text:
Thanks to your bullshit, we are now under siege.
fuckem (in honor of the late great efgoldman)
Black Jesus loves a paper trail.
Too often we confuse noise with substance. too often we confuse setbacks with defeat.
Wow, you are pre-disappointed. How surprising.
Perhaps you mistook them for somebody who gives a damn.
Never entrust democracy to any process that requires republicans to act in good faith.
Second rate reporter says what?
Republicans do not pay their debts.
Not all heroes wear capes.
I like you, you're my kind of trouble.
A snarling mass of vitriolic jackals
Putin must be throwing ketchup at the walls.
And we're all out of bubblegum.
Conservatism: there are some people the law protects but does not bind and others who the law binds but does not protect.
Damn right I heard that as a threat.
You are here: Home / Politics / Domestic Politics / Activist Judges! Activist Judges!
Activist Judges! Activist Judges!
by John Cole | May 26, 2009 2:14 pm | 142 Comments
This post is in: Domestic Politics
Or maybe not:
The California Supreme Court upheld a ban on same-sex marriage today, ratifying a decision made by voters last year that runs counter to a growing trend of states allowing the practice.
The decision, however, preserves the 18,000 marriages performed between the court's decision last May that same-sex marriage was lawful and the passage by voters in November of Proposition 8, which banned it. Supporters of the proposition argued that the marriages should no longer be recognized.
Today's decision, written by Chief Justice Ronald M. George for a 6-to-1 majority, said that same-sex couples still have the right to civil unions, which gives them the ability to "choose one's life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage." But the justices said that the voters had clearly expressed their will to limit the formality of marriage to heterosexual couples.
Doesn't the fact that there are 18,000 gay marriages that are considered legal when the rest of California's gays are legally forbidden from marriage present a bit of a legal problem? And how would this be remedied by any means other than allowing gay marriage for everyone or striking down the existing 18,000 marriages? Any thoughts?
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zzyzx
My thought is that the CA constitution sux0rs, but we all went through that last week.
Maybe that is the poison pill to the whole thing? I mean now you have some couples that are married but others are not. That seems pretty much unequal to me. Should be able to use that as the basis to overturn the decision.
I would be interested in having the US Supreme Court review this on XIVth Amendment grounds, but not the current US Supreme Court.
Laura W
Yes. My thought is why aren't you at kitty prison?
All I can think of is how those "constructionist" and "literalist" conservative judges have interpreted the "40 acres and a mule" 14th Amendment as protecting big business from being treated as a separate class of citizen. I can't help but wonder if their Equal Protection clause "activism" isn't going to bite them in the ass here.
Yeah, I don't get it either. Prop 8 states that "Only marriage between a man and a woman is recognized in the state of California."
So, if Prop 8 is upheld, then how are those marriages valid? While I am glad they are, it seems to me more legally sound to say "Prop 8 is upheld and the 18,000 marriages are no longer constitutional."
Of course, it is probably driving the pro-Prop 8 people batshit crazy, so I am not complaining.
They can't strike down that existing gay marriages since they were perfectly legal when they took place. This wasn't a case where legislature passes a law, say, making gay marriages legal then after some period of time and x number of marriages the Cal SC decides the law is void and therefore the marriages were void. The Cal SC already said that gay marriages were legal then the law was changed, but that only effects going forward. So that never was an option.
I think the reason the 18,000 couples stayed married is because the court couldn't strike those marriages down. Doesn't ex post facto apply here? Since the marriages were legal when they were performed, those couples cannot be broken up when the law is changed after the fact.
All this insanity because a bunch of sexually-insecure bigoted a-holes can't handle two people of the same gender being in love with each other. Jesus wept.
TenguPhule
Doesn't the fact that there are 18,000 gay marriages that are considered legal when the rest of California's gays are legally forbidden from marriage present a bit of a legal problem?
How quickly will a gay couple sue for equal rights?
Stealth equality by the courts!
@Napoleon:
They can't strike down that existing gay marriages since they were perfectly legal when they took place.
I don't agree with this logic. When the Supreme Court desegregated schools, could the schools have used "Well, it was legal when we did it," to keep their schools segregated?
Short Bus Bully
This has got to be one of the more bogus, weak-kneed judicial decisions handed down in a long time. Sure, the voters made the call, but now they are saying that 18k couples are legal, but those who tried to get married the next day after Prop 8 are NOT legal?
What a fucking mess.
Thanks for clearing that up for us you nitty shitheads.
When the Supreme Court desegregated schools, could the schools have used "Well, it was legal when we did it," to keep their schools segregated?
No, because going forward meant that it was illegal from the point that the decision was made to segregate. I.e., intergration was an ongoing process.
With the Prop 8, they're saying the marriages already happened and they can't go back and reverse it.
@Michael D.:
I would have been very surprised it the Cal SC would have allowed the law to nullify something that took place before it went into effect, especially if the law was not very explicit on the point (by the way, that would not be an "ex-post facto" law if it did since it is not a criminal law).
Does anyone know what the stated reason was for the one dissenter? Did he/she dissent to striking down Prop 8 or letting the existing marriages stand.
You must be new to California.
The point is, that the rules can and must be manipulated and bent in any way shape and form they can be to exclude gays in a way that makes it clear that this is not about principle or law but about just not liking us.
One could conclude that a Constitutional Amendement that expressly makes SSM illegal can not coexist with legal same sex marriages, and that either the marriages must be thrown out or the amendment. These panty waists didn't have the guts to do either.
You know that the religious right will go after those 18,000 marriages. Remember Michigan? After proclaiming their constitutional amendment banning gay marriage was only about protecting marriage and they weren't interested in eliminating incidentals such as same sex partner benefits. As soon as the amendment passed, however, they sued the state university system and forced it to stop giving partner medical benefits.
They lie. They always fucking lie. And they manage to get those in favor of equal rights by way of a civil union compromise to back them, thus ensuring the lack of equal rights.
What these guys will do is some business will be forced to treat one of the SSM couples like a marriage and they will refuse because it is unconstitutional. And this will go back to court and the the obvious contradiction that was passed off as jurisprudence today will come to a head. And those 18,000 couples will lose because the constitution says what it says.
joes527
I'm sure that this is all flavors of unpopular, but this was the right decision.
Prop 8 sucks. The Mormon church sucks. The California Constitution sucks.
But the supreme court can't fix those problems. The people have to.
The constitution is _way_ too easy to amend/revise/rape/whatever, and a narrow majority pumped up with out of state money took advantage of that to make the state of California a worse place.
Demographics have gaymarriage winning eventually. It is going to really suck if we get around to fixing the "constitution is written on an etch-a-sketch" problem before we get around to fixing the "bigotry is enshrined in the constitution" problem.
But the supreme court can't fix that problem either. The people have to.
Tonal Crow
The question is whether Prop. 8 was intended to be retroactive. The Court found that it was not, relying on the long-held principle that legislation should not be interpreted to be retroactive unless its text or history clearly indicate that its framers intended retroactivity. See the opinion at 128-35.
An Activist Judge is a liberal, Communist, freedom-hating, Hate America Firster, Ivy League graduated, member of the Blame America First Crowd who is part of an entire collective of mind-linked activist judges who think that they can undermine the president. Activist judges are stripping our nation of its moral fiber. Every American knows the importance of fiber in their diet, well our nation is no different. Our Great country is in need of a morality laxitive. Activist judges keep our nation constipated. They hate everything that has to do with justice. They are just "acting" is if they are on the side of justice but real patriotic Americans know they are really bears in a robe. They bash America and always look for the negative in things.
h/t http://www.wikiality.com/Activist_judges
Everytime a judge makes a decision, any decision whether you like it or not, that judge is "acting." Even when the Supreme Court decides not to review a case it is "acting." To judge– to choose between competing arguments– is to act. Every judge every day, therefore, is an "activist judge" in the honest meaning of the word.
h/t http://blog.washingtonpost.com/benchconference/2006/06/activist_shmactivst.html
The Activist Judge Myth
http://www.tompaine.com/articles/2006/08/14/the_activist_judge_myth.php
Yeah, that is something to worry about but what can you do?
I see that as different, if for no other reason in the case of desegregation the actual individuals directly effected by it would change on a virtual daily basis as kids move in and out of a system, dropped out, came of school age, etc. (not to mention that in no way were all participants voluntary).
In the case of the marrages we are talking about discrete identifiable people who did something in the past, namely enter into a marrage contract.
Something more akin, it would seem to me, would be something like zoning where if when you build it it is legal when the zoning law changes they don't make you tear it down.
