Dueling arguments

gavel2Earlier this week, the California Supreme Court heard arguments for and against Californians’ right to define marriage as a union of one man and one woman. There are many reports about those oral arguments and almost every account says that the justices seemed inclined to uphold the voters’ decision in passing Proposition 8.

Another issue being discussed was how to handle the 18,000 same-sex marriages that were entered into during the time prior to Proposition 8′s passing and after the California Supreme Court legalized same-sex marriage. All the news accounts agree that the court seems inclined toward upholding the legality of those marriages.

Here’s the New York Times. Here’s the San Francisco Chronicle. Both accounts are good, but I rather enjoyed the extensive coverage provided by the Los Angeles Times. The paper’s recap of the arguments is incredibly extensive. It almost reads like a play by play. Here’s a sample:

Justice Ming W. Chin raised an argument by some scholars that the court could uphold Proposition 8 but require the state to replace the term “marriage” with another name, such as “civil union.”

“Is that a viable solution and is that really within the province of this court?” Chin asked skeptically.

Michael Maroko, representing one of the same-sex couples, was blunt.

“If you’re in the marriage business, do it equally,” he said. If same-sex couples cannot marry, “then straight couples don’t have that right either.”

It is interesting that the story is almost completely from the perspective of the attorneys who fought Proposition 8. In fact, the second paragraph says:

The long-awaited hearing, which came as dueling demonstrators chanted and carried banners outside, was a disappointment for gay rights lawyers.

We don’t even hear from the other side’s attorneys until the 41st paragraph. That has to be a record.

For a story with a larger religion angle, try “Loudly and colorfully, opposing sides debate Proposition 8,” which covers how various interested parties watched the court proceedings at parties and in the public square:

Reporting from San Francisco — God was in the eye of the beholder Thursday morning at the San Francisco Civic Center Plaza, where hundreds of spectators gathered to watch the California Supreme Court on a massive outdoor TV screen and wrangle over the sanctity of marriage.

The occasion: Attorneys from both sides of the gay-marriage debate were arguing the merits — or demerits — of Proposition 8, the November ballot measure that banned same-sex marriage in California. The dress code: dreadlocks, nose rings, rabbit costumes, clerical collars, wedding veils, hair colors not found in nature (and some that were), rainbow stripes, American flags, suits. The demeanor: loud.

“You’re bigger, God, much bigger than the small religious boxes that we put you in,” Bishop Yvette Flunder of San Francisco’s City of Refuge United Church of Christ declared at an al fresco, pre-hearing interfaith service. “We ask you for the freedom today . . . to have our relationships boldly without fear of reprisal.”

The story also looks at people on the other side of the vote, including a 27-year old who hosted a party for her friends who voted in support of Prop. 8. It’s good the story included her since she seems more like the average Prop. 8 voter than the characters and stereotypes who are usually included in Los Angeles Times‘ stories.

The paper also had reporters updating the LA Now blog with news from throughout the day. It made for interesting reading. You can hear more from Bishop Flunder here, for instance.

Even with some of the problems, the coverage of the oral arguments was much more balanced than we’ve been accustomed to over the last few years.

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  • Tom Wilson

    Compare and contrast; my high school english teachers drilled that one.
    Compare and contrast: Slave rights and gay rights; the contrasts are easy, the comparisons are profound. Slaves could not get legally married either as they could not create and sign contracts. And what is marriage mostly (legally speaking) but a huge contract with thousands of rights and responsibilities?

  • http://www.tmatt.net tmatt


    And what does that point have to do with the press coverage?

  • Jerry


    I did hear that question about the government getting out of the marriage business and restricting its scope to a legal contract with marriages being something that is the sole province of the church. The stories I’ve read had only one answer to that question, from one of the attorneys opposing prop 8. Was the question asked of those in favor or did they choose not to reply?

    Maybe this is all that happened around this question, but sometimes silence should also be reported. In this case, I do wonder if the omission was due to nothing being asked or said or if there’s something that’s missing.

  • John K.

    Mollie: Ken Starr was asked the same question by Justice Chin. He said that, yes, it would solve the equal protection problem, but, no, the Court did not have the power to do it.

  • Martha

    This post makes me curious: suppose that Proposition 8 had been the other way round, that is, suppose it had *permitted* same-sex marriage.

    Then suppose anti-Proposition 8 campaigners had decided to go to court over it – would we be getting the same coverage? Would we be getting all the “overturn this unjust law” angle, or would we instead be *still* getting the tear-soaked, ‘they want to force my mommies to divorce!’ angle, only this time from the ‘well, it’s the will of the people and it’s law, so suck it up!’ view?

  • FW Ken

    When did the United Church of Christ start having bishops?

    And when did this become a debate about “sanctity of marriage”? I know some people debate that, but this is a question of who can marry. I know, I’m being picky, but I think this argument should exclude specifically thological arguments, since we don’t generally share a common theology.

    The picture at the top: which fellow is Paul Gross? The kid in the red shirt looking bewildered? Or the enraged, screaming older man?

