# Prop-8 Arguments Today - What will happen? **URL:** \ **Category:** Great Debates\ **Created:** [March 5, 2009, 2:50pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386 "2009-03-05T14:50:54Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 4:12pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/181 "2010-08-05T16:12:18Z")
> [@Rumor\_Watkins](#): > > > [@Whack-a-Mole](#): > > > > The facts show that marriage has never been about procreation as far as the state is concerned. > > no, this is what you don’t get. \*\*This \*\*finder has fact has concluded that marriage has never been about procreation. It **is not the same thing** as saying “the facts show” That’s like saying something walks like a duck, quacks like a duck, has a bill like a duck, has feathers and markings like a duck and has webbed feet like a duck but **this other** finder of fact does not have to conclude we are looking at a duck. With logic like that you can do anything you want. Why even have a trial? Just let the judge opine the way he/she wants and be done with it. :rolleyes: ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 5, 2010, 4:14pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/182 "2010-08-05T16:14:32Z")
> [@Rumor\_Watkins](#): > > > [@Whack-a-Mole](#): > > > > The facts show that marriage has never been about procreation as far as the state is concerned. > > no, this is what you don’t get. \*\*This \*\*finder has fact has concluded that marriage has never been about procreation. It **is not the same thing** as saying “the facts show” Well, it’s a fact that nothing in written California law states that procreation is the purpose for the state’s recognition of marriage. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 4:15pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/183 "2010-08-05T16:15:25Z")
> [@Diogenes\_the\_Cynic](#): > > What does “with each other” have to do with anything. Infertile couples can’t do that either… For fun add in any woman who has reached menopause is SOL if she wants to get married if procreation is the purpose for marriage. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 4:15pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/184 "2010-08-05T16:15:29Z")
> [@Diogenes\_the\_Cynic](#): > > What does “with each other” have to do with anything. Infertile couples can’t do that either, so you have an equal protection problem there. no, you don’t. it’s not an equal protection problem that some 13 year olds are mentally and physically developed enough to drive a car, for example. it’s not a relevant counter to a finding of Rational Bases that those bases cannot exist in certain scenarios. > [@](#): > > And there is nothing in state law that says procreation has anything to do with the purpose of marriage in California. Yous eem to be saying that no purpose nees to be stipulated in the allow, that a judge is allowed to make up any purpose he wants correct. the law doesn’t need to facially explain “here are the reasons we’re passing this law”. Rational review places the burden on the plaintiffs to demonstrate the impropriety of the law - the states don’t need to say nothin. Which is probably why the courts will start to supply a rational basis, almost in passing, in their opinion that sets out that the plaintiff has failed to establish their burden. > [@](#): > > so why can’t another judge decide that the purpose of marriage is to encourage anal sex? is that an important government interest? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [August 5, 2010, 4:17pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/185 "2010-08-05T16:17:31Z")
> [@Diogenes\_the\_Cynic](#): > > What does “with each other” have to do with anything. Infertile couples can’t do that either, so you have an equal protection problem there. You **only** have an Equal Protection problem if the level of scrutiny is above rational basis. That’s the problem with the law right now - officially courts only give rational basis review, but unofficially they sometimes give sexuality cases a higher level of scrutiny. As they should, but first some precedent needs to change. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 4:19pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/186 "2010-08-05T16:19:25Z")
> [@Whack-a-Mole](#): > > That’s like saying something walks like a duck, quacks like a duck, has a bill like a duck, has feathers and markings like a duck and has webbed feet like a duck but **this other** finder of fact does not have to conclude we are looking at a duck. i think you’re being deliberately difficult. The fact that an animal is a duck, the fact that LA is south of SF, is a far different type of fact than “Domestic partnerships lack the social meaning associated with marriage.” > [@](#): > > With logic like that you can do anything you want. Why even have a trial? Just let the judge opine the way he/she wants and be done with it. :rolleyes: you have a trial because that’s how it works - the parties either stipulate to the facts, or they try their best to convince a particular finder of fact (be it a jury or a judge, in a bench trial) that these are the facts. let’s put it this way - findings of facts don’t have precedential value for subsequent cases (involving non-litigants). why do you think that is? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 5, 2010, 4:24pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/187 "2010-08-05T16:24:39Z")