PS, I thought of another more important differance, in the desegregation case the court is basically saying that it never was legal. In the marrage case, as I stated above, they are only saying it is not legal going forward from the date the law was changed.
Should be able to use that as the basis to overturn the decision.
Those are my thoughts exactly. The status quo as it stands today cannot stand and creates a myriad of issues. All it takes is for one couple who is denied the right to marry to sue the state on different grounds than before, though using the same equal protection principles. Not only do you have gay couples not being treated equally with straight couples, you now have have gay couples who aren't even treated equally with OTHER gay couples!
Now, you have essentially a VERY clear case of a violation of equal protection in that some similarly situated same sex couples are "more equal" than others. Now they can argue the merits of THAT without ever having to even mention "traditional" same sex marriage. They can just argue that they want to be treated the same as the other gay couples lucky enough to have been married in the window. The SC of California knew exactly what they were doing.
anonevent
@Michael D.: I agree. The point of ex post facto is to prevent you from getting in trouble for something that went from being legal to illegal, not to prevent the law from being changed.
Brachiator
No. The Court could not invalidate marriages that were legal before this decision was delivered.
However, it creates a huge social problem for opponents of gay marriage in California, who need to obliterate these existing marriages in order to have their belief that marriage is by definition between a man and a woman validated.
By the way, many opponents of gay marriage in California accept the previous status of "domestic partner," which confers all the rights at the state level as those held by married couples. Domestic partners, for example, can file the same state tax return as a couple who can file married filing jointly.
But it is a big thing for these people to push the religious definition of marriage into the secular sphere. They still push the lie that the prior court decision meant that churches would be forced to marry gays. And they can't let go of the delusion that gay marriage somehow damages heterosexual marriage.
And the larger legal problem is that the Court has unhinged the notion of checks and balances. The will of the people is not supreme when it conflicts with the Constitution or basic legal principles of the equality of all citizens.
. . . should not be interpreted to be retroactive unless its text or history clearly indicate that its framers intended retroactivity.
My recollection from law school is that this is a standard way a court would interpret a civil provision like this (in the case of a criminal provision the option of back dating is not available).
Sloegin
Cali Supremes declare 3/5ths of gay marriages ok.
InflatableCommenter
Yes, and it's sort of hilarious. If it weren't so infuriating and sad.
Both sides in this contest have pinned their strategies on the M-word. That's M for marriage, and murk.
The whole relationship between the marriage and law is completely dysfunctional, just like the institution of marriage itself. It's a construct that doesn't belong in the law, and it's not in the Consitution of the United States. So far, anyway, and I hope it never is.
Marriage is just a clusterfuck of an idea when you tangle it up in the gears of religion, law, government and politics. Never mind the subjects of psychology, sociology, famlies, and relationships. We haven't even addressed those yet.
Why should voters, lawmakers or judges decide who can be a family? Does that make sense to anybody, anybody at all?
In the end, people will be able to marry whomever they choose, just by declaration, and that will be the end of it, which is the way it should be. Meanwhile we have to watch these horror shows of political bullshit.
Ack.
Zifnab
No, but in that case it was a bit backwards. You had a law on the books stating that black people were outlawed from attending an institution. The desegregation rulings nullified said laws. Without those laws on the books, there was nothing to legally prevent a black person from attending a formerly all-white school except vigilantes acting outside the law (of which there were many and for which it was required we call in the national guard).
By contrast, the marriages performed between the court decision and the amendment decision didn't outlaw anything. They simply permitted two individuals to engage in a contract we call marriage. Once the contract is made, it gains the protection from Ex Post Facto rulings.
Signing a marriage contract is like buying a gas guzzler right before Congress raises CAFE standards. It's effectively something you own and the government would have to take it away from you.
I think a better example would be the Emancipation Proclamation, which I suppose one could argue should have only freed all future persons and left the existing slave population grandfathered in. :-p
Either way, its a silly conversation to have and I'm happy to see the state of California stuck in such a ridiculous situation. Serves them right.
@Adrienne:
I disagree that this can work. This happens all the time that a person can do something at time X and then a law passes and someone else cannot do that. If people could sue every time on equal protection grounds, I don't know if any laws could ever be made.
Having read the opinion, it's clear that the majority is comfortable with the claim that the benefits recognized under a domestic partnership are equal to those conferred by a marriage, and that the only thing Prop 8 did was to disallow the word "marriage" from being used to label such domestic partnerships.
IANAL, but how is this anything but a separate-but-equal arrangement? Separate-but-equal isn't okay because no matter how good the separate facilities are, the mere fact of their existence implies that the minority is unworthy of mixing with the majority. It's why the "civil union" and other such verbal dodges aren't good enough.
In addition, letting the 18K existing marriages stand — and calling them all "marriages" — puts those 9K couples in a weird legal limbo. What happens if they divorce and then attempt to remarry? Is their marriage recognized in other states that recognize gay marriage?
A judge's decision cannot be just if it results in injustice. I don't see how this decision results in anything but injustice.
Yes, it creates a huge problem. Although I think the Proposition 8 should never have passed, it is my understanding that it defines marriage as union between a man and a woman. I would have interpreted that to mean that any same-sex marriage was rendered invalid by definition as they no longer qualified.
I'm happy for all the couples that didn't get the slap in the face (TM) of being informed that they're marriage wasn't real any longer, but it seems to me that this particular part of the ruling was made entirely on political grounds in blatant violation of the California Constitution. Who knows? Maybe the judges expected that Proposition 8 would be overturned by a new ballot initiative in the near future…
@Brachiator:
This was actually a HUGE argument from the pro-8 crowd.
Teh gehys get *everything* but the word "marriage" as it is. All we want is the word. Help us save the word.
Yeah. Counter factual, and downright bizarre when you think of it (amending the constitution to encourage linguistic purity) but without this argument, 8 would have gone down by a narrow margin rather than passing by a narrow margin.
The inevitable suit will reach SCOTUS, and then Thomas, Scalia, and Alito will have to distinguish Romer v. Evans, and persuade two more Justices the difference is meaningful.
That'll be fun.
If the age limit for marriage in New Hampshire were raised from 13 to 16, would that violate equal protection because there are existing 13-year-old wives? I don't think so.
This happens all the time that a person can do something at time X and then a law passes and someone else cannot do that. If people could sue every time on equal protection grounds, I don't know if any laws could ever be made.
Er, no.
The state of marriage for these 18,000 legally persists after Prop 8.
The act of marriage itself was not ruled illegal, rather the state's definition of said act was narrowly confined.
So yeah, Equal Protection violation plain and simple.
But zzyzx, is it the case that some people can _continue_ to do something while others cannot simply because they missed the window?
The issue isn't, 'they used to be able to drive 75 mph, and now they and I both can't because the limit is 65 everywhere, and that's a violation of my rights.' The issue is: 'they can still drive 75 mph because they got their licenses last year, but it is illegal for me to go that fast."
Maybe that happens all the time. IANAL. Examples?
All that occurs to me is that tax law about when you bought your home. Not sure if that's the same sorta legal thing, though.
Age of consent != adults of same gender
jcricket
I think the ultimate result of this will be to accelerate the day when gay marriage will be legal in a host of states (maybe, but not necessarily, California as well). Look at what's happening in the northeast to be pushed in other liberal states.
The fundies, especially mormons, overplayed their hands, and will face the ultimate backlash in seeing their "worst nightmare" come true faster than they could have imagined, with more liberal-type legislation (related to other anti-discriminatory stuff) riding on the coattails, and more importantly, acceptance for liberal ideas in a greater percentage by the general populace.
Sunshine really is the great disinfectant.
Don't forget black people. Black people suck because they voted en masse for Prop 8. Why would you deliberately leave them out of your Suck List, but jump all over the Mormons? Hmmmmm, I wonder…
And Obama. He sucks, too! Don't forget!
The California Supreme Court held the existing marriages to be valid because otherwise that would have given the petitioners a federal question to appeal to the Supreme Court – one that would have required even Scalia to side with them on. The States are specifically prohibited by the federal constitution from passing any law that would invalidate otherwise legal contracts (the Contracts Clause). And marriage, we're told, is a contract.
But still, I think an enterprising lawyer could fashion some fun federal questions on this. There's the 14th Amendment question, for sure. But there's also a very untested argument under the Republican Guarantee Clause – if a simple majority can abrogate fundamental rights of a minority, then it's not really a republican form of government, is it?
