Thursday, January 14, 2010

Two Rights don't make a Wrong

Today is day two of my series refuting the points  Prop 8's legal defense needs to make, to show that there is reasonable cause to uphold the ban on allowing gays to marry and to show that those poionts are themeselves, irrational. Point one was covered yesterday, that allowing gay's to marry would denigrate the hallowed "institution" of marriage. Todays I will take on their second assertion that, overturning Prop 8 would violate the right of the people to express their political will through a vote.

I don't think you'll find anyone, anywhere that will dispute that voting is a right gauranteed by the U.S. constitution. But just like the right to free speach, what are the limitations on that right? and what is the actual vote breakdown that Prop 8 supporters are using under the catchphrase "the will of the people"? AND why is it we don't figure in as part of "the people"?

People often disagree with what constitutes a "right" and some will make absurd assertions to back up what is largely a matter of knee jerk reaction, rather than a well thought out argument. Take marriage equality as an example, in yesterdays Courage Campaign live blog it was suggested that Prop 8's defense team was attempting to show that:
"...the federal courts — at least not yet — have not found sexual orientation to be a “suspect class,” so laws that discriminate against them are okay as long as some rational basis can be found to justify it...."
And Whats the "Rational basis" they are angling for?......
[New York high court upheld banning gay marriage on the rational basis that straight couples "might" have kids, and so the state has a "greater interest" in allowing straight people to get married. So the NY constitution does not mandate marriage equality. This is clearly what the defense is pushing for.]
So...their "rational basis" is that gays can't naturally have children by "accident" like straights do? This immediatly excludes all heterosexual couples who can't have children and the many families that lovingly welcome children into their home through adoption. There again,'s another argument meant to mask discrimination and offered up as "rationality".

The interesting thing here however, is that, per U.S. law, we are still not considered a "suspect class". This gives anyone who wants, a giant loophole through which to justify...through the letter of the law...state sponsered discrimination. Its a handy way of saying that we are not being denied rights. This is backed up by the comments made in the courtroom to the effect that that current laws don't exclude gays and lesbians.... as long as they marry someone of the opposite sex....(insert cursewords here) to my mind this is a rather smug comment to make and idiotic reasoning.

So what of the voices that claim that overturning prop 8 will be overiding the right of the people to vote? Well...we also have a right to free speach, but we can not stand up in a crowded theater and yell "FIRE!" Thats a restriction on what is traditionally a very broadly interpereted right. The reason being, it violates public directly cuts across the rights of others. Your right to free speach does not supercede others right to safety. So I put forth that the rights of Californians to vote should not override my right, as a taxpaying citizen of the United States, to equal treatment under the law. Gays are a suspect class whether officially recognized yet or not, and denying them the right to marry by a popular vote is chosing the rights of a bare majority over the rights of a minority....thus overriding a common limitation we place on rights.

Now lets take a look at that "majority". Since that term is being used against us to show a "mandate" of the people. Some rather surprising facts emerge...

California's estimated population:      36,322,732
Total registered voters:                        17, 304, 091
Voted yes on Prop 8:                            6,322,732  (17% of CA population and 36% of registered voters)

Wow that number kept this "will of the people" is actually only 17% percent of Californians...that hardly seems like a majority to me. Its only a bare majority of those who got off their butts to vote. I don't think these numbers in anyway justify the claims that the majority of Californians rights will be threatened as that aren't even the majority of Californians anyway.

However...when if/when this makes it to the U.S. Supreme Court and if they decide to deny it on the basis of a technicality, it will be a chilling blow to Constitution of our country. Once that road has been paved, it can be walked again and again. I really hope that the Justices of the court will look past the letter of law and consider the spirit of it. I hope they consider that their function is more than litteral interperatation...that they are their to defend those that can not defend themselves....I may not be reasonable to wish for this but I can still hold on to hope.


