Prop 8 overturned, Earth still spins on axis

by CynthiaYockey on August 5, 2010

Prop 8 Trial Decision_8_4_10

I’ve been trying to make sense of the outrage on the Right over the decision in federal court by Judge Vaughn Walker announced yesterday overturning California’s Prop 8, which outlawed same-sex marriage. Social conservatives seem to be asserting three non-existent rights that permit them to deny equality to lesbians and gays: a historic right (we’ve always gotten away with this); a divine right (my religion should prevail over yours); and majority rule (we got seven million people to vote for this and while all the rights of heterosexuals are unalienable by majority rule, yours are, nyah-nyah).

There is also fear-mongering to fall back on — “Your religion will be sued and forced to violate its tenets by performing same-sex marriages!”

DrewM at Ace of Spades HQ says his support of gay marriage is lukewarm, as long as it is done in a way that will never, ever happen — democratically, state-by-state — then darkly vows vengeance via amending the Constitution to make gay people count as 3/5 of a human being … oh, wait, I read that wrong … not to count as human at all. Most of the comments are shallow and vulgar, except for the ones that are shallow and vulgar and sexist, but I have enjoyed reading Sally Ann Cavanaugh pwn all comers:

Comment 287

You’ve yet to address what happens when this so-called enlightenment open the flood gates to lawsuits when churches refuse to perform same-sex marriages (Separation of church and state and all)

[Sally Ann:] No such suit would prevail. In such cases the separation of church and state along with the Free Exercise Clause would compel the court to rule that the government cannot force any church to perform any marriage ceremony. The issue is legal marriage, not religious marriage. And legal marriages are easily obtained through civil means.

Comment 375

“Progress” sure smells an awful like social decay and totalitarian rule by unaccountable god-kings. Wonder why that is?

[Sally Ann:] That is what everybody said who has supported an outmoded, antiquated social restriction and saw that restriction give way to freedom. I am not equating your beliefs with theirs, but this is true of those who supported slavery, segregation, anti-miscegenation laws and more. “More” includes dancing in public, wearing a skirt above the ankle and similar harmless practices.

Comment 396

Very good. Now where is the compelling state interest in sanctioning “marriage” amongst knobgobblers and boxchewers?

[Sally Ann:] You don’t understand the law. There must be a compelling state interest to deny these people equal treatment under the law. But if you’re going beyond the law to something more abstract, the compelling interests in recognizing their rights and treating them equally are freedom and liberty. You’re familiar with freedom and liberty, right?

The fundamental rationale social conservatives advance for denying equal treatment to lesbians and gays under the law — including the liberty and freedom to choose sexual partners and spouses on the same bases that straight people use: sexual attraction and love — is that gays are intrinsically evil. Because social conservatives say so. And this is why it is social conservatives who rot the moral fabric of society: the utter depravity of the act of damning a group of people for a being crime, cutting them off from participation in social institutions that promote moral development and prosperity and then denying the value of every deed they do that socons would count as virtuous if done by a heterosexual.

People who are stigmatized as intrinsically evil, whose good and virtuous behavior is dismissed, must have a very strong moral compass indeed to escape the corrupting observation that if nothing they do can ever be good enough, they might as well do as they please and be hanged for a sheep instead of a lamb. The thing is, a strong moral compass does not develop in people who are taught their very being is evil, apart from any of their deeds.

I do predict a benefit for social conservatives in equality for lesbians and gays. To wit, since it is religions that have struck at gays to force us into second-class citizenship, it was logical that gays would try to change the religions with the goal of stopping the persecution over religious differences at its source. Unfortunately, this provided social conservatives with seeming proof that gays would force changes on religions if ever we attained equality. As Sally Ann notes in her comment 287 above, this is impossible legally. However, equality removes the motive for trying.

Plus, gays and lesbians already have a church that will marry us, the Metropolitan Community Church — the church whose founding on Oct. 6, 1968, by gay ordained Baptist minister Troy Perry marks the real beginning of the modern gay rights movement (rather than the Stonewall riots in Greenwich Village in June 1969).

