# 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:** 12
**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 6, 2010, 3:13am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/221 "2010-08-06T03:13:10Z")
> [@Rumor\_Watkins](#): > > There are plenty of immutable things that aren’t lifestyle choices that are subject to rational basis. age is the glaring one of those. I believe disability is also one of those (but the ADA circumvents the EP characterization) Age may be immutable but it is also not something set in stone. By which I mean, barring an untimely death, we will all be 5, 10, 15, 20, 30 and so on. It is not as if some of us are stuck being 5 years old and can never reach 18 to vote. Being a homosexual is either a lifestyle choice akin to choosing to drive a Ford or Chrysler or it is who you are…akin to being black or female (an immutable trait [ignoring sex changes for now]). If it is the former it is hard to grant homosexuality any protections. If it is the latter it is hard to see how it isn’t a protected class. ---
**Author:** ![ComeToTheDarkSideWeHaveCookies](https://avatars.discourse-cdn.com/v4/letter/c/e9bcb4/32.png) [@ComeToTheDarkSideWeHaveCookies](https://boards.straightdope.com/u/ComeToTheDarkSideWeHaveCookies)\ **Post date:** [August 6, 2010, 5:54am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/222 "2010-08-06T05:54:20Z")
> [@Whack-a-Mole](#): > > Indeed most homosexual people I know have told me, were it a choice, they never would have chosen to be homosexual. Generally this came on them in high school and the need to conform is powerful. Being the gay guy in the locker room was something that’d get you beat up. Not something most teens would willingly choose. I think such sentiment is an artifact of oppression, and while it does provide a compelling case that sexual orientation is more complicated than personal preference, it is a sentiment that is being experienced less and less as LGBT people are oppressed less and less. It strikes me as a bit ironic, especially if the rate of people not feeling that way anymore declines at a faster rate than the oppression is eased. ---
**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 6, 2010, 8:22am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/223 "2010-08-06T08:22:38Z")
> [@ComeToTheDarkSideWeHaveCookies](#): > > > [@Whack-a-Mole](#): > > > > Indeed most homosexual people I know have told me, were it a choice, they never would have chosen to be homosexual. Generally this came on them in high school and the need to conform is powerful. Being the gay guy in the locker room was something that’d get you beat up. Not something most teens would willingly choose. > > I think such sentiment is an artifact of oppression, and while it does provide a compelling case that sexual orientation is more complicated than personal preference, it is a sentiment that is being experienced less and less as LGBT people are oppressed less and less. It strikes me as a bit ironic, especially if the rate of people not feeling that way anymore declines at a faster rate than the oppression is eased. Fine. That does not change the notion of it being a “choice”. That kids today _might_ be less oppressed does not change the experiences of those who were not so long ago. The point being it still remains that, till very recently, few people would “choose” homosexuality as if it were a coin flip between that and being heterosexual. Most gay men I know have been with women…they were trying to conform. Hell, some made it to getting married and having children before they came to terms with their sexuality. The short version is very, very few homosexuals choose the lifestyle on a whim. ---
**Author:** ![ComeToTheDarkSideWeHaveCookies](https://avatars.discourse-cdn.com/v4/letter/c/e9bcb4/32.png) [@ComeToTheDarkSideWeHaveCookies](https://boards.straightdope.com/u/ComeToTheDarkSideWeHaveCookies)\ **Post date:** [August 6, 2010, 8:42am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/224 "2010-08-06T08:42:55Z")
I guess it wasn’t clear that I was agreeing with you, Whack-a Mole. I’m keenly aware that my life as a lesbian is not a whimsical lifestyle choice. I just find the layers of the shifting social dynamics interesting. ---
**Author:** ![ComeToTheDarkSideWeHaveCookies](https://avatars.discourse-cdn.com/v4/letter/c/e9bcb4/32.png) [@ComeToTheDarkSideWeHaveCookies](https://boards.straightdope.com/u/ComeToTheDarkSideWeHaveCookies)\ **Post date:** [August 6, 2010, 8:49am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/225 "2010-08-06T08:49:54Z")
NETA: I also don’t recalling feeling that particular sentiment much in my life. I had a few bumps and bruises in my coming out process, but once I got past my denial, I don’t recall ever feeling like I’d be eager to go straight if someone could wave a magic wand and make it so. ---
**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 6, 2010, 11:41am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/226 "2010-08-06T11:41:50Z")
> [@Whack-a-Mole](#): > > > [@Rumor\_Watkins](#): > > > > There are plenty of immutable things that aren’t lifestyle choices that are subject to rational basis. age is the glaring one of those. I believe disability is also one of those (but the ADA circumvents the EP characterization) > > Age may be immutable but it is also not something set in stone. By which I mean, barring an untimely death, we will all be 5, 10, 15, 20, 30 and so on. It is not as if some of us are stuck being 5 years old and can never reach 18 to vote. > > Being a homosexual is either a lifestyle choice akin to choosing to drive a Ford or Chrysler or it is who you are…akin to being black or female (an immutable trait [ignoring sex changes for now]). > > If