On the passage of Proposition 8

This is a democracy. We win when we persuade people of our ideals. I believe strongly that Proposition 8 is against our ideals. I have so argued. But we have failed to convince the other members of this democracy.

We need to try again. Let us launch, now, a new petition movement. Let us spend a year talking to people who disagree with us. Let us win this battle by persuading the other side. I volunteer to do whatever would help, including traveling to every church or community in this state to make the case for equality. But please, let’s not try to win this battle by summoning the Supremes. Even if it is right that this Amendment is contrary to the best interpretation of Equal Protection, let us bring the ideals of Equal Protection to life, by getting people to support them.

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99 Responses to On the passage of Proposition 8

  1. Alexandro says:

    I think you need to first strongly encourage better sex education so we can actually know what homesexuality trully means so they can separate the issue of sexual preference and civil rights.

  2. Karen says:


    You do know that the government permitting gay marriages to occur isn’t the same thing as the government *forcing* churches to perform them, right? No law or court decision has mandated the latter, ever.

    Many marriages do occur in religious establishments. But many also occur in secular ones–and most of the marriages that just got erased were almost certainly in the latter category. So long as government recognizes marriages as such, and gives them a presumption of rights beyond those given to domestic partnerships/civil unions, for policy purposes it should be considered a secular institution.

  3. Michael says:

    I agree with those who find it odd that the government takes any position at all on marriage. It seems to me that the best solution would be for the legal status for everyone to simply be a civil union or whatever you want to call it, and leave whether or not it’s a marriage up to the individuals. All the government is involved with are the legal rights and tax breaks, which ought to be separated from the (for some) religious institution that is marriage. Of course, this assumes that people simply don’t want gay people married, when it may be the case that they also don’t want them, say, adopting children. If that’s the case, and I wouldn’t be surprised if it was for many, then I feel as though the marriage debate is just a cover for the much more important debate about families.

  4. IDontUnderstand says:

    Sorry for the offtopic post, but if you’ll bear with me, I have to get something off my chest.

    When I was in first grade, our class saw “Lady and the Tramp”. I loved the part where the Tramp gets a real license at the end of the movie. I cried. It was beautiful. I knew that someday I wanted to have that same experience with my own dog.

    I grew up counting the days until I was old enough to have my own dog, and I finally got one. But you know what. The magic wasn’t there. I really tried, but dogs are not for me. They smell. They tear up lawns, they make awful messes. I guess I’m just not a dog person.

    After years of soul searching, I found that I’m more of a fish person. I found just the right fish for me – the fish that I wanted to have until death do we part. I couldn’t wait to get our license. I already purchased a frame for the license certificate and knew exactly where I wanted to hang it.

    I nearly floated with anticipation as I went down to the city offices. I told the secretary that I’d like to get a license for my fish. I even showed her a picture of my beauty. I was completely shocked when she told me that they only license dogs and cats.

    ‘Why?’, I asked, trying to keep back the tears.

    She gave some sort of excuse about how licensing allows them to know who to prosecute when a dog or cat gets abandoned or bites somebody. She said that the city had no reason to record and track my fish ownership. I could tell from the way she looked at me, that she was a fish-hater.

    ‘Fish are pets too! Fish can bite! Haven’t you ever see Jaws? What do you have against fish, you bigot?!’.

    She said, ‘There’s no law against having a fish. We don’t care if you have a fish!’

    Don’t care. I think that about sums it up.

    I still haven’t told Nemo, yet. I guess the blank space on the wall says it all.

  5. Mackenzie says:

    No church would be forced to marry anybody. Any church that is ok with gay marriage can marry gay couples. Any church not ok with it still retains their right to say no to any couple they don’t believe is fit for marriage. Legalizing gay marriage just means that the state will recognize it. It doesn’t force anybody to do anything. Though it would give religious freedom back to the churches that *do* allow gay marriage. And of course retain it for the ones who want nothing to do with it by not forcing them. Where do you get this nonsense that the Catholic Church would be forced to do anything?

  6. Phill says:

    What? The fact that the majority of people have spoken *twice* on this issue is not enough? Do we have to go through this a third time? a fourth time? Is Gavin Newsom’s words “here it comes whether you like it or not!” to be immortalized? How about accepting No as an answer.

    I’m sure that Lessig’s plea for this not to go to the supreme court will fall on deaf ears, because it’s what unhappy gays do – they sue. And, once it does reach the supreme court, the conservative right will once again have an issue to galvanize it and like Bush W was put into office on this issue once again we will see another red state president.

    As an aside, liberals would do very well to recognize that this election was more about a protest than a mandate. That’s certainly why I voted for Obama.

  7. Jardinero1 says:

    “IDontUnderstand” you are brilliant.

    Why is the state involved in civil marriage at all? Why don’t we start a movement to eliminate civil marriage? That would be much more inclusive and fair. State law already covers children and adoption quite well. People can write their own agreements regarding their personal property.

  8. Ray says:

    The AP reports: “Blacks strongly voted for the ban, while whites narrowly opposed it. Latinos and Asians were split. Voters under 30 heavily opposed Proposition 8, while voters 65 and over supported the initiative. Age groups in between were split. The ban on same-sex marriage was opposed by voters who graduated from college and those who said they never attended religious services. Those who said they attend religious services weekly heavily backed the ban.”

    So to change the outcome you must cross racial, educational, and religious divides… This is not a logical fight, it’s an emotional one, and as such a very uphill battle. Or we can just work on suppressing the black vote! 😉

  9. Chris League says:

    Prop 8 is all about the tyranny of the majority. It should be possible to appeal to people’s basic sense of fairness: you don’t have to agree with something to see the harm in banning it. Gay marriage doesn’t impact the majority at all, but I’m sure anyone can imagine something they cherish that 52% of Californians might disagree with.

    I could contribute web programming skills, but unfortunately, I’m terrible at advocating for gay marriage — I take it all personally and get too emotional. Your rally is exactly what I needed to hear today. Thanks, Prof.!

    PS: one of my captcha words was “wed”.

  10. Abi says:

    @Andy I agree. We could also keep the benefits of partnerships and have civil unions for one and all, gay or straight. If you wanted to have a religiously approved marriage, you could do that in your own church, without the fear that government would impose on religious groups.

    While I’ve always been a supporter of equal rights, this issue has struck me more now than ever before. In 10 short days I’ll marry my partner. I’ll be legally allowed to marry my partner. And my friends who’ve had longer relationships, who own homes together, who have kids, who are in committed, loving marriages, will have to wonder if those commitments will once again be invalidated.

    Last week when when my partner and I stood before a clerk at the county offices in San Mateo I realized that it was awfully silly that the document we received had to be completed, signed and sent in by a state-deputized official (judge or deputy for a day) or a member of clergy ordained to perform marriages. Those are two different offices with completely different purposes.

    Please, add me to your group of people who would like to help in this new effort. Discrimination doesn’t rest and neither should we.

  11. Thoughtful says:

    I am one who voted FOR Prop 8, but not for reasons having to do with “hate” and “bigotry,” as those who voted No are so quick to assume and accuse. If we want ( / need) to have this conversion, it needs to start by ending the name-calling and accusation coming from BOTH sides.

    My thoughts on this issue are many, but aside from not having the time nor the energy available right now for an in-depth exploration of them here, I’d rather start by *listening*… so let me put forth a question I keep finding myself asking:

    What do those who support “same sex marriage” think about polygamy? …and please note, I’m not throwing that out there as basis for polemic; it’s a sincere question. In other words, from your POV (again, I’m asking sincerely — truly!), is it OK to limit the definition of marriage with respect to A) the number of participants, but not B) their gender?

    The second element of this question, of course, becomes this: what are the implication of that position (whatever it turns out to be) on the raising of children?

  12. Dave says:

    Portraying this as a civil rights issue is likely to invite sustained resistance, unless and until the opponents recognize the chromosomal origin of homosexuality.

    So long as half the voters presume the lifestyle is elective, they will not see gays as humans with equal rights.

  13. Sarah says:

    This isn’t going away. Did civil rights go away? I don’t think so.

    My generation (18-29) supports gay marriage broadly. The real question is where/when the tipping point will be.

    Time to make some more schleps? I’m with you Larry.

  14. @voted: the people campaigning for equality are divisive? Not the people campaigning to seperate the world into those who are permitted to marry and those who aren’t? I don’t see your logic.

  15. Sandip says:

    Echoing @Ray, an excerpt from this Time article shows an interesting theory behind the black votes – an ironic Obama angle:

    Gays came back in some polls, but they couldn’t pull out a win. Part of the reason for that is that Obama inspired unprecedented numbers of African-Americans to vote. Polls show that black voters are more likely to attend church than whites and less likely to be comfortable with equality for gay people. According to CNN, African-Americans voted against marriage equality by a wide margin, 69% to 31%. High turnout of African-Americans in Florida will also probably help explain that state’s lopsided vote to ban same-sex weddings.

  16. @voted: the people campaigning for equality are divisive? Not the people campaigning to seperate the world into those who are permitted to marry and those who aren’t? I don’t see your logic.

  17. Thomas says:

    It seems to me that this issue is what California style referendums were made for. I really don’t see the constitutional issue here. No one is allowed to marry someone of the same sex. Some people are predisposed to want to (nature/nurture doesn’t really matter). No one is allowed to exceed the posted speed limit while driving. Some people are predisposed to want to (nature/nurture doesn’t really matter). If traffic laws are not a violation of the civil rights of impatient people, then marriage laws are not a violation of the civil rights of homosexuals. At that point, the issue is about people deciding what kind of society they want to live in. There is not better way to determine this than to ask them directly. I don’t live in California and I don’t really care what Californians decide for themselves but I do feel strongly that this issue should be decided by referendum or by legislature and not in the courts.

  18. Recaptcha Nothing says:

    An election 2 years in the making just ended. The people have voted, and a majority want to preserve marriage. Less than 12 hours later, you want to continue the relentless divisiveness of campaigning?

    Thanks for letting me delete some more subscriptions off my reader. I had thought I narrowed it down pretty good, but some more political fat needs to be cut from this never ending election cycle. Thanks!

  19. Emon says:

    I agree with you. It’s time to not sit and wait but to stand up and take those first steps. Do you have any recommendations/suggestions?

  20. lessig says:

    @voted, yes, because my state just voted to deny civil rights to fellow citizens, I want to take up the challenge right now. I’m only sorry it took twelve hours to so say.

