Ashley F. Miller

Ashley F. Miller
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Columbia, South Carolina, USA
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May 23
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Ashley is currently getting her PhD in Mass Communication from USC, with a focus on social media and film. She’s also active in the skeptic and atheist communities and gives occasional speeches on the subject. She graduated cum laude from Emory University before getting her MFA at FSU’s Film Conservatory. She is a writer and film editor; she’s worked in feature development, reality TV, short films, web series, and writing online news & opinion pieces.

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Salon.com
Editor’s Pick
JUNE 17, 2010 3:51AM

Prop 8 Closing Arguments

Rate: 13 Flag

Should you wish to read the entire thing, it is available here.

From what I can tell, there’s only one argument that Prop 8 Proponents have, which is that only heterosexuals can get accidentally pregnant, so marriage is necessary only for them.  It’s a strange argument, no doubt, but it is essentially the only quantitative difference between gays and some heterosexuals.  I say some because, of course, people who are infertile, past menopause, or who have no intention of reproducing are allowed to get married, so long as their genitals look one way or another.  To say that marriage is only about protecting children from being accidentally created is… well… changing the definition of marriage, which is supposedly something these guys are against.  Judge Walker said it nicely.

And [marriage], as Mr. Olson described this morning, is a right which extends essentially to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support payments. There really is no limitation except, as Mr. Olson pointed out, a gender limitation.

Judge Walker asked a series of penetrating questions, I was quite impressed.  They were the questions I would have asked, but much less snarky.    He asked why the chief witness for the Prop 8 side had said we’d be more American the day we allowed same-sex marriage, he asked why it’s OK to take away the rights of a minority when nothing good comes of doing so, he wanted to know why it wasn’t gender discrimination if not homosexual discrimination, and he wanted to know if it was appropriate for the court to make a decision still being fought over politically.  And of course Mr. Olson was eloquent as always.

What we’re talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about.  And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn’t.

These are, undoubtedly, very pretty words.  But I actually think the entire decision is going to come down to one exchange between Walker and Olson, and it’s not necessarily a terribly pretty one, but it is, I think, the most important.  And that is, is it politically viable to send this to the Supreme Court now?  It’s an important question, and one that a lot of people who support gay marriage disagree on.  There was a lot of hostility and distrust from the gay community at the beginning of this trial because they were afraid it was doomed from the start and would sink the chances of gay marriage getting passed because the Supreme Court is so conservative (little c).

This is a long excerpt, but as I think everything depends on it, I’ll leave it long.

THE COURT: I fully understand. But there was already a tide running, a political tide running with respect to interracial marriage. And, as Mr. Cooper duly commented about the Supreme Court, the Supreme Court took note of that. Now, do we have a political tide here that’s going to carry the Supreme Court?

MR. OLSON: I believe, Your Honor, that there is a political tide running. I think that people’s eyes are being opened. People are becoming more understanding and tolerant.  The polls tell us that. That isn’t any secret.

But that does not justify a judge in a court to say, ”I really need the polls to be just a few points higher. I need someone to go out and take the temperature of the American public before I can break this barrier and break down this discrimination.”

Because if they change it here in the next election in California, we still have Utah. We still have Missouri. We still have Montana.  This case is going to be in a court. Some judge is going to have to decide what we’ve asked you to decide.

And there will never be a case with a more thorough presentation of the evidence. There will never be a case with such a wildly crazy system that California has. There will never be a case more like Romer, where the right existed and hen it was taken away. There will never be a case against the background.

The Supreme Court really made that step that you are talking about, in Lawrence vs. Texas. And that overruled Bowers vs. Hardwick, which was only 20 years earlier. But that broke the barrier by saying that the behavior, the conduct between the individuals is a right of privacy, and it’s protected by the Constitution.

And the right of privacy is the same right that we’re talking about in the context of marriage. And I don’t think that is justification for waiting any longer.

And, as I said, the most compelling thing that I have read on that subject was the arguments that were being made to Martin Luther King saying, you know, “You ought to ease up. The people aren’t ready for these kind of changes. There’s going to be a backlash.”

And his letter from a Birmingham jail explaining why he could not wait to press the civil rights of his fellow citizens is as compelling a statement on that subject that’s ever been written.