it is the former it is hard to grant homosexuality any protections. If it is the latter it is hard to see how it isn’t a protected class. Ok, that’s your opinion. There isn’t any talisman to tell you if you’re right - you’re just going to have to wait for the supreme court to weigh in on it. If you are to ask me, I don’t think it’s “deserving” of suspect classification if you look at the reasons for the implementation of the 14th amendment, and compare the levels of prejudice and discrimination brought against people because of sexual orientation versus race/origin. Immutability is one of the ways courts have delimited the suspect classification, but it’s neither necessary nor sufficient for suspect classification and, to me, there is a palpable difference in the way blacks have been treated (before and after the reconstruction era) “by the (abuse of) law” compared to homosexuals. Another large problem with granting “homosexuality” suspect classification is the classification itself. The issue that is up for debate here isn’t “gay” marriage per se, it’s “same-sex” marriage. So, right then and there, you have definitional problems with what you are advancing - it it protecting sexual orientation as sexual orientation in its own right, or is it protecting sexual orientation as a sex/gender thing? Because, in one case, sexual orientation isn’t directly being discriminated against (i.e. anti-SSM laws don’t discriminate based on sexual orientation, they discriminate based on sex) but on the other, it is. Are proponents of SSM fighting for (and anti-SSM opponents fighting against) the right for to heterosexual people to get married to members of the same sex? Again, is the fight against sexual orientation in its own right (keeping in mind that the law actually doesn’t discriminate, facially, on sexual orientation) or sexual orientation via biological sex? I don’t know really in what way to think of this issue, in a legal classification sense, and I don’t think the law knows this to any certainty, either. For those reasons, if the supreme court is going to maintain the 3-stage framework of EP review, It would more properly be couched as a quasi-suspect class subject to intermediate review, to me. It doesn’t seem to make much sense, owing to the history of the amendment and to the locus of the discrimination, to give it a lower or higher standard of review. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2010, 1:20pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/227 "2010-08-06T13:20:39Z")
> [@Rumor\_Watkins](#): > > > [@waterj2](#): > > > > Wouldn’t Judge Walker’s use of “rational basis” fall within those (admittedly vague) precedents? Or is there something I’m missing here? > > the thing that you’re missing (not saying that you are missing something, rather that there is something missing) is the whole “purported” thing… > > EP analysis was, for a long time, either done under Strict Scrutiny or Rational Basis… then along came Independent Scrutiny in one case which may or may not have carved a new analytical rubric. Then comes “rational basis with bite” - the problem here is that a lot of this jurisprudence has run amok and we could really use a seminal SCOTUS case (as would be the case with gay marriage) to make some definitive statements about the standard of review. One of Prof. Volokh’s blog contributors (I think) opined that at the very least, courts should forthrightly define what they’re doing. The purpose of appellate courts is to give guidance to trial courts. The commentator went on to say (and I’m not quoting because try as I might, I can’t find it now) that one reason for this reticence might be that judges wish to retain the flexibility to decide issues as they want, and not announce a standard they are then bound to. So, to take one example, a judge who wants to strike down the anti-gay provisions in Colorado’s case will say, “Rational basis,” but apply the test with unstated teeth, leaving himself room to continue to say “Rational basis” when same-sex marriage comes around and be able to uphold its prohibition. The commentator or guest blogger, whoever it was, then said that courts shouldn’t do that – if they are crafting yet another standard of review, they should be upfront about it. ---
**Author:** ![Sablicious](https://avatars.discourse-cdn.com/v4/letter/s/bbce88/32.png) [@Sablicious](https://boards.straightdope.com/u/Sablicious)\ **Post date:** [August 6, 2010, 1:56pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/228 "2010-08-06T13:56:05Z")
Why two [sane] people would want to restrict themselves to the claustrophobic confines of the antiquated institution that is marriage is beyond me. Moreover, the incongruity of the requirement of a signed contract to solidify something as supposedly ethereal as love, is even more baffling. Having said that, like Voltaire, I may not espouse all this conjoinment craziness, but I’ll defend - not quite to the death, just in living spirit - the right for those that desire thus to partake in it. Whether Pop-8 should or shouldn’t be amended isn’t an argument for any rationally minded person, as one’s innate sexual orientation is just that -\*\* innate\*\*. Hence the right for one to act on whatever thus entails, marriage in this case, is a basic human right. ---