> [@Rumor\_Watkins](#): > > > [@Diogenes\_the\_Cynic](#): > > > > What does “with each other” have to do with anything. Infertile couples can’t do that either, so you have an equal protection problem there. > > no, you don’t. it’s not an equal protection problem that some 13 year olds are mentally and physically developed enough to drive a car, for example. it’s not a relevant counter to a finding of Rational Bases that those bases cannot exist in certain scenarios. Then it’s now your job to explain the difference between an infertile heterosexual couple’s ability to capacity to start a family and a homosexual couple’s ability to start a family. > [@](#): > > correct. the law doesn’t need to facially explain “here are the reasons we’re passing this law”. Rational review places the burden on the plaintiffs to demonstrate the impropriety of the law Which the plaintiff clearly accomplished. > [@](#): > > the states don’t need to say nothin. Which is probably why the courts will start to supply a rational basis, almost in passing, in their opinion that sets out that the plaintiff has failed to establish their burden In other words, you’re saying that judges are permitted to make up whatever purpose they want. If that’s not what you’r saying, then what is the process for reviewing whether the judge’s assigned purpose is correct or incorrect. > [@](#): > > > [@](#): > > > > so why can’t another judge decide that the purpose of marriage is to encourage anal sex? > > is that an important government interest? According to **Bricker** , it’s not a requirement that there be an important government interest. Any purpose will do. Not that procreation is any more important to the government than buttsecks. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 4:31pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/188 "2010-08-05T16:31:08Z")
> [@Rumor\_Watkins](#): > > i think you’re being deliberately difficult. The fact that an animal is a duck, the fact that LA is south of SF, is a far different type of fact than “Domestic partnerships lack the social meaning associated with marriage.” Why move the discussion to domestic partnerships here? We can talk about that but I was quoting you saying one judge (finder of fact) deemed that marriage was not about procreation but another may look at the same set of evidence and conclude differently. I am saying that is impossible for another finder of fact to do that without being willfully blind and immune to rules of logic and clear evidence to the contrary. The evidence is clear, California has never made marriage about procreation…that is as true a statement as LA being south of San Francisco is. If they can look at the evidence and deem that California in fact has made marriage about procreation then they can pretty much magic up any rationale they like out of whole cloth thus obviating the need for a trial…the facts do not matter to them. > [@](#): > > you have a trial because that’s how it works - the parties either stipulate to the facts, or they try their best to convince a particular finder of fact (be it a jury or a judge, in a bench trial) that these are the facts. > > let’s put it this way - findings of facts don’t have precedential value for subsequent cases (involving non-litigants). why do you think that is? **Bricker** was saying under rational basis the facts are unimportant (not trying to misrepresent you out of context **Bricker** …feel free to elaborate if this wrong). So we can say that marriage has never been about procreation. Doesn’t matter apparently and it doesn’t matter that, factually, same-sex couples can in fact procreate and that many hetero couples cannot. All that is beside the point apparently. Facts are meaningless, the state says marriage is about procreation, state says same-sex couples can’t procreate, marriage is about procreation thus same-sex couples cannot marry. QED…end of discussion. Again, why have a trial? ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [August 5, 2010, 4:32pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/189 "2010-08-05T16:32:45Z")
> [@Rumor\_Watkins](#): > > > [@Whack-a-Mole](#): > > > > I’d be interested in seeing a rational, opposing analysis using the 55 pages of fact written up in this ruling. Not because I disagree with the current ruling (I think it is great) but because I am hard pressed to imagine how it could be otherwise so would be curious to see if it could be done and still be rational. > > ok, you realize you’re stacking the deck, right? “findings of fact” aren’t exactly findings of mana from heaven - they’re skewed and subject to the trier of facts’ own perspective on things. > > That said, I don’t think it would be very difficult to have a rational, 100+ page opinion finding the exact opposite of what this judge found (not having the benefit of knowing how adept or bumbling counsel was for each side). Do you have specific finding of fact from the decision that you take issue with? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 4:33pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/190 "2010-08-05T16:33:54Z")