Don't forget black people. Black people suck because they voted en masse for Prop 8
Black/Hispanics who voted for Prop 8 are bigger idiotic assholes then the whites who voted for it precisely because the white people who supported Prop 8 were already certified morons to begin with.
Your logic is a little cloudy but note that I said, on different grounds but still using the same principle of "equal protection". Before, the issue was whether or not gay couples had the same rights as straight couples That was the issue since there were only two classes of couples to compare (straight who could marry or domestic partner or gay who could only domestic partner). However, the combination of the first ruling, with the passage of Prop. 8 and now this ruling has now created a THIRD class of couple – the gay couple who now enjoys the right to marry. This is a *VERY* important distinction. A new lawsuit alleging a violation of equal protection rights between similarly situated gay couples (those who married inside the window and those who will heretofore be denied that right) is an entirely different animal since it is challenging it on different grounds. It's not the same as what you are talking about.
But zzyzx, is it the case that some people can continue to do something while others cannot simply because they missed the window?
The age of consent example above is another good one. If the age of consent is raised from 14 to 18, would an already married 15 year old have their marriage dissolved for 3 years? My guess is that there is precedent for this non-coequal status.
There are grandfather clauses with all sorts of activities AFAIK they have been found legal.
wasabi gasp
Is there something that makes the 18,000 number more legally significant than, say, a handful of couples?
redbeardjim
@guster:
Sometimes, yes. Speaking from personal experience, back in (I think) 1987 the drinking age in Ohio got changed from 19 to 21 (happened in a lot of other states as well, as I recall the federal gov't was exerting a lot of "do it or you don't get any highway money" pressure). Anyone who was 19 or older when the new law went into effect (my brother, for example) was still able to get a drink — they got a special colored background on their driver's license photo.
Notorious P.A.T.
Why? His book clearly states that any sexual intercourse that does not consist of a man and a woman trying to produce a baby is explicitly forbidden.
DecidedFenceSitter
@Bender: Bender, get a new narrative, that one has been debunked.
@KG: I think that an even more enterprising lawyer could make an argument along the same grounds as the Brown v. Board of Education as opposed to Loving v. Virginia. Separate ≠ equal.
However, the combination of the first ruling, with the passage of Prop. 8 and now this ruling has now created a THIRD class of couple – the gay couple who now enjoys the right to marry. T
But this third class doesn't exist. If a person in a legal 2008 marriage divorces their partner, they do not have the right to marry someone of the same gender again. They don't have a special right attached to them, their relationship has that. And allowing preexisting relationships to continue after a law outlawed new ones is an non-uncommon legal situation. I don't see what makes this special.
@InflatableCommenter:
Yeah, it does, because a family is not just a private entity, but a social and legal arrangement as well. Property right, rights of inheritance, the right to make medical decisions, the right to insurance, and all manner of stuff, make a difference when you consider who is within and who is outside a "family."
Not quite the same thing. In California, domestic partners have all the same rights as a married couple. They don't go to a separate "domestic partner" aisle to exercise their rights. The California tax return, for example, has a line for "married filing joint" or "domestic partner." The same box gets checked.
But symbollically, the inability to use the word marriage is important, just as it seems to be critically important for gay marriage opponents to keep the word "marriage" away from gays.
I think that the state should only perform civil unions. If you want to get married in your church, then more power to you. But all citizens should be on the same footing with respect to a legal, secular, civil union.
I don't see what makes this special.
For starters because the exemption doesn't have a legal leg to stand on.
Rather then age of consent, think of it as making sodomy illegal.
Just doesn't pass the smell test.
No it is @zzyzx:
Bingo, it does happen all the time and someones mention of tax laws is a perfect example. I maybe writing off the widget I bought last year using the rule of 78s over 5 years while the widget you bought this year you may have to write off straight line over 7 years. Almost every single law ever passed could be attacked on equal protection if you gave it the wide ranging reading many are here. The Supreme Court years ago basically came down with a rule that basically says only the most nakedly outragously intenional use of a law to screw a limited class will get tossed on equal protection, the practial implication of which is no laws are ever tossed out.
But the SC came up with an exception to that rule for laws that use certain criteria, such as race and sex, in which case the basic rule is "we look at it to make sure there is a valid purpose".
So if a law is passed that taxes men's pay at 25% and a woman's at 27% it will be tossed, but on the same day a tax is passed taxing someone who makes less then $50k at 25% but the rate of 27% applies to someone making $70k it will be upheld, even though in both cases the law is not giving "equal protection".
TheFountainHead - 'Easily Led'
The constitution is way too easy to amend/revise/rape/whatever, and a narrow majority pumped up with out of state money took advantage of that to make the state of California a worse place.
@zzyzx:
The age of consent example above is another good one.
I don't think that this is a good example. If you change the age of consent from 14 to 18, there may be couples where one spouse is btw 14-18 and there will be other similarly situated couples who won't be allowed marry. Yes, that's true. The difference here is that the law still provides a remedy to the latter couples: wait until both parties are 18 AND the couples who were grandfathered in will, in a very short time, outgrow the need for the grandfathered in clause as the underage party reaches the age of consent. In this case however, there is NO recourse for those same sex couples -they are outright being denied, forever, the right to marry the person whom they want to marry. That's a huge difference.
@KG:
if a simple majority can abrogate fundamental rights of a minority, then it's not really a republican form of government, is it?
This litterally makes no sense at all and is moronic as anything I see from the right. The constitution sets what are fundimental rights. If it says that marrage between people of the same sex is not, then it is not by definition.
Comrade Dread
If the married couples entered into contracts when it was legal in good faith, I can't see applying the statute retroactively to void their contracts.
I suppose, if a gay couple who were unmarried, wanted to be jackasses, they could claim discrimination (based on teh existing gay marriages) and get the existing gay marriages voided, but I can't imagine anyone wanting to do that.
Before this spins out of control, the question really being asked is:
Why are so many black voters Baptists, and why are so many Latinos Catholic?
Reexamine their votes along religious lines and you can take race out of the equation.
First, that'll never happen, and second, it shouldn't ever happen. Why? Because then it makes it seem as if the heteros have condescended to the homos by relabeling their marriages "civil unions". It doesn't accomplish anything other than to give the happy shivers to those who want to entirely excise marriage from civil law.
As I already said, "marriage" has meanings that "civil union" doesn't. I want gays to be able to call their lifelong committed relationships "marriage" because that is the *only* way to assert, without qualification, that such a relationship is as meaningful and deserving as the same relationship between heteros. It's neither necessary nor desirable to try to kill the idea of marriage in civil law, even if it were possible.
@redbeardjim:
Speaking from personal experience, back in (I think) 1987 the drinking age in Ohio got changed from 19 to 21 (happened in a lot of other states as well, as I recall the federal gov't was exerting a lot of "do it or you don't get any highway money" pressure).
Correct, that is what happened in Ohio (and I recall 3.2 beer also).
But this third class doesn't exist. If a person in a legal 2008 marriage divorces their partner, they do not have the right to marry someone of the same gender again.
I beg to differ. Those people in those marriages, as long as they are in those marriages constitute a third class of people. Just because they may not exist permanently doesn't really change the fact that they exist now in a space where similarly situated couples will not receive the same protection under the law.
Its like a police officer is a special class of person under the law and assaulting them carries a much heftier penalty. Once they leave the force, they are no longer a member of that special class and they forfeit that right. However, that doesn't change the fact that for as long as they remain on the force they are still a special class of person. Temporary or permanent class isn't material to whether, right now, the class exists.
That's 'rational relation' analysis.
To discriminate on the basis of race or any other suspect class, you need to clear 'strict' scrutiny. On sex – usually – you need to survive at least 'intermediate scrutiny'.
@Adrienne: No analogy will be perfect but the legal difference still stands. If a state legalized same sex marriage but said that a same sex couple would have to wait 4 years between the time that they got their marriage license and it becoming legal but opposite sex couples would only have to wait 3 days, there would be a huge opening for a equal protection lawsuit.
I'm with you about the underlying marriage issue. I would be overjoyed if all 50 states passed marriage equality laws tomorrow. I just don't think your approach is the one that is most likely to achieve the goal. People are grandfathered into all sorts of past rights all the time. Harry Truman was free of the restrictions of the 22nd Amendment; he could run for as many terms for president as he wanted whereas everyone else was limited to two. There's a general acceptance that this sort of status is allowable and it's not likely (IMO) that courts will overturn decades of legal precedent.
@Ben: In addition, how do we go through and change all federal and state laws to replace the word marriage with civil union? Does all that legislation need to be renegotiated and passed?