    My favorite line from the story:

    “The gay agenda: 1) Equality. 2) Shopping. 3) See #1.”

    Actually, I would have made #3 “Repeat”. :-)

  • http://opine-editorials.blogspot.com/ Fitz

    One interesting point about this ruling and the will of the people it (will probably) uphold.

    It doesn’t set up things politically for the same-sex “marriage” side.

    Let’s say they come in 2010 with their own constitutional amendment and win…

    They are then simply reinforcing the idea that the people are the ultimate arbitrators.

    This is contrary to their SCOTUS strategy that hopes to enforce same-sex “marriage” on the entire country.

    Winning prop 8 has really put the California court and the pro same-sex “marriage” movement in real sticky situation.

    The California Court is about to counter its own decision and say “No – the people are in charge” – this says they were wrong to begin with.

    It also says that any future SCOTUS decision using the original equal protection reasoning is equally un-democratic to all those states with their own marriage amendments.

  • dalea

    There are some things left out of the story. Both State House committees that would have to handle Prop8 if it is deemed a revision, have voted that it is. The SC is in a real bind, it has to come up with something that upholds both equality and Prop8.

    There are numerous law suits on hold until the SC rules. If it rules for Prop8, they proceed. The strategy will be to go after taxation. If gay people are not allowed to marry, they should not be burdened with the same tax rates as the more priviledged. Probably won’t go anywhere, but every cash strapped municipality in the state will have to be in court defending itself. Tax exemption for the Mormon and RC Churches will be a target. And the protests will start up again.

  • B

    Am I imagining a big problem with the argument about equality? It seems to me that gay people CAN marry, it’s gay couples that cannot. A gay person has the same rights under the law as a straight person to enter into a legal marriage, but nobody (gay or straight) is presently allowed to enter a legal marriage with someone of the same gender. The fact that a gay person would not be likely to choose to enter a marriage with someone of the opposite gender seems to me to be immaterial.

    All of the press I’ve read about this has focused on either equal protection or the right of the people to pass amendments like Prop8, but I haven’t seen anyone actually speak about “by the book” assessment of whether anyone’s equal rights are in fact being suppressed. On the other hand, nobody seems to be arguing that this is a matter of expanding recognized rights for ALL people, since Prop8 denies a straight person the purported right to marry someone of the same gender, as well. If it is a matter of equal rights, shouldn’t this angle be part of the dialogue?

  • Brian L

    from the “colorful” article:

    the self-described stay-at-home mom

    What the heck does that mean?

  • Deacon John M. Bresnahan

    So the LA Times story did not even mention the attorney from the pro-Prop 8 side until the 41st paragraph. I bet most readers would have seen the bias in this even if they couldn’t name how late in the story such information came. And I suppose the elitists in the LA Times rarefied newsroom
    atmosphere wonder why so many MSM dailies find themselves in a whirlpool flush to oblivion. For there are many, many average readers who don’t need the particulars from Get Religion for them to realize they are being propagandized. And don’t like it to the point they go elsewhere for real news.

  • http://hazumuosaragi.blogspot.com/ Hazumu Osaragi

    I love that “everyone has the right to marry someone of the opposite sex, so no one’s rights are denied” argument.

    Let’s turn it inside out.

    Let’s say that everyone had a right to marry someone of the same sex, and there was a constitutional amendment that said marriage was ONLY two men or two women, thus denying legality to man+woman marriages.

    Now, you’re attracted to the opposite sex. But the law forbids you to get married to the partner you’re attracted to.

    But, hey, you can get married to someone of your gender, right? What’s the big deal? It’s legal. I’m sure you’ll find someone you’ll like spending an intimate 10+ years with. And the official union comes with over 1350 beneficial federal and state rights! What? You’re attracted to a member of the opposite sex? That’s not allowed!

    If you’re opposite-sex oriented, you probably feel a certain revulsion to the idea of entering into a marriage to someone of the same sex.

    Same-sex oriented folk feel the same way about entering into opposite-sex intimate pairings.

    Put yourself in their shoes, and try to see how ingenuous and hurtful that ‘no rights are denied’ argument is.

    And let’s add another wrinkle. I’m a male-to-female transsexual who’s had the sex-change operation. Who should I marry? Someone opposite to my current presentation, or someone opposite to my birth-sex? If I prefer guys, am I ‘straight’ or ‘gay’? If I prefer gals, am I ‘straight’ or ‘lesbian’?

    And if I ‘choose right’ for a particular jurisdiction, will my marriage be recognised should we move to a state, county or city that interprets my gender differently?

    I’d love to hear your comments on that question;

    Hazumu Osaragi

  • FW Ken

    What if someone did this: examine the state’s interest in marriage and make a data-based examination on what kind of relationships fit into that interest. Other relationships proceed on a private basis, such as heterosexual couples do now when they live together outside of marriage.

    As an example: in England, marriage, in all but name, was opened to same-sex couples, but same-sex couples only. The state didn’t think it had an interest in siblings, or non-sexual friendships, or polygamous relationships. What is that interest?

