Les said: . California still has a pending lawsuit over the issue coming up that could go either way depending on the arguments used.

California is in.  There is no substantive right for same-sex marriage.  In finding that no such right exists the Court commented as follows:

The respondents in these appeals areasking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage. “The role of the judiciary is not to rewrite legislation to satisfy the court’s, rather than the Legislature’s, sense of balance and order. Judges are not ‘ “knight[s]-errant, roaming at will in pursuit of [their] own ideal of beauty
or of goodness.” ’ [Citation.]” (People v. Carter (1997) 58 Cal.App.4th 128, 134.) In other words, judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy.

That leaves NJ, which is the one state that I mention above that could conceivably go the other way.

A caveat for same-sex marriage supporters:

And though this record does not contain findings of fact nor evidence sufficient to support a conclusion one way or the other, if being gay or lesbian is an immutable trait or biologically
determined, then we must conclude classification based on that status which deprives such persons of legitimate rights is suspect.

http://www.courtinfo.ca.gov/opinions/documents/A110449.PDF

Supporters may refile and seek to hold an evidentiary hearing to establish a record that being gay is biologically determined.  That would make for an interesting case.

It should also be noted that the decision was not the California Supreme Court.  It is the Appellate Court.

Consi, thanks for following up on this one. I do appreciate it.

And though this record does not contain findings of fact nor evidence sufficient to support a conclusion one way or the other, if being gay or lesbian is an immutable trait or biologically
determined, then we must conclude classification based on that status which deprives such persons of legitimate rights is suspect.

Okay, what am I missing here, Consig? The scientific community does not regard homosexuality as a life-style ‘choice.‘ Instead, sexual orientation is viewed by most scientists as emerging through the interaction between biological (genetic and hormonal), environmental, and psychological factors. In most people, orientation is shaped at a very early age—prior to their having had any sexual experience.

It is early and I need another cup of coffee, so maybe I’ve missed something, but my point is that it seems unreasonable to deny people equal marriage.

It is unreasonable to deny people the right to marry whom they love simply because that person is of the same sex.  The reasons given against gay marriage fall into only a few categories:

1. Purely religious reasons
2. Religious reasons that are stated so as not to not sound religious
3. “Slippery slope” type arguments
4. Simple bigotry and/or ignorance
5. Think of the children!

The arguments against gay marriage are the same arguments from the same people who used to argue against interracial marriages.

Shelley:

Okay, what am I missing here, Consig?

Probably a lot.  (I don’t mean any offense with the remark and it is not meant to be snide) 

The cases that have been heard across the country involving same-sex marriage are typically brought by those seeking to get married to another member of the same sex.  In this case, there is a California statute, actually two (2), that define marriage as between a man and a woman.  So, in California, by statute, same-sex marriage is excluded.

When challenging a same-sex statute, plaintiffs will usually argue that the statute is unconstitutional for 2 reasons: 1) it violates a state’s equal protection clause; and 2) it violates the due process clause by violating a fundamental right.  There are other issues such as right to privacy claims that are sometimes tossed into the mix, but they are usually not very strong claims and are added just to cover all the bases.

The courts universally, excepting one, have found no fundamental right to same-sex marriage.  Absent the existence of a fundamental right, there can be no due process clause violation.  That is exactly what the California Appellate Court found.  No right existed, so there could be no deprivation of the right.

The Court then did an analysis of the equal protection clause.  The key question is whether gays as a group are a member of a suspect class. The question is key because it triggers how the court will review the statute.  If gays are a suspect class, then strict scrutiny of the statute is required by the court.  If not, then what is called a rational review of the statute is done. The type of review employed by a court decides the case.

If strict scrutiny is utilized then there must be a compelling reason for the statute and there must be no other alternative means of achieving the goal of the statute.  If rational review is employed then there can be 10,000 other means of achieving the end and the statute has to have only a rational basis that is connected towards achieving its end.  The California Appellate Court found that gays were not a suspect class and reviewed the statute under a rational review.

