot!

http://en.wikipedia.org/wiki/Capital_punishment_debate#Law.2C_judiciary_and_the_death_penalty

Some argue, from the perspective of a simplified version of legal positivism, that whatever law passed through legislative process is "legal" and moral and ethical debate is futile. This leads to a consequentialist conclusion that whatever collective consensus achieved through the democratic process is "better" if not "just." That seems to be Mr. Starr's main thrust with his capital punishment by legislative process--when it suits his needs.

Critics of the death penalty commonly argue that the death penalty specifically and explicitly violates the right to life clause stated in most modern constitutions and human right treaties.



Rules of legislative construction
When the constitution does not explicitly exempt the death penalty from the right to life clause, the judiciary are required to interpret the meaning of the clause based on rules of construction. The most common method is plain meaning rule or Golden rule. This is based on strict constructionism or textualism, which dictate that laws are to be interpreted using the ordinary meaning of the language of the statute. In this sense, right to life clauses establish a priori grounds for the prohibition of capital punishment except when it is used as a deterrent to murder. In jurisdictions which practice the death penalty, deterrence is the most common justification cited in the highest court. However, some jurists argue that this may not be the correct legal interpretation, because the plain meaning rule applies only to the extent that they do not produce an absurd or totally obnoxious result, such as removing any a priori justification of punishment. These jurists often advocate social purpose rule, mischief rule or purposive approach which is loosely based on Originalism. Under this criterion, it is possible to go back to the sources outside of legal texts, such as the intention of the law makers or the meaning of the term during the original formation of the concept, which in this case often means 18th to 19th century Europe and America. The proponents of the death penalty may claim, citing such sources as Locke, or more appropriately Thomas Jefferson in the case of the US, that the original argument was that people form implicit social contracts, ceding their right to the government to protect natural rights from being abused. Therefore, protection from abuse is the basis of such rights and those who violate such rights automatically forfeit them.

[Wednesdays]

6. K&R

:kick:

[mike_c]

7. I've always believed that the founders meant rights which had their basis...

...in human rights, not national rights, i.e. not conveyed by governments. Rights conveyed by the state are not necessarily available to aliens-- people without citizenship in that state-- whereas rights held by all humans are "inalienable," not amenable to denial on the basis of citizenship.

[AntiFascist]

9. It would interesting....

Suppose the state supreme court allows Prop 8 to stand, then a gay couple in California later decides to get married in a private ceremony in a very conservative area, then suppose that police catch wind of this and decide to arrest the gay couple for doing something illegal..the gay couple later sues the police department for harrassment. Suppose this case made it all the way to the state supreme court, what libertarian arguments would be used in such a case? Would the justices get away with claiming that such notions as the inalienable right to the pursuit of happiness is quaint and outdated in the present age?

[donco6]

23. Me too.

They weren't specific to the new nation they were forming, but were inherent in the fact that you're human.

[RetiredTrotskyite]

8. Well Said!

My spouse and I married in Canada a couple of years ago and I DARE some fucking bigot to say we aren't. We need to call the thing for what it is--marriage. Let the fundies be upset. Whatever. They are not going to be allowed to say that my spouse and I are not married. I look forward to the day when EVERY state has marriage equality. No half-hearted civil unions with partial rights, but MARRIAGE with the SAME rights as every other couple in this country. No less will do.

[Euromutt]

10. The notion of an "inalienable right" is a bit of a fiction

The idea behind the concept of "inalienable rights" is that they're rights that cannot be taken away from you because you were endowed with them by your "Creator," which presumably means some deity, Nature, or whatever. The problem with the concept is that empirical evidence shows that life and liberty can readily be taken away, and your pursuit of happiness obstructed. You'd think that if this supposed "Creator" had genuinely intended these rights to be inalienable, he/she/it would have made it physically impossible to violate these rights.

So at best, an inalienable right is one regarding which there is a consensus among humans that it can't be taken away. In practice, there's very little that meets that definition.