And that’s the argument.  Everything else is proven, Prop 8 is unconstitutional, it’s wrong, there’s nothing that the Proponents have said that holds any water.  The only argument holding any water is the one Judge Walker is acknowledging, which is that maybe America isn’t ready to be the place it promises to be.  And there are many pragmatists, old and young, gay and straight who will agree with that, and there are many idealists who are crying and screaming and gnashing their teeth at the thought that politics is ever more important than human decency.

I think Judge Walker is ultimately a pragmatist, but he’s got a long view of things, and I think he’ll want to be on the right side of history.  So, my bet is that he’ll rule in against the constitutionality of Prop 8 and do so very conservatively and thoroughly, the real question is whether he’ll immediately reinstate gay marriages or not, and I tend to think he won’t.  But maybe.

Our Fate is in His Hands


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Excellent! R. (I wrote on this today, as well.)
We followed the coverage all day yesterday. I had a hard time believing anyone with any sense would find the points of law in the arguments by the Pro-8 contingent salient.

Walker is also in a position of "damned if he does, and damned if he doesn't." As a gay man, unless the verdict goes with the Pro-8'ers, there will surely be shouts from the peanut gallery that he is biased because of his sexuality (something that would not be in question if he were straight). If he votes against striking down 8, I certainly wouldn't want to be him sitting on a bar stool at Moby Dick's in the Castro.
Right on! Why does a gay marriage threaten the sanctity of marriage? Illogical thought has been allowed to be perpetuated. Here's hoping he rules the right way-to give all Americans the right to wed! R
Good post. The argument re: accidental pregnancy is the best one I've heard in Prop. 8's favor. It's pathetically weak, but it's the best they've got.
I became accidentally pregnant but felt no necessity to get married...the argument is nonsensical. R
The whole marriage-pregnancy thing was, of course, initially all about property rights, back when being "legitimate" or "illegitimate" made all the difference for a child's financial future.
I can marry peanut butter with jelly, ham with eggs, and lox with cream cheese if I wish.
All of these matings are anathema to someone.
While it is true that "marriage" is an institution designed to first protect the needs and rights of offspring, it also does the same secondarily for spouses without them in some cases.
Personally, I would advise no one to enter into marriage unless they planned immediately to bear or care for children in that nest environment.
But marriage is not a license to screw!
You don't need a license for that.
If you don't subscribe to patriarchal shepherd based ideology where they want to keep track of your bloodline to decide who they want to mate you to next, you never did.
Just screw responsibly.
And enjoy! (R)
The argument is actually that marriage is fundamentally about channeling heterosexual sex and coupling into a defined institution and roles for the sake of any children that may result from that union. To that end the government, through civil marriage, offers certain advantages to male-female couples.

Ashley writes: "From what I can tell, there’s only one argument that Prop 8 Proponents have, which is that only heterosexuals can get accidentally pregnant, so marriage is necessary only for them."

I suppose that's one way of putting it, though you make it sound rather trivial. And if marriage were so trivial, then we would wonder why the institution of opposite-sex marriage has been in existence throughout recorded history, different cultures, language groups, races, economic classes, and geographic locations.

The reason why marriage is important is because of children. If heterosexual sex did not result in children then the government would have no interest in it.

As a social institution, marriage communicates and reinforces certain values and roles. As currently structured it is fundamentally about children. Adding same-sex couples, who are necessarily sterile, would change marriage from being about children to being about the desires of adults.

So I personally agree with Prop 8, though I have no particular animus toward gays and lesbians, and support civil unions for them. Of course, my opinion is of no consequence, unless I were a voter living in California. What counts is how the court will decide.

But my guess is that Prop 8 will survive the legal challenge. The lowest level of scrutiny is the "rational basis" test, and I believe that is the test the court will apply. It is also happens to be the test that has been used in the great majority of court cases. The rational basis test is the most "deferential," and I see no reason why Prop 8 wouldn't survive it.

The court could apply strict or enhanced scrutiny, but that depends on a finding that homosexuals constitute a "suspect class." But it has been over 30 years since the Supreme Court has identified any new suspect class, and I doubt that the California court would do so now. And even if they did, I think it is extraordinarily unlikely that the Supreme Court would uphold that decision on the inevitable appeal.

Ashley: " . . . there’s nothing that the Proponents have said that holds any water."

