# 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:** 13
**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, 3:27pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/241 "2010-08-06T15:27:16Z")
> [@Rumor\_Watkins](#): > > Yes, I get your point, though. My response is more aimed at the the flip rattling off of benefits of marriage What private legal mechanism exists to allow a gay man to keep the love of his life in the country after his visa expires? ---
**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, 3:41pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/242 "2010-08-06T15:41:48Z")
> [@Rumor\_Watkins](#): > > Can you cite me to the law criminalizing homosexuality? Sodomy laws don’t cut it. Yes, sodomy laws do cut it, you can’t just handwave them away. Even if I were to accept this kind of weasel, it’s still never been illegal for black people to have sex with each other, and Jim Crow existed just as much for gay people and continues to exist. It has been (and still is, in some cases) legal to discriminate against gay people in employment and housing well after civil rights legislation made it illegal to do those things to blacks. Gay people have been routinely targeted for violence, beatings and lynchings at least as often black people (and not infrequently BY black people) since at last reconstruction, and gay people suffer the unique indignity of having the state refuse to give their committed relationships the rights and protections that everyone else, of any race, is permitted to seek. You can’t back up your claim that there is a “palpable difference” in the levels of discrimination against black people and GLBT people. The difference doesn’t exist. The _forms_ are sometimes different, but not the levels, and while the US has, to a large extent (if not completely) outgrown its racial bigotry (at least on an institutional level), homophobic bigotry is still accepted as a perfectly valid viewpoint. ---
**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, 3:42pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/243 "2010-08-06T15:42:25Z")
> [@Rumor\_Watkins](#): > > I don’t believe spouses have the right to direct medical treatment absent a living will/power of attorney… Believe it. In Virginia, to pick my home state as an example, Va Code § 54.1-2986 provides: > [@](#): > > A. Whenever a patient is determined to be incapable of making an informed decision and (i) has not made an advance directive in accordance with this article or (ii) has made an advance directive in accordance with this article that does not indicate his wishes with respect to the health care at issue and does not appoint an agent, the attending physician may, upon compliance with the provisions of this section, provide, continue, withhold or withdraw health care upon the authorization of any of the following persons, in the specified order of priority, if the physician is not aware of any available, willing and capable person in a higher class: > > 1. A guardian for the patient. This subdivision shall not be construed to require such appointment in order that a health care decision can be made under this section; or > > 2. The patient’s spouse except where a divorce action has been filed and the divorce is not final; or > > 3. An adult child of the patient; or > > 4. A parent of the patient; or > > 5. An adult brother or sister of the patient; or > > 6. Any other relative of the patient in the descending order of blood relationship; Obviously an existing advance directive has sway, but that’s my point: merely by marrying my wife, she automatically assume the highest possible status (absent a court-appointed guardian) for making medical care decisions if I cannot. Note that in Virginia, no same-sex couple can possibly reach that goal unless they carefully, and expensively, prepare an advance directive, and even then may be challenged by a parent, sibling, or child. ---
**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 6, 2010, 3:48pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/244 "2010-08-06T15:48:28Z")
Izs there a way this can go directly to the Supreme Court, it just seems like such a waste of time to wait. 🙂 ---
**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, 3:57pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/245 "2010-08-06T15:57:46Z")
> [@Rumor\_Watkins](#): > > My response is more aimed at the the flip rattling off of benefits of marriage Flip rattling off? How about [1,138 distinct benefits](http://gaylife.about.com/od/samesexmarriage/a/benefits.htm) gained by getting married strike you for being flip (as counted by the General Accounting Office)? Here’s a few: Assumption of Spouse’s Pension Automatic Inheritance Automatic Housing Lease Transfer Bereavement Leave Burial Determination Child Custody Crime Victim’s Recovery Benefits Divorce Protections Domestic Violence Protection Exemption from Property Tax on Partner’s Death Immunity from Testifying Against Spouse Insurance Breaks Joint Adoption and Foster Care Joint Bankruptcy Joint Parenting (Insurance Coverage, School Records) Medical Decisions on Behalf of Partner Certain Property Rights Reduced Rate Memberships Sick Leave to Care for Partner Visitation of Partner’s Children Visitation of Partner in Hospital or Prison Wrongful Death (Loss of Consort) Benefits ---
**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, 4:21pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/246 "2010-08-06T16:21:03Z")
> [@Rumor\_Watkins](#): > > I don’t believe spouses have the right to direct medical treatment absent a living will/power of attorney… Were you napping during that whole Terri Schiavo thing? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 6, 2010, 4:24pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/247 "2010-08-06T16:24:14Z")
> [@Gangster\_Octopus](#): > > Izs there a way this can go directly to the Supreme Court, it just seems like such a waste of time to wait. 🙂 Yeah, I know, but I don’t think there is a way to circumvent the Circuit appeal. The SCOTUS will use that court’s ruling as the basis for theirs. This is going to take years-- no way around it. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [August 6, 2010, 4:25pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/248 "2010-08-06T16:25:12Z")
> [@Whack-a-Mole](#): > > Flip rattling off? > > How about [1,138 distinct benefits](http://gaylife.about.com/od/samesexmarriage/a/benefits.htm) gained by getting married strike you for being flip (as counted by the General Accounting Office)? You see, it’s flip because it’s something he doesn’t have to think twice about. There’s nothing so cozy as entitlements you take for granted… ---