[AntiFascist]

11. Much of what motivated the Founding Fathers was an attempt to escape...

the religious persecution that existed in Europe. The core idea was that you had the inalienable right to worship "the Creator" in any way you see fit, as long as it didn't infringe upon the rights of others. What we are seeing now is the exact reversal of this: certain Christian religions (namely Mormon and right-wing Catholic in the case of Prop 8) are attempting to impose their restrictions upon the masses, and they have gotten away with this by using fear tactics.

[pinto]

12. Yeah, the question the court is taxed to answer is the constitutionality of Prop 8 itself, not

the legality of same sex marriage rights. They've already ruled, rightly imo, in favor of same sex marriage rights.

This may be why it's taken a while for a ruling. The court's deciding whether Prop 8 is legit, on constitutional grounds, and legit to essentially overturn their own previous finding.

I'm sure they are aware of the social context - both here in CA and nationwide - in this decision. I hope they come down clearly on the constitutional standard and invalidate the proposition. That's what the case is about, in their terms. And a "nay" would set a clear constitutional defense for any further legal action, at least in CA.

The court issued an order to show cause in Strauss, Tyler, and City and County of San Francisco directing the parties to brief and argue the following issues:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 1–4.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

http://www.courtinfo.ca.gov/courts/supreme/SF052609.PDF

[AntiFascist]

15. During the oral arguments the justices were arguing...

that even if Prop 8 is upheld, gays and lesbians would still enjoy all of the rights of marriage based on the previous marriage ruling, we just couldn't call it "marriage". If this is truly the case, then the state of California should have no choice but to rewrite "marriage" licenses to include both marriages and homosexual unions. We should, then, still have the very same rights to obtain a "marriage and homosexual union" certificate.

[bluedawg12]

22. True, they limited it in focus since they already ruled on this matter.

Funny, however, that I heard bits of arguments go far beyond whether the form of PropHate8 was correct or not.

I hope and pray for a "nay" vote, as well.

[nichomachus]

13. Here's how I describe inalienable rights in a piece I wrote after the Prop H8 hearing

(I used to teach the philosophy of rights -- and was appalled at the seeming ignorance regarding inalienable rights exhibited in those hearings.)

To paraphrase Mark Twain, rights are like the weather, everybody talks about them, but nobody gets them quite right.

Nowhere was that more evident than in the Supreme Court hearing on same-sex marriage, when the lawyers and the justices, tied themselves in knots discussing "inalienable rights."

The episode, painful to watch, ended with Ken Starr making the preposterous assertion that inalienable rights could be taken away -- as long as you had a process.

Throughout the hearing, the justices seemed to suggest that in previously acceding to the public’s wishes about capital punishment, the court had somehow allowed voters to do away with the "right to life" of criminals.

Nothing could be further from the truth, and it's appalling to think that the future of Proposition 8 could be decided based on erroneous ideas about rights.

Appalling, but not surprising. In a country where we seem to be talking about rights constantly, most "rights talk" is sloppy. In this case sloppy and dangerous. Rights can be divided into many classifications: legal and moral rights, positive and negative rights, claims, liberties, powers, etc. We need to focus on only two classifications: legal and moral.

Legal rights are granted by the Constitution, the legislature, or the courts. They may coincide with moral rights, but not necessarily. When they do, the legal right recognizes the moral right. It does not create the moral right, and while it can infringe the moral right, it cannot eliminate it.

Legal rights include such things as the right to drive at a certain age, the right to vote, or the right to drink alcohol or to smoke marijuana. These are defined by the people, the legislature, or the courts, and can be changed, expanded, or removed, as Starr said, with the proper procedure.

Moral rights, human rights, or inalienable rights are different. They arise from our status as human beings. They do not come from legislative bodies, courts, or even the voters. They are ours, do not change, and can never be taken away.

They can, however, be infringed. The most dramatic case in our national history was slavery. The slaves had an inalienable right to liberty. Individuals, legislatures, and courts conspired to infringe upon that right. Despite the infringement, despite the lack of a legal right, the moral or inalienable right never went away.

