[OPF List] Prop 8

The Unrepentant Patriot theunrepentantpatriot at gmail.com
Tue Aug 10 07:34:19 HST 2010

Following is an exchange on the subject of Proposition 8 I recently engaged
in with my darling niece, a very sweet but also very young, very idealistic,
and woefully misinformed liberal mouthpiece.  I offer this exchange in
sequential order to make it easier for you all to read.  Please feel free to
offer me your thoughts and feedback.

Her messages are in blue; mine are in black.

Incidentally, my niece is not gay; she simply has no concept of American
civics, and in fact I don't think she even realizes that there's this
document called the Constitution.


*On Thu, Aug 5, 2010 at 6:20 PM, <K> wrote:

Hey Everyone!

Please copy and paste the link below to check out a wonderful article about
the overturning of prop 8 in California.

Marriage is a civil right.
Thank you California for finally seeing the light!
The rest of the USA: Here we come!!!

My heart is so full and happy it might burst.

Love to you all,

* *http://www.politicsdaily.com/**2010/08/04/the-prop-8-ruling-**


From: The Unrepentant Patriot
To: <K>
Sent: Thu, Aug 5, 2010 6:40 pm
Subject: Re: OH HAPPY DAY!

* Where do you get that marriage is a civil right?*


*On Fri, Aug 6, 2010 at 1:11 AM, <K> wrote:

*Civil Rights: the rights to full legal, social, and economic equality.

"Recognized federal civil rights law in the United States is grounded in the
U.S. Constitution as interpreted by the Supreme Court. By this
standard, * *marriage
has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment,
which was ratified in 1868. * *Passages read as follows:*
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.
The U.S. Supreme Court first applied this standard to marriage in Loving v.
Virginia (1967), where it struck down a Virginia law banning interracial
marriage. As Chief Justice Earl Warren wrote for the majority:

*The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men ...

The Fourteenth Amendment requires that the freedom of choice to marry not be
restricted by invidious racial discriminations* * [or more currently
discriminations against sexual orientation]. Under our Constitution, the
freedom to marry, or not marry, resides with the individual and cannot be
infringed by the State.
While the U.S. Supreme Court has not yet ruled on same-sex marriage, it is
unlikely that it would overturn the foundational premise that marriage is a
civil right."*
*In 1967 it was about racial discrimination. We now have thousands upon
thousands of happily wed interracial couples. I hope soon I will be able to
say the same for gay and lesbian couples.*



***From: The Unrepentant Patriot
To: <K>
Sent: Mon, Aug 9, 2010 12:14 pm
Subject: Re: OH HAPPY DAY!

*Please excuse my tardiness in responding.  I had my 5-year-old daughter all
weekend, and that always seems to preclude any other activity involving
brain function.

I have chosen to copy my Yahoo group and others on this response, and I
invite them to offer any additional thoughts they may have on this issue.* *

First off, let me say this: I have no serious personal problem with
homosexuals marrying each other.  If that's what they want to do, and they
can find someone to do the deed for them (a church, a minister, a priest, a
druid, a faith healer, a justice of the peace, the captain of a
ship......the choices are endless, and indeed have been all along), then
frankly, it's between all of them and God.  I'm not the one to whom they are
ultimately accountable.  The only real potential harm I see coming from the
exercise of this privilege (note: not "right") pertains to themselves and
the people they choose to embroil in it, unless of course there is some
extension of the deed to include compelling an individual or institution to
honor the union and conduct the ceremony in violation of their rights of
conscience, which would clearly be an abridgment of First Amendment
protections (and that is indeed a very great danger in this, as government
has an historical tendency to transgress by the mile when offered the
inch).  I do, however, have a very * *great problem with a small group of
people, or in this case, one single person (a federal judge), telling the
majority of the voters in a sovereign state that they cannot have their will
manifested and respected in the manner prescribed by our form of government,
when that will clearly does not traduce the essential dictates of the
Constitution upon which that government is based.

