… the invocation of "tolerance" by advocates of same-sex marriage is more than ironic. It is a sham cover for their attempt to force their beliefs on the rest of society. Proponents of same-sex marriage should demonstrate their commitment to tolerance by accepting the vote on Proposition 8 rather than resorting to violence against the political opponents.

The debate over same-sex marriage raises two separate questions. The substantive question focuses on whether such a union should be recognized in law. The procedural question focuses on who should decide. Your latest post addresses both of these questions.

Let me address your second point first. The California Supreme Court, by finding that the State constitution mandated the recognition of same-sex marriage, prevented the people from redressing this issue by way of referendum or statute. To change this ruling the people had no choice but to amend the Constitution. Having originally succeded in amending the constitution judicially, homosexuals should not now be heard to complain that their only form of redress is to amend the constitution through a new proposition.

Your first point, concerning the substance of the issue is one that we have not really addressed in this exchange (perhaps, because as lawyers, we love to debate procedure). Taking a cue from Romer, you assert: (1) that there are no reasons "other than traditional moral beliefs" for opposing same-sex marriage; and (2) such reasons are insufficient to withhold "marriage rights" to same-sex couples. Although I believe your premise is debatable, let us focus on the conclusion.

Are you taking the position that the state has no legitimate interest in promoting traditional moral beliefs? Many studies have found that an active homosexual lifestyle (especially for males) is no conducive to good health. Active homosexual males have a significantly shorter life span than their heterosexual counterparts. Thus, one could argue that promoting traditional moral values also promotes the health of society and the individuals that compose it.

You also admit that the state has a legitimate interest in prohibiting certain marriages including those that are polygamous. If you abandon the traditional moral beliefs surrounding marriage, by what standard do you prohibit polygamous unions but allow homosexual unions? What if three people of the same-sex wish to "marry"?

You also invoke "tolerance". But why does your tolerance not extend to those that hold to traditional moral beliefs? Why do you not tolerate those who seek to stop, or at least slow, the coarsening and decline of public morality? Given the violent protests following the passage of Proposition 8 by homosexual hoodlums against Mormons and Blacks in California

Thanks for the stimulating exchange. In returning to your First Amendment argument, however, you seem to have forgotten that opponents of homosexual marriage in California previously did that which you now recommend they do. California voters passed Proposition 22 in March 2000 which added a new provision to the California Civil Code to the effect that only opposite-sex marriage was valid in, or recognized by, the State. It was this provision that was struck down by the California Supreme Court earlier this year in its decision allowing same-sex marriage.

Thus, opponents of homosexual marriage have already tried to enact their preference via the statutory route. Indeed they succeded. But only until the California Supreme Court issued its recent decision. Given, the Court's decision, proponents of traditional marriage used the only democratic means availble to them to change the law.

Your second point, echoed by Nathan, points as much to philosophy as to law. Certainly you are not claiming that even if Proposition 8 had been defeated, the law would not still "discrimnate" as to who can marry whom. I love my daughter, but the law rightly holds I may not marry her.

Proposition 8 defines "marriage" in a certain manner which is consistent with the traditional understanding of that term. Homosexuals are free to marry provided their union fits the definition adopted by the state. (No doubt thoughout history, many did.) To argue otherwise is to argue for married batchelors or to insist that the state discriminates against my cat by refusing to issue her a dog license.

Finally, Nathan states that my claim that Proposition 8 represents the tolerant position is "too absurd to comment upon". Too bad. I would have enjoyed his efforts to persuade me that my position is mistaken. Proposition 8 does not restrict anyone's behavior. It does not prevent two people of the same sex from joining together in a union and calling it "marriage". It does not require that I, or anyone else, recognize such a union as a marriage. Should we not celebrate such tolerance? Is this not the paramount virtue proclaimed by Liberals?

1. I am with Prof. Huhn in the fact that it is disingenuous to say that homosexuals enjoy the same rights because they can still marry people of the opposite sex. As Prof. Huhn correctly points out, that is no right at all, the right involved is a freedom to marry, which is denied homosexuals the right to marry. Further, this seems to be a coy argument in which you say "its not aimed at homosexuals, its aimed at everyone" (much like the Arkansas adoption/foster parent amendment), but this is a red herring, of course it is aimed at one particular group, I think any reasonable person would agree that this will have a disparate impact on homosexuals (read: they are the only ones affected). Additionally, to claim that Prop 8 is tolerant, is almost too absurd to comment upon, it is a denial of rights to a minority group, I don't think that qualifies as tolerance. In regards to the democracy argument, just because the people have adopted it, does not make it correct or legal. I think allowing the majority to deny rights to a minority group is a dangerous path to follow.

2. I think Quidpro gets to one of the key points of contentions. Quidpro states, quite matter-of-factly, that homosexuality is not immutable. It appears that Quidpro believes this is irrefutable fact, but I, with many others, would vehemently disagree. I think unless and until the debate as to immutability is conclusively resolved, civil rights/homosexual rights activists will have to look outside of the 14th Amendment for help.

As you know, Loving was decided on equal Protection and Due Process grounds, not the First Amendment as you proposed in your original post. Are you now claiming that Proposition 8 violates the Fourteenth Amendment? Are you now conceding your proposed First Amendement argument and asserting instead that "gay" is the new black?

The oft-invoked analogy of Loving does not apply to Proposition 8 for several reasons. First, classifications based on race, an immutable characteristic, are inherently suspect. Classifications based on actions freely chosen ("Gay" is as "gay"does) are not.

Second, California has a civil union statute which provides that same-sex couples have the benefits of hetersexual marriage.

Third, Loving reached the Supreme Court on an appeal from a criminal conviction. Proposition 8 does not purport to criminalize any behavior. It simply defines what arrangments are recognized as valid marriages by the State.

Proposition 8 does not prevent same-sex couples from entering into a union that they characterize as "marriage". Nor does Proposition 8 prevent private actors from recognizing such a union as a "marriage". Employers, insurance companies, churches, friends and family all have the freedom of recognizing such a same-sex union as a "marriage" in every sense of that term. Or not.

Thus, Proposition 8 represents the truly liberal and tolerant position. Sadly, those who do not accept the vote in California have adopted an intolerant and anti-democratic position. They would insist that everyone recognize same-sex unions as marriage. And they are willing to resort to violence to impose their will on the people of California, and perhaps the rest of us.

Thus, Proposition 8 does not prohibit homosexuals from entering into a valid marriage. It limits their partners, as it does those of heterosexuals, to individuals of the opposite sex.

Although I believe Romer was wrongly decided, it would not even appear to apply in this case. Homosexuals have the same rights, and are subject to the same restrictions, as heterosexuals under California law. They also have the same rights as heterosexuals to attempt to repeal Proposition 8.