This, in fact, was what made slavery morally reprehensible and a national shame. The slaves had a right to be free. We, as a nation, infringed upon that right. There was the "process" of the type Ken Starr pinned his argument on, but that process never took away the slaves' moral right to liberty. Had it done so, slavery wouldn't have been morally reprehensible. That required the existence of the right.

The same applies with the right not to be killed. During the Prop 8 hearing, the justices kept referring to it as a "right to life," a heavily loaded term that is best avoided. What they were talking about, however, is a component of that -- the right not to be killed.

We all believe that persons enjoy such a right. We also believe that, like liberty, it is an inalienable right. Yet, we still maintain that we are sometimes morally justified in killing people -- whether in war, self defense, or as capital punishment. So, what happens to that inalienable right in those cases?

The common, inaccurate, assumption is that the "right to life is forfeited" or taken away. That, however, complicates the matter and forces people into all sorts of Rube Goldberg-style constructs to work around problems that arise. There is a simpler and more elegant explanation.

Suppose someone is attacking me with a weapon and intends to kill me. I have a gun and, for sake of argument, the only way I can stop my assailant from killing me is by killing him first. Most people would say I am morally and legally allowed to do that. Why? The easiest answer is that by attacking me, he gives me sufficient justification to infringe his right not to be killed. He still retains that right, but I now have the justification to infringe upon it.

Imagine that, while attacking me, he slips and falls, breaks an arm and leg, and his weapon falls into a sewer. He is immobile, writhing on the ground in pain, and I am free to either leave or immobilize him further before calling the police.

What I can't do, from the time at which he no longer is a threat to me, is kill him. This is what creates the problem for the "forfeiting his right to life" argument. They would have to argue that by breaking his arm and leg he somehow suddenly re-acquires a right to life, an inalienable moral right. That makes such rights seem capricious, transient, and arbitrary.

It's easier to argue that what's come and gone is my justification to infringe that right. That justification, always tied to the present circumstances, comes and goes as circumstances change. It is capricious, transient, and arbitrary, because circumstances are.

So, too, with capital punishment. The death sentence does not take away the prisoner's right not to be killed. That right endures. What really happens is that the court decides that the state has sufficient justification -- because of some overriding interest -- to infringe upon the prisoner's inalienable right.

If the prisoner did forfeit his right, or if the court did take it away -- as the justices seemed to think it did -- the prisoner would be fair game for anyone, since he would lack the right not to be killed. We don't believe that. Anyone who killed the prisoner -- other than the proper prison authorities -- would be charged with murder.

Consider cases where the governor intervenes at the last minute to commute the death sentence. If we follow the forfeiting-the-right theory, we're faced with the ludicrous proposition that the governor has the ability to confer inalienable moral rights with a mere phone call.

Governors have many powers. That is not one of them. What's going on is that the governor, as the chief executive, has decided that the state will not exercise its justified infringement of the prisoner's right not to be killed. That is more within the scope of a governor's abilities than conferring inalienable rights.

Thanks to Thomas Jefferson, we can all name, if not define, at least three inalienable rights -- life, liberty, and the pursuit of happiness. But, the declaration says there are more, because it precedes the enumeration with "among these are." Proponents of same-sex marriage make the credible claim that the right to marry the person of your choice falls among those unnamed inalienable rights.

The task facing the court is deciding whether the state or a handful of citizens have sufficient justification to infringe upon that right.

The March 5 hearing was odious in the constant comments linking gays and lesbians with murderers, suggesting they were equivalent as minority groups. Murderers are in their class because of some specific act of theirs. And it is that specific act that provides the putative justification to infringe their right not to be killed.

Gays and lesbians are in their class because of their sexual orientation. What the judges need to decide is whether that orientation, not freely chosen, provides sufficient justification for the state to infringe upon an inalienable right.

If gays and lesbians are not allowed to marry, their moral and inalienable right to do so will not evaporate. It will endure, but it will be infringed upon -- and that infringement will be morally reprehensible.

