CA Supreme Court to consider Prop 8 sponsors' right to defend it

scpr.org/news/2011/09/05/28662/ca-supreme-court-consider-prop-8-sponsors-right-de/

The California Supreme Court will wade into the legal conflict over same-sex marriage on Tuesday. The state’s highest court will decide whether supporters of Proposition 8 have a legal right to defend California’s voter-approved ban on same-sex marriage when state officials won’t do it…

‘To have standing, to proceed, to bring a case, to bring an appeal, you have to show that you are injured,’ Boutrous says. He argues Prop 8’s defenders have yet to show how allowing gays to marry in California hurts anyone.

The essential public purpose of marriage is to attach mothers and fathers to their children and to one another. To see the importance of this purpose, we must take the perspective of the child: What is owed to the child? Unlike adults, the child does not need autonomy or independence. The child is entitled to a relationship with and care from both of the people who brought him into being. Therefore, the child has a legitimate interest in the stability of his parents’ union. But no child can defend these entitlements himself. Nor is it adequate to make restitution after these rights have been violated. The child’s rights to care and relationship must be supported pro-actively, before harm is done, for those rights to be protected at all.

Marriage is adult society’s institutional structure for protecting the legitimate interests of children. Without this public purpose, we would not need marriage as a distinct social institution.

We often hear the objection that some marriages don’t have children. This is perfectly true. However, every child has parents. Depriving a child of relationships with his or her parents is an injustice to the child, and should not be done without some compelling or unavoidable reason. The objection that some marriages don’t have children stands the rationale for marriage on its head. It views marriage strictly from the adult’s perspective, instead of from the child’s perspective.

Same sex couples and opposite sex couples are obviously different with respect to this essential public purpose of marriage. And treating different things differently is not discrimination. That is why, in the few cases where courts have found opposite sex marriage to be unlawful discrimination, they have had to come up with purposes for marriage that have nothing to do with procreation or attaching children to parents.

…Changing the law of marriage changes the law for everyone, and puts incentives into place that may affect the behavior of everyone. Redefining marriage is a radical social experiment.

Previous generations of social experimenters have caused unimaginable misery for millions of people. Particular people advocated the policies that led to today’s 50% divorce rate and 40% out of wedlock childbearing rate. None of these people has ever been held accountable.

The Essential Public Purpose Of Marriage
Dr. Jennifer Roback Morse
June 2, 2011
mercatornet.com/articles/view/the_essential_public_purpose_of_marriage/

If they had been made accountable, we wouldn’t even be having this debate.

You’re philosophizing when you should be science-ifizing. Whether or not gay marriage is harmful is a scientific question. We can measure the health of average people in gay relationships and see if there is a difference between them and average married people. We can measure child outcomes. We can measure the health of families in areas where gay marriage is permitted and compare them to families in areas where gay marriage is not permitted. If the only significant differences found are societal acceptance of gays, then there is no harm regardless of your philosophical objections.

Even if I agreed with this kind of reductionism to adjudicating legal matters, the fact is, no, we on’t have any good, reliable data for many decades. Social sciences involve an element of history and interpretation.

:thumbsup::thumbsup:

That’s one thumbs up each for your “reductionism” comment and your point about “history and interpretation.”

As if philosophy is not or cannot be a science. :rolleyes:

Law is grounded in philosophy. As wisely noted by Windfish, this kind of scientific reductionism ignores the very philosophical foundation of the law.

It doesn’t take too much deep thinking or scientific experimentation to conclude that activity [e.g., producing bad ideas] that is punished is less likely to be repeated.

If you believe that the law should be grounded in reality, then we should always base our laws on the best available data. It is willful ignorance to say we currently have no good data.

Right, but I disagree with your reductive assessment of what reality is - reducing legal questions to empirical measurements of harm (whatever that is), is a positivistic assumption that I don’t share and that I think is wrong. I also think that even if we are going to go that route, no study today is really trustworthy since it takes years for any harm to come, much less be detected and understood.

First it is willful ignorance to reduce the existence of a law only to the best available data, data are meaningful only when acquired and analyzed with a proper scientific method. Second it is up to the proponent to show that the existing data are good. Third science does not cover and cannot cover the whole realm of reality, reducing lawmaking to the data alone is just scientism or a posteriori rationalization and we have seen the results of such approach under different forms of government.

It is true that data must be accurately analyzed, however so far the Prop 8 sponsors have failed to produce an interpretation of the data to convincingly show any harm. When looking for a link between homosexuality and some harm, the burden of proof is on the person who wishes to show the link. So far, the data has failed to support the hypothesis that homosexuality is harmful to society. Its like testing drugs. Scientists don’t begin safety tests by assuming a new drug causes cancer, they set out to prove that it does. If the data comes in and fails to establish the link to a reasonable degree of confidence, they conclude the drug is safe.

The realm of unmeasurable reality has no effect on our earthly existence. If it had an effect on our earthly existence, then we could measure that effect. Because they cannot be tested, our confidence in their correctness is based only on the strength of our individual beliefs. Therefore, since these unmeasurable “realities” are entirely subject to individual beliefs, they ought not be subject to governmental regulation.

The supporters of prop 8 are the ones claiming there is a harm. As a supporter, I ask you: “what is the measurable harm you believe prop 8 will be preventing?”

People have been studying homosexuality for decades. Search google scholar for “gay marriage” and you will find studies dating back to the late 70s.

This is bogus socio-fiction and you know that, but I will play with your rules. Based on what you state I claim that homosexual marriage is unnecessary because it covers a fraction of a percent of the society and its justification is based on the unmeasurable realities that you would call love and justice. The only measurable justification for marriage is the probability of an offspring, homosexuals have zero probability of an offspring from an homosexual marriage thus there is no case for it.

What was the primary cause of spread of AIDS in this country?

You set an interesting bar.

So, tell me. Do you oppose to brothers marrying each other? If so, why? Whom would they be harming?

There is irrefutable harm done–gays cannot bear children, which means the culture has less born children. That is a present and future harm as easily seen by the trouble witnessed in Europe with its low birth rates.

Do you always outlaw things that are unnecessary or needed by a small percent of the population? Only a small fraction of the population is served by wheelchair ramps. I see no justification for the continued legalization of falconry. The justifications for gay marriage are for gays to decide, not their opponents. As it stands there exist gay people who wish to get married and institutions that are willing to grant marriage to them. Without some clear evidence of harm, I see no reason to bar the arrangement.

Love is measurable, as are societal norms regarding justice.

Are you serious? :confused:
Marriage is a societal thing and thus society decides, unless it is a God given right and then you have to show that to me.

I can always find people that want to do something immoral and some institutions that are willing to support it; however, it does not make either right or even true.

Please show to me how they are measured, which system of units are we using MKS or cgs?

Fair enough. Then as a non-gay, it is up to me to decide whether I will accept or recognize their so-called “unions”.

I decide not to.

I will direct you to the following:
An example of current research
Some other literature
If the above are too technical.

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