# 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:** 14
**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, 6:20pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/261 "2010-08-06T18:20:51Z")
> [@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. True, but religion appears in the Constitution as a category that is off-limits to the government. Sexuality does not. ---
**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, 6:23pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/262 "2010-08-06T18:23:32Z")
> [@Whack-a-Mole](#): > > > [@jayjay](#): > > > > But religion is _special_… > > It is since it is explicitly protected in the constitution. I wasn’t really talking about the consitutional issues as much as the societal ones. The constitutional issue is just a side-effect of the societal ones. I have no problem at all with the First Amendment. I may not be religious, I may not believe in any of the extant religions currently practiced. I may think they’re all a bunch of malarkey. But I do believe that, barring the places where religion tries to intercept the rights of others (either differently-religioned or non-religioned), that freedom of worship and belief are really incredibly important. It’s just that, underneath that level, I tend to consider it all no more accurate or likely than a collection of the Brothers Grimm or Charles Perrault. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 6, 2010, 6:58pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/263 "2010-08-06T18:58:32Z")
> [@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. Whether or not it’s a choice has nothing whatsoever to do with whether something is a special class - whether something is special or not is purely a legal affectation. Sure, most of the special classes are things you don’t have a choice about, but that’s because those are the oppressed classes that people felt most sorry for, and it’s easier to feel sorry for somebody if they don’t have a choice about it. But that does _not_ mean that “not choice” = protected class; that doesn’t happen until somebody makes a law saying so explicitly. I mean, look at the poor left-handers, the tall people, and the people with cancer. Are they special classes? Nope. Not yet anyway. ---
**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, 7:13pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/264 "2010-08-06T19:13:35Z")
> [@begbert2](#): > > Whether or not it’s a choice has nothing whatsoever to do with whether something is a special class One of the prongs of the test for protected class status is whether the group possesses an immutable or highly visible trait. If it is a choice, it isn’t immutable. While not being a choice is not automatically the same as suspect class, to claim it has nothing whatsoever to do with it is completely incorrect. ---
**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, 7:41pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/265 "2010-08-06T19:41:18Z")
> [@](#): > > True, but religion appears in the Constitution as a category that is off-limits to the government. Sexuality does not. Sure, but the Constitution isn’t inherently fundamental. It was made by humans, for human reasons, and humans could make other rules. If a bunch of folks a couple centuries ago decided that religious persecution was a no-no, despite religion being chosen, then a bunch of folks nowadays can decide that sexual persecution is a no-no, even if sexuality is chosen. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [August 6, 2010, 7:51pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/266 "2010-08-06T19:51:53Z")
> [@Whack-a-Mole](#): > > 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… If between now & the SCOTUS hearing Californians were to vote to delete Prop 8 from their state constitution (thus relegalizing SSM) then wouldn’t SCOTUS be able to refuse to hear on the grounds that there’s no longer an actual case or controversy to be decided since the law in question has already been repealed? ---
**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, 8:05pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/267 "2010-08-06T20:05:44Z")
> [@Chronos](#): > > > [@](#): > > > > True, but religion appears in the Constitution as a category that is off-limits to the government. Sexuality does not. > > Sure, but the Constitution isn’t inherently fundamental. It was made by humans, for human reasons, and humans could make other rules. If a bunch of folks a couple centuries ago decided that religious persecution was a no-no, despite religion being chosen, then a bunch of folks nowadays can decide that sexual persecution is a no-no, even if sexuality is chosen. Absolutely. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 6, 2010, 8:34pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/268 "2010-08-06T20:34:36Z")
