There's no mystery here. Everybody starts out equal before the law. To pass a law that singles out a group of people, you have to at least have a rational basis for doing so. If the state is going to have civil marriage, then to exclude gay people from it, you need a rational basis for doing so. There isn't one. The majority doesn't get to have an opinion on whether group X is deserving of the right of equal protection; it they could it wouldn't be a right.
Regardless, in the case of California, gay people could get married before Prop 8, so if you are worried about redefining marriage, it's Prop 8 that should be your problem.
Yes, gays were certainly free to marry opposite sex people if they chose to.
>you need a rational basis for doing so
Government has an interest in promoting "positive" social policy through the power of taxation. Seems like a rational basis to me. The question then becomes is an opposite sex marriage more beneficial to society than a same sex marriage. This is something that should be decided directly, not through the rational basis test.
According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.
> Yes, gays were certainly free to marry opposite sex people if they chose to.
This is a glib, assholish way of putting a point, a point that makes no sense if you phrase it more clearly. Civil marriage is about two people deciding to form a partnership together. For example, you could claim that an interracial marriage ban is perfectly equal, because a black person can marry any other black person they want, and a white person can similarly marry a white person. But that's gluing a thin paper smiley-face on over a white robe and hood; it deceives nobody.
> This is something that should be decided directly, not through the rational basis test.
I can't imagine what you mean by that. The rational basis test requires that laws have a... rational basis. That's a pretty low bar. If you read the MMA decision or the Federal Prop 8 decision, you'll see that those trying to prevent gay marriage had no rational basis for doing so. In particular, they could demonstrate no harm to society. They tried, but the science wasn't on their side.
> According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.
That is incorrect. Prop 8 initially stripped all marriage rights, exactly as it was intended to. The proposition was necessary because California's constitution provides for equal protection, so a constitutional amendment was required to make an exception so that gay people could be treated unequally.
Once it made it to the CA Supreme Court, civil union rights were restored, and it was only the term "marriage" that was left as a sop to the will of the voters. But even that was seen -- correctly in my view -- as a violation of the 14th amendment.
> Civil marriage is about two people deciding to form a partnership together
A marriage has traditionally been understood to be a partnership between a man a woman. Do you deny this? Yes, I'm aware of the muddled and unsavory history of the institution of marriage. But it most recently has been understood to be a partnership between a man and a woman. Society's views are evolving, as it has done in the past. But those who would prefer to keep the traditional understanding are not hateful monsters.
>The rational basis test requires that laws have a... rational basis.
That's not what it means (according to links you provided regarding the "rational basis test"). Its simply a question of whether the government has a basis/interest in the law in question. It's analogous to a jurisdiction test. The government certainly does have an interest in defining marriage since it confers certain benefits. To claim the government has no rational basis for defining who can receive tax benefits is highly suspect. It's also rather strained to reference one opinion from one court as the final word on a matter when there have been other opinions that did not claim a rational basis exclusion. Clearly, this isn't obvious or settled in any way.
I do deny that. Biblical marriage comes in a variety of versions, including slaves. Muslim marriages allows up to 4 wives. Traditional European marriage was mainly about an alliance between families. Families generally from the same town, and certainly of the same race. Your notion of "traditional" marriage is "what my parents grew up with", nothing more.
People wanting society to be a certain way are not monsters. People using the power of the state to force their views on others to the detriment of families and children? That is a monstrous action, although I hope most people involved did it out of ignorance, not monstrous intent.
The government's interest must be rational; you can't just make laws against people because you don't like them. Which is basically what happened here. In California, none of the offered bases were found to be valid. Ditto in Michigan. If you don't like that, go argue with the federal judges involved.
It may not be obvious, but as the saying goes, "It's all over but the shouting." This is going the same way interracial marriage did, but faster. Gay people were in the closet out of fear, but they are not going back. The youth today know actual gay people, and won't be trying to force them back in, and they won't countenance treating them as second-class citizens. E.g.:
Nobody today would try to resurrect the laws against interracial marriage because it is now obvious bigotry. And if they did try, courts would strike it down because our once-clouded understanding of equal protection is permanently clearer. The same will be true with gay marriage.
In a generation, gay marriage will be part of traditional marriage. Kids born today will wonder why it ever was a problem, just like 20-year-olds today are shocked that racially mixed marriages were once illegal.
Since this discussion is happening in the US, traditional in the context of US history (and european history) is really all that matters. In that sense, marriage has been between a man and a woman. You can go back quite far and see this scenario hold. Lets not pretend this isn't true.
