As a heterosexual, my rights have been violated by the passage of Prop 8.

[Fridays Child]

When I got married in California, some 22 years ago, I was under the impression that, aside from competence, the only concern was that my husband and I were of majority and, thus, legally subject to the terms of the state's marriage contract.

If the state is now making the opposite sex of the parties a requirement in civil marriage contracts, should they not do the same for other civil contracts, such as loans, purchases, job contracts, and so on? If not, why not? Is it because, unlike those other agreements, marriage is considered a religious contract, in the state of California?

For Prop 8 to pass and the state constitution to be amended, evidently, marriage must be in a separate class from other contracts over which the state has jurisdiction. And, if the distinction between the marriage contract and other contracts is not based on religion, could someone please tell me just exactly what it is based upon? Unless someone can convince me that religion has nothing to do with California marriage contracts, it appears that, in presiding over my marriage, the state has violated my right under the First Amendment of the U.S. Constitution to not be subject to any law respecting an establishment of religion.

Furthermore, the state failed to tell me about the religious nature of the agreement before I entered into it. There wasn't even any fine print regarding this issue. I do not agree to be bound by what is clearly a religious contract, which means that my marriage is now null and void. The legal and financial ramifications of this, for me and the man I've been living with for more than 22 years, are enormous. Shouldn't the state of California be liable for damages?

[Sarah Ibarruri]

1. Sounds like there are all kinds of lawsuits that could be coming California's way?

I'm straight also and I'm livid at the bullshit I see the sicko union of the Republicans & Christian right pull constantly.

[Fridays Child]

2. I will happily submit myself to the ACLU, or whatever groups sue the state...

...to overturn Prop 8, as the representative case for the violation of the rights of every single person who has ever been married in the state of California.

[silverojo]

3. Yeah, where the hell is the ACLU?

They can defend all sorts of petty shit, yet I haven't heard anything about them going after these Prop 8 whackjobs...?

[Maat]

4. The ACLU, in conjunction with Lambda Legal, and other groups ..

filed to overturn Prop. 8 nearly as soon as the polls were closed.

Please go to www.lambdalegal.org for the full story.

[Sarah Ibarruri]

16. GOOD! Enough of this right wing extremist American Xian bullshit

We all need to get involved, including straights!

[NavyDem]

5. I agree with you completely

I'm straight, in california, and an Athiest. When I married 14 years ago, I married under a state license, to which no religous requirements were disclosed. The passing of Prop 8 has nullified that marriage, and incorporated establishment of religion into the marital contract.

Count me in on any class-action suits.

[Fridays Child]

6. Although I'm not a lawyer...

...from my lay perspective, the argument has merit. I'd like to know what attorneys or constitutional scholars think.

[fed_up_mother]

39. See my post #38 for another point

[alittlelark]

7. Hubby and I may also have a 'null and void' marriage.

15 years ago we had no idea that we had entered into a religious contract....

He was raised Jewish and I a Catholic.... there could have been some issues there.

We got hitched in SF.

[Fridays Child]

9. Join the group!

I think I'll kick this in the morning, so that some more DUers can say what they think about it. Every person, gay, straight, or otherwise, who was ever married in the state of California may have been significantly harmed by Prop 8. And the same may hold true for Arizona, and Florida. :)

[csziggy]

20. If the ACLU needs a hetereo civil union couple in Florida to fight Amendment 2

I'd be interested in helping. I never agreed to any sort of religious connotation to my 31 year old union with my partner. Nothing on the license I got from the state mentioned anything about religion or exclusivity limiting it to hetereo couples.

I specifically refused to have any ceremony, much less a religious one since I considered the need for documenting our relationship to be a purely legal need. Any personal relationship, sexual or otherwise, between my partner and me are our personal business, and no business of the State.

I object to Amendment 2 since it restricts the rights of people like us and our friends and re-interprets our relationship without our permission.

Edited for spelling.

[Fridays Child]

26. Exactly! Well said! eom

[mrreowwr_kittty]

8. Ding. Ding. Ding. nt

[Zhade]

10. Hmmm. Considering marriage is NOT legally a religious instution...

...(after all, there are married atheists) though it is claimed as such by religions, not sure what I think.

[Fridays Child]

11. The waters have been considerably muddied.

It now appears that atheists married by the state of California may have been subjected to religious rites, against their will.