  21. Kim from California says:

    Thank you,

    This is a democracy, but my idea of what makes the United States the best democracy in the world has rested on the value we place on substantive rights. Yesterday, deliberative democracy took a bit of that away. People have voted to take rights away; if that is not something that should be brought to the courts, I don’t know what is.

    I’m with you that we need to convince more people, but it disheartened me to see outside groups coming into California and spread outright lies about this proposition and its impact on my state. I don’t think that picking up the pieces and starting over will be as easy as you say, unless you can prove me wrong.

  22. dbt says:

    8 years ago, Prop 22 passed 61-39. Yesterday, Prop 8 passed 52-48 if that.

    If we can, collectively, convince 150,000 of our fellow citizens that we respect their religious beliefs but we would don’t believe they should legislate those beliefs for all people; that we can live and let live; that going down the path of taking away rights is not a positive step for America or California, then there is no reason this law should last.

    I’m ready. I’m not stopping, and I’m not going to let this stand. And my preferred way to do this is at the ballot box.

  23. You’re right; it’s not too soon. Fundamental freedoms are not to be tossed aside. Bad arguments won the day; but the harm can be undone.

    I’m not a Californian, but I’ll be spending time at a university in California from January to March. I’m a philosopher who writes and teaches about ethics. I’m willing to help if I can.

  24. lessig says:

    Then how about someone set up a site to get this going. I’ll cover any costs.

  25. dssstrkl says:

    The big question that struck me was how is it possible to accept a constitutional amendment in California with a simple majority? It should be a 2/3 or 3/4 majority for that! The thing that a lot of people who voted for Prop 8 because of religion or bigotry are realizing that they could be next. Prop 187 was only struck down because it was unconstitutional. This year its gays, next year its immigrants (and people who look like immigrants, like me). Who knows where it will end? Regardless of the results of this election, Prop 8 and its ilk need to be stopped now.

  26. Andy says:

    In all honesty, I’m a person who is completely ambivalent to the gay marriage cause. It is a major topic not so much because it is a human right but more because it is a political polemic that allows politicians to sway voters.

    The idea that a government has any business telling people who they can or cannot dedicate their lives to is ridiculous. Furthermore, religion has always been the dominant definer of marriage and for the state to demand the religious institutions define it in any way is also wrong. Instead of looking at the real issue of returning the civil rights of gay people, for example insurance, politicians on both sides have made a ploy to take away the right of religion to define its own institution.

    While I know that it might heartbreak some people that the Catholic church will not be forced to marry them, I think there are much better solutions to this problem. I would challenge politicians, insurers, business owners, and all our fellow americans to take religion completely out of the picture. Strike from law any benefits for two people being married and allow religion define itself.

  27. marnie webb says:

    @Recaptcha Nothing: You wrote, “The people have voted, and a majority want to preserve marriage.”

    That kind of argument just doesn’t work. If people voted to, say, remove free speech from a group, say white men, would that be acceptable JUST because it had received a majority of votes? Of course not. We expect that courts will step in, or people will work toward change, in that instance. We would be astonished if they did not.

    This — removing the rights of marriage from a select group — is similar to that — removing the right of free speech from a select group.

    But of course, and this is where I agree with Larry’s point HUGELY, you can’t legislate or create a judgment that changes peoples hearts. See, oh I don’t know, the American South as an example of this. Equality was legislated and we are just now seeing evidence that hearts have changed.

    @lessig: Rather than start a new site how about a friendly takeover (and I mean that really) of social networking site put up by equality for all: http://equalityforall.ning.com/ Registered users can blog, have conversations in the forums, add photos and events. And, best, it already has some members but very little activity on it so it’s ripe for use.

    So, let me encourage you all to go to http://equalityforall.ning.com/ sign up and get going.

    (and, while I donated and raised money for equality for all in the days leading up to this campaign, I have no affiliation with the actual organization I just think it’s best to start with something that exists and not further bifurcate the community)

  28. Pudentilla says:

    marriage – a fundamental right for straight people; a political goal for gay people – but don’t worry, well meaning straight people promise to help us with the politics.

    if this is the best you’ve got on the topic – why don’t you say nothing for a good long well and at least allow us the dignity of our own sorrow and the righteousness of our own anger.

  29. Mike R says:

    I spent last night in the Castro district of San Francisco, partying and watching gay people get married in the last few hours in which it was possible. The experience was magical, and I promise you, this event affected no one except those getting married and those enjoying the spectacle. That some seek to prevent people from living their lives to the fullest for no other reason than their selfish attachment to a word is really quite beyond what I can handle.

    But we will win. The young voters support our cause. And their population is growing every day.

  30. Irradiatus says:

    The utter irony of this vote (and hypocrisy) is stunning and sad. Blogged here (from a scientist’s perspective).

  31. devestated kerri says:

    I am devestated and heart broken today. Prop 8 took the wind out of my sails on an incredible historic day in the advancement of equality: the election of a person of color to the white house.

    I knew the polls and yet I am shocked by Prop 8’s passage. To some extent I can understand adding a constitutional amendment to a blank canvass. But AFTER people have beeen wed? To take that special moment away from people after you have seen their tears and heard their stories. And let us not forget that the “no” campaign out spent the “yes” campaign. Even though it was a close call, because the deck was stacked against the ban supporters, I see this as a resounding statement that people a fundamentally terrified of me and hate me. I have not felt that so keenly until today. I feel like I am in mourning.

    After I take my pause to reflect on this passage, of course I will pick my ass up and carry forward. I agree that the courts are not the place for this victory. I respect the democratic voice that has spoken so clearly. But I have to say that I am very dissapointed in Californians. At least the old will die and a new more tolerant generation will blossom. I just wish I did not have to wait, since I so vividly remember what marraige tastes like after standing on the steps of city hall and seeing the first gay couples shuffle out, bound to each other by law.

  32. @Phill,

    >> How about accepting No as an answer.

    You mean like Thomas Edison?

    Or Rosa Parks?

    Oh, I know, you mean like Martin Luther King Jr.?

    Or maybe you meant Barack “NObama” Obama?

    Or maybe you meant something else altogether?

    Or maybe you forgot to realize that if every time someone said “No” we simply gave up we’d all still be swimming in the ocean aggravated and frustrated by the fact that we’ll never be anything more than lonely, asexual creatures that procreate by ripping ourselves in half just because we have no other option.

    Thank God my amoebic ancestors got sick and tired of being told to go fuck themselves and decided to try something new for a change.

    Hey, wait a second… If evolution began with asexual one celled organisms such as amoebas, and continued through the rebellious nature of intelligent life getting sick and tired of ripping themselves in half for some sort of obscure asexual reproductive pleasure, wouldn’t that technically mean that we were all born of gay parents?

    Seems reasonable, but then again so does the idea of dinosaurs roaming the planet millions of years before man was but a glimmer in its fathers (sic) (or would it be mothers (sic)? 😉 one-celled lack-of-an-eye and yet there are still those — not oddly the same types of folks who tend to insist that separation of church and state only applies to other peoples churches and states (and /definitely/ not their guns! ;-)) — who insist that the earth is 6000 years old, dinosaur fossils proven to date back millions of years were in fact placed there by God as a test of our faith, and Wasilla, Alaska is where all of man kind will seek out refuge in the last days and either come unto “God” or perish by the hand of some jaw grinding methhead who’s been up for the last six days having “visions” and tearing him/herself — quite literally — apart such that they feel something different than the current pain of being trapped inside the body of something they never intended nor wanted to be.

    And so the recursive act of the (re)evolution of life is “Born Again.”

    As oil, for the time being, and ironically enough /millions/ of years later, but “Born Again” none-the-less! 😉

    Oh, and Phill? As to your point: “How about accepting No as an answer.”

    No. Respectfully no, but no none-the-less.

  33. Jerry says:

    One way to decrease opposition to gay marriage would be to undercut one of prop 8’s major arguments, by ending state-run education in California. True school choice would make most of the ads I saw worthless.

  34. Invariant Memory says:

    @Thomas: “I do feel strongly that this issue should be decided by referendum or by legislature and not in the courts.”

    In 2005 and then again in 2007, the California legislature passed bills in support of same-sex marriage and both times the decisions were vetoed by Governor Schwarzenegger (I guess this makes him an “activist governor”). The issue arrived at the Supreme Court only as a consequence of these vetoes. So many people seem to have no idea that these bills ever actually passed. Ignorance of these facts has made it much easier for the Yes on 8 side to mislead voters with specious arguments about activist judges and “the will of the people”.

  35. Normally, my inclination is to fight issues out in elections rather than courts. That gives a better, more decisive, longer lasting result. In this case, though, that’s not going to happen.

    There will be a court challenge, and I suspect it will be successful.

    After that, there’ll be another initiated act (or whatever you call them in California), and again, it’ll be vote yes for no and vote no for yes, just like this time. We’re pretty sure that’s at least part of why Initiated Act 1 passed in Arkansas, though polls showed it faling–a signficant number of people got their votes backward. That may be part of your problem, too.

    So: If you want a popular vote on the subject, which I believe will be likelier to be successful as time passes, take the, ah, initiative with a proposition where yes means yes and no means no. Further, word it in such a manner that it is meaningful whether the state Supreme Court rules for or against the court challenge against proposition 8. Don’t overreach with it. The closer it comes to the inverse of the language of the next proposition 8, the likelier (I think–I am not a lawyer) you’ll be to prevail when it comes time to fight for which ends up on the ballot. (In Arkansas, the Secretary of State makes a determination, which is then inevitably challenged in court. I have no idea how it works in California.)

  36. In passing, I should note that Obama let me down already–he had the political capital to spare to come out against proposition 8 and he didn’t. And so it goes. I still think he can be a great, transformational president, but this was a terrible disappointment, and a mistake which I believe he will come to regret.

  37. Thomas says:

    @Invariant Memory

    I don’t disagree at all and I do not defend the Governator here. I remember when he vetoed these bills and said something to the effect that he believed that this issue should be decided by the courts. That was a political cop out then to prevent him from having to alienate anyone and it is still the wrong answer. Bad laws are not necessarily unconstitutional and the legislators and veto wielding executives should be held to account for their decisions at the voting booth, not the courtroom

  38. Randy J. Ray says:

    I am disappointed, but not (yet) dismayed. Having lived in Colorado through the passage of their Amendment 2 in 1992, through the resulting Supreme Court decision in 1996 (look up “Romer v. Evans”), I feel that there is a very strong chance that this too will make its way to the SCOTUS and its proponents will have to explain how a measure whose title begins with the phrase, “Eliminate the right…” does not violate the equal rights and protections language in sec. 1 of the 14th amendment. While I plan to support any ongoing efforts that grow out of the opposition to 8’s passage, I’m not going to consider this matter over until the last court ruling.