Pretending marriage is a religious term is to pretend that non-religious people don't get married, or that it hasn't been a *legal* term forever.
And all of this in aid to do what? I've tried, on this blog, to show how those who are anti-SSM are not about the word marriage. They are actually against gay rights. You can tell by every piece of legislation they've proposed and passed to protect the word. Every time they protect the word, they manage to word it so civil unions or marriage like privileges (like health benefits) are also disallowed.
Thank you for a concise and eloquent defense of sharing the word marriage with us gays.
Some feeble "debunking" that was. A gay and lesbian group can massage the exit poll numbers (if they just leave some counties out!) so that it appears that "only" 58% of blacks voted for Prop 8, instead of the 70% that the exit polls reported.
Only 58%. That's their best spin.
You're right. Blacks LOVE gay marriage.
And don't forget…Obama would've voted for Prop 8!
Sorry, your answer makes no sense. You are saying that all these legal constructs hang on what a "family" is. So? How does that give the government the right to decide who can be a family?
You are describing social engineering. Put simply, the one-man-one-woman rule is a social engineering rule, which restricts the rights you are talking about to people whose behavior we approve of.
That's just crap, and it's the reason why this fight is going on, and will be eventually won by the LGBT community. There is no moral, scientific or other justification for this social engineering, it is nothing but officialzed bigotry.
Mnd you, I am not suggesting that you support the crap, just that you are describing it. I think we have the same general opinion. But I am saying, the link between the rights and laws that confine marriage is where the problem lies. That link should not exist, not because of this issue, but because the goernment has no inherent right to decide what a family should be. Where is that imperative in the Constitution? Not there, which is why the buttheads want the DOMA amendment, to put it in there. It should not be in there, and no definition of marriage should be in there. At all.
@ 54: ok, so if we were to pass an amendment in the next election saying that left handed people could not get married, you'd have no problem with that because it's now in the constitution?
Also, Article I, Section 1 of the California Constitution:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
"Among these…" indicates that these are not the only rights. And the Courts have a very long tradition of defining fundamental rights.
But more importantly, the federal constitution guarantees all States a republican form of government (Article I, Section 4). My understanding of "a republican form of government" includes things like respecting minority rights, equal protection, and the like. The fact that a simple majority may deny equal protection or treatment, strikes me as running afoul of this basic principle.
That's the real issue that needs to be addressed. Is sexual orientation a characteristic of people like race and sex or is it a behavior that can be changed? That's never been addressed by the courts and none of this will settle out until it is.
It might be clear as day to the people here, but the various courts all occupy some different space on the spectrum.
@Ben:
As I already said, "marriage" has meanings that "civil union" doesn't. I want gays to be able to call their lifelong committed relationships "marriage" because that is the only way to assert, without qualification, that such a relationship is as meaningful and deserving as the same relationship between heteros. It's neither necessary nor desirable to try to kill the idea of marriage in civil law, even if it were possible.
We disagree here. And part of the problem is that "marriage" is entangled in its religious significance, which is one reason why religious conservatives oppose gay marriage so vehemently.
And in California, there is a big thing about wanting to be able to call a relationship marriage even though "domestic partners" have every right that "married couples" enjoy. So the battle is less over a legal distinction as between a symbolic one.
Religious conservatives have gone to the barricades over marriage because they want to keep it mystically religious, and always fall back on the Bible as the source of their stubborn resistance. But this does not need to be the line in the sand for the rest of us, straight, gay or whatever.
In the UK, for example, gays who have civil partnerships don't see this as lesser than marriage, in part because the churches have a longer tradition as being distinct entities, and an Anglican marriage is not viewed as the same thing by deep believers as a Catholic marriage. So while I understand that in the US, some want to look at marriage as "all or nothing," I think it would be better for everyone to let religious morans have "marriage" since it means so much to them.
Or make a better distinction between civil marriage and religious marriage. Either way, we have to untangle a secular institution from a religious one.
I was trying to "dumb it down", in a manner of speaking, so everyone got the basic idea that even the Supreme Court recognizes, in essence, that of course laws treat different people differently bases on all kinds of criteria, some of them pretty crazy, but unless it is on a basis that essentially it is well recognized to be bogus, we are not even going to give it a serious look.
I just don't think your approach is the one that is most likely to achieve the goal.
The funny thing is I think what the Calf SC did was the perfect way to thread the needle and basically say "hey, we upheld the will of the people" while leaving a time bomb in the room that will ultimately lead Calf ro do away with the restriction. With 18k married gay couples in the state it is not a stretch to think most people are going to know one and when they realize in 6 months or whatever, that they didn't cause the world to end and besides, the "split" marriage rule is pretty stupid, I think it will lead a lot of fence sitters or those that are less then rabid on the subject to come around.
If it says that marrage between people of the same sex is not, then it is not by definition.
The Constitution says nothing about what marriage is.
For those interested in it, there's a US Supreme Court case out there that could play into this – Moore v. City of East Cleveland 431 U.S. 494, regarding the construct of the family. The city had a law that specifically declared what a family was and who was allowed to live in a single family home. A grandmother was living with her son and two grandchildren (who were cousins) and was basically threatened with eviction under the law. The Supreme Court struck down the law holding that it was an "intrusive regulation of the family" that didn't further some tangible state interest.
It may not apply directly, but the reasoning can be applied to the facts here.
r€nato
Pretending marriage is a religious term is to pretend that non-religious people don't get married, or that it hasn't been a legal term forever.
The issue is that muddled thinking results from using the same word "marriage" to describe both a union of two adults (whether opposite sex or same sex) conducted in a church, and the same act recognized and licensed by the presumably secular state government.
In the eyes of the government, you're married the moment the marriage license is signed by the two parties and entitled to all the legal benefits thereof.
Without that license, you can get married as many times as you like by your favorite cleric and it's just a religious rite to make you feel good.
Calling both acts – one which has legal consequences and one which has (presumed) metaphysical consequences – 'marriage' only serves to confuse matters. It's a mixing of secular government with the church.
Of course I don't expect that we will ever do the logical thing and start calling the secular act "civil union".
…or, what Brachiator said.
@KG: if a simple majority can abrogate fundamental rights of a minority, then it's not really a republican form of government, is it?
This litterally [sic] makes no sense at all and is [as] moronic as anything I see from the right. The constitution sets what are fundimental [sic] rights. If it says that marrage [sic] between people of the same sex is not, then it is not by definition.
The Republican Form of Government argument — based on U.S. Const. Art.4 s.4 cl.1 — is untested, but hardly "moronic". The clause reads:
The United States shall guarantee to every State in this Union a Republican Form of Government….
If a state revised its constitution to allow the governor to issue statutes, I expect it would violate this clause, since separation of powers is a core component of "Republican Form of Government". Whether the separation of powers issues raised by Prop. 8 — (1) repealing a fundamental right by a majority vote (2) of the electorate — reach that level is an interesting question, and hardly "moronic". Another non-moronic question is whether the Supreme Court would hold the RFOG clause to be non-justiciable (i.e. enforceable only by some act of Congress).
I presume the commenter is talking about a state constitution.
The Sacramento Bee, July 1, 2008:
Democratic presidential candidate Barack Obama, who previously said the issue of gay marriage should be left up to each state, has announced his opposition to a California ballot measure that would ban same-sex marriages.
In a letter to the Alice B. Toklas LGBT Democratic Club read Sunday at the group's annual Pride Breakfast in San Francisco, the Illinois senator said he supports extending "fully equal rights and benefits to same-sex couples under both state and federal law."
"And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states," Obama wrote.
By that logic, Jim Crow laws should have been upheld. After all, they were around for a long time.
A long legacy of getting things wrong is not justification for continuing to do it wrong. If that were the case we would still be a British colony.
@KG: Likewise the USSC has ruled marriage a fundamental right. Not that I'm anxious to take this to the current SC.
@r€nato: Yes, but why cede to religion something that isn't necessarily historically religious just because they come in and claim it and get muddled making the distinction? The fact that the religious can't tell the fucking difference between a government contract and holy voodoo doesn't mean I should be denied the government contract.
You all act like there isn't some social non-religious value to the word marriage that people won't be pissed about losing if gays insist on taking the marriage ball out of the game. I mean, who the fuck is going to walk around saying "I'm civilly unioned?"
@r€nato:
Maybe, but the US Constitution is above the CA Constitution. That's why the bigots want DOMA. They want to trump the states.
They were all for states rights until they realized that letting the states decide was going to lose them the war. Then they decided that DOMA was the way to go.