In your opinion. People on the other side happen to agree with marriage has it has existed for centuries, as it has been upheld in the great majority of court cases across the country, and as it has been defended by voters every time they have had a chance to vote on it -- even the same voters who support civil unions.
@Mishima

Obviously it is my opinion, this is an opinion piece.

They do make the argument that marriage is the state's way of channeling people into procreating, but I felt that it was very effectively shut down by Olson's statement that it's simply not the government's job or right to prevent or force people to reproduce.

I think where your argument falls apart is that if married coupledom is a better state for children to grow up in, it's better for them to have married gay parents than unmarried parents. There was a lot of evidence about this put forth in the trial itself, to the point that the defense was no longer trying to make the argument that children were any better off in straight married households than gay married households. The data just isn't on their side, and they acknowledged that children would be better off if their gay parents could marry.

"I suppose that's one way of putting it, though you make it sound rather trivial. And if marriage were so trivial, then we would wonder why the institution of opposite-sex marriage has been in existence throughout recorded history, different cultures, language groups, races, economic classes, and geographic locations."

I think you and I disagree on what is trivial here, you think I'm saying marriage is trivial but what I'm actually saying is that it makes marriage much more trivial to limit it to a child centered institution. That's clearly not the case as many many people who cannot or will not reproduce are able to marry.

You say that gay couples are sterile, and that's incorrect and irrelevant. There are 37,000 children in California with gay partnered parents who would benefit from their parents being able to marry. Any decision denying them access to that is bad for the children.

You're right that it all comes down to whether Walker chooses to use strict scrutiny or not, but I think it's a very difficult case to make that it's OK to take away rights from a minority when it benefits no one and harms many.
Hey Mishima/The Great Beast 666 -- here's Mrs. Betty Boewers explanation of marriage according to The Bible.

http://www.youtube.com/watch?v=OFkeKKszXTw
@mishima666
Of course at this point I am not any more able to say what will be the outcome of this case that are you. I however, am of the opinion that Prop 8 will not stand. It seems to me that this was settled in 1967, by the case of Loving -v- Virginia, where marriage was found to be a one of the basic civil rights of man. Couple that with separate but equal is inherently unequal and I don't see how the proposition stands. Civil unions, which you so beneficently would allow for homosexuals who wish to marry, are not marriage. Marriage holds over 1000 special legal privileges many of which have nothing to do with childbearing.
Majority rule is not the be all end all that you seem to believe it to be. A majority of people were for anti-miscegenation laws just as there is a majority who would happily vote to restrict the civil rights of homosexuals today. No one should be dependent on their fellow citizens good will to protect their civil rights.
Ashley writes: "They do make the argument that marriage is the state's way of channeling people into procreating, but I felt that it was very effectively shut down by Olson's statement that it's simply not the government's job or right to prevent or force people to reproduce."

We need to make an important distinction. The purpose of marriage is not to force procreation, but to provide an optimal situation in which procreation can occur. A related issue is that marriage promotes particular values, roles, ideals, goals, and norms for male-female couples, for the ultimate benefit of children.

It's actually inaccurate to talk about "same-sex" marriage. It makes it sound as if it is something that will exist along with traditional marriage. In fact, traditional marriage will be replaced. And that will be a significant change. One author puts it this way:

"Society cannot simultaneously have as shared, core, constitutive meanings of the marriage institution both “the union of a man and a woman” and “the union of any two persons”; one meaning necessarily displaces the other. Thus, every society must choose either to retain man-woman marriage or, by force of law, replace it with a radically different genderless marriage regime."

Traditional male-female marriage is primarily about the needs of children. Genderless marriage is primarily about the desires of adults. Traditional marriage focuses on the biological relationship between parents and children. Genderless marriage focuses on parenthood as a legal status. Traditional male-female marriage existed prior to all of the various features and benefits of legal marriage. Genderless marriage exists as a legal construct. Traditional male-female marriage has the defined roles of mother and father, husband and wife. Genderless marriage has ambiguous gender roles.

In short, genderless marriage communicates an entirely different set of values, roles, ideals, goals, and norms. In doing so it constitutes something very different from what we now know as marriage.

Ashley: "I think where your argument falls apart is that if married coupledom is a better state for children to grow up in, it's better for them to have married gay parents than unmarried parents."