    (And to anyone else who thinks that a majority of citizens should be able to strip basic human rights from a given group:

    (1) Churches would no more be “forced” to perform a gay marriage they opposed to than they would be “forced” to perform a wedding for me, an atheist. A Catholic priest already has the right to not perform a wedding for non-Catholics.

    (2) A majority of people passed the anti-mixed-race-marriage law that was overturned by the CA state supreme court in 1948, too. I’m sure that had they put that to a vote, the people would have kept it in place. If you support 8, do you also support a return of anti-miscegenation laws?

    (3) Who’s next? Couples that cannot, or choose not to, have children? How about just sticking with Leviticus and banning shellfish, mixed-fiber clothing, and any woman being in a position of authority over a man? Seriously– when I did go to church, I was taught that one read and lived by the tenets of the whole Bible, not just the parts you felt like.)

  39. Tom says:

    @Thoughtful: The state, by granting marriage to two people, grants them certain mutual, bilateral rights and responsibilities. Next of kin in life-or-death medical situations, inheritance rights, tax breaks, that sort of thing. Those become inherently more complicated when the situation involves three or more people. So from the state point of view, it’s reasonable to limit marriage to two people – I’m not saying I necessarily agree or disagree with the position, but there is a real difference between the situations.

    But the rights and responsibilities that the state provides are blind to the sex of the participants. So from a secular, legal viewpoint, there is simply no good reason for restricting it to mixed-sex couples. The usual reason brought up by anti-gay-marriage advocates is childrearing, but from the point of view of the state and legal rights that’s irrelevant. Marriage rights aren’t granted on the basis of whether a marriage will produce children, and there’s nothing preventing gay couples from bringing up children (just from bringing up children which are biologically directly related to both members of the couple).

    (NB: I’m not familiar with exactly what rights are granted by marriage in California, so my examples are just generic rights that frequently come with marriage in various jurisdictions. You get the idea, though.)

  40. RainbowW says:

    @thoughtful: polygamy … if kids aren’t being abused, i would much prefer it if you’d please be so kind as to leave me to practice my perversions in private. i will, likewise, leave you to practice yours in private. thus, if i should choose to have a committed relationship with multiple consenting adults (with or without birth control) … hey, it’s private.

    also, i don’t buy for an instant that your vote wasn’t about fear or hate, at its root. if you can’t or won’t explain it, i don’t have any other thing to explain it, because the only arguments i’ve ever heard boil down to that.

    “traditional family values” means “not like my family,” or at least, “not like the family i want.”

    “the bible says” means “i don’t respect your beliefs, but i want to enshrine mine into law.”

    “homosexuality isn’t natural” indicates a fear of sexuality that isn’t my own, understanding and of the evolving scientific understanding of human sexuality.

    these are really the only arguments i’ve ever heard that weren’t completely specious, such as the stupid education ads that came out in california this cycle.

    so … enlighten us. why ELSE would you vote against it?

  41. Tom says:

    @Thomas “I do feel strongly that this issue should be decided by referendum or by legislature and not in the courts.”

    I disagree (and also think your comparison of traffic and marriage laws is specious nonsense that could just as easily apply to almost any discriminatory measure ever passed). I think this is precisely the domain of the courts (at least in principle; in practice I recognize it’s often a better idea to go for public support).

    Essentially, a constitution of a state should be a statement of the principles of that society. It should say what the rights and freedoms of the people are, and what the powers of the state are. That should have broad support (and only be amendable with similarly broad support) and form the social contract to which members of the society sign up.

    And then the courts should interpret those statements of principle and apply them to particular situations. That way the principles which people have agreed to are preserved and enforced. It’s the only way to prevent special pleading, and people deciding that although they said “all citizens are equal before the law” and “everyone is entitled to a fair trial”, what they meant was “all citizens are equal before the law, except gays” and “everyone is entitled to a fair trial, unless the army say they’re a terrorist”. Judicial interpretation of constitutional rights is what prevents the law from simply representing the preferences and prejudices of 50% + 1 of the population.

  42. heather gold says:

    I would gladly do a show or series of shows similar to the structure of the Corruption show I did with you (mashup up of diverse viewpoints around universal question with a lot of audience involvement if some of this goodwill and concern about the issue now could fund them.

    As you know I was very involved in trying to stop prop 8 and put out a call to geeks, sadly too late . The Net involvement really picked up a great deal in the last couple of weeks due to a 100&volunteer group of mostly queer geeks who just showed up at the campaign and made it better. In the last few weeks No showed much greater momentum than the Yes side. But the bottom up / grassroots approach came too late for the official campaign which unfortunately chose not to focus on this approach from the beginning and so the energy spread too late. As far as I know there were no dollars dedicated to the Net as recently as a month ago and the campaigns focus was really targeted on people in the

    I and many other gay people have our own need for honest, to love and desire that drives us to come out. Our families have their love for us and, our leadership (it took me 10 years with my family) in our case, our wedding(s) provided an amazing moment for that. But many Californians may not have these drivers.

    I agree that we need to engage people more deeply and we need to reach farther to connect with the support that is already there to make our case. I also agree that the Courts, while we may have good legal arguments, aren’t going to give us the feeling of safety and understanding that comes from the hard work of actually meeting each other and reaching out to each other If Barack Obama’s campaign taught me anything, it was that.

    My hunch is that there are many religious people who feel that they want to “come out” about who they are in terms of their faith and they feel harmed somehow, by my being gay and married. They probably want affirmation and acknowledgment too. I’ve yet to meet a human being who doesn’t.

    There were almost no gay faces in the No on 8 Campaign. Young folks support gay marriage likely because they know and care about gay people. We need to at least meet each other in a space in which we do not have to be afraid of being physically harmed for existing.

    The City of San Francisco has already filed a suit and the official No on 8 Campaign is awaiting absentee ballots. My geeky desire is to just do this. I see that same desire in your post and in others. What can we actually do? We know that over time, the older folks who supported Yes on 8 will die and that younger people strongly favour inclusion in gay marriage. We can wait or we can engage.

    The thing I know how to contribute is to host a live conversation that will let us dig into he kinds of things the campaigns didn’t. The reality is that many Californians feel very differently about what exactly/ I’m not completely convinced that everyone felt they were voting on the right of gay people to be married. Did they feel they were voting against discrimination/ for gay equality? for their faith? How do we know?

    Even if we appeal up the US Supreme Court and win, is that a great idea? I know my parents only really moved to acceptance of me when I really emotionally didn’t need it any more. I moved on in my life. It was inevitable. that inevitability is probably really scary and horrible to a lot of people. In my parents’ case they knew and loved me. I feel like that shift may be part of the puzzle here.

    From the stuff many Yes on 8 people are writing on my postings, they are sometimes convinced they platonically love me while opposing my marriage or they are plain terrified and angry that I exist.

    Blame is just purely unproductive. It is up to us to grieve our genuine pain and make a better case. I believe that includes sharing the reality of our lives. We are facing very difficult times. Do people who voted yes on 8 really think all the gay Californians aren’t needed to make things better and vice versa? Neither of us is going to disappear.

    So please let me know if you’d be game to try one. If we think it works,and people are behind it, we can do more. Others on this site please let me know if you’d be able to fund this shows/forums/webcasts/space where people can engage. If you’d be game to contribute time or money or have other ideas, add them to this wiki.

    Last night was first so joyful and then so very painful. I am feeling the first moment of peace since Yes on 8 became. Thanks for your offer to do something Larry. I was feeling like straight Californians didn’t really care about my life a few weeks ago. The response to yesterdays loss has shown me that’s just not the case.


  43. Jacob says:

    Okay look. Just the fact that you were born should be a testament in itself that homosexuality should not be accepted or recognized as a normal practice. Nature doesn’t lie, & nature has made it impossible for two females or for two males to have children. Even our closest species the monkeys do not tolerate homosexuality. Whenever a member of their group displays homosexual behavior, they run them out. Homosexuality is not tolerated in nature for a reason. Why do you keep insisting on pushing your messed up logic & incorrect values on the majority of the population? That is what is unconstitutional. If you you really want to keep insisting that we are being unconstitutional by failing to recognize your mental illness as something other than it really is, then leave. Go start your own country somewhere else. I can guarantee you that it will not last long. Proposition 8 passed. Give it up.

  44. NeedMoreInfo says:

    “As it stands now, the 401k (the American retirement fund) will not go to anyone but a spouse, because that word is written in and defined as a man and a woman.”

    Baloney. A single person can name any beneficiary they want in their 401K. A single person has a lot more freedom in deciding who gets their 401K than a married person does. A more appropriate example of something gay couples can’t get would be Social Security survivor benefits.

    However, that too, is a federal benefit, which thanks to Clinton’s Defense of Marriage Act, is still out of the reach of gay couples, regardless of whether any state legally marries them or not.

    In California, having a Gay marriage in California gets you all the negatives of marriage, but not much in the way of positives. The big marriage benefits (beyond what a domestic partnership gets you) are at the federal level:

    Positives of a California Gay Marriage:
    1) You can have a state official say, “yep, you’re married”
    2) …?

    1) Your intimate friendship is registered by the State in a Big Brother sort of way
    2) In most cases, you’re forced to share incomes and debts
    3) this requirement of mutual support often continues after the relationship is terminated
    4) Expectations of fidelity
    5) Termination of this special friendship requires state approval, and can take a long time to happen

    Lessig is spot on when he says the case has not been made effectively. Calling it an equal rights issue isn’t enough. Equal rights to what? Right to have a special Cinderella moment in a State building? We need something more compelling. If there are significant things being denied at the state level, that is what needs to be communicated.

  45. Ken Wagner says:

    Same-sex marriage is not just about equal rights or lifestyle or shared love or a positive example. It is about sneaking into your brother’s room at night and taking back the baseball mitt he he stole from you the day before. It’s taking back what’s mine. My word. My marriage. Keep your laws off my language.

    This country has voted for “Change We Can Believe In“, but is not yet ready to change what we believe. We are a careful and comfortable people, in words and deed. We like to think we are livingfree, but we are not yet thinkingfree.