> People using the power of the state to force their views on others to the detriment of families and children?
This is another framing of the issue that seems absurd to me. Who is denying you anything? You are free to do whatever you please with whomever you please. Your lack of government recognition of marriage does not prevent you from building a life with the person you love. Aside from doctors visits and a few tax breaks and whatnot (which can be handled tangentially to the issue of "marriage"), there isn't really any difference to one's life if government recognizes your relationship or not.
This is the key here. Marriage recognition isn't about you and your partner, its about forcing everyone else to recognize your relationship. This is a cultural battle, not a civil rights one. You want Billy-the-hillbilly in Tennessee to recognize your relationship as just as legitimate as John and Jane's. I get why this is important, and I'm sure I'd feel the same in that position. But this is a personal opinion that people should be entitled to, as far as anyone is entitled to hold stupid/backwards opinions. I don't accept this as a "civil rights" issue, or that the lack of such recognition as being damaging in some way.
The United States is a nation of immigrants. From everywhere. Privileging one particular group of immigrants, white Europeans, has been a popular activity, but it hasn't been an unmitigatedly good one.
You are taking one very particular aspect of "traditional" marriage (traditional for one narrow group) and seizing upon it, while ignoring all the rest of them. That women can't really own property. That they can't vote. That their husbands can beat them. That marriages were chosen by parents, and children had little say. That marriages happened much younger. That they were tied up in the church. That men kept mistresses. That marrying the wrong race or class could get you lynched. And on, and on, and on.
Regardless, even if you were right, which you aren't, tradition is not sufficient basis for law. Full stop.
That you personally don't see the problem with keeping from other people from marriage is in the "well, duh" bucket. Sure you don't. But your ignorance isn't justification for public policy. And knowing same-sex couples who have had to do all the legal paperwork to have children, you're also wrong. Many thousands of dollars in legal fees were spent, and what they ended up with wasn't as good as marriage. There are plenty of other scenarios, especially with adopted children, that can't be solved privately at all. See the MMA decision for a more detailed explanation of them.
For the record, I'm straight, so my relationship isn't at issue. And really, I can't force people to recognize my relationship as legitimate. For example, if I meet somebody in Vegas and get married the same day, people are free to mock me and call my relationship illegitimate. Billy the Hillbilly Preacher can think me a shocking fornicator and say so to my face. However, it does entitle me to certain legal rights, so, e.g., governments and hospitals can't deny me those.
To deny gay people the same legal recognition requires the various bigots to prove that the state has some legitimate interest in doing so. They have signally failed in that. And they will continue to fail. Because, like you, it's either "God said" or "it's traditional!" Meaning, even they don't really know why gays shouldn't be allowed to marry.
You are welcome, in the fullness of your ignorance of the topic, to continue to not recognize that this is a civil rights issue. 13% of the population still feels that way about interracial marriage, too. Maybe you can form a club with them. But California's Supreme Court and various federal courts disagree with you. You might give passing consideration that they know at least as much about the law as you, and perhaps a bit more.
>Privileging one particular group of immigrants, white Europeans, has been a popular activity, but it hasn't been an unmitigatedly good one.
Privileging one group of immigrants traditions has been the cornerstone of the US since its inception. It was a common theme to leave ones old culture behind and adopt the culture of the US when immigrating. This is nothing new. Cultural identity is important.
Every single argument on HN in the last few days regarding this subject insists on conflating the rights granted to a marriage with the marriage itself. It makes it impossible to have a meaningful discussion when you guys insist on doing that. Some people want to keep the traditional meaning to marriage. As long as there is another avenue to receive the legal benefits that go along with marriage (no one is entitled to tax breaks), this in no way can be a civil rights issue.
When you find yourself disagreeing with civil rights activists and high federal judges on the definition of a civil right, you should should probably just pick a new phrase for whatever it is that you're talking about, because nobody is going to understand you. I sure don't.
I think it's fine that some people want to keep to their particular cultural norm (although I will continue to dispute that those norms are really "traditional marriage" in any sense meaningful to US law or culture). People can want all sorts of things. But when they use the power of the state to discriminate against a group of people, that's where I have issues.
Stripping the term "marriage" from some people for reasons that don't meet the rational-basis test is a violation of their civil right to equal protection. If you don't agree, no point in telling me; it's the 6th and 9th federal circuits you have to convince.
Regardless, in the case of California, gay people could get married before Prop 8, so if you are worried about redefining marriage, it's Prop 8 that should be your problem.