**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 6, 2010, 2:32pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/229 "2010-08-06T14:32:44Z")
> [@Rumor\_Watkins](#): > > If you are to ask me, I don’t think it’s “deserving” of suspect classification if you look at the reasons for the implementation of the 14th amendment, and compare the levels of prejudice and discrimination brought against people because of sexual orientation versus race/origin. Immutability is one of the ways courts have delimited the suspect classification, but it’s neither necessary nor sufficient for suspect classification and, to me, there is a palpable difference in the way blacks have been treated (before and after the reconstruction era) “by the (abuse of) law” compared to homosexuals. If there’s a difference, it’s that homosexuals have been treated _worse_. It’s never been a crime just to BE black, it has been a crime to be gay, and there are still people now, including people holding high, elected office who still advocate the view that homosexual sex _per se_ should be criminalized. All kinds of discrimination against gay people is still legal, and anti-gay, openly homophobic opinions are still treated as perfectly legitimate in much of the media (especially the conservative media), and it’s still widely preached in churches. Incidentally, gay people were thrown into the death camps in Nazi Germany right alongside the Jews, the Jehova’s Witnesses, the Romani and the physically handicapped so trying to propose that gay folks haven’t suffered the same kind of discrimination as currently protected racial groups is a non-starter. They certainly have, and they have the added problem of having the bigotry against them not only legitimized, but primarily _fueled_ by religion. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 6, 2010, 2:34pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/230 "2010-08-06T14:34:24Z")
> [@Sablicious](#): > > Why two [sane] people would want to restrict themselves to the claustrophobic confines of the antiquated institution that is marriage is beyond me. Moreover, the incongruity of the requirement of a signed contract to solidify something as supposedly ethereal as love, is even more baffling. Well, they might want to inherit each others’ stuff. Or be eligible to be added to each others’ health insurance. Or adopt a child. Or buy a home together. Or make medical decisions for one another. You know, little things. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [August 6, 2010, 2:41pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/231 "2010-08-06T14:41:05Z")
> [@Really\_Not\_All\_That\_Bright](#): > > > [@Sablicious](#): > > > > Why two [sane] people would want to restrict themselves to the claustrophobic confines of the antiquated institution that is marriage is beyond me. Moreover, the incongruity of the requirement of a signed contract to solidify something as supposedly ethereal as love, is even more baffling. > > Well, they might want to inherit each others’ stuff. Or be eligible to be added to each others’ health insurance. Or adopt a child. Or buy a home together. Or make medical decisions for one another. > > You know, little things. Or not be deported back to a country where they can be executed for being homosexual, for example. ---
**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 6, 2010, 2:45pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/232 "2010-08-06T14:45:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, they might want to inherit each others’ stuff. Can already be done > [@](#): > > Or be eligible to be added to each others’ health insurance. many companies’ insurance policies allow this > [@](#): > > Or adopt a child. I’ve seen it been done firsthand > [@](#): > > Or buy a home together. can be done already > [@](#): > > Or make medical decisions for one another. can be done already > [@Diogenes\_the\_Cynic](#): > > If there’s a difference, it’s that homosexuals have been treated _worse_. It’s never been a crime just to BE black, it has been a crime to be gay, and there are still people now, including people holding high, elected office who still advocate the view that homosexual sex _per se_ should be criminalized. All kinds of discrimination against gay people is still legal, and anti-gay, openly homophobic opinions are still treated as perfectly legitimate in much of the media (especially the conservative media), and it’s still widely preached in churches. Um… yeah… ok. :rolleyes: > [@](#): > > Incidentally, gay people were thrown into the death camps in Nazi Germany right alongside the Jews, the Jehova’s Witnesses, the Romani and the physically handicapped so trying to propose that gay folks haven’t suffered the same kind of discrimination as currently protected racial groups is a non-starter. They certainly have, and they have the added problem of having the bigotry against them not only legitimized, but primarily _fueled_ by religion. Um, this has what now to do with discrimination in the United States? ---
**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 6, 2010, 2:51pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/233 "2010-08-06T14:51:56Z")
That’s the best you can do? Ok, then. Please explain what kind of discrimination over the last 100 years _in the US_ that black people have been subjected to but not gays. You said that blacks have been treated worse “by the (abuse) of law” than gay people. Back that up. What has been the advantage of being openly gay over being black? You said there is a “palpable difference.” What is it? ---
**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 6, 2010, 2:54pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/234 "2010-08-06T14:54:05Z")
> [@Diogenes\_the\_Cynic](#): > > That’s the best you can do? Ok, then. Please explain what kind of discrimination over the last 100 years _in the US_ that black people have been subjected to but not gays. You said that blacks have been treated worse “by the (abuse) of law” than gay people. Back that up. What has been the advantage of being openly gay over being black? You said there is a “palpable difference.” What is it? why are you cutting it off to the past 100 years? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2010, 3:01pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/235 "2010-08-06T15:01:29Z")