In the California case, there was no evidence put on to establish that being gay was a biologically determined characteristic.  There are two reasons for this.  The first is that the litigants likely thought the best chance of prevailing was on strictly legal grounds-the challenge that it was unconstitutional.  So, they didn’t go through what will be a costly trial of competing experts.  The second, is that putting on evidence of biological determination runs the risk of classifying the gay community as genetically defective.  It’s a double-edged sword.

The judge when he says:

And though this record does not contain findings of fact nor evidence sufficient to support a conclusion one way or the other, if being gay or lesbian is an immutable trait or biologically determined, then we must conclude classification based on that status which deprives such persons of legitimate rights is suspect.

is in effect giving the litigants a suggestion about how to proceed if they want to win his vote.  (Something he is not really supposed to be doing in unnecessary dicta.)  That suggestion is to go through the costly trial and establish that being gay is biologically determined.

Should they (future litigants) be able to establish a record that supports a finding that being gay is biologically determined, then, the review changes from one of rational review to strict scrutiny because gays would be a suspect class.  The judge says outright that such a change in analysis of the statute would change his vote. 

That is what you are missing.

IDM:

You are like a CD that plays the same chorus over and over again.  As to this:

The arguments against gay marriage are the same arguments from the same people who used to argue against interracial marriages.

Strange, I never argued against interracial marriage.  I guess you just have a nasty habit of misrepresenting the facts on this issue.  I’ll give you the benefit of the doubt-that is an emotional issue for you and that overrides your ability to think clearly about the issue.

Shelley:

The judge is saying biological causes/immutablity change the analysis. 

This

...sexual orientation is viewed by most scientists as emerging through the interaction between biological (genetic and hormonal), environmental, and psychological factors.

amounts to a bunch of mumbo jumbo. There is no clearly identified cause and clear effect.  Such facts must exist to establish it is biological by a preponderance of the evidence.  What you are saying is: we don’t really know. It’s just couched in different terms. 

I think that such a trial would be interesting.  I would like to see it, because I believe that plaintiffs would fail to carry their burden that being gay is biological and immutable.  Although that does not establish that being gay is a choice, per se.  It would be a powerful in the PR campaign.  Probably a third reason that such a trial has not occurred. 

As I said, there is no identified cause and effect from a biological standpoint.  So it fails on the first point that it is biological.  Couple that with the likely parade of former gays who were reformed testifying on the stand and under oath and it fails on the immutable point to.  Hell of a hurdle.

Consig:

No offence taken and I very much appreciate the clarification. Your post now makes much more sense to me now.

So, should I take that to mean that you would expect (given the judge’s ‘suggestion’) to see them/someone proceed with the biological argument? I understand the argument against doing so, but I’m not convinced that classifying homosexuality as having a biological origin necessarily pathologizes it, does it?

So, should I take that to mean that you would expect (given the judge’s ‘suggestion’ to see them/someone proceed with the biological argument?

I’m not so sure.  The gay rights advocates/lawyers made a huge miscalculation in attempting to circumvent legislatures and go through the courts.  They are not stupid.  In fact, they are very sharp. If they thought they would prevail, they would likely already have done it in this case or in another state.

Let’s stipulate that what you have said above is true, and let’s also stipulate that your scientific training would qualify you as an expert who could testify on the matter. I’ll pretend to be the snake in the grass lawyer in our hypothetical case. Here is how the questions would go:

Q: In your opinion what causes homosexuality?

A: The interaction between biological (genetic and hormonal), environmental, and psychological factors.

Q.  So it is your opinion that environmental factors play a role in the development of homosexuality, is that correct?

A. Yes.

Q.  It is also your opinion that psychological factors play a role in the development of homosexuality?

A.  Yes.

Q.  So in your opinion, to a reasonable degree of medical certainty, homosexuality is caused not solely by biological factors but also by environmental factors and psychological factors?

A.  Yes.

Q.  So you can’t say with any degree of certainty or specificity by giving us an exact percentage the extent that environmental factors play a role in determining homosexuality can you, Shelley?

A. No.

Q. So you can’t say with any degree of certainty or specificity by giving us an exact percentage the extent that psychological factors play a role in determining homosexuality can you, Shelley?

A. No.

Q.  In fact, its entirely possible that an individual could engage homosexual behavior out of just the interaction, that was the word you used right?  The interaction? 