> [@Diogenes\_the\_Cynic](#): > > Then it’s now your job to explain the difference between an infertile heterosexual couple’s ability to capacity to start a family and a homosexual couple’s ability to start a family. no, it’s not. I will say it again - it is not a relevant counter to a finding of rational bases that those bases do not exist in a certain case. take a discriminatory law: giving a 15% tax credit to those who have children versus those who don’t. Do you think it is now my burden to explain why this is not violative of the equal protection clause if you demonstrate that Bill Gates doesn’t need the tax break for his kids because he’s rich? > [@](#): > > In other words, you’re saying that judges are permitted to make up whatever purpose they want. If that’s not what you’r saying, then what is the process for reviewing whether the judge’s assigned purpose is correct or incorrect. No, I’m saying that judges will probably fill-in a rational interest if the meanderings of the case dictate it. There’s no “correctness” or “incorrectness” about the “assigned purpose” (other than it being legally sufficient; it’s either a legitimate governmental interest or it’s not, as a matter of judicial opinion) > [@](#): > > According to **Bricker** , it’s not a requirement that there be an important government interest. Any purpose will do. Not that procreation is any more important to the government than buttsecks. respectfully, bricker is wrong then if that’s really his conclusion. I doubt that it is FYI, the correct word is “legitimate” not “important”. apologies ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 4:39pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/191 "2010-08-05T16:39:56Z")
> [@Whack-a-Mole](#): > > I am saying that is impossible for another finder of fact to do that without being willfully blind and immune to rules of logic and clear evidence to the contrary. The evidence is clear, California has never made marriage about procreation…that is as true a statement as LA being south of San Francisco is. If they can look at the evidence and deem that California in fact has made marriage about procreation then they can pretty much magic up any rationale they like out of whole cloth thus obviating the need for a trial…the facts do not matter to them. So then why did the Golden State pass laws creating the establishment of marriage? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 4:47pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/192 "2010-08-05T16:47:35Z")
> [@Gangster\_Octopus](#): > > Do you have specific finding of fact from the decision that you take issue with? I’m not taking issue with the ruling per se. I’m taking issue with the fact that it’s an unfair task to request that you write a polar opposite conclusion of law without being able to craft the findings of fact. Let me give a very simple scenario. State X has contributory negligence (i.e. if the plaintiff in a car crash is even 1% responsible for his injuries, he can’t recover). The finding of fact is that Plaintiff A was 5% responsible for his injuries. The conclusion of law is that Plaintiff cannot recover. No one can arrive at an opposing conclusion of law based on the finding of fact. However, if your finding of fact is different… The conclusions of law are massively influenced by the findings of fact and the way they are couched. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [August 5, 2010, 4:49pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/193 "2010-08-05T16:49:07Z")
> [@Diogenes\_the\_Cynic](#): > > And there is nothing in state law that says procreation has anything to do with the purpose of marriage in California. You seem to be saying that no purpose needs to be stipulated in the law, that a judge is allowed to make up any purpose he wants, so why can’t another judge decide that the purpose of marriage is to encourage anal sex? The test is that a law be rationally related to a legitimate government interest. If a judge found that there was a legitimate government interest in encouraging anal sex, then that would be relevant in determining if a law related to encouraging anal sex based the rational basis test. However, it wouldn’t be relevant to determining whether _this_ law passes that test. So until someone passes a law that says, for instance “_Only_ gay marriages are recognized in California”, your proposed scenario isn’t really relevant. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 4:50pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/194 "2010-08-05T16:50:45Z")
