In all seriousness, you appear to be making this more complex than necessary.

Proposition 8 defines marriage in California. A union consisting of a man and a woman fits the definition. A union of two men does not. To argue otherwise is equivlant to arguing for a square circle. It simply does not fit the definition.

Stu raises the Loving case but that does not apply unless the US Supreme Court were to rule that Prop. 8, violates the US Constitution. This is possible, but doubtful.

All proponents of Prop. 8 should take the example of McCain’s supporters. Get over it. The people have spoken. That is the way democracy works.

That’s an interesting argument, I should read your article. I haven’t read it, but from your abstract, I have a general question.

You’re conceding that the Civil War amendments themselves were a massive change to the document, weren’t they. And you’re adopting Ackermanian language, which makes sense since basically the entire idea of Ackerman’s moments is that the document was fundamentally changed, more than once.

But If you can have an Ackermanian moment — a fundamental rethinking of the document — through the mechanics of the amendment process, then why not have a similar shake-up through the same process? Is it just the lack of higher lawmaking that distinguishes one from the other?

(And if so, the obvious follow up question — how the heck do we tell what higher lawmaking is?)

As an interesting historical fact, however, the 19th Amendment was challenged in federal court on the grounds that it was unconstitutional. The argument was that it worked such a fundamental change in the nature of the polity that it un-did the original deal. The federal court dismissed the case with a surprisingly weak rationale that failed to engage the argument. The court said that the 14th Amendment had also worked such a change, and everybody seemed to agree that it was valid–so there.

If formal equality = no EP violation, then I guess the Loving court must have gotten it wrong.

Well said.

@Reality Check

I think it all boils down to your concept fairness. One’s concept of fairness is intimately tied to their concept of morality. Immoral behavior (by it’s very definition) has a negative effect on society. Now, there are varying degrees of immoral behavior that have varing degrees of consequences. Murder is obviously an extreme case and has a whole legal infrastructure to deal with it. Speaking profanity in front of children isn’t (always) prohibited by law (though there are usually social consequences). In short, we make laws to limit immoral behavior that we deem severe enough to society. In this case, discrimination is not bad… it is good to discriminate against “bad behavior” (another example of good discimination is employeers discriminating against unqualified job applicants… I don’t want unqualified pilots flying my planes ).

Now back to Prop 8: If you don’t think homosexuality is immoral OR is immoral but not severe enough to warrent a law prohibiting it, then Prop 8 is unfair to you. If you DO think it is immoral, than Prop 8 is NOT unfair… it is discriminating against harmful actions to society… AND those harmful actions deserve no protection under the equal protection act.

This argument is more philosophical than legal, but I wanted to just cut-to-the-chase. Of course, this all boils down to what defines your morality…

Proposition 8 specifically adds language to the CA Constitution that reads: “Only marriage between a man and a woman is valid or recognized in California”. As Professor Wenger eloquently states, such an explicit provision of the Constitution cannot be considered unconstitutional. That’s one reason.

Second, Proposition 8 does not prevent homosexuals from entering into marriage. It limits their partners, as it does those of heterosexuals, to members of the opposite sex. Since homosexuals are treated equally, there is no Equal Protectio violation.

Why isn’t this the right analysis?

“Also on the bright side for same-sex marriage advocates was the drastic decrease in public support for the limitation.”

I propose another theory: that frustration with the Bush administration and the economy got more liberals out to vote (especially younger voters). How much these younger voters affect the balance in the future is yet to be seen… there is a trend towards conservatism as people enter later stages of life.

It will be interesting to see what the 9th Circuit Court of Appeals does in this case. I think the argument that a constitutional ammendment could be unconstitutional is ridiculous and leads to a plethora of circular reasoning (you have to lift the slavery provisions if this reasoning holds). The only route I see is the Supreme Court. Of course, being a states-rights guy and not seeing homosexuality as a civil right, I don’t think the Supreme Court should get involved (… for all of you who may flame me for that last comment, we do regulate all sorts of sexual behavior and we legislate morality all the time… ethics and morality are the foundation of any legal system).

I am so saddened that Yes on 8 won…. we still have a far way to go….