**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 6, 2010, 5:05pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/249 "2010-08-06T17:05:12Z")
> [@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. Another story: I have two lovely co-workers who are lesbians. Last year, one of them got pregnant via a sperm donor. When she was due, she was able to take time off via the Family Medical Leave Act. Her partner was not, because she legally wasn’t the mother and couldn’t become the mother. Yes, she could adopt the child, and of course that’s what she did. But you’re not allowed to initiate adoption proceedings until a child is born, and it takes about six weeks for the proceedings to go through. So she wasn’t eligible to take **any** time off until six weeks after her daughter was born. Meanwhile, another unmarried straight couple with the same employer got pregnant. The male had no trouble getting time off under FMLA, even though there was no proof that he was the father. Eventually the non-bio-mom was able to convince HR to let her take sick leave for several weeks–but she really had to fight for it, and by law they didn’t need to let her do it. They could have denied her any time off until her daughter was legally her daughter. Same-sex marriage would have easily resolved this situation: were the two of them able to get married, she absolutely would have been the girl’s mother at the moment of birth, and would have been eligible for FMLA leave. What say you, **Rumor**? Was this situation fair? Was it just? Did this couple have equal access to the law? ---
**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, 5:08pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/250 "2010-08-06T17:08:47Z")
> [@John\_Mace](#): > > > [@Gangster\_Octopus](#): > > > > Izs there a way this can go directly to the Supreme Court, it just seems like such a waste of time to wait. 🙂 > > Yeah, I know, but I don’t think there is a way to circumvent the Circuit appeal. The SCOTUS will use that court’s ruling as the basis for theirs. > > This is going to take years-- no way around it. The Ninth can refuse to hear the appeal, in which case the Prop 8 people could appeal straight to SCOTUS. ---
**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 6, 2010, 5:15pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/251 "2010-08-06T17:15:09Z")
> [@Really\_Not\_All\_That\_Bright](#): > > > [@John\_Mace](#): > > > > Yeah, I know, but I don’t think there is a way to circumvent the Circuit appeal. The SCOTUS will use that court’s ruling as the basis for theirs. > > > > This is going to take years-- no way around it. > > The Ninth can refuse to hear the appeal, in which case the Prop 8 people could appeal straight to SCOTUS. So what is the standard by which the Ninth decides whether they want to hear the appeal or not? ---
**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, 5:22pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/252 "2010-08-06T17:22:13Z")
I would guess whether they think there is a reasonable possibility of the appeal succeeding. ---
**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 6, 2010, 5:31pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/253 "2010-08-06T17:31:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I would guess whether they think there is a reasonable possibility of the appeal succeeding. Yes, but do they base that simply on the court record and written decision or can they consider other factors? I mean the Pro prop 8 folks put up a terrible case (probably because they have a terrible case) where their own witnesses often worked against them. ---
**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, 5:42pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/254 "2010-08-06T17:42:17Z")
On the record. Appeals courts don’t consider new evidence even _during_ a trial\*, let alone when determining whether to hear the case in the first place. \*Except in very limited circumstances. ETA: Unless you’re including existing case law in “other factors”. ---
**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, 5:46pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/255 "2010-08-06T17:46:15Z")
I wonder if politically the Ninth could refuse to hear it (or for that matter the SCOTUS). I suppose if they both punted that would be the best outcome for Prop8 folk (well…best would be the SCOTUS ruling in their favor so second best). If they dodged it then SSM would become legal in California but remain up-in-the-air everywhere else. I suspect sooner or later the SCOTUS would be forced to deal with this. Even if they dodged it this time around I presume another circuit ruling differently than the Ninth would force the issue to the SCOTUS. ---
**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, 5:52pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/256 "2010-08-06T17:52:16Z")
Considering that the previous makeup of SCOTUS was slightly _less_ conservative, I don’t see the current incarnation upholding this ruling. It’s also by no means a sure bet that the Ninth Circuit will uphold the decision. The Ninth Circuit is _huge_, and has 20-something judges. Unlike the other federal circuits, they don’t sit _en banc_; they take it in turns to hear cases, in groups of… 12, I think. That means that on any given day, it can be the most _or_ least liberal of the federal appeals courts. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 6, 2010, 5:54pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/257 "2010-08-06T17:54:55Z")
Even if (against all evidence) sexuality were a choice, it could still be a protected class, subject to more than rational basis review. After all, religion is a choice, too, and we protect that. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [August 6, 2010, 6:00pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/258 "2010-08-06T18:00:10Z")
> [@Chronos](#): > > Even if (against all evidence) sexuality were a choice, it could still be a protected class, subject to more than rational basis review. After all, religion is a choice, too, and we protect that. But religion is _special_… ---
**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, 6:07pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/259 "2010-08-06T18:07:42Z")
> [@jayjay](#): > > > [@Chronos](#): > > > > Even if (against all evidence) sexuality were a choice, it could still be a protected class, subject to more than rational basis review. After all, religion is a choice, too, and we protect that. > > But religion is _special_… It is since it is explicitly protected in the constitution. ---
**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, 6:10pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/260 "2010-08-06T18:10:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Considering that the previous makeup of SCOTUS was slightly _less_ conservative, I don’t see the current incarnation upholding this ruling. I dunno…the analysis I have heard so far suggests you have Kennedy as the swing vote and his past votes (such as in Lawrence) suggest he might tip the balance in favor of SSM. [Previous page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=12) [Next page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=14)