They are in favor of whatever gives them an official government stamp of approval for their bigotry.
@gex:
That's exactly why government should not be in the marriage business. It is unwarranted and ultimately impractical interference, and serves no purpose.
The wingers' argument that "well, then you could marry a dog" doesn't apply either. If that logic were true, then dogs would be able to make contracts and vote.
The ban on gay marriage in Calf is in the Calf Constitution which is the same document you quote from. Being co-equal with that language you can not simply ignore it and over rule it with what you quoted. Instead courts will fall back on a basic rule of interpretation that a rule that is specific an narrowly tailored wins out over the general rule (with the possible exception that the general rule was second in time and was intended to void the earlier narrow rule).
People like you are what have killed the Democrat party for the last 30 years.
But more importantly, the federal constitution guarantees all States a republican form of government (Article I, Section 4). My understanding of "a republican form of government" includes things like respecting minority rights, equal protection, and the like
Well then you would be sadly mistaken. Republican form of government means that you get to vote for your representatives, nothing more, nothing less. They US Constitution, separately, layers on certain rules which the US Supreme Court have interpreted as applying to the states, but totally separate from the guarantee of a republican form of government clause in the Constitution. For example the state can not ban free speech.
Now that is not to say that as a practical matter that having a republican (or democratic for that matter) government is doomed to long term failure unless not only does the law protect (and the society in general appreciate the need for) certain minority rights, particularly those that lead to a vibrant public discussion (free speech and assembly) or which attempt to tap down traditional historical divisions that cause societies to fall into civil war or conflict (religion, ethnicity, etc.) but that is not the same as saying it is written into our law.
Speaking from personal experience, back in (I think) 1987 the drinking age in Ohio got changed from 19 to 21 (happened in a lot of other states as well, as I recall the federal gov't was exerting a lot of "do it or you don't get any highway money" pressure). Anyone who was 19 or older when the new law went into effect (my brother, for example) was still able to get a drink—they got a special colored background on their driver's license photo.
They also raised the drinking age from 19 to 21 in Texas back in '86. However they did not allow people under 21 who had been previously legal to retain the ability to buy alcohol.
I was legal for 8 days. My best friend thought that it was spectacularly unfair because I don't drink and he was never legal until he turned 21. Not that that has ever stopped a determined college student…
I think you have it backwards. Marriage has indeed been historically a religious rite, it only began to require state recognition around the 18th century and certainly well before the notion of a secular state which stands apart from any religion became commonly accepted or practiced.
asiangrrlMN
@Bender: Obama would NOT have voted for Prop 8. He clearly stated that. He may personally believe that marriage is between a man and a woman, but he thinks it would be discrimination to encode that into the law.
As for the "only" 58% of blacks, thing, it's a hell of a lot lower than 70+%, and as Martin pointed out, much of it is religion-based as people with religion and older people voted more for the prop than against it. In addition, no one ever mentions that MY group, Asians, voted the most AGAINST Prop 8 of any ethnicity, including whites, and we are a bigger proportion of Californians than are black people.
Furthermore, your point about Mormons–they funded the damn drive for Prop 8 to the tune of a million dollars. Black people did not fund or push or propel the drive. So, yes, the Mormon religion is much more responsible for the passing of Prop 8 than are black people.
As for whether or not it was the right decision, I say not. They said it was constitutionally not right for the state to discriminate against gays, which is why SSM was allowed in the first place. Then, they decided that the rule of the people trumped the constitution. In other words, mob rule. So, if I get enough people to agree with me that repressed fuckwad GOP white males shouldn't marry and reproduce (see, Newt, Rush, Douthat, Kristol, Sam the women's vaginae need protecting guy, etc.), then I can get a law passed banning them from getting married? That's not democracy. In addition, the Californian SC ruled that gays are, indeed, a special class of protected citizens in California. So, queers are a protected minority, and it's ok to discriminate against us? Makes a lot of sense to me.
Fuck you, California. I'm going to Iowa on my next vacation.
P.S. To my LGBT kin out there, can we find a different issue around which to rally? Like, DADT or how about work security? It really pisses me off that I have to get so worked up about the one issue which doesn't personally interest me at all.
John, at #74, thank you for providing the links. I was too mad to do it myself.
P.S. I am not a lawyer, nor do I play one on TV, so my views are strictly lay-person.
Well, there haven't even really been quite that many systematic nation-states throughout the world before the 19th century nationalism wave.
LanceThruster
And how would this be remedied by any means other than allowing gay marriage for everyone or striking down the existing 18,000 marriages? Any thoughts?
I'm not exactly sure, but I think a flux capacitor would have to be involved.
Darkrose
I think CA needs a ballot initiative to outlaw the Mormon Church. No particular reason; I just don't like Mormons. According to the CASC, that's perfectly legitimate justification for changing the law.
But that symbolic distinction is my point. It is the reason why domestic partnerships will never be truly equal to marriages, *even if* they have exactly the same rights and responsibilities under the law. Separate is not, and never can be, equal. Whether that distinction is based in religious belief for some is not the issue; opponents of interracial marriage sought Biblical justification for their stance, but those who accepted it learned to adjust their beliefs within the context of the rights of their fellow citizens. Those who fight gay marriage on similar grounds must learn the same lesson.
Maybe this is a good time to point out that the UK has a state religion with a history of Catholic persecution, as well as formal and informal restrictions on Catholic roles in the government; for example, the monarch is head of the Anglican Church, and marrying a Catholic immediately removes one from the line of succession.
By contrast, we have no state religion, no matter how much some might like to pretend otherwise. Even here, I've known people who are upset that a marriage was solemnized in, say, a Presbyterian church instead of a Southern Baptist one and thus consider the marriage in some way "lesser". This kind of thing is unavoidable when religious beliefs enter into the thinking.
The word, again, is what's important. "Marriage" is the bludgeon by which respect for homosexual committed relationships will be beaten into the heads of bigots — it is the *only* word that describes the relationship adequately, and it is the *only* word that carries hundreds of years of history in our law. A marriage cannot be dismissed, belittled or ignored in popular opinion or law like a civil union can.
@Tonal Crow:
See my response at 80 above for most of your post.
since separation of powers is a core component of "Republican Form of Government".
No it is not – most real republics in the world do not have a complete seperation of powers like the US does.
Theoretically you have a point but that case was decided more or less at the high tide of a liberal SC. The thing that kills me about even arguing that this whole issue should be taken to the USSC is that it is a hard right court who, short of an unexpected death, is unlikely to have any of the 5 farthest right members replaced before Obama leaves office (with or w/o a second term) and they will not go along with suddenly giving gays some kind of ruling giving an assist to gay marrage. I mean, my God, some think the present court is going to gut the Voting Rights Act of 1965. Blacks may now find themselves fighting a rear guard action against rights gained over 40 years ago.
The fight is going to be won or lost on the state level, primarily through non-litigation means.
@LanceThruster:
As a former technical instructor, I admire your answer and would like to subscribe to your newsletter.
Personally, I would be on the lookout for eddy currents.
That's all we need to know.
Likewise the USSC has ruled marriage a fundamental right. Not that I'm anxious to take this to the current SC.
They'd have to find a way to make Zablocki v. Redhail (IIRC) basically go away, or make the argument stick that the right to vote, to sue, or the right to petition for redress of grievances (cannot be abridged per Romer) is somehow anterior to, or superior to, other rights such as a right to marry. (Redhail)
Gimme the results of a survey — "Would you swap your vote for the right to marry for the rights protected in Romer?" and I'll have a run at the SC.
@KG: IANAL but I think you are reading way, way too much into the RFOG clause.
My understanding of the relation of the Constitution to state constitutions is that the federal Constitution establishes a minimum baseline standard of rights. State constitutions may grant broader rights to their citizens than those asserted by the federal Constitution, but in no instance can a state constitution narrow the rights granted by the federal Constitution.
Since the federal Constitution does not define marriage and since there are no federal court rulings which interpret the Constitution in such a manner as to define marriage as a fundamental right which is available to both same-sex couples and opposite-sex couples, states are free to use their constitutions to restrict the definition of marriage to one man and one woman.
If the day ever comes that a federal court (preferably SCOTUS) decides that the state has no 'compelling interest' in restricting the right to marry (already a 'fundamental right' as stated above) to only hetero couples, then it's game over for efforts to get states to amend their constitutions to ban gay marriage.
("Compelling state interest" is the test used in 14th Amendment equal protection cases.)
Again, IANAL so this could all be completely wrong…
Gee. Thanks. It is always fun to have one's posts noted, whether a person agrees or disagrees.