  46. David says:

    But what I am suggesting is this – secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, Williams Jennings Bryant, Dorothy Day, Martin Luther King – indeed, the majority of great reformers in American history – were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their “personal morality” into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition
    Barack Obama

    If people feel that their religious values are being hurt by legislation it is their responsibility to stand up. It’s the right of the people to ultimately make the legislation by the people for the people. This is what makes this such a great country. There is always going to be a push between two groups and the winner will write history and they will deem themselves to by the good side and the other evil.

    The founding fathers were all very religious, when it is written the seperate church from state it means they don’t want a dictator telling them how they can worship they never considered that they should leave their faiths at the door. “In God We Trust” This is their testimonies to you that they believe in God and God was in their work.

    I ask my liberal brothers and conservative problems to stop the personal attacks, don’t stand on corners and yell out profanities ( I have seen it from both sides and it’s disgusting) I saw people going to church that had to walk past protestors yelling in their faces please use your minds not your anger! We are all people and deserve to vote how we wish.

    I will not tell you how I voted because it will only cause more anger. Please don’t try to prove the other wrong state what you understand to be true and then move on. The more you yell at me about being wrong the more inspired I will be to vote inspite of you.

    Treat your fellow Americans with respect

  47. Gregg says:

    I’m amazed that you have had not one word to say on your blog about Tuesday’s FCC approval of the unlicensed use of the white spaces.

  48. Andrew S says:

    The biggest reason that Prop 8, the bigotry amendment passed, is turnout. Voting turnout, especially in San Francisco, was far lower than predicted. SF turnout was 33% lower than 2004!

    more numbers to support this

    The largest barrier to reversing Prop 8 is getting younger voters to show up.

  49. “Even if it is right that this Amendment is contrary to the best interpretation of Equal Protection, let us bring the ideals of Equal Protection to life, by getting people to support them”

    Umm, isn’t there a logical problem there? I go over this a lot, with free speech.

    BY DEFINITION, by the very nature of minority rights, there must be some aspects of a democratic society where the majority opposes the minority, yet the minority rights are protected. And demagogues will use this too. Sure, it’s absolutely great if the majority’s mind can be changed. But there have to be some instances where it’s not possible, again, just by the intrinsic meaning of “protecting minority rights”.

  50. Larry says:

    Mckenzie and Karen:

    How soon people forget that the Catholics were put of their adoption charity work by gay activists. The church merely wished to operate under their belief that children should not be placed with a gay couple. The state however would not allow them to practice this because it does not respects the catholic religions opinions on homosexuality.

    Churches have already been sued and lost for not allowing gay couples to use their facilities to get married in. (A specific case was in Masachussetts involving the methodist church) It is only a matter of time before the lawsuits stack up requiring the churches to marry. To believe otherwise is naive.

    This morning on the news they broadcast the anti prop 8 demonstration from last night and the protester speaking directly attacked the mormon church blaming them for the passage of the amendment. The protester vowed to “take down the church”. This is the type of hatred that gay people are supposedly against. I think this underlies the true motives of a lot of people and that is to eradicate any influence from religion that might be counter to their own views, and they have no problem legislating religions rights out. The gay rights activists are really no different than those they oppose, they just want different content in the restrictions.

  51. jay says:


    you stated:

    “I volunteer to do whatever would help, including traveling to every church or community in this state to make the case for equality.”

    Appealing to logic, reasoning does not work.

    I respect your efforts, but simply don’t think this will work. From my personal experience there are three ways to convince socially conservative people that gay marriage is ok.

    1) Have one of their relations talk to them about being gay, or have a celerity talk to them about being gay
    2) Grow up in a culture that is tolerant to homosexuality
    3) Have them experience gay marriage

    Talking to people about it just won’t help. You can’t reason with homophobia because it is fear. It is an emotion. People were brought up that way, they are not going to change.

    So: how do we convince society that gay marriage is ok?

    on 1), this is already happening, and should be encouraged. Sitcoms are great at this, but there is a chronic deficiency of ‘out’ people in the African American community. There needs to be more ‘out’ famous black people to tell African Americans, especially young ones, it’s all right to be gay. This experience is mirrored for the Asian community in my country of Australia. This is great, but it only works on the margins, and is most effective for young people. The older you get the more set in stone you are.

    on 2) it’s a demographic inevitability. all we have to do is wait for the oldies to die/stop voting and the electorate will vote accordingly.

    The problem with 2 is: can we wait? For ballot initiatives, I’m 20: I don’t want to wait another 15 to 20 years for a liberal American state to allow gay marriage, let alone all of the red states and federally. I can’t imagine how 50 year old gay couples feel.

    Furthermore, not all states run on ballot initiatives: if it is left up to the legislature to decide, exactly what demographics constitute ‘acceptance’ of gay marriage? In Australia where I’m from 57% of the public support it, 37% oppose. Our liberal prime minister was against gay marriage in the election stating “Australia is not ready for it – yet.”. The fact of the matter is that for 37% of Australians it’s a big issue, while 57% don’t really care. A legislature is always gong to go for the safe option not to piss off the small vocal minority.

    That leaves 3). I believe that if the judiciary grants same sex rights the electorate will be angry. That same ‘vocal minority’ I mentioned in problem 2 will be irate. However, legalising gay marriage will make the non-militiaristic portion of that 37%% say: heck, the world hasn’t fallen in, who cares. You will take a poll 10 years down the track and 57% support will jump to 75%. People are by nature conservative, they don’t want CHANGE. If the courts make gay marriage the norm, I guarantee most people will feel it is the norm and therefore will not merely tolerate it but accept it.

    taking it to option “3” the courts does not hinder “2” demographic change. Accelerating demographic change is impossible; if one vote fails it doesn’t matter what you do in the courts eventually a vote will pass. You have 2 options, you can wait for the demographics to change or you can push the undecideds into the ‘yes’ column with the courts. The end result is the same. I can’t sit before you and tell you which one will be quicker: courts or ballots, but if the end result for both is a public that by and large supports gay marriage… why not try both?

    Keep on working with the ballot measures. Keep on fighting it in the courts. Whichever comes first, the end result will be the same.

    reply would be appreciated!

  52. For a long time, I’ve viewed this as a simple matter of the exercise of religious freedom. Granted, there are many religious organizations strictly dedicated to a “traditional” ideal of marriage, but there are many groups which do not hold to those beliefs: and whether you’re talking about a liberal-minded church willing to marry two men, or an orthodox Mormon or Muslim group willing to engage in polygamy, a country like the United States, with her founding roots in the search for the freedom to practice one’s own religion as one sees fit, should make sure to stand out of the way of these practices.

    For a very long time, I felt the best answer was for the state governments to refuse to recognize any marriages. Rather, recognize civil unions, which would have the benefit of allowing churches and church congregations to determine who they married, while the government’s only responsibility was in ensuring legal protections over such unions, without passing judgement on which were or were not “valid.” I felt this was a fair and reasonable compromise, but my opinions have been shifting, in no small part due to this YouTube video of San Diego’s Mayor Sanders explaining why he’d made the decision to support gay marriage over civil unions: “Two years ago, I believed civil unions were a fair alternative. Those beliefs, in my case, have changed. The concept of a separate but equal institution is not something I can support.”

    It seems unlikely that any state government, much less all fifty of them, will decide to adopt my plan. Therefore, civil unions, while a good start, are simply not good enough. Marriage for homosexual couples needs to be the law. Yes, the world isn’t fair, and yes, the United States isn’t fair. Our country is chock full of examples of acts of persecution to minority groups: slavery, segregation and Jim Crow laws, the internment of Japanese-American in relocation camps, need I go on? In time, all of these past horrors have been refuted: George H.W. Bush apologized to the Japanese interned, and most famously, this very week, our nation elected its first African-American to the office of the President of the United States.

    I know that a lot of people have trouble wrapping their minds around the concept of gay marriage. They usually talk about the next step being men marrying trash dumpsters or something. At some point they usually reference the threat to their own marriage, but I’ll let Barbara Boxer make that point (er, even though I’m not, y’know, married).

    I think gay marriage is the civil rights question of our time. I also think that it is inevitable. Oh, you can delay it, you can slow it down, but it’s coming. I hear stories of what people think gay marriage will mean: particularly ludicrous imaginations seem to envision armed Federal troops compelling some right-wing minister to marry a leering gay couple at gunpoint. I will never advocate for the government telling a church what people they must marry, at the same time, I will not tolerate the government telling a church what people they may not marry, which is what happens now when gay-marriage friendly churches marry a couple whose union can not legally be recognized.

    If you value freedom, if you value the freedom of people to make choices that you might not agree with, choices that you would never advocate, this is a cause for you. If you’re one of those people who will disagree vehemently with your neighbors over politics, but know in your heart of heart that you would fight for their right to express their disagreement, then you know what side you need to be on. This isn’t an issue for the left, the posted YouTube video above proved that. This is an issue for all Americans who truly value the unique characteristics which make up our mixing bowl of a nation.

    I’m a proud supporter of the right of the American people to follow their pursuit of happiness, and to do so right into the marriage bed, regardless of their sexual preferences. Support of gay marriage is support of freedom of choice. It really is as absolutely simple as that.

  53. Eden says:

    It’s rather sad that a vote ‘by the people’ isn’t good enough because it doesn’t match YOUR agenda.

  54. liz says:

    I just want to say from a South African – that it can be done, it is possible for people to see and act beyond their fears. And this rejection is fear-based make no mistake. Keep the real faith – people are people wherever they are and the majority are bigots only by having fear-cramped minds.

  55. Greg G says:

    @Thoughtful: I can’t speak for all No on 8 supporters, but personally I couldn’t care less about polygamy and I would be for its legalization as well. Not because I believe that it is right, but because I believe that it is a right that should not be taken away by the government as long as all involved are willing participants. I would ask you what your feelings are on the laws from just over 50 years ago which banned interracial marriages? Do you believe that those laws were just?

    I was arguing prop 8 with a Mormon acquaintance who had the gall to refer to their “rights to plural marriages that were brutally stripped away from them by the government” who wouldn’t acknowledge the Mormon church’s hypocrisy in heavily supporting the stripping away of the rights of gays to marry. Unfortunately when you bring logical arguments all they have to respond with are scripture quotes and claims about what they believe God thinks is right and wrong and how they have no problem using the government to force those beliefs upon others. They also seem to have the notion that not only do they have a right to shield their children from any acknowledgment of the gay lifestyle, but that somehow the difference between domestic partnerships and gay marriage will somehow strip away that right.