[AntiFascist]

14. Excellent, thanks for posting this!

I agree that it was quite "odius" seeing the justices consistently comparing the class of homosexuals with the class of criminals. They certainly danced around this issue, but it did seem to be the implication. Of course, the Religious Right would love to have us treated the same as criminals in the eyes of the law. It is usually assumed that criminals forfeit certain freedoms and rights once they are convicted or even suspected of breaking the law. Certainly, it should not be assumed that gays and lesbians forfeit any of their inalienable rights once they 'decide' to pursue a gay lifestyle. Pursuit of happiness is at the core of this decision, and this is the point at which the Religious Right should lose out in a court of law.

Also, I felt that it was very odd that no justice seemed to address the court's sole responsibility to defend the rights of a protected minority group under the equal protection clause. Many of the amicus briefs submitted to the court arguing against Prop 8 were written by groups representing minorities that have little or nothing to do with homosexuals.

[bluedawg12]

20. Good discussion. It's troubling to think the Court may actually reverse itself.

The moral basis of the law was articulated in the Declaration of Independence.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...”


Marriage is a civil-legal right extended to all citizens with certain qualifiers.

One of the qualifiers has been a historial assumption that only different-sex couples would seek to marry. Times change.

Gays demand the same legal-civil rights under the law to achieve their pursuit of happiness and to exercise their liberty in selecting a partner for civil marriage. The California Supreme Court had already ruled on this, which is why PropHate8 came to be.

The Kabuki theater of the hearings with loaded language and arguments about precedent in law such as the death penalty which was used as an example of how the people and the State may take away an inalienable right, in this instance the right of life, or as they evocatively used the phrase, “the right to life,” seems a clever red herring.

“That right endures. What really happens is that the court decides that the state has sufficient justification -- because of some overriding interest -- to infringe upon the prisoner's inalienable right. - Nichomanus”

Yes, that’s pretty much the logic with capital punishment.

However, capital punishment is a very extreme example, emotionally loaded and not a good analogy to marriage equality. No wonder opponents harped on it.

Other examples of civil rights being extended are more appropriate such as: Loving v. Virginia.

Loving v. Virginia, 388 U.S. 1 (1967)<1>, was a landmark civil rights case in which the United States Supreme Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States.

Decision
The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:

“ Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
http://en.wikipedia.org/wiki/Loving_v._Virginia

Also, there is precedent in the 14th Amendment:

...1868 when the Fourteenth Amendment was passed, which stated, in part, that:

“ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ” -wikipedia

Then there is stare decisis and the Court’s own legal precedent in 2008:

http://en.wikipedia.org/wiki/Same-sex_marriage_in_California

On May 15, 2008, the Supreme Court struck down California's existing statutes limiting marriage to opposite-sex couples in a 4-3 ruling.<37> The judicial ruling overturned the one-man, one-woman marriage law which the California Legislature had passed in 1977 and Proposition 22. After the ruling, Governor Arnold Schwarzenegger issued a statement repeating his pledge to oppose Proposition 8, the ballot initiative that would override the ruling.

The opinion, written by Chief Justice Ronald M. George, cited the Court's 1948 decision in Perez v. Sharp where the state's interracial marriage ban was held unconstitutional. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution. Associate Justices Joyce L. Kennard, Kathryn Werdegar, and Carlos R. Moreno concurred.<3> It is the first state high court in the country to do so.<38> The Massachusetts State Supreme Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its gay-marriage ban on rational basis review.<39>

If the CSSC has the courage to stand up for their previous ruling then they must remain consistent. This issue has been tried in Court before and marriage equality rights won.
Nothing has changed, it seems to me, Ken Starr not with standing.

Thanks for taking the time to help us understand some of the basics, nichomachus.
Good discussion.

Interesting handle: http://en.wikipedia.org/wiki/Nicomachus

[donco6]

24. Interesting, and I agree.

Our inalienable right is currently being infringed. Good analysis.

[jberryhill]

16. A Phrase Not Found In The US Constitution /nt

[AntiFascist]

28. It is in Article 1, Section 1 of the California Constitution:

"All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy."

AG Jerry Brown's "novel theory" is based upon this section.