  1. I wonder how the vote would have gone in...let's say 1950..defining marriage as a "union of a man and a woman of two like races" I have a pretty good idea that that "protection of marriage" act would have passed.
    The courts did not allow ballot initiatives like that then and they should not allow them now. This is blatant discrimination! The courts were partly designed to "look out for the little guy." Unfortunately they are not doing their job in this case.
    I was thinking about all of the money that is spent on these initiatives from both sides..and I was thinking what good that money could have done today for the poor people in Haiti. was used to promote hate and discrimination. How sad.

  2. I truly hope you are right Bryan, this would mean SO much. Imagine gay marriage nationwide in the US...the repercussions would be felt all over the world.

  3. Bryan, the 17% of CA calculation is really interesting, thanks for pointing that out, a new tool to whip the propop h8aters with :)
    Also, I read somewhere that the 'Rational basis' (which NY clearly doesnt have-*laughs out loud*), it needs to be proven that rational basis is hatebased, so it has no basis, therefor you can be considered a suspect class federally. I think I understand correctly.
    I also read, but I could have misunderstood, that in Cali, sexual orientation is a suspect class. I must be wrong about that, because this means there is no rational basis, then why is there one in other states if a rational basis has been disproved alreay? And then also if you were a protected class, then how could your rights been taken away? But thats I guess why there now is the federal case. Its really complicated how this legal stuff works, but interesting. summer x

  4. Hang on. Im VERY happy and relieved DC judge ruled no on a ballot for gay marriage. FINALLY. Maggot Gallagher cant do ANYTHING, she deserves that blow a 1000 times!! LOL

  5. @Summeronset

    While we may be a "suspect class" in California we are not yet considered so on a federal level and this trial is taking place in a federal court so it will be interesting if Judge(justice?) Vaughn considers us so in his ruling.

  6. Another great and thoughtful entry Bryan.

    I like the "will of the people" argument. Not only does it fail from both an ethical and a purely political/legal perspective, but it also illuminates the lack of humanity and empathy of the individuals who talk about that phrase. It betrays their bias that only those who think like them and agree with their perspectives count as "people". Minority voters or the "losers" of a vote are simply erased completely or considered inconsequential in their minds. Which of course points out the bigotry. The fact that certain individuals aren't thinking of other people as people. Or even if they do, they clearly don't place that much value on the worth of certain people based on their own respective subjective biases.

    Not that I'm saying anything we don't already know, but I just feel like refuting the weak argument because it's just oh so easy. First off, from a purely political/legal perspective the judicial branch and the legislative branch occupy 2 distinct and separate realms within our government system. Appealing to "the will of the people" is a massive FAIL because voting and a numerical majority getting their way falls within the legislative branch not the judicial one. Direct democracy and voting is a major aspect of the legislative branch. The judicial branch? Not so much. The judicial branch attempts to ensure equal justice under the law and interpret. It's job is not to be the legislative branch part II and support the "will of the people" as an extension of the legislative branch.

    Times like this I'm so proud of our forefathers who created a system of government with checks and balances and included a provision that would circumvent the tyranny of a majority. Because let's face it, some times the majority makes shit decisions. "The people" can be dumbfucks. And so, it is perfectly legal and legitimate to defy the "will of the people" through our judiciary system, which cares for other things like justice and interpreting law. Not enforcing the mob and subjugating the voting "losers" to the will of a majority. We can't even be blamed for this, since well this system was set up long before we were here. Don't argue with us, that's how our government works. We are not a Democracy (in the sense of a Direct Democracy). We are a Constitutional Republic (Representative Demorcacy). It's right there in Wikipedia: "majority rule is tempered by minority rights protected by law". So the pro-Prop 8ers can bitch all the want, but if they want to Judicial Branch to serve their vested interests simply because of their "will" well sorry they don't understand how their own government works. Majorities can't just bully minorities in this country.

    Which of course brings us to the ethical argument of why the "will of the people" argument completely flounders. So many examples: Nazi Germany, racism/slavery, inability of women to vote, etc. Voting majority bullying hardly constitutes a valid ethical or even political justification. It's like a bunch of racists or sexists arguing the courts to support the "will of the people" to keep ethnic minorities or females from voting or being free or being equal generally. Sorry but sometimes the "will of the people" sucks ass and NEEDS to be rejected and given a big FU. Just sayin'

  7. Oh yeah and clever title by the way. Love the witty pun. I was going to respond earlier but I shut down my browser because my parents were around and I'm unfortunately still in the closet which I know is just sad in this day and age. Thanks for keeping us updated on all this!