[Fridays Child]

12. Kicking for further discussion.

[MindPilot]

13. Not a lawyer, but I think that argument has merit.

But I gotta say my very first thought--and one of my more terrifying--was "OMFG! That means my divorce is null and void too!"

[Vickers]

14. This is about the most interesting thread I've read on DU recently.

Man, there are some smart people here...I would have never looked at it from this angle. Thanks for "opening my eyes."

:thumbsup::thumbsup::thumbsup::thumbsup::thumbsup::thumbsup::thumbsup::thumbsup::thumbsup::thumbsup::thumbsup::thumbsup:

[Fridays Child]

29. Thanks for the compliment.

If my contention is in error, I'd like to know. Otherwise, sign me up as a party who has been injured by Prop 8. I will happily work with the ACLU, Lambda Legal, and all other legal groups that are challenging this trash.

ETA: I think csziggy said it better than me: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=4427295&mesg_id=4429548

[LeftHander]

15. K&R

nt

[Starry Messenger]

17. K&r

I'm on Bart. Will be back later to see more on this. Pardon iPod typing.

[dysfunctional press]

18. what religion have they established?

:shrug:

none that i can see.

[Fridays Child]

27. Take your pick. They inserted a religious tenet into my marriage contract.

I did not agree to that.

[dysfunctional press]

31. no...YOU pick it- if you're going to claim that they've established a specific religion...

you have to specify which religion it is that they've established, and why it is that religion is established over all the others.

and btw- if you signed your marriage contract, then you DID agree to whatever had been inserted into it. :shrug:

[Fridays Child]

32. Wrong and wrong.

[dysfunctional press]

34. well- there's no arguing with THAT kind of logic...

:eyes:

[123infinity]

37. The First Amendment doesn't specify a particular flavor of religion

so a plaintiff doesn't need to either.

[dysfunctional press]

75. the 1st amendment doesn't specify, because it applies to any and ALL religions...

but if you're going to claim that the state is endorsing a religion- it is incumbent upon you to name the religion, and in what way it's being endorsed.

[Starry Messenger]

19. kick

[lumberjack_jeff]

21. Exactly. Car purchases are a sacred institution between a ____ and a ____'

Why are marriages unique in human contracts?

You're right in the bigger picture. You can't abridge rights selectively. All our rights are abridged, even if we don't intend to use them. Your right to marry the person of your choosing is subject to approval by your neighbors.

[Fridays Child]

28. Good example!

Thanks! :thumbsup:

[crickets]

22. You make some excellent points.

I'd love to hear the lawyerly members of DU weigh in on this. K&R

[Fridays Child]

30. Me, too.

I keep kicking it, in the hope of an expert opinion. :)

[crickets]

35. I'll kick again for you.

Maybe this time a lawyer will see it.

[Usrename]

23. There ya go.

Let the church decide this stuff, not the state.

[yardwork]

24. Thank you for understanding and posting this.

Gay rights are human rights. If human rights for a minority can be removed by majority vote, then nobody's rights are safe, because we are all minorities in some respect.

[Fridays Child]

25. You're welcome but...

...no thanks necessary. We all have to challenge this terrible proposition, and hit it from every angle possible. :)

[gorbal]

33. It's not only that

Not every religion defines marriage as only between a man and a woman; yet every religion and even the non-religious are beholden to the word "marriage" in the lawbooks.

[123infinity]

36. That's a fascinating (and pretty darned persuasive) argument!

:toast:

[fed_up_mother]

38. Here's the problem. Marriage has a definition in this country

The union of a man and a woman. No, it's not about love between two people. Love isn't even necessarily a component.

Here's the problem:

1) In order to grant rights to gays and lesbians from the constitution, you have to first change the legal definition of marriage.

2) There is no constitutional right to change the legal definition of marriage.

I'll get blasted for this, but these are the legal hurdles that no one wants to talk about.

You can go about this saying that any two people in love should have a right to marry, but - again - the legal definition of marriage doesn't have anything to do with love.

Otherwise, you're going to have to pull a ruling out of thin air - which is what is already happening in some states, but is not likely to pass muster in the Supreme Court , even if the court was a little more liberal.

Please no flames. This is how I see this constitutionally.

If we want rights for gays in all fifty states, I think it will come via civil unions, and with time, perhaps a constitutional amendment granting "marriage" to gays and lesbians once folks accept unions.