> [@Rumor\_Watkins](#): > > > [@Really\_Not\_All\_That\_Bright](#): > > > > Well, they might want to inherit each others’ stuff. > > Can already be done Yes, but. My wife and I will automatically inherit from each other. We didn’t need to spend a single extra penny to make that happen. A gay couple can make it happen, yes: by consulting a lawyer, drawing up wills, and then hoping that a former spouse or a disgruntled child can’t challenge the will after death and force the inheriting non-spouse spouse to run up even more bills defending himself. Everything else on your list suffers from a variant of this same flaw. It’s not that it can be accomplished – it’s the fact that to accomplish it is more difficult, and more expensive, than it is for married couples. ---
**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 6, 2010, 3:01pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/236 "2010-08-06T15:01:48Z")
Why are you so desperate to stretch it BEYOND 100 years? You said the difference existed both “before and after reconstruction,” so I’m going to hold you to the “after reconstruction” part. If all you’ve got in your arsenal is slavery, then you’re going to have to walk back the “after reconstruction” bit. Slavery has no relevance now anyway. Discrimination against gay people in modern times has been as bad or worse than that against blacks, and in the last 40 years or so, it’s only been worse. When do you think we’ll ever see an openly gay President? By the way, even slavery doesn’t really help you. It’s not like gay people still weren’t discriminated against back then. It was still illegal to be gay. ---
**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 6, 2010, 3:04pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/237 "2010-08-06T15:04:03Z")
> [@Bricker](#): > > > [@Rumor\_Watkins](#): > > > > Can already be done > > Yes, but. > > My wife and I will automatically inherit from each other. We didn’t need to spend a single extra penny to make that happen. A gay couple can make it happen, yes: by consulting a lawyer, drawing up wills, and then hoping that a former spouse or a disgruntled child can’t challenge the will after death and force the inheriting non-spouse spouse to run up even more bills defending himself. > > Everything else on your list suffers from a variant of this same flaw. It’s not that it can be accomplished – it’s the fact that to accomplish it is more difficult, and more expensive, than it is for married couples. Not to mention the same thing can be said about hetero couples. ---
**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 6, 2010, 3:05pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/238 "2010-08-06T15:05:45Z")
> [@Bricker](#): > > > [@Rumor\_Watkins](#): > > > > Can already be done > > Yes, but. > > My wife and I will automatically inherit from each other. We didn’t need to spend a single extra penny to make that happen. A gay couple can make it happen, yes: by consulting a lawyer, drawing up wills, and then hoping that a former spouse or a disgruntled child can’t challenge the will after death and force the inheriting non-spouse spouse to run up even more bills defending himself. > > Everything else on your list suffers from a variant of this same flaw. It’s not that it can be accomplished – it’s the fact that to accomplish it is more difficult, and more expensive, than it is for married couples. I don’t believe spouses have the right to direct medical treatment absent a living will/power of attorney, I’m not aware that purchasing a piece of real estate with one joint tenant is any more difficult than another, and I’m not so sure a gay adoption incurs any more expense (in the jurisdictions that will do it) than a hetero adoption. And I’m not sure anyone really wants to have intestacy laws govern their estate 😉 Yes, I get your point, though. My response is more aimed at the the flip rattling off of benefits 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 6, 2010, 3:10pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/239 "2010-08-06T15:10:28Z")
> [@Diogenes\_the\_Cynic](#): > > Why are you so desperate to stretch it BEYOND 100 years? > > You said the difference existed both “before and after reconstruction,” so I’m going to hold you to the “after reconstruction” part. If all you’ve got in your arsenal is slavery, then you’re going to have to walk back the “after reconstruction” bit. Slavery has no relevance now anyway. Discrimination against gay people in modern times has been as bad or worse than that against blacks, and in the last 40 years or so, it’s only been worse. When do you think we’ll ever see an openly gay President? > > By the way, even slavery doesn’t really help you. It’s not like gay people still weren’t discriminated against back then. It was still illegal to be gay. Can you cite me to the law criminalizing homosexuality? Sodomy laws don’t cut it. [http://en.wikipedia.org/wiki/Jim\_crow\_era](http://en.wikipedia.org/wiki/Jim_crow_era) [http://en.wikipedia.org/wiki/Nadir\_of\_American\_race\_relations](http://en.wikipedia.org/wiki/Nadir_of_American_race_relations) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 6, 2010, 3:25pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/240 "2010-08-06T15:25:15Z")
Why don’t sodomy laws cut it, exactly? Arguing that homosexuals are allowed to exist, but not to function, is a bit much. [Previous page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=11) [Next page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=13)