    I will keep fighting the just fight, however.

  56. Steve Baba says:

    Greg: I don’t think you were talking to a real morman. In case there are no mormons reading this blog to defed their church, this is their churches position for their website:

    “I wish to state categorically that this Church has nothing whatever to do with those practicing polygamy. They are not members of this Church. Most of them have never been members … If any of our members are found to be practicing plural marriage, they are excommunicated, the most serious penalty the Church can impose. Not only are those so involved in direct violation of the civil law, they are in violation of the law of this Church.”


  57. Eden — my agenda is religious freedom and the rightto pursue one’s happiness. What’s your agenda?

  58. Jack S. says:

    Here is an article, called “Unamendments,” on when constitutional amendments are unconstitutional: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=803864
    [available for free downloading]

  59. Adrian Lopez says:

    “What? The fact that the majority of people have spoken *twice* on this issue is not enough?”

    We could have the same outcome a million times over and it would still be wrong. Democracy is not inherently moral or ethical, and sometimes the most responsible thing to do is for governments to say “to hell with the majority’s wishes”. I also disagree with Lessig when he says this issue shouldn’t be taken all the way to the Supreme Court, although no doubt it’s important to wait until there’s actually some chance of winning.

  60. Tim says:

    You’re off the mark here. Prop 8 is about civil rights, and civil rights issues are almost never correctly decided by simple majority rule. If segregation had been decided by simple majority voting, it would still be the law of the land in many places. While I understand your undertones, that forcing this issue down people’s throats is going to be very divisive, sometimes it’s a necessary evil when dealing with the close minded mob.

    There’s a reason why the Bill of Rights is so powerful — because it _cannot_ be overruled by a simple majority.

  61. Tim says:

    You’re off the mark here, Mr. Lessig. Prop 8 is about civil rights, and civil rights issues are almost never correctly decided by simple majority rule. If segregation had been decided by simple majority voting, it would still be the law of the land in many places.

    While I understand your undertones — that forcing this issue down people’s throats is going to be very divisive — personal rights, especially those that affect a minority class of people, are a clear case of the “Tyranny of the Majority” that can NOT be protected adequately by simple majority rule.

  62. johnJ says:

    Maybe the black community is so FN stupid that they thought they were voting YES on a section 8 issue.

  63. Greg G says:

    @Steve Baba:

    The Mormon I spoke to didn’t say he believed that plural marriages were OK or that he would want one for himself, but he seemed rather bitter about the government starting a war against his church in order to strip away what they felt were their rights at the time.

    Yes, the Mormon church claims that they no longer allow and encourage polygamy and for all I know they really do enforce against it nowadays, but for the record they had to decree that polygamy was over in their church on more than one occasion. What a church decrees publicly and what they actually enforce or practice are not necessarily the same thing.

  64. Paula says:

    To the original poster: I agree with your strategy!!


    I think you’re good people, like me. I pay my taxes that support my schools and religious institutions so they can give back to the community. I don’t hurt anyone and only try to help. I oppose people who try to infringe on religious freedoms, and I don’t seek to infringe upon what “marriage” means to you. I appreciate that most of you DO approve of ‘domestic partnerships’ and ‘civil unions’ for gay people, but please listen to why that doesn’t work.

    The federal government gives married people about 1000 rights. The state gives them about 400 additional rights. The reason the government is involved in marriage at all is to promote and protect stable, happy families as basic units of society. Obviously marriage is not solely for procreation, as we do not remove that right from you if you are infertile, elderly, or choose not to have children. When you marry, you are automatically entitled to those 1400 rights, including the right to visit a spouse in the hospital, be added to your spouse’s insurance policies, acquire property with your spouse and automatically inherit it if your spouse dies, and many more. These 1400 rights are not simply and easily written up in a single civil document, nor always enforceable; for instance, a person under a state’s domestic partnership can’t force the IRS to give him the tax breaks afforded to married couples. It is extremely complex and doesn’t always work; I am aware of gay people whose partners died and the deceased’s hostile family successfully asserted their ownership of everything in spite of the contract, leaving the survivor destitute. Imagine children being involved, and a deceased partner’s hostile family takes your children from you because your civil contract didn’t stand up in court proving you were next of kin! In Arkansas, the majority just voted to prohibit unmarried people from adopting, meaning a gay person can’t even adopt their partner’s children to ensure that if their partner dies the children will remain with the surviving parent they love!

    ‘Civil unions’ and ‘domestic partnerships’ permit OSTENSIBLY most of the 400 state-afforded rights of married couples, but NONE of the 1000 federal ones, and I can tell you from personal experience that the state ones are NOT equal. Just one example is that to get on my partner’s insurance policy, we had to provide my certificate of domestic partnership, copies of financial records proving we had co-mingled finances and lived in the same home for at least two years, and more. If I died, my partner would have to wait at least two years to add her new partner to the policy to prove the relationship was ‘real’. Married people don’t even need to provide a copy of a marriage license, and if their spouse died today, they could add a new spouse tomorrow. This is only one example out of MANY.

    Other rights are specific to helping children of married people, including ensuring automatic inheritance rights, the right of a non-blood related parent to pick up a sick child from school, alimony and child support to help with their care in the event of divorce, and many more. No matter the makeup of the family or how it comes to be — be it traditional nuclear, or grandparents raising their grandchild, or a blended family resulting from divorced people remarrying, or single parents, or adoptive parents, or childless couples, or gay couples — ALL of these people deserve the same rights so they have the best chances of happiness and contribution to society.

    What I would like to see the FEDERAL government do is create one proto-marriage type of relationship (‘civil union’?) that applies equally to all people who want it, including granting them all 1400 of the rights and responsibilities that “married” people currently enjoy, and then simply leave the word “marriage” for religiously-inclined people who want to further consecrate their relationship according to their religions. I think that is what the MAJORITY of us all want. Unfortunately, the federal government is currently leaving the issue to states to decide, so we are stuck wrestling for the one word that currently encompasses all 1400 of those rights, and that word is “marriage”. Granting the existing rights encompassed by one word to a minority is a lot easier than changing 1400 laws to encompass them. That’s really all there is to it, see?

    I understand many of you are afraid that legalizing gay marriage will lead to your children being forced to learn in school that homosexuality is “normal”. I will be the first to agree with you that homosexuality is NOT “normal” – the parts don’t fit and we can’t make babies. But consider that in one out of every 100 live births, a child is born with ambiguous genitalia (intersexed). If God creates 1% of babies that way, why do we then do surgery to “correct” them to one sex or the other and make them “normal”? God made me abnormal too – I’m among the small percentage of people whose wiring is crossed so I’m attracted to my own sex. My abnormality doesn’t lead me to hurt anyone. The worst law I’ve ever broken is the speed limit. Learning that homosexuals exist isn’t going to turn any child homosexual, but it will help the small percentage born with this abnormality to feel less alone. That’s really the worst that could happen.

    As for the slippery slope arguments that legalizing gay marriage will automatically lead to legalizing polygamy or incestuous marriages, those forms of marriage existed throughout most of recorded history but are too impractical or undesirable for the vast majority of Americans to even consider. As for legalizing gay marriage leading to legalizing people marrying pets or children, these can’t even give informed consent. Please stay off the slippery slope; the ONLY topic we’re asking you to agree on is legalizing gay marriage.

    We gay people and our families are being hurt by laws as they stand, and all we are asking for is the concession that the word “marriage” include us so we may enjoy its rights – and responsibilities. I will leave you with the words of Mildred Loving, who wrote this forty years after her 1967 legal case struck down laws barring interracial marriage:

    “Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.”


  65. DGandhi says:

    I think this dose need to go back to the courts, and then the state legislature.

    The prop8 folks used the “activist judge” argument as the cornerstone of their position, and while we do need to engage the populous about the difference between mob rule and a constitutional democracy, we need to get this through the legislature sooner rather then later.

    The path:

    Bring a case against the state on the basis of equal protection, argue that marriage is now defined in such a way that it is illegal to acknowledge or license marriage in any form, doing so contradicts equal protection, and so applying this contradiction selectively is still a constitutional violation. This is an unintended consequence of poorly thought out constitutional amendments, which they have already argued is not a revision, it should not be allowed to stand.

    Get the state supreme court to set a deadline to nullify all marriages( or if they are not nullifying same-sex marriages, to freeze new marriages/acknowledgment of out of state marriages), and send it to the legislature for a solution, lobby the legislature to re-label all marriages as civil-unions, and then we get rid of both the “marriage” problem, and the “separate-but-equal” problem. Arnold would be forced to not veto this one, because he would be revoking the rights of all CA citizens if he did.

    Added bonus: All the previously married (mostly straight)people of California now have to lobby the federal government to extend “marriage” benefits to civil-unions, since CA citizens can no longer be married.

    The fundamental foolishness of prop 8 may end up to be a very good thing in the end

  66. Mark says:

    Our country is a country of contrasts, and this election illustrates the contrast. On the one hand, we can demonstrate that we are capable of rising above our prejudices, and the majority of voters can accept a person of color as our commander in chief. On the other, we can (amidst one of the most liberal states in the Union) vote to eliminate a basic human right, establishing a policy of discrimination directly in our Constitution.

    We have a long way to go.

    The thing I find particularly dismaying is that the people who traditionally have found themselves to be the target of discrimination were themselves the difference in this election: that amongst African-American and Hispanic voters, we found many who were willing to choose discrimination for their fellow citizens.

    In Brown v. the Board of Education, the Supreme Court claimed that the doctrine of “separate but equal” with respect to schooling was a sham: that there could be no separate school system which allowed African-Americans to fully participate in our society as was their right. With respect, I disagree with Professor Lessig regarding legal challenges against Proposition 8. Without Brown v. B.O.E, blacks would have remained in separate schools, perhaps not forever, but perhaps for decades, and we wouldn’t have our current President-elect.

  67. Steve Baba says:

    I would suggest that unless you want to alienate the religious that one refrain from suggesting religious criminal conduct without evidence.

    “Yes, the Mormon church claims that they no longer allow and encourage polygamy and for all I know they really do enforce against it nowadays, but for the record they had to decree that polygamy was over in their church on more than one occasion. What a church decrees publicly and what they actually enforce or practice are not necessarily the same thing.”

    If you replace the Church with Gay Right Activists and polygamy with man-boy love, your argument is transparent.