The only exception to this is that programs operated by churches and funded with government money, and/or operating on government land or in government buildings, would be barred from discriminating in such things as providing services and hiring. They would continue to be entirely free to discriminate in every program that they fund entirely on their own dime, in their own buildings, on their own land.

One of the reasons that religious leaders promote the lie that equality for gays would force them into changing the tenets of their religions is that equality for gays will be like a radioactive dye exposing the trainloads of government money that have been garnered by various church enterprises founded and operated for the purpose of getting the government to fund their evangelical activities. But, to repeat, they will continue to be entirely free to discriminate in every program that they fund entirely on their own dime, in their own buildings, on their own land.

The bottom line is that equality for lesbians and gays is going to strengthen the moral fabric of society by providing us with the right to the supremely socializing institutions of society: marriage, adoption and service in the military. Of these goals, marriage is the most powerful socializing force because the dream of marriage influences life choices for the better from an early age — such as deciding as a freshman in high school to work hard to get an education or learn a trade in order to be able to provide a better life for the spouse you will marry and the family you will have together.

Since I’ve been writing here pretty much the same things that Judge Walker in the conclusion of his opinion in striking down Prop 8, it’s no surprise that I agree with him:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.


Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

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Peter August 6, 2010 at 3:26 am

Step over here to my time machine, Cyn. I’m going to take you back to when you were a teenager. It won’t take long, especially since, it being a time machine, it will bring you back to right now.

The year, late 1972. There is a lawsuit going on that no one is paying much attention to. Meanwhile, in several of the individual states there are both legislative bills and referendums about abortion. There are several states where it is a slam dunk that there will be no legal abortion for the foreseeable future. There are several others where abortion will soon be legal, several others where abortion, with varying restrictions will soon be legal.

Time passes, all of a sudden Roe v Wade hits the Supreme Court and abortion on demand is the law of the land.

Back into the machine, forward to 2010. Has that 37 year old Supreme Court decision calmed the furor over abortion? Seems like the anger is even hotter than back then, Oh well, at least for a few minutes you were in your teens and I in my mid twenties. I forgot how well my knees used to work.

My point is that gay marriage, by legislative act and I&R acts by the people were very close in some, perhaps as many as a dozen states. Prop 8 almost failed and if it weren’t for the swinish behavior of some activists following the election, an anti Prop 8 probably would have passed this November or in ’12. Washington, Maryland, Oregon, New York, Mass, Vermont and a few others would soon have had G&L marriage.

The other dominoes would have fallen. Instead, like Roe v Wade, we have a divisive issue “settled” by someone who had not been elected dogcatcher. In 2047 people will still be fighting about this, too.

I remember the civil rights struggle. Today they are almost completely settled. The parts that are completely settled were done so legislatively. Today no one thinks that someone should be denied the vote, or housing or employment because of skin color. The fight is over things like the laughably titled “affirmative action”. Oddly those are the very things “settled” by the courts.

Sorry. This, while probably correct, only poured a big bucket of gasoline onto the fire.

CynthiaYockey August 6, 2010 at 11:23 pm


An awful lot of the civil rights movement for black people was accomplished in court — including Brown v. Board of Education.

It really is a myth that establishing a woman’s right to choose is fought over to this day because it was decided by the Supreme Court (which allowed women equality throughout the U.S.). The same religions that are fighting gay equality in the U.S. — Mormon, Catholic and a coalition of Evangelical Protestant churches (Islam isn’t yet powerful enough in the U.S. to join this battle, but they will) — also will fight equality and choice for women perpetually. They want to sucker the lazy into believing that there would be no fight if only the matter were settled democratically — well, there would be no equality and choice for women then, or we’d have it only in a few states, because these churches get power and money from controlling the reproductive lives of their followers to get them to produce as many more followers as they can. They will tell any and every lie to get power — they know they can dominate the voting process, even if it’s just by lasting longer and spending more money than their opponents fighting for equality can.

So, no, sorry, you have fallen for a plausible lie — the courts are what protect minorities from the tyranny of the majority.