    Since this is a secular state with secular interests, no theological terms. And since the issue isn’t whether homosexual attractions are deviant or normal variations of human sexuality, no talk of “fairness” or “justice”.

    1.) What is the state’s interest in marriage?
    2.) How do various types of relationships meet the terms of that interest?

  • B

    Hazumu, I think you mistook me asking a question about an argument with advocating for it. I was not. As a legal question, though, emotional appeals (as much as I may feel for you) don’t really get to an answer.

    To comment briefly, though, Prop8 supporters are correct that there is a millenia-long precedent of man-woman marriage, so turning on a dime to redefine that institution seems rash at best. The 1350 government-related benefits are a genuine concern, though. The CA SC’s consideration of “equal protection” is focused on those benefits, right? The majority of reporting on this case that I’ve seen seems to focus on some deep inhuman injustice afoot, while the majority of gay friends and acquaintances I’ve heard talk about it refer more often to the government benefits denied them.

  • Dave

    FW Ken (#13) asked two questions.

    1) The state’s interest in marriage is twofold: To provide a stable environment for children, and to conserve family capital.

    2) The answer to this question must start with a question, “Compared to what?” It would have to include a frank assessment of how good a job marriage is actually doing in meeting the state’s interests.

    Gay marriage cannot be assessed unless it actually exists. One may posit that being given social sanction provides a real, if difficult to measure, support to a couple trying to build a life together. How well gay couples who can’t marry do in providing for any kids they may adopt (in states that allow it) must be compared with how well unmarried hetero couples do with their children, not how well married couples do.

    You asked for an assessment that ignored fairness and justice, but it can’t ignore the need to compare apples to apples.

  • Joe

    Deacon, the lawyer for the anti-8 side is not quoted until two paragraphs before Starre. While there is a “what now” quote from the anti-8 side, the bulk of the story is a rehashing of the pro-8 argument of the judges. If anything, it is unbalanced in favor of the pro-8 side, which was inevitable given the way the hearing played out.

  • http://www.getreligion.org Mollie


    It’s more than about quotes. The second paragraph of the story, for instance, is this:

    “The long-awaited hearing, which came as dueling demonstrators chanted and carried banners outside, was a disappointment for gay rights lawyers.”

    And what was it for the pro-Prop. 8 lawyers? We aren’t told . . .

  • http://www.getreligion.org Mollie

    More on the imbalance . . .

    In the first section of the story (paragraphs 11-12), we get a quote from:

    “Kate Kendell, executive director of the National Center for Lesbian Rights, which represented some of the plaintiffs . . .”

    In the next section, we hear from:

    “Shannon Price Minter, a lawyer with the National Center for Lesbian Rights.”

    And then just before Starr, we hear from

    “Michael Maroko, representing one of the same-sex couples, was blunt.”

    After Starr, we hear from:

    “state Senior Assistant Atty. Gen. Christopher Krueger,” who argued that Prop. 8 should be overturned.

    Then we hear from:

    “San Francisco Chief Deputy City Atty. Theresa Stewart, one of the lawyers in the case,”

    The only other balance we get (other than the Starr quote toward the end) is from Andrew P. Pugno, a lawyer for the Proposition 8 campaign.

  • Joe

    Mollie, you left out the 20 paragraphs quoting the justices, largely in favor of the Prop 8 side. As for the lead, journalism is still sometimes about storytelling. A story about the winners who appeared to win again is not as compelling a story as the losers appearing to lose their last chance desparation play. The losers ( and people bringing lawsuits) often get to create the more compelling narrative You do that yourself, in portraying anti-SSM advocates as victims of press bias and warriors in the culture war.

  • http://www.getreligion.org Mollie


    Remember, I favorably reviewed the story and said it had great “play by play” action. I just think it’s interesting that it’s written from the perspective of the anti-Prop 8 attorneys. It says something. I think I might have chosen the same approach (as you note, it’s more compelling) but I would try to move up the other side a little bit or balance out the arguments a bit more.

    Also, both sides won portions of their arguments and both sides lost portions of their arguments. No question that the big argument was whether or not to throw out the vote of the people. But there was also a debate about nullifying the existing same-sex marriages (not surprising how that one went down, of course, or looks to go down) and it was a loss for the prop. 8 supporters and a win for the anti-Prop. 8 forces.

  • FW Ken

    Dave -

    I would have said that the state’s interests regarding marriage lie in social stability and the mutual care that stable families provide one another; those two, and the two you cite aren’t mutually exclusive.

    As to how various relationships can fulfill those interests isn’t germane here, but it is to a discussion about same-sex marriage.

  • Dave2

    B, your point applies equally well to interracial marriage. And indeed, it was explicitly made (mutatis mutandis) in the 1883 case Pace v. Alabama:

    The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the Code cited are entirely consistent. The one prescribes, generally, a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.

    And, of course, that was overruled in 1967 with Loving v. Virginia.