A number of people involved in this discussion are obviously sadly
misinformed about this issue in particular and about the civics of the
American Republic in general, so let's see if we can analyze this rationally
and intelligently, from an unbiased Constitutional perspective based upon
the notions of individual liberty embodied in the foundational tenets of our
societal model, and without the shrill, inane histrionics that are
apparently unavoidable from the Leftist-Progressive viewpoint.* *

Begin the civics lesson:* *

First of all, let's take a look at the exact verbiage of Proposition 8,
which if adopted would amend the Constitution of the State of California.
It consists in its entirety of fourteen words, as follows:* *

"Only marriage between a man and a woman is valid or recognized in
California."* *

Why is this significant?  Because, as you can see for yourself, this
amendment would do absolutely nothing to prevent same-sex partners from
marrying one another.  Same-sex couples have been able to have a marriage
ceremony performed in California all along (assuming they could find someone
to perform the ceremony, which isn't difficult at all in the Land of Fruits
and Nuts), and they would still have that right after the adoption of the
amendment.  The amendment is simply a textbook example of the citizens of a
sovereign state exercising their right to government of the people, by the
people, and for the people, wherein they voted by a clear majority to
determine what their government would and would not recognize as legitimate,
in full consonance with the tenets of a constitutional republic, the United
States Constitution, the Ninth and Tenth Amendments thereto, and the essence
of federalism.  The * *Loving v. Virginia decision (which you cited as an
example to support your adulation for Judge Walker's ruling) addressed a
completely different calculus: It overturned a Virginia law that made it
illegal, and subject to criminal prosecution and imprisonment, to marry
someone of another race.  In that case, the defendants, Richard and Mildred
Loving, were caught sleeping in their bed by a group of police officers who
had invaded their home in the hopes of finding them in an act of sex
(another crime). In their defense, Mrs. Loving pointed to a marriage
certificate on the wall in their bedroom; rather than defending them, it
became the evidence the police needed for a criminal charge, because it
proved they had been married in another state. Specifically, they were
charged under Section 20-58 of the Virginia Code, which prohibited
interracial couples from being married out of state and then returning to
Virginia, and Section 20-59, which classified "miscegenation" as a felony,
punishable by a prison sentence of between one and five years. The Lovings
eventually pleaded guilty and were sentenced to one year in prison, with the
sentence suspended for 25 years on condition that the couple leave the state
of Virginia.  Now that action by the State of Virginia was a clear violation
of "civil rights" (a term which in itself is a very dangerous misnomer,
since "civil" rights are rights that are granted at the pleasure of
government and which can therefore be rescinded by government at its whim,
as opposed to "natural" rights, which are rights granted by God to all men
and women equally, and therefore not subject to the caprices of governments
of men) in that it denied people a natural right -- namely Life, Liberty and
the Pursuit of Happiness (imprisonment will do that to you every time) -- as
a consequence of the elective exercise of a privilege (marriage) available
to all people.  There is an enormous difference between, on the one hand,
the government legally debarring someone from doing something, and on the
other, simply asserting that society will not offer its recognition and
approval of an act or a choice.  Although everyone may consider himself to
have the "right" to do one thing or another, and may indeed be correct in
making that assertion, no one ever has the "right" to someone else's
approval, and that is precisely what the citizens of California said, in no
uncertain terms, when more than 7 million of them voted in favor of the

Marriage is not a “right”, as enumerated in the Constitution or otherwise,
but rather a “rite”: It is a societal institution and arrangement that for
thousands of years has been uniformly celebrated by societies as the union
of a man and a woman, for the purpose of bearing children to perpetuate
humankind.  The reason government has elected to offer recognition, by way
of laws and otherwise, of the institution of marriage, is because of its
desire to promote that which leads to the propagation and expansion of
society through procreation -- something only possible from the joining of
the male sperm and the female egg -- in an environment more likely than
simple wanton and boundless copulation to promote the peace and stability of
that enterprise.  When a man and a woman marry, they are not exercising a
right; they are participating in a rite in order to gain and enjoy the
recognition and approval of society in affirmation of their union.*  *

*I think the widely-published and highly-respected black author and
political philosopher Thomas Sowell said it best in a recent article on this
very subject, so I’ll quote him here:


*“Over [the] centuries, a vast array of laws has grown up, all based on
circumstances that arise in unions between a man and a woman.