A.  Let the record reflect that Shelley is nodding her in agreement with the use of the word interaction.

Q. So it’s possible, I’m not saying probably, just possible, it is possible that the interaction between psychological and environmental factors, those two factors combined could lead a person to engage in homosexual behavior, is that correct?

A. Yes.

Q. Can you explain to the jury the role each of those biological (genetic and hormonal), environmental, and psychological factors play in determining what triggers an individual to engage in homosexuality, by attributing an exact percentage to each?

A. No.

That’s not going to establish the point you want to make.  In fact, in many jurisdictions, you won’t even get your testimony admitted.

By denying same sex marriage, you are denying rights that are available in marriage based purely on the sex of both parties. You are therefore discriminating purely on grounds of sex of each partner.  You are giving or denying rights purely on based on the chromosones of the participents.  That is Sexual discrimination.

LH:

Well of course you must be right.  Wait a minute, every court that has ruled against same-sex marriage, and their is a litany of them, has addressed that issue.

Here is what the California court said when addressing the issue:

The trial court concluded the marriage laws are discriminatory, reasoning: “If a person, male or female, wishes to marry, then he or she may do so as long as the intended spouse is of a different gender. It is the gender of the intended spouse that is the sole determining factor.” Obviously, however, the opposite-sex requirement for marriage applies regardless of the applicant’s gender. The laws treat men and women exactly the same, in that neither group is permitted to marry a person of the same gender. We fail to see how a law that merely mentions gender can be labeled “discriminatory” when it does not disadvantage either group.

Despite acknowledging that the marriage laws treat “all men and all women . . .the same,” the trial court asserted this equality is beside the point because the laws establish explicit gender-based classifications. Similarly, respondents argue proof of disparate treatment is not required because the laws facially classify by gender. However, we are aware of no controlling authority imposing strict constitutional scrutiny
on a law that merely mentions gender, without treating either group differently. Rather
than dealing in semantics, a court’s primary concern in analyzing gender classifications
under the equal protection clause is to ensure equal treatment for men and women.

Simple gender classifications do not mean diparate treatment.

Simple gender classifications do not mean diparate treatment.

I agree. Much as I’d like to say otherwise . It does not mean distinct treatment on the basis of men and women. Men are allowed to marry women and women are allowed to marry men. There’s no discrimination in that.

Of course, as you mention, it remains to be established that being gay can be constitutionally valued in the same way as being a woman or being a man. Until that happens, the case is doubtful to succeed.

Well, I’m really annoyed—something ate my post. Here’s the gist of it:

That court scenario is glib and too simplistic by far, Consig.

You can’t demand simple answers. The body is too complex. If there were no biological element, we would not see a 53% concordance rate in monozygotic twins and a 20% concordance rate in dizygotic twins for homosexuality.

To give you some perspective I would say that if we saw a 100% MZ rate and a 50% DZ rate, we’d say that it was entirely genetic and likely caused by only one gene.

If we saw a 73% MZ rate and a 30% DZ rate, we’d say it is nearly entirely inherited and that there are probably only a couple of genes involved. At somewhat lower rates, we’d look for a more complex genetic involvement.

So for example, the concordance rates for epilepsy are 62% MZ and 18% DZ, and (aside from epilepsy that is caused by lesions and such) there’s not much question that gentic factors present a significant risk for epilepsy. It doesn’t mean that there is a single gene that we can point to to say, “here’s the cause.“ It isn’t so simple. It isn’t necessarily straightforward Medelian genetics.

Alzheimers, Heart Disease, Austism, Diabetes, Schizophrenia—all biological, no? All lower than 60% concordance.

I had been trying to stay out of this one but Consigliere has a personal agenda.

Consigliere: In the California case, there was no evidence put on to establish that being gay was a biologically determined characteristic.

Well, IT IS “Mr. they choose to be social pariahs.“

Because of your delivery style, you’re one of the most mean-spirited individuals on SEB, and I have to say that my impression of you is pretty low. You seem to crave attention and if the world were full of people like you, it would be a bleak place indeed.