Peter August 6, 2010 at 4:39 am

Oh, and speaking of my time machine, it wasn’t long ago even in this country, when lesbians were burned as witches. Homosexuals were hanged.

Within living memory a homosexual act still carried “Death or other penalty that a court martial may impose” in the services. Progress, while never fast enough for those involved, has been um, progressing right along.

Janis August 6, 2010 at 12:37 pm

It’s so damn ABOUT TIME that this was done that it’s not even funny. How ridiculous — just LET THEM GET MARRIED FOR PETE’S SAKE! If you don’t like gay marriage, then don’t marry a member of the same sex!

Alma August 6, 2010 at 3:20 pm

Because it is judicial activism. Our government is still supposed to be of, by, & for the people. The people voted and it became law. The Judiciary is not a law-making branch of the U.S. government. Judicial activism is in violation of the United States Constitution.

CynthiaYockey August 6, 2010 at 11:33 pm


No, Judge Walker’s decision was NOT judicial activism. One of the purposes of the judicial branch is to protect minorities from the tyranny of the majority — that is what has happened in this case. Without this safeguard, what you are advocating in the false disguise of the Constitution is really unchecked mob rule.

What else could this majority mob be persuaded to do? What is the next minority that they will declare less than human and therefore not endowed with unalienable rights? Will Jews be forced to convert to Christianity? Will women become the property of men again? Do you even understand that “unalienable rights” means the fundamental rights each person has that cannot be taken by majority rule or a tyrant?

You should not assume that you are safe from mob rule without the courts to protect you.


Janis August 9, 2010 at 2:27 pm

51% of the population does not have the right to vote to enslave 49% of the population. PERIOD. You have NO RIGHT to vote away other people’s inalienable rights. That’s the whole purpose behind the Bill of Rights. The majority has ZERO RIGHT to vote away other people’s civil rights. ZERO. Read that again. ZERO. Anyone who doesn’t grasp this basic fact about the very documents upon which this nation was founded has no business calling themselves American or patriot.

Buy a copy of the Federalist Papers and read it. End of conversation.

Peter August 7, 2010 at 8:30 am

Yeah, the courts will protect you so well, just ask Dred Scott. Still, this ruling will probably be upheld on another five to four decision and will set the relationship back, just like the Roe v Wade did.

I realize, Cyn, that you are better educated than I, still, I was there, a politically active adult when Roe v Wade came down. And I have been a politically active adult ever since, too. Don’t tell me I fell for a lie.

Hell, I actually knew Henry Wade, not well but some.

CynthiaYockey August 7, 2010 at 5:25 pm


Neo-neocon has a recent post explaining that the black civil rights movement of the 1950’s and ’60’s rested on a foundation of a hundred years of court battles. It was court decisions that moved public opinion.

You are not that much older than I am, so you can’t say you were there and politically active and I was not. I was.

The religions that want women to be the property of men and relegated to being baby-producers and homemakers are determined and relentless. They will never, never, never give up their efforts to enslave women. There’s just too much money and power in it for them. They are lying when they say they would quit and accept majority rule and not bring the matter up again. They say this lie to create divisions among their opponents. There’s another reason this is not a matter for state-by-state majority rule: it is a matter of individual rights and equality. If rights truly are unalienable, then a majority cannot take them away and they must not vary from state-to-state. That is why federal courts step in to protect the minority and its rights.

The religious leaders who say that the war over abortion would be over if only it had been won by majority rule want pro-choice supporters to believe that women would have the right to choose in some places and not others and that this would not affect their overall equality. They are lying. What they want to do is get the issue back into the arena where they will win because the only thing that WILL stop the battle over abortion is their total victory, which will include outlawing birth control, as Ireland has done. No, no, a thousand times: no.


Joe August 7, 2010 at 3:45 pm

I do believe the desire for same sex marriage, by those oriented that way, to be a conservative virtue. But that commitment and sacredness does not come from a church (at least a church as an institution) or the government. It is demonstrated by the behavior of the two who become one. There are many marriages never formalized that are sacred, and many formalized ones that are not.

And I support equality in respecting such unions. In all ways male female marriages are respected.

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