I think that's true, but I would argue that the damage to marriage as we now know it would far outweigh the benefit to those relatively few gay families with children. As you correctly note, attorney Olsen said that there are around 37,000 California children in such households. But in 2008 there were more than 9 million total children in California. Thus, children living in same-sex households constitute far less than one percent of all children in that state.

By the way, thanks for the link to the closing argument document. I did read most of it.

Anthony writes: " It seems to me that this was settled in 1967, by the case of Loving -v- Virginia, where marriage was found to be a one of the basic civil rights of man. Couple that with separate but equal is inherently unequal and I don't see how the proposition stands."

It stands based on the nature and definition of marriage. This issue was addressed by attorney Cooper in his closing:
-------------------
"What legitimate purpose of marriage, recognized historically or anywhere else, justified, provided a rational basis for the State of Virginia, or any other, to say that an interracial couple could not get married?

"Well, it certainly wasn't this core procreative purpose that I'm mentioning because, your Honor, that purpose was frustrated by those policies. That purpose actually was at war with the overriding ubiquitous core procreative purpose of marriage . . .

" . . . those racist, racist sentiments and policies had no foundation in the historical purpose of marriage and, in fact, again, they were at war with it. Racial restrictions on marriage were not part of the common law. As we have maintained from the beginning, the opposite-sex nature of marriage is itself definitional, definitional because of the -- as, again, the Supreme Court has often recognized, because this relationship is fundamental to the existence and survival of the human race. So this -- the opposite-sex nature of marriage has always been definitional.

"The common law didn't place racial restrictions on marriage. Many states did not place racial restrictions on marriage. Only 16 states at the time of Loving still had racial restrictions on marriage. They grew out of this very particular racist white supremacist theory, your Honor, that was at war with all the purposes of -- all the legitimate purposes of marriage.

"They actually made people have illegitimate children, illegitimate natural children, which, again, was -- the purpose of marriage, as Justice Stevens says, is to license cohabitation and produce legitimate children. That was the purpose of it. Well, this racial restriction was at war with its very definition, it's very nature." [pg. 3047 line 13, continuing on a couple of pages.]
-----------------------
Mishima/The Great Beast: "The purpose of marriage is not to force procreation, but to provide an optimal situation in which procreation can occur."

Oh you are SO full of shit!

That has NEVER been the purpose of marriage, as I explain here --

http://www.ehrensteinland.com/htmls/library/marriage.shtml
Mishima/The Great Beast: "Traditional male-female marriage is primarily about the needs of children. Genderless marriage is primarily about the desires of adults."

And now we get to the beating heart of the matter for hysterical foaming-at-the-mouth 'phobes like you. If men marry men and women marry women, then GENDER ITSELF IS THREATENED!

Oh My God! What do we tell the children? Gay Marriage will mean men (who are straight by definition, gays not being men) will lose not only their authority, BUT THEIR BALLS TOO!!!!!

OH HELP!!! MOMMY!!!!!!
Mishima:
Actually, I think a lot of marriage was a protection of women, at a time when sex was quite likely to end in pregnancy, "fallen" women were scorned, and any woman had trouble finding a job because men were free to discriminate against them.

A legally recognized marriage prevented men from abandoning a wife who had no means of supporting herself or from marrying multiple wives.

This purpose has substantially weakened and I think few lawyers would argue that marriage should be one man and one woman because women need legally protections from men.

What I don't get is how someone else's marriage affects you. There are plenty of ideas in the fundamentalist and quiverful communities that I find wrong and offensive. Bad heterosexual marriages, such as the Clintons' are a greater threat to my marriage than two men or two women.

If homosexuals are born that way, then if is unfair to prevent them from sharing the joys of marriage because of something that is not under their control. Homosexuals in the closet and married to someone of the opposite sex are more likely to have children and spread their genes, so in this case, gay marriage is better for gays and better for those who wish the world had fewer of them.

If gays are recruited, then the conventions of marriage (fidelity) will encourage them to stay home with their partners and do less recruiting --- also a win for those who wish the world had fewer gays.

In short, in my view, homophobes should support gay marriage.
Malusinka writes: "This purpose has substantially weakened and I think few lawyers would argue that marriage should be one man and one woman because women need legally protections from men."