> [@villa](#): > > > [@begbert2](#): > > > > Whether or not it’s a choice has nothing whatsoever to do with whether something is a special class > > One of the prongs of the test for protected class status is whether the group possesses an immutable or highly visible trait. If it is a choice, it isn’t immutable. While not being a choice is not automatically the same as suspect class, to claim it has nothing whatsoever to do with it is completely incorrect. It has something to do with whether a case can be made to _make_ it a special class. But it has nothing whatsoever to do with whether it currently _is_. On that, settled legislation and jurisprudence is the first, last, and only word. ---
**Author:** ![rivulus](https://avatars.discourse-cdn.com/v4/letter/r/839c29/32.png) [@rivulus](https://boards.straightdope.com/u/rivulus)\ **Post date:** [August 7, 2010, 3:51am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/269 "2010-08-07T03:51:39Z")
> [@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. Hear, hear! While same-sex couples like me and my partner have the financial resources to spend on a lawyer to draw up wills and trusts, powers of attorney, or arrange a second-parent adoption, lower income people simply cannot afford it. Sure, **Rumor Watkins** , many companies offer same-sex benefits, but how many people have the economic resources to hold out for a job with one of those more enlightened companies? Particularly in this economic climate. It’s awfully elitist to think that all gay and lesbian couples have the means to jury rig some semblance of the long list of protections that a straight couple can get with a $35 marriage license. We don’t all live like in The Real L-Word. ---
**Author:** ![rivulus](https://avatars.discourse-cdn.com/v4/letter/r/839c29/32.png) [@rivulus](https://boards.straightdope.com/u/rivulus)\ **Post date:** [August 7, 2010, 4:06am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/270 "2010-08-07T04:06:14Z")
> [@Rumor\_Watkins](#): > > [snip]…and I’m not so sure a gay adoption incurs any more expense (in the jurisdictions that will do it) than a hetero adoption. Then you really need to get more educated on the subject. When it comes to adoption expenses, it’s not just the case where someone is adopting an unrelated child. In my case, I gave birth to our son. If my partner and I were married, he would have automatically, without any extra cost, have been recognized as my partner’s son too. As it is, we had to hire a lawyer, wait 6 months (for some legal reason that I don’t quite understand), and go through the second-parent adoption process. This all cost money and time. It also required several months of worry whether we would have to move from the city to the county in case the one or two non-bigoted judges were moved to a different district. If necessary, we would have had to sell our house and establish residency in a different county to have access to a judge who would be willing to grant the second-parent adoption. That would have been a serious cost! It was absolutely worth it to establish the legal right of BOTH parents of our son. But, here again, we had the money to do it. Not everyone has those financial resources. Yet married couples get that benefit for virtually free. We also had the supreme good luck that I wasn’t hit by a bus in the 6 months between our son’s birth and when the adoption went through. If I had died, my partner would have had NO legal claim to the son she had seen born and raised from the moment of his birth. How nice of you to imagine that the workarounds for gay and lesbian families are so easily managed! The reality ain’t quite so simple. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [August 9, 2010, 10:38am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/271 "2010-08-09T10:38:00Z")
Just thought I’d throw this up here. The blog [Pam’s House Blend](http://www.pamshouseblend.com/showDiary.do?diaryId=16968) has a post up arguing that Prop 8 supporters do not have standing to appeal to the 9th circuit. If that’s true, then only the state of CA has standing to appeal, but it’s not going to appeal. If the 9th accepts that argument, then the District Court’s ruling would stand, but would only apply to the state of CA. I don’t really have a background in this area of standing law, but my understanding is that the 9th has rejected this argument before (although the SC later vacated that ruling). Perhaps somebody with more knowledge can weigh in. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [August 9, 2010, 8:24pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/272 "2010-08-09T20:24:34Z")
> [@BrightNShiny](#): > > Just thought I’d throw this up here. The blog [Pam’s House Blend](http://www.pamshouseblend.com/showDiary.do?diaryId=16968) has a post up arguing that Prop 8 supporters do not have standing to appeal to the 9th circuit… I was jost going to post [Daily Kos](http://www.dailykos.com/storyonly/2010/8/7/890986/-Prop-8:-Proponents-May-Lack-Standing-to-Appeal)’s article. This is a new wrinkle. This might not make it to SCOTUS at all, or it might be heard even sooner. And there’s only a 90 day window to file an appeal, isn’t there? So even if the Republican candidates win both CA’s gubernatorial and AG elections it’ll be loot late for them do anything, wouldn’t it? ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [August 12, 2010, 8:05pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/273 "2010-08-12T20:05:48Z")