Furthermore, to address the original question - marriage is not a contract like others. I know of no other "no fault" contracts where one person can walk out without obligation to the other party.

[closeupready]

41. No offense, but you don't have any idea what you are talking about.

n/t

[fed_up_mother]

42. Excuse me, but I know a bit more than some here

You can shoot the messenger, but these are the hurdles that must be crossed if this goes to the Supreme Court.

Marriage is NOT about love between two people. Legally, it's the union of one man and one woman in this country. Period.

That's what we're up against. If it was about love, gays would have had legal marriage rights years ago.

[Starry Messenger]

43. Well good thing you aren't a Supreme Court Justice.

Because they say you are wrong. It's the reason why people shouldn't be voting on the rights of others though. The definition of marriage is fine. And as for number 2, that's just what happened to my state. Religious folk voted to change the legal definition of marriage. Pretty disgusting, huh?

[fed_up_mother]

46. They voted to change it back to what it was before the court ruled

and constitutionally, I think the court was wrong "legally." Look, I'm for gay marriage. It's the right thing to do.

However, constitutionally, it's not as easy to craft a ruling granting gays and lesbians the right to marry as you think it should be.

[closeupready]

49. You have it backwards. You don't "grant" minorities rights.

Minorities have the same rights as the majority, and they are limited in comparison with the rights of the majority only in very limited special circumstances, almost never.

[Starry Messenger]

51. The Yes Vote was to amend the state constitution.

To declare that marriage was only between a man and a woman. That means it did not state that before the vote. I'm glad you are supportive. But people have all kinds of notions about what this vote was "for". It was not to make gay marriage illegal. It was to remove the rights of gay people to marry from our State constitution. I do not think the court was wrong legally. I guess we'll see how it goes.

[fed_up_mother]

61. Well, this is my understanding

The family code of California (or whatever the state of California refers to these laws as) did define marriage to be between a man and a woman, but the California Supreme Court ruled that unconstitutional, so originally, the code did state that marriage was between a man and a woman.

[Starry Messenger]

68. They (I believe) found no impediment to these rights

of marriage equality on the basis of our state constitution. I'm sure it's way more complicated than that by now since it's been going up and around in our state for awhile.

[BattyDem]

45. "The union of a man and a woman"

I've always wondered ... would it be possible to approach this from a "gender discrimination" angle? Think about it. The only reason a man cannot marry another man is because of the gender of one of them. Couldn't each of them file a lawsuit claiming they're being denied their rights because of their gender? "I can't marry this man because I'm not a woman."

Comments? :hide:

[closeupready]

47. I've long argued that same thing.

I don't understand either. After all, if as the "marriage is not about love at all", but is a contract, then it seems to be prima facie gender discrimination.

[fed_up_mother]

50. It's complicated.

Activist courts can "find" that right, but it's not in the constitution, which is why I think gays will be granted rights on the federal level through civil unions first.

I'm not a lawyer, and neither do I play one on tv, but I have a good friend who is well versed in constitutional law and has appealed cases in federal court. We've discussed this at length, and his friends who are intellectually honest - liberal and conservative - see this as a very tricky constitutional challenge.

[BattyDem]

57. It's sad that we even have to get into these complex arguments.

The government has no business telling two taxpaying adults who they can and cannot marry ... period!

[123infinity]

48. That's nonsense. There was never a standard "legal definition" of marriage

until some states dreamed up various goofy flavors of one...recently. It sure as hell isn't in the Constitution.

[fed_up_mother]

53. No, it's not in the constitution

But many things aren't.

And don't shoot me.

And, yes, all fifty states had a legal definition of marriage. A man and a woman. free of impediments to marry. of sound mind. Not coerced. blah, blah, blah

[123infinity]

60. Well, you keep bringing up the constitution. Maybe that's what is giving us the idea

you think the constitution has something to do with it. Call me crazy. :wtf:

Personally I think you are pretty much full of shit. I could be wrong.

[Starry Messenger]

64. Correct. It is not in the Constitution.

That is the basis for the legal finding. Only now it is because the majority voted (Prop 8) to put it there to strip away the rights of the minority.

[Starry Messenger]

54. Thank you.

I wonder where that meme got started. The religious right seems to be having a heyday with this so-called "legal definition".

[fed_up_mother]

55. It's not a meme

Try looking up some legal codes.

Look, I'm for gay rights! I'm just telling you what the legal impediments are.