    “Yes, the Gray Right Activists claim that they no longer allow and encourage man-boy love and for all I know they really do enforce against it nowadays, but for the record they had to decree that man-boy love was over in their group on more than one occasion. What a group decrees publicly and what they actually enforce or practice are not necessarily the same thing.”

  68. Thekea333 says:

    I am upset about this erroneous finger pointing at African-Americans regarding Proposition 8. Why are you so quick to believe whatever you hear? If someone told me 70 percent of gay people voted against Obama my first thought would be, excuse me Jesus, that is crap! I don’t believe it! This political year was fraught with right wing lies. Bear that in mind.

    “Religious organizations that support Proposition 8 include the Roman Catholic Church], Knights of Columbus, Union of Orthodox Jewish Congregations of America, The Church of Jesus Christ of Latter-day Saints (Mormons) a group of Evangelical Christians led by Jim Garlow and Miles McPherson, American Family Association, Focus on the Family[and the National Organization for Marriage Rick Warren, pastor of Saddleback Church, California’s largest, has also endorsed the measure. The Bishops of the California Catholic Conference released a statement supporting the proposition. The Church of Jesus Christ of Latter-day Saints (Mormons) has publicly supported the proposition and encouraged their membership to support it, by asking its members to donate money and volunteer time. The First Presidency of the church announced its support for Proposition 8 in a letter read in every congregation. Latter-day Saints have provided a significant source for financial donations in support of the proposition, both inside and outside the State of California. About 45% of out-of-state contributions to Protect Marriage.com has come from Utah, over three times more than any other state.”

    Still, even though gays were fighting to preserve a basic right, it was the anti-equality side in California that seemed to have the most fervor. A symbolic low point for the gay side came on Oct. 13, when the Sacramento Bee ran a remarkable story about Rick and Pam Patterson, a Mormon couple of modest means – he drives a 10-year-old Honda Civic, she raises their five boys – who had withdrawn $50,000 from their savings account and given it to the pro-8 campaign. “It was a decision we made very prayerfully,” Pam Patterson, 48, told the Bee’s Jennifer Garza. “Was it an easy decision? No. But it was a clear decision, one that had so much potential to benefit our children and their children.”

    This is your real enemy. Don’t trust exit polls taken when many of these same groups taking them were angry with African-Americans about Obama beating their Christian Right coalition messiah ie Sarah Palin. I think they are pitting one group against the other. African-Americans are less than 7% of the state population, do the math. And they do not have the money to fund a tens of millions of dollars Proposition 8 campaign. Note that they also targeted affirmative action for eradication in another state.

    Rather than be upset at the phantom African-American menace, put forth a gay candidate for office and fight like hell. No one gave Obama anything and they will not give gays anything either. Obama stands on the shoulders of a lot of brave people who gave their lives for him to stand on that podium last night.
    Never trust exits polls because in all my years of life, no one has ever been seen at a polling place asking anyone anything when they left.

  69. Tsubasa says:


    Your story about your fish went out to my heart! I too am a fish person and would like very dearly for my fish to be licensed.

    However, I don’t think you understand quite what marriage is.

  70. Prof Lessig, I couldn’t agree with you more.

    Convincing those opposing our ideals is always the far better route than summoning the power of the Supreme Court. The court most certainly has its place, and (imho) is very necessary to any functioning democracy. However, when it’s used with abandon whenever anyone has a disagreement, inevitably one side will “lose,” keeping us in a state of perpetual conflict. If one side can manage to convince the other, nobody (or at least far fewer) will go to bed feeling angry and powerless.

    Thanks for your thoughts on this, they certainly are important.

  71. AdamChristopher says:

    Professor Lessig:

    I applaud your desires to use persuasion instead of vehement protest. However, I must say that many Yes supporters have voted so due to their religious beliefs. I am one of them. I kindly listen to opposing viewes, but at the end of the day, my beliefs come down to the religious principles which I have been taught. I imagine that this is the same for almost all of the 52% that voted for Prop 8. Many of us believe in the Christian scriptures that disallow homosexuality (Genesis 19, Romans 1:26-27, 1 Corinthians 6:9, and 1 Timothy 1:10, to name a few). As for Latter-Day Saints, we believe in the continuing guidance of the Lord through prophesy. One of the Twelve Apostles of our Church, M. Russell Ballard, has recently taught us that “False prophets and false teachers are also those who attempt to change the God-given and scripturally based doctrines that protect the sanctity of marriage, the divine nature of the family, and the essential doctrine of personal morality. They advocate a redefinition of morality to justify fornication, adultery, and homosexual relationships. Some openly champion the legalization of so-called same-gender marriages.” Our belief is not about hate but about protection of what we believe God has commanded of his children. Also we believe it is our obligation to God to likewise persuade others to support the view of marriage between a man and a woman. A LDS Church President of the 80s, Ezra Taft Benson, has reminded us of this obligation: “Knowing what we know as His servants, can we hesitate to raise a warning voice to all who will listen that they may be prepared for the days ahead? Silence in the face of such calamity is sin!” So you see, we feel just as passionately about this issue as do the opposition to Prop 8. We want peace as well and hope that your thoughts on persuasive discourse soon become the norm for conversation.

  72. WRB says:

    Prof. Lessig is right. It’s not wise to rely on the courts to protect our core values, both because courts quite often get it wrong too and because democracy works best when popular opinion is consonant with our core American values — not when the two are at odds as I believe they are following the passage of Prop. 8.

    The first step has to be reaching out to leaders of faith who understand that equality, fairness and inclusiveness under law, whether applied to homosexuals or other groups, is not inconsistent with faith, and that writing a particular set of religious beliefs into law is clearly NOT in the long-term interests of people of faith and our shared value of religious freedom. These leaders are the natural ambassadors between those who supported and those who were against Prop. 8.

  73. John Millington says:


    “Why is the state involved in civil marriage at all?”

    Because married voters want their tax breaks and other perks (e.g. can’t be compelled to testify against a spouse). It’s a relative advantage that everyone wants.

  74. EBdM says:

    I don´t think one should ever confuse democracy with a Tyranny of the Majority.

    If one relies simply and exclusively on the will of the majority it would be very easy to create situations that are unsustainable for minorities as we can see from countries like Iran or even Spain during Franco´s regime.

    What if an anglican majority decided to curtail the rights of a mormon or catholic minority? Would that reflect the balanced values of modern American democracy?

    If society depended on democracy alone blacks might still be slaves and women might still not have the vote.

    What people didn´t think about when they voted for proposition 8 is “Who´s Next?”

    Mormons could be excluded from marriage, as could catholics, Hispanics and a number of other groups- it will only depend on hiring a good PR firm to do the campaign. If Hitler convinced an entire nation Jews weren´t entitled to the same rights as other citizens- who´s to say it won´t happen again with another group in another place in another time?

    We depend on the courts to stop things like this:

    “Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”

  75. IDontUnderstand says:


    “Your story about your fish went out to my heart! I too am a fish person and would like very dearly for my fish to be licensed.”

    I appreciate your sympathy.

    “However, I don’t think you understand quite what marriage is.”

    By all means, please enlighten me.

  76. While I sort of disagree that we should not go to the courts — “separate but equal” and interracial marriage would have been law (and therefore socially acceptable) much longer if the courts had not intervened — I will also be the first one to say that No On 8 had NO ground game. We must open our hearts to communities and hope that in return they’ll open theirs.

    Mr. Lessig (and everyone reading and commenting here), won’t you join us at EqualityCamp in SF on January 10, 2009?

  77. bh says:

    Other than as invention of the courts, Marriage is not and never has been a fundamental right of individuals. Marriage between a man and a woman Is a fundamental need of civilization, making marriage between a man and a woman a societal obligation.
    Now before emotionally asserting “It is not!”, please consider:
    Marriage as a civil (not religious) institution has been licensed, regulated and defined as between a man and a woman since at least the dawn of recorded history. Its unique endurance across time, place, culture, forms of governments, religions (and lack thereof), race, ethnicity, etc. is far more than sufficient evidence that it fills a basic, fundamental role in the foundation of civilization.
    The question and burden to those proposing same-sex marriage is: How does it satisfy civilization’s need? Answer that *convincingly and you’re done; otherwise you are ignorantly fooling with the underpinnings of civilization itself.
    (*Simply avowing “no harm” is insufficient grounds for civilization to divert resources to the defense, support and promotion of an uncertain alteration in its own foundation.)

  78. My wife and I, I being a heterosexual male, were married based on a K-1 visa. That is, I petitioned on her behalf to bring her to the United States based on our intention to marry. If instead, I had fallen in love with another man, I would have instead been heart brokenly separated from him forever. Regardless of your personal view of homosexuality, those that are homosexual are people with legitimate feelings, and are capable of love. To deny them that love is morally incomprehensible.

    To my fellow so-called Christians that believe differently, I hope you one day see that above all, Jesus preached love. He preached love to the sick, to the outcast. If homosexuals are the lepers of the 21st century, then they are precisely those that Jesus would demonstrate his love unto. Do not use the name of Jesus to spread hate and evil against any man, as that should be the truly unnatural act in the eyes of a Christian.

  79. EBdM says:

    So the user who signs as BH would like to know how same sex marriage satisfies civilization’s need…

    Firstly I suppose I should clarify that people should not confuse sex and marriage. Men and women, both homo and heterosexual existed long before marriage contracts of any form, and in all probability not just gay sex, but gay unions existed long before christianity. To imply that gay marriage is a modern “invention” of a liberal society is utterly ignorant. I would suggest looking up marriage in the Fujian provinces of China, African tribal marriage rituals, the ancient Egyptian marriage of Khnumhotep and Niankhkhnum etc… etc… If one does take the time to study those topics before spewing babble, one learns that gay marriage is A PART of many civilizations and cultures.

    Now let´s highlight this user´s specious argument by substituting the word marriage for the word slavery, and the words same-sex marriage for the word abolition:

    “SLAVERY as an institution has been licensed, regulated and defined as between a master and his slave since at least the dawn of recorded history. Its unique endurance across time, place, culture, forms of governments, religions (and lack thereof), race, ethnicity, etc. is far more than sufficient evidence that it fills a basic, fundamental role in the foundation of civilization.

    The question and burden to those proposing ABOLITION is: How does it satisfy civilization’s need? Answer that *convincingly and you’re done; otherwise you are ignorantly fooling with the underpinnings of civilization itself.
    (*Simply avowing “no harm” is insufficient grounds for civilization to divert resources to the defense, support and promotion of an uncertain alteration in its own foundation.)”