[jberryhill]

29. Ah, didn't realize it was the state constitution /nt

[dickthegrouch]

19. Something only the voters can take away

:sarcasm: (for those who need it.)

[bluedawg12]

27. If we want to know what an inalienable right is - try taking "marriage" away from the majority.

We will see right quick what is and isn't an inalienable right.

[AntiFascist]

30. It is interesting that during the oral arguments...

both sides seemed to agree with the justice who was asking whether eliminating marriage altogether (with respect to the state) would solve the problem, and leave the question of whether or not religious marriages are valid to the respective religious bodies within their own churches or places of worship. I doubt if the justices would have the guts to do this, but it is interesting that both sides seemed to be in agreement on this.

[bluedawg12]

32. AF- probably because it's a non-issue with Churches who are free to marry anyone

so, there has never been an issue of "forcing" religions to marry certain groups. Even today, one cannot walk into a house of worship and demand marriage rights - outside of that faith.

Besides, I know a number of people that have married their partner/SO within a faith and it's the State that does not recognize it as being a legal marriage.

The other issue, eliminating marriage, strikes me as a little bit like raising the ante or bet-- I doubt that eliminating marriage as a State civil function is even a starter for the vast, vast majority of people. So, it seems like trying to "blame gays for destroying everyones marriage if we can't have ours," which is the exact opposite of what we are saying.

Honestly, AF, I fully understand the evolution of gaining acceptance for equal marriage rights in society and how it takes time and different regions see it differently, etc, etc. --but California is a unique case in that marriage equality became the law and I cannot fathom the Court allowing the so called majority to remove rights once granted. I really can't. The Court must do the right thing. Keeping paws crossed for tomorrow's verdict.

Here's wishing us all justice and to be treated as human beings.

:hi:

[Chovexani]

33. Something that often gets overlooked in the religion argument

Fundies love to argue that marriage equality would mean they would be forced to perform marriage ceremonies against their beliefs. Which is horseshit, but let's go there for a sec and ask the next logical question. What about the numerous progressive religions/faith groups that have no problem with marriage equality but are currently prohibited from legally marrying gay and lesbian couples? Not only progressive Christian denominations like the UCC and MCC, but what about Reform Jews, progressive Hindus and Pagans? What about Indian tribes with Two-Spirit traditions? Hell in some Pagan traditions queer sexuality is revered as something sacred. All of my Pagan friends are LGBT or allies and every single Pagan priest/ess I know (self included) that has facilitated a handfasting or a similar marriage ceremony has presided over at least one for an LGBT couple. And those weren't legal. Of course the fundies don't care about OUR religious freedoms being trampled. It's just one more way they are hypocrites. Jason Pitzl-Waters is a Pagan blogger and straight ally who continually brings this point up on his blog called the Wild Hunt.

I know that civil marriage and religious marriage are two different things but it's food for thought.

[bluedawg12]

34. Excellent point and hadn't thought of that - the restriction on those who would marry gay couples

the Justice of the Peace /Ministers who are prohibited by law from providing the same service they would gladly perform for same sex and different sex couples. Good point!

[AntiFascist]

35. One of the justice's point of view was...

that the rights would remain the same, only the definition of the word "marriage" would change. It could very well be that the state will only be in the business of granting civil unions, where traditional marriage will only be considered one type of civil union. What they neglect to point out is that words carry a lot of power...it still drives me up the wall that even Obama has stated that heterosexual marriages are particularly sacred, implying that homosexual marriages cannot be. As Chovexani points out in her excellent post, various cultures and religions have differing views on what is considered sacred. The Reigious Right has to come to terms with the fact that we are not only a Christian nation.

[xchrom]

31. kick

[kaiwai]

36. *shakes head*

1) Marriage is a contract
2) It is not the role of government to regulate what contracts consenting adults enter into - only to enforce it.
3) Banning two (or more) people of the same sex to enter into a contract which outlines the obligations of a give relationship is undermining freedom of association.

Maybe some of these judges should take a class in philosophy.