I never had a choice as to whether I was gay. It was always a part of my core identity (once I was ready to admit my core identity) and I’ve never met another gay person who admitted to choosing that distinction. As a matter of fact I wasn’t even aware I was “becoming” gay until it was too late to pick door number 3. But you want to point at the “homos” and snicker and feel superior, as though you made an alternate choice consciously.

Basic rights are awarded to some and denied others every day. And in your case, basic rights are lorded over those who lack them just to serve your egotistical desire to inform everyone of the legalese.

You insult myself and others with your cold and formal messages. I doubt you care, but I just wanted you to know how you disgust me.

Besides, even if someone chose to identify as being gay, made a rational, conscious choice to wear the mantle and kept the club dues paid, why then should he or she be denied the marriage option? Whom another marries should be of no concern to you or Uncle Sam. Child molesters get to marry, for fucks sake, and even we gays point at them and laugh.

You need to tell us, Consi: Do you believe a homosexual orientation represents a voluntary alignment? I don’t care what the legal opinions are. What the fuck is your position? Put it in writing!

Because of your delivery style, you’re one of the most mean-spirited individuals on SEB…

You insult myself and others with your cold and formal messages.

Posting the facts, sir. Smileys are optional last I checked.

And in your case, basic rights are lorded over those who lack them just to serve your egotistical desire to inform everyone of the legalese.

What exactly does that mean?  There is an insult in there someplace, but it was lost on me.

Brock, this thread was started to point out to another member how bad the miscalculation was by the gay rights movement.  I’m reporting the results and pointing out the deficiencies in the legal strategy.  You can be pissed all you want.  Screaming at the messenger doesn’t change the results.

As to my position on same-sex marriage, it is well-known here and in writing on several different threads.  No need to clutter this one with it.

Well, IT IS…

And there you have it.  Or not.  When the people of the country appoint you as arbiter of all things, your personal anecdotes will have meaning to me. I shall read them in the same manner as I read a judicial opinion, to glean all that there is.

Until then…

(Taking advantage of the fact that we are not sharing physical space, so there is relative safety in stepping between Consi and Brock)

I don’t think Consi is mean-spirited, Brock.  He’s more like smug, arrogant, and superior, with a side-order of religious bigotry.  See?  He’s much more lovable that way.

Consi, saying “no need to clutter this discussion” is an evasion and you know it.  While I agree with you that the court cases were a strategic error, and have been very interested in the legal information you have offered, you can’t bring up anything so vital to another person and then just say; “Talk to the hand”.

Personally, I think homosexuality is wierd.  I just can’t imagine having sex with a man, and right there is the argument for gay rights.  At no time in my life did I say to myself; “Hmm… men or women?“  Right from the beginning it was “Oh, wow, women!“ (with lots of descriptive detail I shall omit here) Being heterosexual was never a choice for me, thus it seems reasonable that the same is true in mirror setting for gays, and that like most human characteristics, some people are just naturally flexible in their range.  It is this latter group that no doubt comprises the aformentioned ‘parade’ of reformed gays.

Then as I get older and see more of the variety of human experience, I have added one other aspect to that perspective.  Sexuality is one part of the pursuit of happiness.  If one is inclined to argue that homosexuality is somehow inherently harmful, one must explain millions of homosexuals who live happy, productive lives (many raising children) in spite of the even greater numbers of people who would like to make them just vanish from existence.

Indeed, homosexuality seems to cause the most trouble among those who are hiding it. The more open, the less harmful.  Maybe the trouble isn’t caused by the thing hidden, but by the hiding.

I’m reporting the results and pointing out the deficiencies in the legal strategy.  You can be pissed all you want.  Screaming at the messenger doesn’t change the results.

Precisely because you seem to enjoy so much being the messenger, that is why I said this:

“And in your case, basic rights are lorded over those who lack them just to serve your egotistical desire to inform everyone of the legalese.“

You even reconstituted a defunct thread so you could pass on your precious points again.

As to my position on same-sex marriage, it is well-known here and in writing on several different threads.  No need to clutter this one with it.

I knew you’d wimp out. You always let your court cases and legal opinions speak for you so you won’t personify an asshole. You hide your agenda behind these methods. I see the games you’re playing.