    If this is how anyone measures civilized society, they´ve got serious problems. Gay marriage achieves the same goal as MODERN heterosexual marriage. That which has come to signify the officialization of a union of affection and physicality between two ADULT CITIZENS who freely decide to commit to each other, defending each other´s interests and pursuing common goals. The French and American revolutions were supposed to uphold the idea that all citizens be treated equally- without distinctions. It´s no more the government´s job to special contracts to people of different sexes than it would be to offer special contracts only for people of a particular race as was the case of the prohibition of interracial marriage.

    And just as a special note on civilized society, I´d like to say that most of the countries who have already passed gay marriage into law have violent crime rates, abortion rates, prostitution rates and drug usage rates that are considerably LOWER than America.

  80. Steve Baba says:

    “SLAVERY as an institution has been licensed, regulated and defined as between a master and his slave since at least the dawn of recorded history. Its unique endurance across time, place, culture, forms of governments, religions (and lack thereof), race, ethnicity, etc. is far more than sufficient evidence that it fills a basic, fundamental role in the foundation of civilization.

    Nice try, but slavery even when it occurred was always known to be risky to even the slave-owning class – the slaves may revolt and kill us – that it was rarely embraced as fully as heterosexual marriage – which got tribes/towns/countries in the past more children/warriors so that we don’t get killed.

    My history is a bit fuzzy, but didn’t both ancient Rome and Jews have to (suppose it varied from time to time) release slaves after so many years as a safety valve.

  81. EBdM says:

    Steve Baba,

    I´m not sure what you´re responding to, but your answer doesn´t in any way contradict my comment. The supposed “riskiness” of slavery in no way makes it less traditional or less of a part of human history. Slavery was fully embraced by people all over the world, whether formalized into law or informally just like marriage.

    We find it in cultures as old as the Sumerians, and see it grow amongst Persians, throughout Africa (including Egypt), as most of the Mediterranean civilizations and from there we see it spread to the colonial America´s. We also see the insitution of slavery in the primitive American culture´s with the Aztec´s having “tlacotin”, and the Maya´s with their “Ppentacob”- both of these cultures also enslaved their war prisoners. In China a system of child slavery called Mui Tsai, where children were sold existed until the second half of the 20th century. The Japanese also had slaves, in the 3rd century known as Seiko, by the 8th century slave laws were enacted and they were then called Nuhi. Whichever way one looks at it slavery is as much a part of human tradition as marriage.

    Slavery wasn´t only embraced by the masses but also specifically by the Christian church. Both Catholics and Protestants owned slaves and defended the institution. Even Pope´s and Protestant pastors owned slaves and used their bibles to justify it. So it seems your comment is entirely off base.

    To continue with the point I was making debunking the idea of “traditional is best”- as I explained in previous comments Marriage has already been redefined many, MANY times. In the 19th century and most centuries before that it was a contract of guardianship. A man OWNED his woman, in many cases the woman´s family even had to pay the son in law a fee to get rid of their daughters. From the moment in the 20th century when women started having independant property rights, child custody rights, the right not to be raped or beaten by their husband´s- the concept of marriage was revolutionized. It ceased to be a contract of property to be a contract of partnership. There could be no greater redefinition than that.

  82. Daniel Ipson says:

    Not yet,

    The way this is going in the future, if a church declines to perform a marriage citing personal beliefs they could be sued for discrimination. If they still refuse they could lose their liscense to perform marriages altogether (or have them be state recognized.). Not yet but soon, if certain people prevail. In the mean time, the persecution of Judeo-Christianity continues by those who would have US keep our beliefs “in the closet”.

  83. Ms. D. says:

    Daniel Ipson,

    Your comment is an attempt of fear mongering with no base in reality. There has never been a proposal that any religion celebrate or even approve of gay marriages. In fact, gay marriages exist and are law in a number of countries, none of which have obliged or intend to oblige any religion to perform gay marriages.

    It´s a shame, but this is a perfect example of what the debate has become, fear mongering of the worse kind and even lying- all to justify a hateful prejudice against a minority.

    Let me tell you about persecution, first of all as a a person of Jewish descent I´ll say Christians shouldn´t DARE to use the term Judeo-Christian, when Christians themselves are single handedly responsible for persecuting jews, stealing from jews and expelling jews from almost every country in Europe. A few years ago the religous right fanatics wanted to jump on the bandwagon of history. I´m sure the term is offensive to any jew who knows the history of Judaism, or who´s seen pictures of the American Christian signs that said NO DOGS, NO BLACKS, NO JEWS- in that order-
    Judeo christian my foot.

    And as for the persecution well, let´s be clear about this- who´s persecuting who?
    Do gays want to stop Mormon marriages?
    Do gays want to stop Christian or Catholic marriages?
    Do gays want to tell anyone how to live their lives?

    The answer is NO. The people who evidently have nothing better to do and want to freely persecute and impose their model of what life should be on society are the ones who want to force everyone else to live the way they do.

    My simple suggestion is: If you´re an extremist christian or simply don´t believe in gay marriage, that´s your personal choice, fortunately no one is forcing you to marry anyone of the same sex as yourself.

    BUT how dare you, any of you presume to have the right to stick your noses into the lives of other people to tell them who they can or can´t marry- and after you do that, you pretend to be the victims talking about the
    “persecution of Judeo-Christianity”- what a joke.

    So let me see if I understand correctly, you want to dictate how people live their lives, you want to impose your definition of relationships on them, you want to say that they choose to live is wrong- and if anyone dares to disagree that means they´re persecuting your religion… right- that makes perfect sense…

  84. NeedMoreInfo says:

    @Eric Windisch

    As a fan of much more open borders, I agree with your feelings about allowing loved ones in to the country. I would take it even further. I feel citizens should be able to sponsor foreign immigrants regardless of whether they have have intimate committed relationships. Cousins, friends, etc should all be allowed in as long as the sponsor takes responsibility for them.

    But we both digress from the thread topic. As immigration is a federal issue and the federal D.O.M.A. only recognizes heterosexual marriages, California recognizing gay marriage yields no immigration benefits.

  85. Steve Baba says:

    “Slavery was fully embraced by people all over the world, whether formalized into law or informally just like marriage.”

    By overstating your case you are setting yourself, your argument up as a stawman easy to knock down.

    Slavery, just like crime or prostitution happened all over the world, but there were always many people agaist slavery because of the revolt-risk, slaves don’t fight for us in battle or the ethics.

  86. EBdM says:

    Steve Baba,

    I have not overstated anything. Slavery didn´t exist as a “crime like prostitution”, in fact, even prostitution has been perfectly legal in a number of civilizations. May I also remind you that the bible itself makes no criticism of the institution of slavery, it was an accepted and LEGAL part of human tradition.

    I suggest you not only study history, but have a review on what a strawman fallacy is and you´ll discover your statement is absurd, verging on ridiculous.

    My original point, which I stand by and is proven by history is that tradition alone is not a valid argument for conserving anything. It wasn´t a valid argument for conserving slavery, an insitution embraced by much of the world, it wasn´t a valid argument for conserving that lack of women´s rights- and it´s not a valid argument to conserve any sort of discrimination. I´m not sure if it´s your ignorance which prevents you from understanding the analogy or if you´re playing dumb- either way- the facts don´t back you up.

    I don´t know where you get this absurd idea that “there were always many people agaist slavery”, when it was an institution adopted by most of the world. Who are these “many people” that were against it? Where were they? What exactly did they do to stop it during the many centuries in which it existed? Which civilization are you reffering to? Or are you just making statements based on “what you feel” without any evidence to back it up?
    If you know anything of history, you´d know that a real movement against slavery only began to happen in quite recent terms (historically speaking). So before making ridiculous affirmations open a book and read a little.

    Comments like yours remind me of the utterly ignorant people who say “life begins at the moment of conception” as if conception were something that happens in a micro-second, or as if sex and conception were synonyms… Just ask any of them how long conception takes and they´ll stare back at you blankly. Do you think they know that for 1500 years of a 2000 year Christian history the church did not condemn abortions if they were done during the first 3 months of pregnancy (during the fetus inanimatus period)…
    Did they know that 50% (Yes, FIFTY percent) of fertilized eggs are spontaneously aborted by the body? Wouldn´t that make “god” the biggest abortionist of all time?

    Well, there you go, the “life begins at conception” people and the “don´t let gays marry” people hand in hand in their ignorance and in their hate, manipulating science, history and fact to justify their personal ideologies based on nothing but mythology and “tradition”.

  87. Steve Baba says:

    Try St. Paul, (slave traders were even compared to murderers and gasp practicing homosexuals Tim 1:8-10), or St. Patrick or try Google and even the Bible mandated the death penalty for kidnappers who enslave. Exodus 21:16

    In ancient and early Christian times, slavery was arguably a humane alternative to killing POWs and capital punishment of criminals. Abolition of slavery was a lost cause at the time, and most of Bible’s rules on treating slaves and treating wives at that time, mandated kindness and limited mistreatment of slaves, not total freedom.

    Insulting the religious as ignorant and hateful (Obama believes marriage is between a man and a woman for religious reasons) is highly counterproductive, in addition to a logical fallacy.

  88. Steve Baba says:

    Didn’t Lessig learn the hard way that (unintentionally) insulting the religious by showing a video of Jesus in a diaper was counterproductive and distracted from his argument.

  89. Cactus says:

    I’ve noticed that the pro-prop 8 men (and they are almost all men) making the anti-argument about polygamy, never mention polyandry. I wonder why.

    BTW, the reason the state is involved in marriages is they have a property interest and an interest in the children, as in accountabilities, divorces, deaths, inheritances, etc., etc.

  90. EBdM says:

    Steve Baba,
    Your comments and supposed arguments are the very definition of what many call “pseudointellectual”.

    Whether there is, was or not a group that opposes something like slavery (or anything else), doesn´t mean it wasn´t a mainstream and generally accepted practice. A section of purist libertarians and on the other hand purist femenists have always opposed marriage as an institution- that doesn´t mean it isn´t widely practiced and accepted. So before misrepresenting what a fallacy is, you should try to understand logic. An exception doesn´t necessarily invalidate a general rule. Irregular verbs don´t invalidate regular verbs.
    You´ve taken an analogy and tried to swirve the argument into something else entirely with misinterpretations of fallacies and citing half-truths.