  8. “Maggot Gallagher” — oh, snap!

    About 17% argument. Sorry, guys, but that's a bit of a stretch. The fact that only 17% voted for Prop. 8 does not mean the rest 83% would or did vote against it, it only meant they didn't care enough to drag their butts to the ballot box to fill out some forms. In the reality, almost half of them would vote for passing of Prop. 8, but I believe the majority would still be on our side — with the opinions like “Let ‘em get married, for Christ sake! Otherwise they would whine about it for years, ugh!” Again, this is a democratic process, and if we were to say something like that every time some initiative goes to public vote, we would have to strike down the democracy because it simply does not represent the real number of those who are in favor or against this initiative. What we should argue is which initiatives can be put up for the public vote and which cannot because there are limits to democratic process, and those limits only make our society stronger and fairer and protect our fundamental rights.

    I enjoyed your post about two branches of power. That's a very important argument, and again it states that these branches are independent, divided from each other, and the one cannot influence the other. Thanks for bringing this to our attention!
    As for not being out and constantly fearing someone will look over your shoulder and find out... that must be tiresome... I was blessed because I only visit sites in English, so even when someone is around, they have no idea what I'm doing, what I'm reading, or what I'm writing about (I live in Russia).

  9. Thanks for the kind words K!r!lleXXI. I've enjoy your posts as well, and I like your organized style along with your thoughts. Yes it is tiresome to be closeted, although I do realize I am no victim and I have kept myself in this situation. One day when I am ready I do think I will come out (at one time I thought I never would).

    That is awesome that you are from Russia Kirille. I tend to do the arrogant American thing and just assume all the internet posters are from the US. It is impressive that you are following American politics and the depfox family even though they're not local to you.

    The Live Traffic Feed sidebar is really neat. It's great to see how much traffic (and diverse traffic) this blog gets and to see how many lives you could possibly be impacting Bryan!

  10. I would like to pre-apologize to the Depfox family for dirtying your family blog with my leftist political views. I am far more an agendist than any member of the LGBT community.

    First, I would like to say your family is beautiful, and your children are adorable. I have to say posting about your family and showing your daily routines is a very courageous thing to do.

    I don't want to say that, because it shouldn't take bravery to boast about your family. That should be a fundamental right, as it is with heterosexual families. They are not usually painted with a scarlet letter when they are out showing their baby pics.

    Just look at every other blog on here. It's about Sally taking her first step, or making her first poopy diaper. And mom needs sleep while dad makes the bottle.

    It should be equally as accepted as two daddies caring for their family, but, we are on the cusp of a change, so soon, it will be accepted and not require any bravery, or fear that you are putting your family at risk for a hate crime attack.

    I applaud you for showing the world that your family is just the same as anyone's family and hopefully this will create some much needed dialogue, especially amongst the far right, who seem to be impenetrable when it comes to logic.

    With regard to the "popular" vote, we are now in the twilight/emo era. Our younger generations are more open-minded and appreciate diversity. Many 17 year olds will be turning 18 this year, and if the repeal fails to get on the ballot this year, we will have 2 years on them again in 2012.

    I live in California in a not very overtly gay area. While the majority of the haters were middle aged and up, teaching their children intolerance, I was surrounded by a diverse group, but many of them were in the younger generation. And obviously, many older, too.

    I am hetero, I can't fathom what being in your shoes is like, so I made us equal. I am not going to marry until all my fellow citizens can.

    The saying: An injustice somewhere is an injustice everywhere.

    Have you seen that someone is trying to get "banning divorce" on the ballot as a way to "defend marriage"?

    Perhaps debt and infidelity should also be banned, as they are leaders in the cause for dissolution in marriages, too.

    But, lets just blame our failing marriages on the gays. (The newest boogeyman).

    Forgive my sardonic tone, though I am merely a hetero ally, I am extremely embittered by a 3.9% margin, and, for lack of a better term, was completely butt hurt when prop H8 passed.