How about your position on civil unions? Will you tell me what it is?

Because of your delivery style, you’re one of the most mean-spirited individuals on SEB…

Damn.  You mean i don’t win ???  Not even a close runner-up??!?!  ;-]

...I just can’t imagine having sex with a man, and right there is the argument for gay rights.  At no time in my life did I say to myself; “Hmm… men or women?” Right from the beginning it was “Oh, wow, women!” (with lots of descriptive detail I shall omit here) Being heterosexual was never a choice for me, thus it seems reasonable that the same is true in mirror setting for gays…

While i appreciate the soundness of this position, i don’t think this is a good arguement for legalization/toleration for any condition or behavior.  Liberty of life should be based upon its results to those surrounding the individual.

I’ve often said: If we defend homosexuality based upon some innate, physical trait then we also negate the wise defense of a whole boat-load of sexual preferences that have no negative effects except, *perhaps*, on those willingly acting them out amongst themselves.

A good defense of homosexuality (and sexual prefences) should be founded upon the simple, beautifully-true (i.e., einstein) notion of personal Liberty.

Indeed, homosexuality seems to cause the most trouble among those who are hiding it. The more open, the less harmful.  Maybe the trouble isn’t caused by the thing hidden, but by the hiding.

So True!  The best way to develop a good DSM-IV pathology is to ignore and/or repress it.

I don’t think Consi is mean-spirited, Brock.  He’s more like smug, arrogant, and superior, with a side-order of religious bigotry.  See?  He’s much more lovable that way.

Gee, thanks DOF.

Consi, saying “no need to clutter this discussion” is an evasion and you know it.

No, I don’t know it.  This thread was for the discourse on the strategy and the results.  If anybody wants to bring one of the other threads back to life, I’ll participate there.

Shelley:

Sorry about the intrusion regarding my abrasiveness.  There well may be a biological component to homosexuality.  You believe that there is obviously.  Believing it is likely is different than establishing it as fact by a preponderance of the evidence.

When the question gets asked to folks in the medical community about whether they could testify to a reasonable degree of medical certainty, I think most, if not all, of those with integrity will say that they can not make such a statement at this time.  You, yourself can not say so.

Well said, DOF and I’d like to think you’d have my physical back if the situation called for it.

I guess I’m just tired of people justifying prejudices simply because fallible humans in legal proceedings support them. Homosexuality is not a disease nor is it less than a proper orientation. It’s simply a variation on a theme.

Brock:

The thread wasn’t defunct.  There are just fewer cases to report on lately.  You will see, if you review it from the start, I’ve consistently updated the readers here.

Precisely because you seem to enjoy so much being the messenger, that is why I said this

First, I’m cold in the thread.  Then I have a sense of merriment in the thread.  Which is it?  Enlighten this gentle reader, please.

You’re cold and clinical concerning a subject that is extremely important to myself and other readers.

Also you’ve avoided, once again, the chance to speak from your heart: Again, how about your position on civil unions? Will you tell me what it is?

Gee, thanks DOF.

Hey, no problem.  What are fiends for?  [sic]

Saying you can’t discuss the human aspects of gay rights during a discussion of the legal aspects (since we are not on court) is like saying “Last time we talked about ‘X’ we were sitting at that table over there.  I can’t discuss ‘X’ at this table.“

DOF: I don’t think Consi is mean-spirited, Brock.

I don’t necessarily think he’s mean-spirited, although I think at times he’d like us to think he is. Though I disagree with Consi vehemently on most issues, I generally (though not always) consider him to be a fairly respectable person.

Consi, I may be incorrect, but I strongly suspect that, ultimately, your feelings on this issue stem not so much from your interpretations of constitutional law but from your religious beliefs. There’s not necessarily anything wrong with that; you’re entitled to your opinions regardless of why you hold them. On the other hand, I personally find such beliefs bigoted, misguided, and not too terribly rational.

The fact is, like it or not, gay people exist, and they have a right to be heard and, in my opinion, greatly respected. Hiding behind a cold, detached focus on “constitutional law” and specific court cases that are grounded on institutionalized bigotry is bound to generate ill will among many people.