think you make a compelling case about the Utah precedent, however I am
curious about what you think about Brown v Board 1. SpecifIcally, I am
inclined to compare the Prop 8 couple's testimony thus far to the "Doll
experiment" used in Brown. Where African American children were given a
choice between a black doll and white doll and asked which is better. They
consistently chose the white doll, the experiment was meant to underscore
the psychological ramifications of de jure racism. It was one of the most
compelling arguments of that case.
I have written my position on the Brown decision.
As discussed in the linked text, I believe the reader to have lost focus on the legal girding of Brown V. Board. Brown v. Board is an upholding of the 14th Amendment right of equal protection under the law. As discussed in the text, the discussion of feelings of inferiority are so much nonsense used to "grease the wheel" and make a sympathetic case. Furthermore I show how even in the decision there is a clear focus on the supposed damages done to "negroes" while there is an implied statement that white students suffer no ill effects from segregation. Negroes need whites around in order to feel good about themselves while whites thrive in the presence or absence of Negroes. Thus while the court may have been inclined to make a statement on racism legally it has no grounds to base law or legal rulings on the "feelings" of the plaintiffs or defendants.
In reference to the Doll experiment, I have also weighed in on this subject. Of interest in the latest rendition of the Doll experiment as conducted by GMA, was that all the students are in "integrated" schools and one of the students I discussed was biracial and many of them, particularly the girls, still had negative attitudes towards the black dolls. From that, it can be argued that Brown V. Board was an total failure in addressing the "feelings of inferiority" among "Negroes".
As stated earlier, such legal arguments were legal greasing but did not address the actual legal foundation of the Brown V. Board decision and therefore while they pay be emotionally swaying, such emotional arguments ought be completely disregarded in regards to Prop. 8.
What I see in the Anti-Prop. 8 movement and indeed within the larger movement is to have homosexuality psychologically acceptable in the larger society. It proposes the normalization of such behavior. That is their business. The problem is that as a legal strategy I think such emotional arguments will fall flat. If they want to use the example of Brown V. Board then they are going to have to stick to Equal Protection argument. IE: we do not get x,y.z government benefits.
Although unlikely, it is entirely possible that the govt. may decide to restructure such benefits (I'm having a hard time with the term "rights" for much of what I've seen discussed) in such a way that they only apply to the individual and the individual opts to cover whomever they want. For example, had single payer been passed by the government, the entire health benefit argument would be tossed out, because everyone is covered regardless of marital status.
Another example would be SS benefits that are passed from a deceased spouse to the surviving spouse. SS could be restructured such that blood relatives or any designated non-blood person would receive benefits. In that way the government does not make any provision for married couples but married couples AND single, co-habitating, common law, or whatever are ALL free to designate who they want their govt. benefits to go to.
In my opinion the only equitable means of dealing with this issue that does not run afoul of religious liberties, is to have all levels of government get out of the marriage business. No city hall ceremonies. Marriage remains the social institution it is and would be performed by any religious or social group that the people involved wish to deal with.
The states can do what they do when people form legal businesses. The submit an application to form a "domestic partnership" with as many or few people as they want. The state simply certifies the declaration of this domestic entity. That is all. Everybody has a domestic partnership regardless of what genders are involved or how many people are involved. This would legally help hospitals with privacy laws that prevent non-relatives from access to or making decisions for patients. Show your certificate and that's taken care of.
I think the above is the best way to address the legal "equal protection" issue, without running into the sociology and cultural issue of what is and who should be recognized as "married".