What continues to puzzle me is that the California Supreme Court originally seemed to make a clear case for a secular recognition of a right to marry as something fundamental (In re Marriage Cases):
[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.
"[T]he right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people."
The original ruling recognized the will of the people, but also recognized that the people's will could not revoke constitutional and foundational human rights principles.
With today's ruling, the Court is acting as if its 2008 decision never happened.
Little Dreamer
it is nothing but officialzed bigotry.
Everything the people pushing this want is aimed at creating officialized bigotry. The differences in the people who are politically involved these days do not seem to be conservative vs. liberal, or republican vs. democrat, but rather bigot vs. empathetic.
But that symbolic distinction is my point. It is the reason why domestic partnerships will never be truly equal to marriages,
Be careful what you wish for. When you approve of government by symbolism, you open a Pandora's Box of evil shit that can be used against you.
If it is basically okay to demand a symbol, then why can't the South have its Confederate flags? Why can't we shut down a tv station for broadcasting a flash of naked tit? If we can't have symbols, what do we tell the children?
The correct response to a symbolic demand by your opponent is not to demand the symbol. It's to tell them to shove the symbol up their asses. We don't need symbols, we are not pagans.
We don't need symbols, we are not pagans.
Here, here! ::raises glass to toast that statement::
torrentprime
is that the federal Constitution establishes a minimum baseline standard of rights. State constitutions may grant broader rights to their citizens than those asserted by the federal Constitution, but in no instance can a state constitution narrow the rights granted by the federal Constitution.Yes, and I believe the justices explicitly mentioned this in oral arguments.
My friends believes that the 18,000 couples allowed to stay married were not really a poison pill designed to kick off future legal action, but rather a bon-mot from the Supremes to remind everyone in those couples' lives and orbits that they exist: Has anyone thought about how miserable it's going to be to establish rights in CA? We're going to see exploding heads from registrars, HR, bureaucrats in general all over the state. When a married gay person asserts rights only belonging to a spouse, they're going to have to pull out their marriage certificate, dated in the small window of legal SSM, in order to prove it, and the gay couple coming up behind them will be denied. "I'm married, not a civil partner, so I qualify for your 'spouses only' policy." Give that a year or so to trickle through the state, and assuming the Mormons don't have the balls to bankroll another one of these, and we'll win the next ballot prop hands down.
gbear
I think the reason the 18,000 couples stayed married is because the court couldn't strike those marriages down.
In the next year, I foresee a movement by the right to seek out 18,000+ unhappy couples and finance their divorce on the condition that they claim that they were torn apart by teh gay marriage. Scripts and coaching will be provided at no charge.
The symbol of "marriage" is what gives the imprimatur of legitimacy to a committed relationship, both in opinion and law. I'm not saying that all symbolic things should be fought over; I'm saying that the word under discussion is a symbol that carries indispensable meaning, and simply creating another symbol that looks like the first one and giving it to gays saying, "here, this is good enough for you," isn't okay.
And, just to be clear, I'd delight not only in inviting Confederate morons to perform anal-vexillical insertion, I'd provide it as a free service.
@Napoleon: On separation of powers and "Republican Form of Government", contrast Federalist 39 (which takes the view that a Republican government is one whose powers arise from the people, and whose officers are, in a direct or indirect way, subject to vote) with Federalist 43 (which implies generally that "aristocratic of monarchical innovations" are not Republican). Federalist 43 doesn't say what those "innovations" might be, but an executive who could issue statutes seems like a good candidate, since that was, at the time, a power kings (but not governors) wielded.
Key phrase – "[U]nder this state's Constitution." Since 2008 the Constitution has been changed and so the ruling doesn't apply.
That's because for all intents and purposes, it didn't. When they made the ruling, they were basing it on the Cali Constitution as it stood which is why it required a constitutional amendment in order to circumvent it. Now that the Constitution reads that marriage is between a man and a woman, it basically voids their previous opinion. Think about how the right to lifers support want a Constitutional amendment banning abortion because that is the ONLY way that Roe can be totally circumvented since Roe was based on the inherent right to privacy as found in the Constitution.
@InflatableCommenter: Not to short-circuit any of the "symbol vs tangible" discussion, but the underlying reality is that civil unions aren't equal. Even leaving aside the "separate but equal" realities, it's my understanding that (e.g.) private companies can restrict benefits to spouses and not offer benefits to civil partners. Commissions in other states (NJ is one, I believe) have done the legwork on this and it's more than just a symbol – marriage matters as a (civil, secular) institution; marriage and civil unions are just not equal.
but an executive who could issue statutes seems like a good candidate,
What does that have to do with what happened in California or anything dealing with this issue?
@r€nato:I have it backwards? I didn't realize that we commonly used pre-1776 definitions of words when debating the topics of the day.
Which religion? Which religion's marriages are included in federal and state laws? And if I am able to find any religion willing to perform a SSM does that change the meaning of marriage? Or is marriage now a legal and civil term, despite having come from religion?
What, that I can't stand a-holes who have destroyed the Democratic party because when they can't win at the ballot box decide they are going to cram what they want down the throats of the public through the courts.
Here is an idea for those upset with the Cal. vote of last fall. Suck it up and put it back on the ballot and win on a straight up or down vote and quit whining that some court should grant a mulligan on the issue.
The symbol of marriage is a tool of manipulation and control.
The value of families does not rest on it, nor should it. The value of relationships certainly does not rest on it.
The value is all self-referential, and can be changed and transferred to its rightful place simply by changing the laws and making new declarations.
The whole point of the America is to be able to change what America is. Why in the world would you give other people the power to label what you are? Shouldn't people be free to label what a family is for themselves? What a next of kin is, for themselves? How much approval and official blessing do you need?
I think that the whole "symbol of marriage" thing is a mindfuck designed to undo the legacy of bigotry. To me, all it does is legitimize the bigotry and give it a soapbox. Gays want the symbol for the same reason that the bigots don't want them to have it. It's a symbol. Take the symbol away from the bigots, and the problem goes away.
Or, does it? Can you be happy without the symbol, any more than they can?
That's because for all intents and purposes, it didn't. When they made the ruling, they were basing it on the Cali Constitution as it stood which is why it required a constitutional amendment in order to circumvent it. Now that the Constitution reads that marriage is between a man and a woman, it basically voids their previous opinion.
I see what you say here. However, the Constitution, even if changed, cannot revoke certain established principles. The California Supreme Court has simply created room for future mischief.
For example, would the Court have accepted the validity of a Proposition which would change the Constitution to read that marriage is between a white man and a white woman?
The Court cannot logically say that marriage is a fundamental right available to all citizens and then step back and say that citizens can restrict marriage rights in the absence of a compelling state reason just because they want to change the Constitution.
Now that they have apparently enshrined the unchecked will of the people, I can easily see more dumbass ballot initiatives being pushed forward in the future. After all, if the people, can always get want they want through a ballot proposition, who needs laws or a Constitution.
According to the wiki on Marriage:
For the most part, religious traditions in the world reserve marriage to heterosexual unions, but there are exceptions including Unitarian Universalist, Metropolitan Community Church, Quaker, United Church of Canada, United Church of Christ and Reform Jewish congregations.
It appears, from reading the wiki, that religion was the driving force for marriages to be utilized. You may have a different opinion.
Even leaving aside the "separate but equal" realities, it's my understanding that (e.g.) private companies can restrict benefits to spouses and not offer benefits to civil partners.
Well, two things. One is that separate but equal doesn't apply here, and the constant LGBT assertion that it does does not convince otherwise. SBE was about physical separation, physical discrimination, and physical degradation. It was not symbolic. It was about separate buildings and separate Americas in profound ways. There is no legitimate comparison here. Nobody in this forum will agree, because it's not PC to say so, but that's a fact. There is no real comparison between the black-white civil rights struggle and the gay marriage contest. Some people are just determined to make that connection to plump up the sympathy for their cause. It's an insult to those who fought for 200 years for civil rights to equate gay marriage with that, AFAIC. And I speak to you as a voter who will never vote to deny any gay person any civil right, so just take that into account.
The other thing is, what you said about companies and rights is all part of something that can be changed simply by rewriting laws. Bing. Just like that. And nothing in that scenario requires any use of the word "marriage" in order to accomplish its purpose. Nothing. Marriage is all about symbolism. Rights are rights. When we blur rights and symbols, we set ourselves up to be governed by whoever can control the symbols. In that situation, the rights go by the wayside, which is what you have now. That's why you have what you have now, because we operate in a system where symbols are equal to rights. They aren't, and that's why the symbol manipulators are so hard to battle.