Justice Oliver Wendell Holmes said that law has not been based on logic but
on experience. To apply a mountain of laws based specifically on experience
with relations between a man and a woman to a different relationship where
sex differences are not involved would be like applying the rules of
baseball to football.

The argument that current marriage laws ‘discriminate’ against homosexuals
confuses discrimination against people with making distinctions among
different kinds of behavior.

All laws distinguish among different kinds of behavior. What other purpose
does law have?

While people may be treated the same, all their behaviors are not. Laws that
forbid bicycles from being ridden on freeways obviously have a different
effect on people who have bicycles but no cars.

But this is not discrimination against a person. The cyclist who gets into a
car is just as free to drive on the freeway as anybody else.

The question is not whether gays should be permitted to marry. Many gays
have already married people of the opposite sex. Conversely, heterosexuals
who might want to marry someone of the same sex in order to make some point
will be forbidden to do so, just as gays are.

The real issue is whether marriage should be redefined — and, if for gays,
why not for polygamists? Why not for pedophiles?

Despite heavy television advertising in California for “gay marriage,”
showing blacks being set upon by police dogs during civil-rights marches,
and implying that homosexuals face the same discrimination today, the
analogy is completely false.

Blacks had to sit in the back of the bus because they were black. They were
doing exactly what white people were doing — riding a bus. That is what made
it racial discrimination.

Marriage is not a right but a set of legal obligations imposed because the
government has a vested interest in unions that, among other things, have
the potential to produce children, which is to say, the future population of
the nation.

Gays were on their strongest ground when they said that what they did was
nobody else's business. Now they are asserting a right to other people's
approval, which is wholly different.*
* *
*None of us has a right to other people's approval.”


*Now, with respect to this particular judge's ruling in this case, it was
abundantly clear from the outset that he, himself a known homosexual,
intended to debase the case by making it a simple referendum on marriage
itself, rather than dispensing his proper duty to judge and rule based upon
the laws of California and the United States as they devolve from the
constitutions of both those bodies.  As such, I think it's safe to assume
that after his ruling goes to the 9th Circuit (and is undoubtedly affirmed
by that little cabal of Marxists), the SCOTUS will eventually rule 5-4 to
overturn it and affirm the rightful Constitutional imperative of the
citizens of California to determine at the ballot box the course and
complexion of their own governance.  However, I do think it's important and
instructive to consider a few things about Judge Walker and his deliberative
process in this matter, so for your contemplation I offer the following
analyses of just that from a few respected sources:

*Extreme Judicial Activism on Marriage*
Posted By *Chuck Donovan* On August 4, 2010 @ 6:04 pm In *Family and

Today’s decision by a federal district judge in San Francisco striking down
state constitutional protections for marriage and inventing a spurious
federal constitutional right to same-sex marriage is an example of extreme
judicial activism.  Moreover, it is an affront to the millions of California
voters who approved Proposition 8 in 2008 after months of vigorous public

Governments derive their just powers from the consent of the governed.  The
people of California, and the United States, have made clear in numerous
ways that they have not consented to the redefinition of marriage.  For the
past two decades they have considered the arguments advanced by some for
overturning marriage as it has been understood in our country.  In state
after state — 45 in all – they have chosen to reaffirm the meaning of
marriage as the union of one man and one woman.  They have done so because
they understand that establishing same-sex marriage would transform the
institution into a set of private interests rather than buttress it as a
multi-generational reality binding mothers, fathers and their children
biologically, socially and legally.

 From the beginning of this litigation we have pointed out Judge Vaughn
Walker’s trail of activist rulings, from his inappropriate decision to
convert a legal proceeding into a show trial, to his failure to follow legal
procedure in ordering live video streaming of the trial.  Fortunately, Judge
Walker’s abrogation of the rule of law on the latter issue was swiftly
rebuffed by the Supreme Court last January when it vacated his decision to
broadcast the trial.