[Starry Messenger]

56. Post some links. The burden of proof is on you.

You are the one claiming it.

[fed_up_mother]

58. I imagine you're smart enough to look up the family code in any state you choose

But saying I'm wrong doesn't make it so. :)

Most states have always had a code of family law, and in particular, marriage. It defines who is elegible to marry, the impediments to marriage, etc.

[gollygee]

59. In your first post, you talked about the Constitution, and now you're talking about state family law

The federal Constitution trumps all other laws. If state laws are found to be unconstitutional, the Constitution wins. Marriage isn't defined as "a woman and a man" in the Constitution, and those state laws could be found unconstitutional.

[fed_up_mother]

63. Marriage isn't defined in the constitution! That's the point

It's been left up to the states to define marriage, and the historical precedent has always been to define marriage as the union of a man and a woman. It's hard to overturn precedent unless you can find a constitutional right. Hope that makes sense.

[Starry Messenger]

67. It does, I think we are reaching the same point here.

We found the constitutional right in our courts. Then Prop 8 was created by a group of people who wanted to amend the constitution to overturn the court ruling. Unfortunately in CA this is binding with a vote of 50% majority. It's very stressful.

[Starry Messenger]

62. We were talking about the State Constitution.

Maybe this is why this issue never seems to gain ground. People don't understand how serious it is that our Constitution was altered. This issue has been working through the courts in California for years. We finally got it all right--that human beings are all equal. Sigh.

[fed_up_mother]

66. It is my understanding that the court found a right in the constitution, but

that the state code defined marriage between a man and a woman before the court found that right in your state's constitution. Since I don't know anything about your constitution, I can't really comment on the court's ruling.

However, according to our nation's constitution, I don't see a clear path to declare that gays have a constitutional right to marry, given the legal definition of marriage.

Personally, I think it's probably easier to win this in the states, and hope for a domino effect. Hope that makes sense. :)

[Starry Messenger]

70. Right. I've been replying to you in different places, sorry.

I think we were hoping "so goes California, so go the other states".

[fed_up_mother]

72. Good luck! :)

[gollygee]

52. People are not devoid of rights until they're granted

The rights exist unless they are taken away.

[Cleita]

40. Last I heard was that it was going to the California Supreme Court.

The argument is that it's unconstitutional and that it should never have been made an initiative because of that. I heard Gloria Alldred on the radio, who is filing a suit on behalf of a married gay couple, say this. Sorry I haven't been able to find a link yet, but it looks like it never will actually become an amendment to the California Constitution. Stay tuned.

[onenote]

44. I hope/pray that Prop 8 is overturned, but the OP's arugment probably isn't the route to that result

The OP assumes that when they were married, the only concern was that they were competent and of majority and thus legally subject to the terms of the state's marriage contract and that with the enactment of prop 8, the addition of a requirement that the contracting parties be of the opposite sex should also be made a condition of other civil contracts.

But, in fact, different types of contracts can and do have different legal prerequisites. I daresay that for marriage contracts, at the time the author of the OP got married, there was a prohibition on marriage between siblings. But siblings can and do enter into other civil contracts. In addition, the state imposes as a prerequisite for marriage the obtaining of a license in advance and a "solemnization" -- neither of which are required for other contractual relationships. The age issue: until 1972, the age of majority in CA was 21; its been 18 since. There are provisions that allow someone under the age of 18 to marry in CA but subject to special requirements -- again, totally distinguishable from other contractual relationships.

I am hopeful that (and am contributing financial support to) the effort to undo Prop 8 in courts. The argument suggested in the OP,however, probably isn't a winner.

[fed_up_mother]

71. If we want to make it like other contracts, marriage would be a hell of a lot harder to get out of

Actually, it used to be like other contracts in that regard. :)

Not sure most of us want to go back to those times, although I think we've gone a bit too far this way.

[RJ Connors]

65. First off, let me thank you for stating the argument in the correct terms.

Marriage is first and foremost a contract. Same as any other contract that one may enter into during the course of their lives. It has two separate parties to the contract, i.e. Maker and makee, although I supposed that could change dependant on who made the offer. It has offer and acceptance, It has consideration, although some states may not require such, and it has a definitive time frame, until death do us part. Along with some other contractual aspects but the point is it is a binding contract like any other contract. The only real difference with a marriage contract and other contracts is it, to a certain degree, has the state acting as a third party to the contract in that you have to obtain a license from the state to become legally married.