> [@Rumor\_Watkins](#): > > > [@Whack-a-Mole](#): > > > > I am saying that is impossible for another finder of fact to do that without being willfully blind and immune to rules of logic and clear evidence to the contrary. The evidence is clear, California has never made marriage about procreation…that is as true a statement as LA being south of San Francisco is. If they can look at the evidence and deem that California in fact has made marriage about procreation then they can pretty much magic up any rationale they like out of whole cloth thus obviating the need for a trial…the facts do not matter to them. > > So then why did the Golden State pass laws creating the establishment of marriage? Marriage has almost always been an economic arrangement as far as the state is concerned (e.g. inheritance laws which will prefer a spouse to, say, your second cousin twice removed). ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [August 5, 2010, 4:52pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/195 "2010-08-05T16:52:05Z")
Continuing my response to **Diogenes** (two posts up): In other words, _finding_ a rational basis can only work in the law’s favor. The fact that the judge can “make up the purpose of marriage” (as you put it) when applying the rational basis test illustrates the fact that “rational basis” is not a very high bar for a law to overcome. That’s why we need such things as “strict scrutiny” and “intermediate scrutiny”. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 4:52pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/196 "2010-08-05T16:52:48Z")
> [@Whack-a-Mole](#): > > Marriage has almost always been an economic arrangement as far as the state is concerned (e.g. inheritance laws which will prefer a spouse to, say, your second cousin twice removed). I disagree. Why are polygamy and bigamy banned, then? and, fwiw, Walker disagrees with you: > [@](#): > > The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [August 5, 2010, 4:54pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/197 "2010-08-05T16:54:45Z")
> [@Rumor\_Watkins](#): > > > [@Whack-a-Mole](#): > > > > I am saying that is impossible for another finder of fact to do that without being willfully blind and immune to rules of logic and clear evidence to the contrary. The evidence is clear, California has never made marriage about procreation…that is as true a statement as LA being south of San Francisco is. If they can look at the evidence and deem that California in fact has made marriage about procreation then they can pretty much magic up any rationale they like out of whole cloth thus obviating the need for a trial…the facts do not matter to them. > > So then why did the Golden State pass laws creating the establishment of marriage? Its a fundamental right, both sides agreed with this. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 4:55pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/198 "2010-08-05T16:55:59Z")
> [@Gangster\_Octopus](#): > > Its a fundamental right, both sides agreed with this. so it’s your assertion that the State of California has to have marriage laws on its books? 😕 um, no. (ugh, egregious misuse of you’re!) ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [August 5, 2010, 5:00pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/199 "2010-08-05T17:00:25Z")
**Bricker** , can you explain what purpose rational basis review serves? What would be a law that could possibly fail that test, if made up bullshit reasons are allowed under it? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 5, 2010, 5:02pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/200 "2010-08-05T17:02:14Z")
> [@Rumor\_Watkins](#): > > > [@Diogenes\_the\_Cynic](#): > > > > Then it’s now your job to explain the difference between an infertile heterosexual couple’s ability to capacity to start a family and a homosexual couple’s ability to start a family. > > no, it’s not. I will say it again - it is not a relevant counter to a finding of rational bases that those bases do not exist in a certain case. > > take a discriminatory law: giving a 15% tax credit to those who have children versus those who don’t. Do you think it is now my burden to explain why this is not violative of the equal protection clause if you demonstrate that Bill Gates doesn’t need the tax break for his kids because he’s rich That’s not analogous. You’re talking about individual excepions to a broader purpose. What you need to expalin is why there is any difference at all between infertile heterosexual coupls _as a group_, and same-sex couples as a group. What reason exists to disallow recognition of marriage to same-sex couples that does not exist _equally_ for non-fertile or post menopausal heterosexual couples? No, I’m saying that judges will probably fill-in a rational interest if the meanderings of the case dictate it. There’s no “correctness” or “incorrectness” about the “assigned purpose” (other than it being legally sufficient; it’s either a legitimate governmental interest or it’s not, as a matter of judicial opinion) > [@](#): > > > [@](#): > > > > According to **Bricker** , it’s not a requirement that there be an important government interest. Any purpose will do. Not that procreation is any more important to the government than buttsecks. > > respectfully, bricker is wrong then if that’s really his conclusion. I doubt that it is Post #176. > [@](#): > > FYI, the correct word is “legitimate” not “important”. apologies Who decides whether a judge’s assigned purpose is “legitimate?” [Previous page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=9) [Next page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=11)