    Thanks for entertaining my rant.
    ladybugmagic -

  11. @u3q2v

    Don’t rush into anything, make sure you’re financially capable to take care of yourself, otherwise, if you still depend on your family, it may not be a good idea to come out to them and then find yourself on the street hustling just to live another day if your family cannot accept you as you are and wants you out of your life. I hope it never happens, but I’ve heard one too many stories like this in the US. If I were rich, I would be giving money to GLBTQ youth shelters to help those young gay people who were thrown out of their houses after coming out of the closet, not giving that money to elect some president.

    As for internationality of this blog: look at the maps on the right side (Feedjet and RevolverMaps) — the whole world is following this blog; both Americas, Europe, Asia (look at India, my goodness!), Japan, South Africa, Uganda, Egypt, Emirates (!), Australia… And only Russia is huge and empty, I’m pretty much the only one from there. I feel so lonely and ashamed for my country!


    It’s important for us to have the support of our heterosexual allies! Many straight people think only gays are concerned about marriage equality because these are our rights and that’s why we want them so much.

    When I see all those reports from strikes with posters I’m always missing one poster that says something like “I’m str8, I have a girlfriend, but we won’t get married until gays can!” How’s that for ruining marriage by giving gays the right to get married?

  12. @ K!r!lleXXI

    It seems futile, my saying "I won't marry until prop 8 is repealed." because people know that I have that cushion of being lawfully allowed to marry if I ever want to renig on my committment and it seems like an almost empty offer with little effect.

    I just want the glbt community to know I will not participate in an inequality that leans in my favour, because that makes me just as bad as the yes side.

    But, it is a huge sacrifice for me. I, like many, have imagined my wedding down to the centerpieces, vegan duck, and champagne flutes.

    My boyfriend has a terminal illness. I may end up making his funeral plans and never get to live out my wedding plans. And here I am, feeling sorry for myself, when I am making this choice.

    The entire homosexual community had this decision forced on them by the general public. I think it is only fair to have the same forced upon me, as I am no better than anyone else.

    I think it is sufficeint to say that many homosexuals have lost their partners prior to marriage, and it weighs on me.

    Life in this current body is only lived once. And some people have to hide and closet themselves, out of fear for their safety or of losing friends and family.

    We never seem to learn from natural disasters, that life can be prematurely swept away and people should be able to enjoy the same basic fundamental freedoms as one another while living.

    I, as a hetero ally, have lost friends over prop 8. The prop was so shameful and it brought the worst out in me. I did some sign stealing, and other deplorable things...

    And we relived it on American Idol last year, with the same hate posts.

    I can only half watch the updates on the federal trial otherwise I will pour my heart into it, assume a win, and may wind up devastated again.

    ladybugmagic -

  13. @ladybugmagic

    I’m sorry to hear about your boyfriend! It really makes you realize how short our lives really are, and that we all deserve our rights right now, not in some vague future… “Justice delayed is justice denied!” — so true for those who won’t be around to celebrate with us when we’ll finally get there.

    You’re being very brave to stay for what you believe when you know you don’t have all the time in the world to wait for equality to happen. Thank you for that!

    And the trial… After the defeat in New Jersey I don’t think I can ever get my hopes up again… So I follow the trial just as a source of information that can be used in our conversations with people who can’t quite get why we fight and who we really are, for that matter. The win would be a huge and somewhat unexpected bonus. I only hope that the loss would not throw us a decade or so back.

  14. @ladybugmagic

    "I just want the glbt community to know I will not participate in an inequality that leans in my favour, because that makes me just as bad as the yes side.

    But, it is a huge sacrifice for me. I, like many, have imagined my wedding down to the centerpieces, vegan duck, and champagne flutes.

    My boyfriend has a terminal illness. I may end up making his funeral plans and never get to live out my wedding plans. And here I am, feeling sorry for myself, when I am making this choice."