Symbols are about feelings. That's why Prop 8 passed, not because there is any legitimate reason for that law.
No, it's because there are certain things that, in a Democratic Republic, should NEVER come up for a vote in the first place and the fundamental rights of minorities is one of them. Our entire system is based on protecting the fundamental rights of the majority against the tyranny of the majority. Prop 8 and its passage is tyranny – pure and simple.
After all, if the people, can always get want they want through a ballot proposition, who needs laws or a Constitution.
And if people can get the symbolic approval for whatever they want to be, who cares about the structure of the rights that go with the symbols?
When mob rule and worship of symbols are the coin of the realm, then you are …. pardon the expression … fucked.
@Napoleon: It has to do with refuting your argument that "Republican form of government means that you get to vote for your representatives, nothing more, nothing less" and your other argument that it's "moronic as anything I see from the right" to posit that Prop. 8 might violate the RFOG clause. If some separation-of-powers violations also violate the RFOG clause, the question then becomes where you draw the line. I think it likely that Prop. 8 would pass muster under the RFOG clause — particularly with our current Court — but I really object to your characterization of the RFOG argument as "moronic".
Unfortunately, so much of life these days is about symbolic appearances and not really about the reality that goes with them.
The courts exist to hear grievances, include those not addressed to the complainants' satisfaction by the legislature. We have the majoritarian branches (the legislature, the executive, the people via initiative) and then we have the countermajoritarian branch — the courts. And they have long conversations about, well, the Republican Form of Government. That's not "cram[ming] what they want down the throats of the public"; that's how our governments were meant to function.
The "a-holes who have destroyed the Democratic party" are not the victims of discrimination, but the GOP-heads who have done their best to make the Democratic Party an echo of the GOP.
Here is an idea for those upset with the Cal. vote of last fall. Suck it up and put it back on the ballot and win on a straight up or down vote….
Guess what? That's exactly what's going to happen next.
and quit whining that some court should grant a mulligan on the issue.
Your language — "Democrat party", "cram what they want down the throats of the public through the courts", "straight up or down vote", "whining" — is duly noted.
@torrentprime: But if we lived in a world where all the government issued was civil union licenses, then this wouldn't be possible.
I agree that civil unions for teh gey and marriage for normal people is inherently unequal.
If we lived in a world where the legal term was civil union and the social term was marriage (but since it is a social term and not a legal term there would be no one to police who got to use it) then we would be all right.
I think that this would be a good idea because I firmly believe that there is a sliver of support for prop-8 that boiled down to nothing more than "I don't want the government to tell me or my kids that gaymarriage is marriage" and that that sliver was the difference between success and failure.
But there are other people who believe that "We need marriage or nothing!" How's that working out?
Some say "wait, the demographics will fix this in time." I hope that they are right.
@torrentprime:
Not to short-circuit any of the "symbol vs tangible" discussion, but the underlying reality is that civil unions aren't equal. Even leaving aside the "separate but equal" realities, it's my understanding that (e.g.) private companies can restrict benefits to spouses and not offer benefits to civil partners.
This is not the case in California. And when companies try to do this, they get slapped down by a large body of case law.
Similarly, in states which recognize it, there is no difference between common-law marriage and a religious or civil marriage.
No it isn't, its democracy, its our system, and its perfectly legal. That is the reason the Cal SC voted 6 – 1. Everything else you said is just BS pap designed to tell everyone who doesn't agree with your take why they should just shut up and let people who agree with you rule the world.
You are no different then the true believer right.
However, the Constitution, even if changed, cannot revoke certain established principles.
Actually, yes it can. But nice try to pull some authoritarian principle out of your butt. If the citizens of this country get together and properly amended the US Constitution to decree that the country is to hang a virgin from a lamppost every day from now to the end of time it would be perfectly constitutional to do so. The Supreme Court does not write law, they interpret it, and if the legislature/people do not like it then they are well within their rights to change it.
No, because that violates the US Constitution. But if both the US and state constitutions were amended to read that way, then, yes, they'd have no choice but to consider that the law.
@92: it's more of a thought exercise than anything. Of course, with a little google powered research, I find that the Supreme Court has already held it to be non-justiciable in Luther v. Borden 48 US 1
My personal take on this whole issue, is that the word marriage is the problem and not the union itself. A civil union recognized by the state with the same rights as a married couple should be accepted. The word marriage began as a religious construct, with a religious ceremony and really doesn't mean shit when you think about it. It's just a traditional social more.
If I were a lesbian who wanted to be legally bonded with another lesbian, I would want the state to recognize the union (so long as the legal rights conferred were equal to marriage), and I couldn't care less about whether the religious communities recognized that union or not. The religious communities will always protest same sex marriage because they seem to think their bibles direct them too, and that will never change.
Personally, for me, the line of defense should be drawn at making sure all rights of the bond itself are equal, not on the name symbol of the type of bond.
Obama would NOT have voted for Prop 8. He clearly stated that. He may personally believe that marriage is between a man and a woman, but he thinks it would be discrimination to encode that into the law.
Of course, he was pandering for votes in San Francisco when he wrote that. Up until then, he was all for such "discrimination."
You may be right on him not voting for Prop 8 though. My guess is he would've voted "present."
@Little Dreamer: "The word marriage began as a religious construct, with a religious ceremony"
It's hard to say much about how these things "began", because the boundaries between religious stuff and everything else were pretty blurry for much of human history. But you're mistaken if you think that marriage was definitely invented within the sphere of organized religion, or that marriage as a simple civil arrangement is a recent thing. Others will probably be chiming in soon with the links, otherwise I'll try to dig up something, but basically this is one of those things like burying the dead: many societies have built up religious significance around it and tried to define the acceptable way to do it, but people have been doing it forever in some form regardless.
gwangung
It's a very stupid and ill-informed guess. But considering the source, we should be grateful for the progress…
Actually, yes it can. But nice try to pull some authoritarian principle out of your butt. If the citizens of this country get together and properly amended the US Constitution to decree that the country is to hang a virgin from a lamppost every day from now to the end of time it would be perfectly constitutional to do so.
Bullshit. It takes some heavy duty theoretical fairy dust to suggest that the will of the people could sanction hanging women or otherwise revoking core principles of the Constitution itself. This is kinda like arguing that the people could amend the Constitution to permit a pemanent dictatorship of the proletariat.
But thanks for proving my point that the decision of the California Supreme Court has led some to believe that mob rule can become acceptable if you can utter the magic words, "it's now constitutional."
I filed single in 2006 because there was no provision for filing jointly as a domestic partner, only as a spouse. Despte the fact that CA doesn't tax my wife's health benefits through my job, the IRS does, so my adjusted gross income is higher for the feds than for the state. Because those two numbers are different, I'm getting hounded by the Franchise Tax Board for back taxes from that year. I wouldn't have to spend time digging through paperwork and making copies to prove that I was right if there were no difference between the way DPs are treated and the way marriage is treated–yes, even in CA.
Jay C
@Brachiator (#93):
I think your comment:
may be just a bit misinterpreted. While silver-lining detection is usually as waste of time when bad news hits (and JFTR, "constitutionality" issues aside, I can't see much beyond an undeserved victory for bigotry in this decision) – check out this diary at Daily Kos .
According to this diarist, the Calif. SC may have allowed a changed definition of "marriage" into the State Constitution, but pointedly declined to go much further; stating (apparently) that the equal-protection rights decided in 2008's Marriage Cases decision were still valid. IOW, by this interpretation, the Prop 8 "victory" is pretty much a semantic, rather than a substantive one, as it leaves intact the equal rights of (all) Californians to the rights and appurtenances of marriage – unfortunately, gay couples can no longer legally term their unions as such (legally – in real life, they can call it whatever they want).
About the "it wasn't retroactive" thing– I thought I understood the point several commenters are making here, but then I looked at the wording of Prop 8 again and I no longer understand.
It doesn't say "Only a man and a woman can get married in California." It says "Only marriage between a man and a woman is valid or recognized in California."
If it were the former, then I could see how you could rationalize keeping the pre-8 marriages and not allowing any new ones to happen. But this seems to say that the state of marriage is only "valid or recognized" for opposite-sex couples. So how can the lucky 18,000 possibly not be out of luck the first time they try to use any of the legal benefits accorded to marriage? Wouldn't the state be able to say "Yes, you have the certificate, but we don't recognize it because you're not a man and a woman"?