And for me, this is the crux of the matter, not, should gays be allowed to get married, but instead, why does anyone have to get permission from the state to get married. And that is what licenser is, getting permission from the owner of the property or right, to act with regards to the owners property or right. Why is it I can enter into about any other contract without getting the permission of the government, although said contract may be regulated by state or federal regulations, I generally don’t have to ask the government if I can enter into the contract. (This discussion does not cover marriage under the common law marriage states, of which as of about 5 years ago when I last checked numbered 9, but covers states which require a license, which I’m pretty sure is all but the 9 common law states).

Now many will say that getting a license from the state is just a formality one has to do. Some will even mention one has to do such because of the health concerns of spreading STD’s, which has some truth too it even though it is a lame argument. But such arguments are missing the main point which is that licenser is a property law right and if government has the right to grant one permission to get married, they by definition have the right to tell someone they cannot get married. And if government has the right to grant or not grant permission to whomever they please for the purpose of marriage, they conversely have the right to only grant permission if you marry the person that the state thinks you should marriage, (Did you read 1984) Having such laws is not indicative of a free society.

The other side of the argument is on the religious side that marriage is an institution sanctioned by G-d. And if one likes to look at it that way, that’s fine but it has no legal weight to it. If you think that is not correct, try getting married in a church without a marriage license and see what happens after you file your taxes as being married for a few years, when in fact you are not. (Assuming you did not get married in one of the common law states) You will be in for a rude awaking.

So yes, when the government starts saying that marriage is an institution sanctioned by G-d, and you have to get permission from the state to be legally married what you have is a state that is commingling itself with religion which of course as anyone with half a brain knows, is prohibited by our Federal Constitution. (The half a brain requirement would of course exclude our Christian fundamentalist citizens and friends).

I for one would love to see that gay marriage argument in the public forum turn away from it being a moral argument to a more substantial argument of law. I think this is the approach which needs to happen to settle this question once and for all.

Life, Liberty, and the Pursuit of Happiness.

[Fridays Child]

73. I hadn't thought of it in those terms. Very interesting points.

And, you're right. This needs to be argued from the standpoint of the law, and the state needs to recognize what a can of worms it'll open up, if Prop 8 is allowed to move forward and become an amendment. No matter how you look at it, it's trouble, with a capital T.

[RJ Connors]

74. Thank you for your kind comments

This is how I have looked at these types of arguments for many years. This tends to be true in gay marriage and abortion and some other social issues. We never look at it from the side of the law, which the rule of law is what our country was founded on, but we look at, and debate in strictly emotional terms. And I think we do that because what most of the public debate is for, is using the debate as a tool to rabble rouse with, and thus obtain votes. So I just stay out of most of these debates because there just isn't anything really being discussed.

I have already given you my pet peeve on gay marriage so I might as well give you my one on abortion.

The issue for me is that the debate is just about giving the government more rights over the citizenry when it should be about extending rights to the citizenry, i.e. the unborn child. But to do that one would have to get into the underlying issues of law. The main one being is that our laws, which we derive from the English common law, has held for about 400 or so years now that a person is not a person until they are born, and only a person can have rights. This is where the pro-life, or as I like to call them the anti-freedom movement makes a big mistake when they claim that abortion is murder. If only someone would call them on it.

The fact is abortion is not, nor could it be, even before Roe v. Wade, a case for murder because the change of murder can only be made when a murder has been committed against the person. Seeing how the law has always held that a fetus is not a person there cannot be a charge brought against someone for murder of an unborn child.

Now if the anti-freedom movement had any real desire and ability to understand the issue what they would do is bring an issue to extend the right of a person to the unborn child. If they did that then a fetus would be a person under the law. This would be a position I could support because it is extending rights, i.e. freedoms to the individual. Not just giving the government more and more control over us. A position I simply cannot, nor ever will support.

But I'm not holding my breath until we start discussing these issues rationally. :toast:

[bobbert]

69. I'm a man and was in a 'domestic partnership' with my current wife before we were married

We passed all of the requirements that were needed to be considered in a marriage-like state without doing so. I'm pretty sure there will be lawsuits about this... Homosexuals fought for domestic partnerships, then heterosexuals fought to have those same rights, and we got them. I think passing prop 8 is going to cost the state a lot of money because of these lawsuits because the same thing is going to happen.