Same-sex weddings can resume, [next Wednesday](http://http://blogs.ocweekly.com/navelgazing/breaking-news/prop-8-gay-marriage-oc/) barring the 9th Circuit extending the stay further. ---
**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 12, 2010, 8:13pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/274 "2010-08-12T20:13:29Z")
Here is the order: [https://ecf.cand.uscourts.gov/cand/09cv2292/files/Final\_stay\_order.pdf](https://ecf.cand.uscourts.gov/cand/09cv2292/files/Final_stay_order.pdf) ---
**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 12, 2010, 8:22pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/275 "2010-08-12T20:22:29Z")
> [@Gangster\_Octopus](#): > > Here is the order: > > [https://ecf.cand.uscourts.gov/cand/09cv2292/files/Final\_stay\_order.pdf](https://ecf.cand.uscourts.gov/cand/09cv2292/files/Final_stay_order.pdf) IANAL, but after reading that it seems like those requesting the stay got their asses handed to them sixteen ways from Tuesday (whatever that means). ---
**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 12, 2010, 8:30pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/276 "2010-08-12T20:30:41Z")
Well, not really. One of the factors was that they didn’t address their chances of succeeding on appeal, because their motion was drafted before the ruling was published. Basically, they took a chance that the stay would not be granted rather than allow anyone to get gay married during the time between the (original) ruling and filing a motion for stay that actually addressed the ruling. In other words, they decided that it was more important to ensure nobody got married immediately following the ruling than it was that the stay be granted. Not sure why. ---
**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 12, 2010, 8:53pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/277 "2010-08-12T20:53:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, not really. One of the factors was that they didn’t address their chances of succeeding on appeal, because their motion was drafted before the ruling was published. > > Basically, they took a chance that the stay would not be granted rather than allow anyone to get gay married during the time between the (original) ruling and filing a motion for stay that actually addressed the ruling. > > In other words, they decided that it was more important to ensure nobody got married immediately following the ruling than it was that the stay be granted. Not sure why. Sure, but it seems to me that the judge also basically told them that they don’t even really have standing, that they didn’t even pretend to discuss how it would damage them personally or even how they think they have a reasonably good chance of winning on appeal. It just seems like abunch of amaterus threw that appeal together. ---
**Author:** ![Llama\_Llogophile](https://avatars.discourse-cdn.com/v4/letter/l/49beb7/32.png) [@Llama\_Llogophile](https://boards.straightdope.com/u/Llama_Llogophile)\ **Post date:** [August 12, 2010, 9:24pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/278 "2010-08-12T21:24:07Z")
[quote=“Gangster\_Octopus, post:277, topic:488386”] > [@Really\_Not\_All\_That\_Bright](#): > > Sure, but it seems to me that the judge also basically told them that they don’t even really have standing, that they didn’t even pretend to discuss how it would damage them personally or even how they think they have a reasonably good chance of winning on appeal. It just seems like abunch of amaterus threw that appeal together. I read the entire 130-page main decision, and that definitely made it sound like the proponents of Prop 8 had their heads, somewhat ironically, up their asses. But one assumes they were careful not to plunge their heads into another person’s ass unless it was a person of the opposite sex. That they were married to. Because that’s a sacred institution which celebrates ass rammings by those of the correct gender combination. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [August 12, 2010, 9:42pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/279 "2010-08-12T21:42:25Z")
> [@Gangster\_Octopus](#): > > …IANAL, but after reading that it seems like those requesting the stay got their asses handed to them sixteen ways from Tuesday (whatever that means). IAANAL, but I agree with you. ---
**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 13, 2010, 4:29pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/280 "2010-08-13T16:29:05Z")
[Emergency stay request filed](http://seegersalvas.com/emergencystay.pdf) Its a mess. [Previous page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=13) [Next page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=15)