Isn't it analogous to the government redefining, say, the defining statutes for tax-exempt organizations? Sure, your non-profit filed for tax-exempt status in the past and it was granted, but that doesn't mean you can hold onto that status till the end of time if they change the rules.
IANAL, but this seems like a meaningless compromise that doesn't even grant the arbitrary protection that they're saying it does– even though if it did, it would still be unfair.
Anyway… this morning, my opposite-sex sweetheart and I both heaved a sigh and agreed that we won't tie the knot legally till Prop 8 is undone. As a symbolic gesture of solidarity, this may be pretty useless… but if we can somehow harness the power of my anxious would-be in-laws, then victory is certain.
Brandon T
I just had no fewer than 10 people I talked to today say what a great thing it is that in California regular people can write legislation or amend the constitution, and that we respect the majority vote. A couple said things to the effect of: requiring 2/3 vote to pass an amendment would be like if we said Obama's 52% of the vote wasn't good enough.
::bangs head on desk::
California is doomed.
Bob In Pacifica
Justice Moreno's dissenting opinion here:
http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF?tsp=1
starting at page 151 essentially says that the majority opinion of the California Supreme Court has gutted the state's equal protection clause and given an opening for discriminatory legislation against formerly protected groups.
Does this mean that California law can supercede federal protections? No, not after you spend a few million dollars and a decade trying to get your case heard in front of the SCOTUS, if you do. And if the amendment to the state constitution is crafted carefully enough or covers an area not covered by federal law, then bend over, here it comes again.
If you believe Justice Moreno, as bad as this decision is to gay marriage, it has established the precedent for something a lot worse.
"[T]he 'absolute equality of all' persons before the law [is] 'the very foundation principle of our government.' " (Varnum v. Brien (Iowa 2009) 763 N.W.2d 862, 877.)
@Darkrose:
I filed single in 2006 because there was no provision for filing jointly as a domestic partner, only as a spouse. … I wouldn't have to spend time digging through paperwork and making copies to prove that I was right if there were no difference between the way DPs are treated and the way marriage is treated—yes, even in CA.
Federal/state tax differences are a different tangle entirely. I have consistently said in all my posts that for California tax purposes, registered domestic partners are treated the same as married couples. But because the feds don't recognize DPs or gay marriage, there are often cases where you have to take federal law into consideration on a state tax return.
But this is also a problem for those 18,000 gays whose marriages are recognized by the state. It's got nothing to do with DP/married couple distinctions.
According to this diarist, the Calif. SC may have allowed a changed definition of "marriage" into the State Constitution, but pointedly declined to go much further; stating (apparently) that the equal-protection rights decided in 2008's Marriage Cases decision were still valid.
I haven't had a chance to read the actual decision yet (and I am a glutton for punishment). But I fail to see how this is a meaningful distinction. What practical relief does this quibble provide to gay people?
Mouse Tolliver
Via Aravosis, an interesting footnote in today's ruling…
48 We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time. None of the petitioners before us in these cases falls within this category, and in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings.
Can't wait to see what happens when a same sex married couple from another state or country moves to California. And fuck the CA supreme court. From now on every couple in a civil union or domestic partnership should simply start calling it marriage.
geg6
I can't do links on the Crackberry, but I gotta chime in here because I'm seeing a lot of ignorance here about the history of marriage and someone needs to bring some facts. Marriage, as we know it, is a fairly recent social construct. While we often read of ancient "marriages," the only ones that would be recognizable as similar to modern "marriage" would be the ones among the titled classes. Only they had it legally recorded through a contract and they were usually the only ones who solemnized the contract through a religious ceremony. The contract is where our civil marriage began and the religious ceremony evolved from the fact that religion was often a branch of the government and was a place where contracts were sealed. It is only in more modern times that couples of all socioeconomic groups participated in formalizing their relationships both civilly and religiously and that governments involved themselves in marriage at all, other than upholding actual individual marriage contracts. Until that switch, most marriages were simply two people who chose to call themselves married and there was no formalizing of it at all.
…that religion was the driving force for marriages to be utilized.
Certainly not always, and not everywhere. Except for a tiny wedge at the top who kept the custom of confarreate marriage alive, Roman marriage was non-religious, whether marriage by coemptio involving a mock sale, or by usus cum aut sine manu simply involving a year's (un)interrupted cohabitation. The first entailed a ceremony, but not a religious one, the second one, only whatever festivities the parties agreed on. Getting dowry and other property rights squared away were of far greater concern.
Zuzu's Petals
Well, two things. One is that separate but equal doesn't apply here, and the constant LGBT assertion that it does does not convince otherwise. SBE was about physical separation, physical discrimination, and physical degradation. It was not symbolic. It was about separate buildings and separate Americas in profound ways. There is no legitimate comparison here. Nobody in this forum will agree, because it's not PC to say so, but that's a fact. There is no real comparison between the black-white civil rights struggle and the gay marriage contest. Some people are just determined to make that connection to plump up the sympathy for their cause. It's an insult to those who fought for 200 years for civil rights to equate gay marriage with that, AFAIC.
Actually, the Calif. Supreme Court did find the "separate but equal" distinction applied to gay marriage and domestic partnerships, in its original holding on the issue:
Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation,realistically must be viewed as constituting significantly unequal treatment to same-sex couples. In this regard, plaintiffs persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state's creation of a separate law school for Black students rather than granting such students
access to the University of Texas Law School (Sweatt v. Painter (1950) 339 U.S. 629, 634), and a state's founding of a separate military program for women rather than admitting women to the Virginia Military Institute (United States v.Virginia (1996) 518 U.S. 515, 555-556). As plaintiffs maintain, these high courtdecisions demonstrate that even when the state grants ostensibly equal benefits to a previously excluded class through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant.
BDeevDad
Since the 18,000 are grandfathered in, does that mean a marriage performed in Massachusetts before November 2008 would also be recognized in California? What about marriages performed after November in another state since the Supreme Court basically said they cannot annul a legal marriage?
Chuck Butcher
My wife and I didn't consult any religious entity about squat and the State of Oregon married us and so it is a marriage. 'll be damned if I'll cede the word to the American Taliban so you advocates of CUs for all can kiss my ass. WTF should I back up? I cannot see a single good reason gays cannot get married and the American Taliban can kiss my ass on that one also.
All that said, the opponents of M8 in CA should have seen the tactics and money from a long ways off and they didn't an pooched it bad. I hope to hell they've learned something, they could have looked north to OR and seen that playbook in action. I'm ashamed of my State's vote but everyone should have learned something from it.
Mayken
@InflatableCommenter: Um… well, actually some of us are pagans. Just thought you should know. ;-)
Tattoosydney
@Chuck Butcher:
Chuck – you often make me smile, but this:
was truly wonderful. Thanks.
Chuck, I am a former notary public (I moved out of the state where my notary status was certified and have never applied in this new state) and I had the right to perform marriage ceremonies. While civil ceremonies exist, that has nothing to do with the fact that marriage has traditionally been a religious ceremony with a Bible (in fact, many people who perform civil marriages use Bibles in the service as well). Traditional marriages were religious ceremonies, there is no way of getting around that.
Was a Bible utilized in your civil service?
Not that I'm stating that's how it should be, I don't believe it is, but there it is. I wish you and your wife all the best.
grumpy realist
Actually, courts (even Californian ones) like to interpret legislation as it is written, not try to fix the problems with it. Sometimes it's awfully frustrating reading all this learned argumentation about the exact "intent" the original legislators had when the statute was obviously thrown together at the last minute by some incoherent lazy-minded politicians who didn't even think of the possible problems with their "feel-good" law.
The Supreme Court of California made its judgment based on the Constitution of California and extant case law. The fact that the whole result is extremely incoherent and leaves a whole mess of 14th Amendment/application questions isn't the fault of the judges; it's the fault of the citizens of California, who didn't think of the ramifications. Very much like the SCOTUS's Kelo decision: the decision actually stated quite clearly that if states didn't like what the existing laws led the SCOTUS to decide, then they should fix them at the state level. (Result: a whole flurry of anti-Kelo legislation)
Here, the SC of California is simply making the silliness of this latest amendment to the California Constitution very very clear to everyone.


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To serve as online platform whereby scientist, researchers, students, professionals, individuals and organization share their knowledge, skills an experience among each other aimed at advancing science and technology in Africa.
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To influence Policy environment in African by presenting credible and convincing evidences that advance in science and technology is a key to solve the multiple challenges facing Africa and brings about sustainable development of the continent so that African governments will be encouraged to increase investment in education, research and science and technology.
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