Judge Walker’s ruling today similarly abrogates the rule of law.  Marriage
has enjoyed unique status because unions of husband and wife are, in fact,
unique, and because they uniquely serve the common good in ways that
same-sex combinations simply cannot.  We are confident the Supreme Court
will reject Judge Walker’s view that the people of California cannot protect
the meaning of marriage in their state constitution.

We join our voices with the clear decisions rendered by large margins in the
vast majority of the states, and in every state where a popular vote has
been held over the past two decades.  It is time for the American people to
stand up in support of their right to protect marriage.  Judicial tyranny on
the question of marriage must not be allowed to succeed.

 Gay Marriage vs. Democracy Why the people of California should determine
the definition of marriage
Steve Chapman | March 9, 2009

  You can catch a lot more flies with honey than vinegar, the adage goes.
But advocates of same-sex marriage have a deal for the citizens of
California: all the vinegar they can drink.

Those citizens don't believe gays should be allowed to unite under the name
of marriage. In 2000, more than 61 percent of voters supported a ballot
measure barring such unions. That didn't mean the voters get their way. Last
summer, the state Supreme Court struck the law down on the ground that it
violated the California Constitution by discriminating on the basis of
sexual orientation.

But Californians were not content to let the court substitute its judgment
for theirs. In November, they approved Proposition 8, a constitutional
amendment outlawing gay marriage, with a 52 percent majority. If the
constitution required recognition of same-sex marriage, the people decided,
the constitution needed correcting.

That should have been the end of the legal battle and the beginning of a
political one, where gay rights have excellent prospects. After all, they
have made steady progress on the issue, expanding their support from 39
percent of voters to 48 percent in just eight years. Given the trend, their
chances of persuading a majority in the next few years look good—if they
were to focus on persuading the majority.

But this is a tedious and time-consuming task compared to trying to get the
state Supreme Court to nullify the will of the people. So opponents of
Proposition 8 chose the latter option after their defeat.

And for what end? Not so that gays can have the full package of rights and
duties that go with the institution of matrimony. They already have
those—insofar as the state of California can provide them—thanks to a
domestic partnership law that duplicates everything about marriage except
the name. This is not a fight over fundamental equality. It's a fight over

On Thursday, the fight went back to the Supreme Court in San Francisco,
where state Atty. Gen. Jerry Brown insisted that the people of California,
who created the constitution, don't have the power to change it as they
tried to do this time. He argued that it protects pre-existing inalienable
rights, including the right to marry, and that an inalienable right "cannot
be taken away by a popular vote."

But inalienable rights are empty concepts without legal protection—which in
this case they enjoy only because of a constitution approved by the people.
If those people had wanted to deny themselves the power to repeal rights
protected by the state constitution, they could have included a provision to
do that. They didn't.

Instead, they erred on the side of making it easy to amend their charter.
Any limits on that power, beyond those imposed by the federal constitution,
exist only in the mind of legal fantasists.

It was one thing to demand that the state Supreme Court overrule the will of
the people once, and on a mere law. It's quite another to ask it to
repudiate their verdict again, after they had decided to alter the
constitution precisely to reverse a decision of the Supreme Court.

The justices apparently were not enchanted by the invitation. "We would like
to hear from you why the court can willy-nilly disregard the will of the
people to change the constitution," Justice Joyce Kennard told the lawyers
urging the invalidation of Proposition 8.

Kennard, it should be noted, was among the justices who voted last year to
legalize same-sex marriage. So did Chief Justice Ronald George, who Thursday
suggested that the current method of amendment "is the system we have to
live with until and unless it is changed."

The nice thing about the referendum option is that once gay-marriage
supporters constitute a majority, they can promptly amend the constitution
to their liking—as I hope they do. But it is hard to win voters to your side
while telling them they have no legitimate say on the issue.

Like it or not, the California Constitution notes a basic truth in a
democratic society: "All political power is inherent in the people."
Advocates of same-sex marriage might do better by treating those people not
as opponents to be defeated but as allies to be won.

It's not about couples and love. The marriage ruling is all about you.
By Patrick McIlheran of the Journal Sentinel

 Aug. 5, 2010 12:15 p.m.