I suppose so, but that's not my argument nor was it the argument in the court hearing. Since children are the normal and frequent result of heterosexual unions, the argument is that marriage encourages heterosexual couples to do their procreative activities in a socially approved institution with values and norms that tend to protect children.

Malusinka: "What I don't get is how someone else's marriage affects you."

Well, it doesn't in a personal sense, in the way that I think you mean. It's an issue of public policy.

Malusinka: "In short, in my view, homophobes should support gay marriage."

I can't speak to that since I'm not a homophobe. I just don't find the arguments for same-sex marriage persuasive.
nope, not a homophobe, just anti gay
@mishima666
The extent that procreation is the purpose of marriage is a fascinating topic, but since it isn't mentioned as the reason for the laws surrounding marriage it's completely irrelevant. Marriage is now a civil institution that provides two people with a way to merge their lives in a meaningful way. It allows for co-ownership of property so one spouse is not forced to leave the home, they created together, due to their spouses death. Not to mention the right to visit with a spouse who is hospitalized or make their burial arrangements in the event of their passing. Beyond that there are over 1000 different things legal and financial that now go to make up marriage law.
If you are going to suggest that each of these rights can be secured through agreements, that is certainly true. Since each agreement is specific and calls for legal review and proper filing, I believe the only winners in that situation are the lawyers. Not to mention there are many cases of such agreements not being honored.
You may not be convinced, but I believe that this law is about to be overturned. This may even be case that gets to the Supreme Court Of The United States and if it's this one or another one I believe they will be forced to find yet again that separate but equal is not equal. Thing is none of it has happened yet so we don't actually know how this stuff will shake out. I could be wrong about the timing, but calling it policy doesn't make it immutable. There was after all a Dred Scott decision and it only took 100 years to correct that.
"Marriage is now a civil institution that provides two people with a way to merge their lives in a meaningful way. "

Marriage has ALWAYS been a civil institution. It was an arrangment for exchange and inheritance between property owners -- with a woman tossed in as an extra, the land livestock being FAR more important. The church, being the pushy creep that it is, moved in to "officiate" via a ceremony. It than went on to claim that it invented marriage -- which it most certainly did not. But what do you expect from a bunch of lying thieving pedophiles?

Historically marriage played an important role in state politics as Patrice Chereau shows in this scene from "La Reine Margot"

http://www.youtube.com/watch?v=0MYnqDIzHGI
Mishima:
I wasn't labeling you a homophobe, merely pointing out that gay marriage should be a win for people who are, but that's a side point.

You say, "Since children are the normal and frequent result of heterosexual unions, the argument is that marriage encourages heterosexual couples to do their procreative activities in a socially approved institution with values and norms that tend to protect children."

But none of this has much bearing on gay marriage. Many heterosexual couples who can't or don't want to procreate get married and are free to do so.

Having children is such an essential aspect of life, that I have a hard time seeing a gay person who wants to have children being deterred by the inability to marry. The children of gay couples will also be better off in a stable, married family.

If the goal is to prevent or discourage gays from having or adopting children, then that goal would be much more easily accomplished by preventing gays from adopting and requiring fertility clinics to limit their services to heterosexual couples. I'm not recommending this, I'm just stating that prohibiting gay marriage is an ineffective way to prevent gay procreation.

Since it's ineffective, then the children of gay couples deserve to have the protection of the same values and norms as children of heterosexual couples.
I haven't read all the comments here but I'd like to introduce the one I believe is missing and is the opinion I take, which is that society has the right to define for itself its own traditions, and historically we have found value in the tradition of marriage as a way of honoring that specific union between two people that is capable of bringing new life into the world.

To me all the arguments about the history of marriage, what might or might not be done in other countries or other societies, or even religious values we may or may not share -- all of that is ultimately moot and irrelevant.

So long as it is in keeping with the laws of the land, societies have the right to define their own traditions for themselves, not have those traditions defined by a minority or by a judicial fiat. Even if we are excluded from a particular tradition (and who isn't, in some way?) that doe not mean we have the right to change it for everyone else.

Finally, arguments such as "not every married couple has children" are also irrelevant, as a tradition is all about honoring the ideal. Even if a plague where to render all humans barren, there would still be value in honoring that specific union that was at one time capable of creating life, straight or gay, with the ceremony known as "marriage."