    I can cite many biblical references that regulate if not endorse slavery, and even give suggestions to slave owners on how to behave etc… etc… That the bible contradicts itself is not an issue for me. The fact of the matter is, it was used to justify slavery, it was used to justify the oppression of women and it is being used yet again to persecute homosexuals.

    I have not insulted the religious in general as ignorant and hateful. I´m not stupid enough to make that sort of generalization. But that doesn´t mean that you aren´t hateful and ignorant, or that there aren´t hateful and ignorant people participating in this debate. Some like you, feigning knowledge and intellectual ability that you evidently don´t have-
    But again, this isn´t a personal debate- it shouldn´t be about anyone in particular. Not you, not me, not Joe or Mary or Sally.This is a debate about the very basis of citizenship and the rights afforded to those who are members of a state where all are supposed to be treated as equals.
    Gays don´t pay less taxes than other people, gays don´t contribute less to society than other groups. A gay doctor works the same hours as a heterosexual doctor. A lesbian mother spends just as many hours awake as a heterosexual mother. Gay votes aren´t worth less than those from other groups and therefore Gays must be allowed to enter into the same contracts offered by the state as any other citizen.

    Personal religious beliefs are no excuse to deny equality to anyone, unless Mormon, Catholic or any other religious group is prepared to for example accept the religious beliefs of other religions which they do not practice. It would be like a muslim majority imposing the use of the hijab on all women. Something that would never be tolerated in a democratic state where all people MUST be treated equally. Imposing a personal religious view on the lives of any group goes against everything the constitution and the bill of rights stands for. Slavery was one of those absurd paradoxes of the American legal system- so too were the lack of women´s rights, and again we see it now with the lack of rights of gays and lesbians.

    As for Jesus in a diaper, well, we must agree to disagree. That character doesn´t belong to you or any other particular group. Christianity alongside other religions have caused havoc and destruction throughout the world. They were singlehandedly responsible for the deaths of millions of people. Many christian groups take it upon themselves to insult and persecute a number of minorities. They´re the first to insult and threaten with hellfire and damnation. Religious groups of many denominations have persecuted and murdered those who didn´t agree with them. They´ve sent gays to be burned alive in public squares. What they´re fighting for now isn´t to conserve or defend anything. Some Christian groups now fight for the right to continue persecuting, for the right to impose their prejudices on all of society. These Christian groups are fighting to keep hate and discrimination alive and well- and for that they should be ashamed of themselves, as should you.

  91. Steve Baba says:

    Insults are generally counterproductive since they reflect badly on the insulter and anger the insulted.

    Insults distract from the main argument.

    Insults are a logical fallacy, since even if the person making the argument is stupid (hateful, ignorant, pseudointellectual…) the argument is not false (or true) because the person making it is stupid (or smart).

    For example if one were able to prove that a/some/most gays were stupid or ignorant, it would not mean that gay rights are wrong. (The stupid are for gay rights, so gay rights must be stupid).

  92. pegr says:

    Why should the state have anything to say about marriage anyway? Why does the state participate in social engineering by encouraging marriage via tax breaks, etc.

    The state should be marriage-blind. Let people marry whoever they want. Remove tax breaks. Get the state out of my love life.

    Off topic: Why do blind people get a tax break, but deaf people don’t?

  93. EBdM says:

    Steve Baba says:
    “Insults are a logical fallacy, since even if the person making the argument is stupid (hateful, ignorant, pseudointellectual…) the argument is not false (or true) because the person making it is stupid (or smart). )”

    Now let´s take this statement apart, logically.
    1. Insults are not necessarily arguments and since a fallacy is a “failed” argument, your statement doesn´t make sense.
    2. To insult is “To treat with gross insensitivity, insolence, or contemptuous rudeness”- that in no way means it´s a logical fallacy.

    One can state that X or Y is an ignorant perception and that´s not a fallacy, it´s simply a fact. It could be perhaps insulting or unpleasant to hear, but it´s not a fallacy. My suggestion for people like Steve Baba who are interested in fallacies is that they first study logic. Try something simple like: Introduction to Logic by Harry Gensler.

    If one doesn´t understand the process, it makes it terribly difficult to take apart the results. As it is incredibly difficult to have a discussion with people who think they know a great deal about a topic when they actually don´t.
    I´ll give an easy example. If I say “The story of Jesus is a myth because it doesn´t withstand the principle of negative/exclsuionary evidence used by historians”– that is not a fallacy, perhaps offensive to some, but it´s a fact because that principle says:
    1. If all the evidence or evidence to corroborate a proposition are untrustworthy.
    2. There is no evidence verifying the proposition, when this should be present if the proposition is true.
    3. If searches were done carefully and thoroughly to find corroborative evidence in the right places.

    According to those principles we can state that the story of Jesus is a myth. that´s not a fallacy.

    Now continuing with the “hateful/ignorant” point, as I´ve said previously it´s simply a matter of perspective. I believe, firmly, that anyone who believes anothwer citizen should have less rights than themselves does it from ignorance or hate- which may be based on a range of other situations or emotions, but is in essence a hateful and ignorant position. That doesn´t mean they are entirely hateful or entirely ignorant- simply regarding their particular position which is perceived as such. That´s not a fallacy.
    ie: X believes purple people should not receive the same constitutional protections as green people.->
    Hence X believes purple people are in some way inferior to the rest of society->

    In my opinion that´s a hateful and ignorant position since according to the bill of rights all people should be treated equally.
    Hence X is maintains a hateful and/or ignorant position
    Therefor X is hateful/ignorant regarding this topic.

    That is a logically sound argument.

  94. Steve Baba says:

    You can’t start a, “logical and sound argument,” with, “in my opinion…” or “I believe” or “it’s a matter of perspective.”

    You start good arguments with non-strawman agreeable facts such as, “In the past the Bible was used by some to justify slavery. Slavery is wrong.” Therefore biblical arguments can be wrong.

  95. EBdM says:

    Steve baba,
    Once again you´re twisting things around.
    Anyone can OBVIOUSLY start an argument with “in my opinion” and it can be a perfectly sound argument, the only thing that will depend on are the facts people use to support their opinion.

    Unfortunately arguing with you is pointless, firstly because you´re not interested in the real topic which is the civil rights of gay citizens, at every opportunity you´ve tried to turn the debate into something else entirely.

    Secondly you´re using a very rudimentary knowledge of logic and fallacies to support ideas you already have. That´s doing things the wrong way around. You need to use logic to arrive at a conclusion not arrive at a conclusion and then try to justify your position by twisting logic. I understand this is the process preferred by religious institutions like the Vatican, but that doesn´t mean it´s the most intelligent path…

    I´ll explain once more because you obviously don´t understand what an analogy is:
    An analogy simply transfers relevant information from point A to point B to make a point more clearly. It would only be a false analogy or a “strawman” if there were no true similarities associating point A and point B. The movie In the movie “A time to kill”, Matthew McConaughey shows that beautifully in his closing arguments in court when he describes a rape and attempted murder, and everyone is very touched- but he finishes by saying “and now imagine all those things happened, and the little girl was white”…

    In the case of the so called “traditional marriage” and slavery there are a great number of parallels:

    1. Both were widely accepted by society
    2. Both existed in most civilizations
    3. Both were practiced informally and formally
    4. Both guarantee rights to certain groups whilst removing them from other groups
    5. Both were enshrined into law
    6. Both have great social/societal significance
    7. Both have been opposed by various groups.
    I can go on and on with a list, but hopefully it won´t be necessary.

    Slavery and Traditional Marriage are therefor parralels in many ways, hence comparable. That means that using slavery as an analogy is not a fallacy, since the points being compared (equality, justice, discrimination & persecution) can be found in both matter A and matter B.

    My suggestion to Steve Baba is to try to be a bit more serious in this discussion. This isn´t about you personally or your ability (or lack there-of) to use logic or understand fallacies.

    The real subject, I´ll say once more is the civil rights of CITIZENS. CITIZENS WHO PAY TAX, CITIZENS WHO WORK, CITIZENS WHO HAVE CHILDREN, CITIZENS WHO HAVE RELATIONSHIPS AND ARE DE FACTO MARRIED, but unfortunately the law is being modified to persecute this group of people. Gays, like slaves are being treated like second class citizens. Gays like slaves are not having their rights enforced. The exclusion of gays from marriage is like the exclusion of slaves from basic human rights. That´s in no way a strawman, it´s a valid comparison, and a valid argument. Like I said before, if you don´t understand how logic works, stop pretending you do.

  96. I don’t understand this attack on our legal system. The reason we have courts is to adjudicate laws. There are different opinions about whether Proposition 8 is valid under the California Constitution. The way our system adjudicates such differences is for the courts to decide. To argue that we shouldn’t let the courts perform their function of deciding whether the initiative is valid, makes no sense to me. If the initiative is, in fact, invalid, then to accept it as part of the California Constitution when it wasn’t properly adopted would be completely wrong. And we have no way of knowing whether that’s true or not unless and until the California Supreme Court rules on the matter

  97. P.S. Here’s the current status of the lawsuit, that, as I understand it, Lessig thinks we should oppose, even if it turns out to prevail.


  98. Steve Baba says:

    You do realize that it has just been the “opinion” of the majority of voters that gay-rights don’t include marriage. Anyone’s or even the majority’s opinion (5 of 7 prefer) is not a good place to start a strong argument.

    The same facts can lead to multiple opinions. Well-informed voters can have different opinions on gay-rights.

    And some people have very bad “facts” about history, but from the gay rights point of view have (stumbled on) the right “opinion.”

    And I probably don’t want to know, but why would someone who compares “traditional” marriage to slavery, want marriage rights anyway?

  99. Relnick Barns says:

    Ironically the proper solution to this problem is not to fight for the government to be able to marry gays but to remove that power entirely from government purview. I.e., separate the legal aspects from the religious aspects of marriage for everyone.

    Church is supposed to be separate from state. So separate them. Make all “marriages” the province of churches alone. Persons of any gender can then pick the church of their choice embracing whatever definition of “marriage” fits theirs.

    Government would then only be in the business of granting “civil unions” to both straights and gays alike. This would be a contract that gender-neutrally defines the legal terms of the civil union with no moral dimensions.

    Mainstream religious people would feel victorious for stopping the government from granting “marriages” to gays. Gay people would feel victorious by achieving exactly the same legal rights as straight people get from the government…and even the title too by simply joining alternative churches that perform gay marriages.

    This keeps the moral holy wars about the definition of marriage among the churches and out of the provinice of public government, preserving equal protection of the law to all citizens.

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