 Let's look at how the gay-marriage thing in California has unfolded so far:

The state’s Supreme Court in 2008, on a one-vote margin, decides to redefine
marriage to dump one key parameter that had always and everywhere in human
history been part of marriage: that it be between complementary sexes, not
identical ones.

Within months, the voters of the state overrule the court, amending their
constitution to say that, no, you can’t redefine basic social institutions
against the will of the people. The losers sue the state.
And Wednesday, a federal judge – a judge, as in one – overrules the people,
ruling, among other things, that “gender no longer forms an essential part
of marriage.” It doesn’t?

Gay “marriage” advocates cheered, of course, saying it’s a great advance for
equality. Ask yourself, however, this: What changed, precisely, because of
the decision (presume, for a moment, that all appeals courts agree with
Judge Vaughn Walker).

*Does this*, as gay “marriage” advocates often say, remove some impediment
to their preferred relationships?

*No, it doesn’t*. The fight isn’t about the freedom to love, since the law
says nothing (nor should it) about who can love whom, a fundamentally
private matter.

*Does this* change practicalities, such as the right to co-own a house or
leave legacies to a gay lover?

*No, it does not*. Even in places that, like Wisconsin, have not redefined
marriage, one may make wills, mortgages, adoptions, benefits arrangements
and the like with whom one wants. For its part, California had civil
unionscarrying all the  benefits of marriage.

*Does this* alter the ability to a couple to tell each other they’ll be
faithful unto death, of one flesh, as married couples (ideally) do?

*No*. People have always been able to say and mean whatever they wish to
each other. Again, the law has no say in such private matters.

*Does this* allow gay couples to be regarded as if they were married by
friends? Does it allow acquaintances to think of long-time lovers as being

*Again, no*. People have long done this, and some churches have long been
blessing such couples. That’s their right, of course. They require no judge
to do so.

*Does this* mean that everyone else, including especially perfect strangers,
must also now grant gay relationships the same unique and special public
respect that until now society has always and everywhere reserved for
married couples?

*Yes, it does*. That’s what the decision was exactly about: Commanding
society to view homosexual relationships with a favor that society has been
unwilling to grant.

Don’t take my word: As the New York Times explained it, gay-rights activists
have increasingly sought same-sex marriage not simply to “lessen
discrimination” but also as “an emotional indicator of legitimacy.” The
paper quoted one activist as saying that to not redefined marriage “is to
deny respect for the essence of who we are as gay people.”

Which is why the state’s civil unions, which conferred the practical
benefits of marriage, weren’t enough: They sealed the relationship
privately, while only marriage itself could mandate public approbation.

Gay-marriage backers constantly mock an idea they cannot grasp, that
redefining marriage will damage it. *What* – they say – *suddenly you’ll
love your wife less?* Obviously not, but as established a few paragraphs
back, marriage isn’t a private affair. Its strength as a social institution
– as the relationship at the core of the family – has certainly been
damaged, too, by the explosion in divorce, but that’s no reason, either, to
euthanize the whole thing.

The reason gay “marriage” damages marriage is not because it changes
individual couple’s relationships but because it commands us all to accord
as much respect to homosexual relations as society always has done to
genuine marriage. Insofar as many people, by their own varied moral
reasoning, freely choose to see homosexual relationships as somehow
disordered, they will respond to this mandate, then, by according less
respect to traditional marriage.

Early research shows this is how it actually works, just as easy divorce,
while not necessarily changing any individual couple’s relationship,
nonetheless reduces the social expectation that marriage is permanent. If
marriage often amounts to a temporary thing, then people see it so even when
it comes to couples who seek permanence.

If this is so (and I think the evidence shows it is), then Judge Walker’s
decision will have won for gay couples an “emotional indicator” of a
"legitimacy" that will rapidly diminish to meaninglessness.

*Meanwhile*: Paul Mirengoff sees collateral damage:

“Judge Walker's decision is the fruit of a lengthy process through which an
eilite within the legal profession has worked tirelessly in an effort to
blur, hopelessly, the distinction between the law and personal preferences
of that elite. If the decision stands, its main impact will be a diminution,
probably past the tipping point, of public confidence in the law and the

*And:* Orin Kerr at Volokh sees Walker as having missed entirely the
rationality is society not wanting to have too-rapid change imposed on it.