    Hey Ladybug....I have to first thank you for your very heartfelt and determined support. but I just have to say...ARE YOU NUTS!? Grab your boyfriend by the short and curlies and get your buts down to a justice of the piece. Taking a stand for marriage equality is one thing...but speaking as a member of a community that pined for the ability to is so is too short...don't waste this opportunity on principle, no matter how noble.


  15. @ Bryan aka GayFamilyValues

    Because I value marriage so, I will have to base it on principle, otherwise it wouldn't be noble and we would not have such a fine appreciation for it. We will wait, and our love is infinite if we don't get it court solidified before time runs out.

    It saddens me that my guesture will fall on deaf ears with those defending traditional marriage. My relationship seems to have no bearing on theirs, only yours does, apparently.

    My bf has cystic fibrosis, he is 36 living with a genetic disease whose average age is 37. I am watching him now, with a miserable lung infection, drowning in his own mucuous.

    I can't live a fulfilling life if I am not being a good person, and don't stick to committments. I am a vegan, and at my own risk, because I have epilepsy, and the medication I take is so strong, and the foods I eat don't combat the toll the meds take on me.

    But if I can't live where I practice what I preach, I don't want to live in this kind of world.

    I was watching Sean Chapin's youtube video where he listed 40 things that showed how gays are being targetted, and one of them, the one that killed me, was about a lesbian couple where one partner was admitted to the hospital, and they would not let her wife in, and she died alone.

    I don't ever have to worry about carrying domestic partnership/civil union papers with me. I can see him whenever he goes into intensive care or the er. I just say "I am his girlfriend", and in I go.

    Continued ...

  16. I lose sleep over this kind of stuff. I am horribly obsessed with this trial, and that is how I stumbled onto your blog, by way of Sean, and your song and saw your adorable family.

    I am lucky I was not alive in the 60s. I would have been engulfed in protests against Vietnam, and the civil rights movement then. But, I think, I would have embodied this same stubborn fervor back then, and harm would have come my way because of it. I am easily angered by this, and have estranged people because of my passion.

    I want this win at Perry vs Schwarzennegger, and I feel so selfish because of it. I somehow don't take time to see that there are specific companions and fiancees and families going through this.

    I just see it on a whole basis, instead of getting to know the individual people involved, which is one of the reasons I am so happy you made your blog and your videos. It puts a face and a sense of realism to the people being effected by the cause and what we are fighting for.

    I am already starting to get too optimistic about the trial, as I did with prop 8. I am already thinking the other side has no legal pot to piss in, and that we will take this, and win, federally, but it will torture me if we don't.

    I can't even say, "We", because I am not directly effected by it, outside of a small guesture of kindness. I want equality, more than anything, on this planet. And it so happens that your family falls into the category of a broader thing that I want.

    It eats me alive that I am being so selfish when this is your life you are fighting for, and merely my "want" that I desire and dream of.

    The sickest thing of all, in that video, I saw you praying with your children, decorating Easter eggs, I saw your Christmas tree, etc.

    My first reaction was, "This is very strategic, politically. It is good that the religious right see this homosexual family celebrating the same holidays and beliefs. It creates a similarity."

    I didn't see what is really there: an adorable and loving family. Instead, I became no better than the opposition, and inherently removed the humanity from what I saw, and made a political diagnosis on all your familial memories that I saw.

    Which is why I preapologized. I can't see you for who you are. I can see you as a pawn in a political war I am trying to win.

    And that quality makes me a horrible person.

    Not marrying until all couples can is the least I can do, considering the aforementioned.

    ladybugmagic -

  17. @ladybugmagic

    You say you can’t say “we,” oh, but you can!
    Because you don’t want to get married until gays are allowed.
    Because those people have already redefined marriage, this is not the same marriage you wanted.

    We believe that love is what brings two people together, and if this love is strong, and those two want to make that final step, they have every right on Earth to do it! That’s the marriage you and I believe, right?

    By redefining marriage, those people said it’s not about love, oh, no, it’s about genitalia, it’s about sex, procreation, yada yada yada! Where’s love in all of this? That’s not the marriage we want!

    That’s why it is appropriate for you (as a heterosexual person) and me (as a Russian gay guy with no American citizenship) to say “We!”