*And*: Kathryn Jean Lopez talks to Dan Brown of the National Organization
for Marriage, who tells of the violence and hate that defenders of
traditional marriage have encountered. He outlines what’s at stake:

“Gay marriage has consequences. The goal of this movement is to use the law
to reshape the culture so that disagreement with their views on sex and
marriage gets stigmatized and repressed like bigotry. Children will be
taught, whether parents like it or not, that traditional faith communities’
views on marriage are based on hatred and bigotry. In the new America they
are attempting to build, core civil rights will be sacrificed for imaginary
ones that will then be used to exclude most religious people and
institutions from the public square. We are already seeing the beginnings of
this great purge in the academy, and it will march from there through
professional licensing and institutions in ways that will affect a great
many people.”

*Sense and Nonsense on Anti-Prop 8 Ruling*
 By Ed Whelan
 Posted on August 09, 2010 10:56 AM

    Yesterday’s *San Francisco Chronicle *featured an excellent op-ed by law
professor Nelson Lund, “Prop. 8 judge makes strange charge.”  An extended

 Until very recently, same-sex marriage was unknown in human history, and it
is opposed today by many progressive leaders, like [President] Obama and
[Hillary] Clinton. Can this be explained only by irrational prejudice or
religious zeal? No. Only unions between men and women are capable of
producing offspring, and every civilization has recognized that responsible
procreation is critical to its survival. After the desire for
self-preservation, sexual passion is probably the most powerful drive in
human nature. Heterosexual intercourse naturally produces children,
sometimes unintentionally and only after nine months.

 Without marriage, men often would be uncertain about paternity or
indifferent to it. If left unchecked, many men would have little incentive
to invest in the rearing of their offspring, and the ensuing
irresponsibility would have made the development of civilization impossible.

 The fundamental purpose of marriage is to encourage biological parents,
especially fathers, to take responsibility for their children. Because this
institution responds to a phenomenon uniquely created by heterosexual
intercourse, the meaning of marriage has always been inseparable from the
problem it addresses.

 Homosexual relationships (and lots of others as well), have nothing to do
with the purpose of marriage, which is why marriage does not extend to them.
Constitutional doctrine requires only one conceivable rational reason for a
law, and the traditional definition of marriage easily meets that test.

 Also yesterday, plaintiffs’ lawyer Ted Olson, in a long interview on “Fox
News Sunday With Chris Wallace,” did little more than repeat, over and over
and over, variants of the question-begging propositions that “We do not put
the Bill of Rights to a vote” and that “the right to marriage is a
fundamental right.”  As to just how it is that the Bill of Rights might be
thought to create a right to same-sex marriage, or that the Supreme Court’s
previous holdings on marriage might be thought to extend to this previously
unimagined novelty, or that anyone purporting to be a conservative on
matters of constitutional interpretation could take the position that Olson
is taking, Olson offers little or no clue.  Evidently, his powers of
persuasion haven’t been honed by arguing to a judge whose overwhelming
biaswas evident from the beginning.

 One line of questioning that I wish Wallace had asked Olson:  Why didn’t
you speak out against Prop 8 during the 2008 campaign, when California
voters were deciding how to vote on it?  Why doesn’t your failure to have
done so properly invite the suspicion that your anti-Prop 8 lawsuit is
driven as much by your ego and vanity as by your newly declared convictions?


 *So having said all this, I would welcome any kind of facts-based,
Constitutionally-grounded, cogent, rational rejoinder you might wish to
offer, but I'm by no means interested in a hysterical, emotionally-rooted
response or argument.  All I am interested in is advancing the rule of law
and the Constitution, and judicial and governmental actions that are
adherent thereto.

But hey, what do I know?  I'm just a dumb-ass jet pilot.

May God save our Republic,* *

Bruce McGehee* *

"Human by birth; jet pilot by the grace of DoD"*


"Lessons not learned in blood are seldom remembered"

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