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Gay Marriage: In striking it down it shall become more powerful than you can imagine
moniker
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Since the other thread is past the 100 mark and was turning stupid I figure a new thread to discuss Marriage Equality and the recent decision by the California Supreme Court upholding Prop 8 is warranted. Also, Star Wars references are better than Mortal Kombat references.
The actual text of the ruling is available here.
I don't really understand how a simple majority is allowed to "carve out a narrow exception to these state constitutional rights" and figure that this will be a major facet of any further legal challenge on the Federal side with regards to the 14th amendment right of Equal Protection under the Law. Of course that assumes Roberts grows a pair and actually accepts a case on the matter which isn't very likely. So worst case scenario is another referendum in California's insane Constitutional system of propositions with their god given right to go fishing &c. Given how close things were in '08 with a mere 3 point margin things look good. Particularly considering how horrible the Equal Rights Campaign side was at campaigning for equal rights. I mean, seriously, a hamster with downs syndrome could have come up with some better election strategies, not to mention commercials. Anyway, discuss.
The actual text of the ruling is available here.
Emphasis added.Reporting from San Francisco -- The California Supreme Court today upheld Proposition 8's ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.
The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.
Although the court split 6-1 on the constitutionality of Proposition 8, the justices were unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who exchanged vows before the election. The marriages began last June, after a 4-3 state high court ruling striking down the marriage ban last May.
Justice Ronald M. George, writing for the majority, said Proposition 8 did "not entirely repeal or abrogate" same-sex couples' right to privacy and due process or the "constitutional right of same-sex couples to 'choose one's life partner and enter with that person into a committed, officially recognized, and protected family relationship.'
"Instead, the measure carves out a narrow and limited exception to these state constitutional rights."
In an allusion to the state's domestic partners law, George noted that Proposition 8 left undisturbed "all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection under the laws."
I don't really understand how a simple majority is allowed to "carve out a narrow exception to these state constitutional rights" and figure that this will be a major facet of any further legal challenge on the Federal side with regards to the 14th amendment right of Equal Protection under the Law. Of course that assumes Roberts grows a pair and actually accepts a case on the matter which isn't very likely. So worst case scenario is another referendum in California's insane Constitutional system of propositions with their god given right to go fishing &c. Given how close things were in '08 with a mere 3 point margin things look good. Particularly considering how horrible the Equal Rights Campaign side was at campaigning for equal rights. I mean, seriously, a hamster with downs syndrome could have come up with some better election strategies, not to mention commercials. Anyway, discuss.
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goddamned scalito
The answer is: California's Constitution is a moronic mess.
Also, to simplify the decision as far as I understand it, Basically Same Sex couples can get duly recognized partnerships with all the rights of marriages, they simply can't call it marriage in a legal sense, except those who are already married it is legally called marriage.
On the other hand, when a mayor says, "hey, marry the gays!" it's very easy to rally people to the cause of homophobia and bigotry. Since the California constitution is ridiculous and easy to change by a simple majority, the reaction should have been expected.
Enter the General Election. Most people simply focus on Obama and many of the pro-gay marriage rally's turn out to be little more than parties. I know several people who went to them as such, the groups hosting them were more interested in a gay time (ha!ha!) than actually making a difference.
Enter all of southern California's Catholic population bolstered by millions from Utah, a very religious organized bunch who are homophobes manages to get the 51% required to pass a constitutional amendment. Everyone simply assumes the courts wont let it stand.
The court rules on the legality of it, not the implementation of it. There's really only one way they can answer, yes indeed the constitution now makes it legal to deny gays the right to marry. It's not really right, but no one on the pro-gay marriage did things right in the first place.
I live in the Bay Area, people here are generally in their own fucking crazy bubble. Most of the time, they assume all of California is just like them and are totally tolerant of other views, as long as they happen to be the exact same they hold. They dropped the ball initially and never seemed to care otherwise.
I hope that prop-8 doesn't stick around for long, and I do hope they put it on the next ballot, but it shows something fairly important... organization and foresight will win as long as people function on the assumption that no one out there could possibly be that crazy.
I think Prop 8 was without a doubt the wrong decision.
But breaking down the idea of democracy would've been a horrible idea.
I don't want to see any restriction on gay rights, I can't understand anyone who has anything against it, even though I try to, but man, throwing democracy out the window is also bad idea.
Really this makes me respect the california courts while continuing to have very little respect for what apparently are the majority of the californian citizenry.
I'm pretty sure that can't happen. The California constitution may as well have the fine print of a cell phone contract. Pretty much everything on it will always be subject to change unless it's an established right that's being taken away against the spirit of protection of rights. I mean... they attach fucking budget planning every year to the damn thing.
Yes, because the citizens of California voted on what can be considered a new issue that was not previously ruled a constitutional right. You can complain about the process all you want, and you'd be right to... but the court did the right thing.
The whole idea behind American Democracy is Majority Rule with Minority Rights. The decision today just eliminated that last part and said to go at it with a Tyranny of the Majority. Fuck those homoqueers. If anything I'd say that the decision today broke down the idea of Democracy further than if they had ruled that Prop-8 constituted a Revision and was thus invalidated. As thing stand a majority of the populace in California are now legally capable of undoing any Democratically made decision previously ensuring that majority rule is not sacrosanct.
Was there anything in Prop 8 being put into law that made it an invalid law? It was put to vote by the people, and the people decided to pass it. I don't see how saying "Well... that was stupid so fuck the voice of the people" would be ok.
Which is why he's saying you guys need to have a new Convention and rewrite the damn thing. I mean it isn't like its unprecedented. The Illinois Constitution is our 3rd and not even half a century old. And it replaced a document that still actually made sense, unlike your Kafkaesque horror.
Yes, it removed the equal protection clause from a particular group of individuals. Or, removed a particular group from being covered by the equal protection clause, that is.
Just don't stare directly at it or recite it aloud, it feeds on the souls of the curious and can open rifts between dimensions.
The case result today though would note that they're not being denied the right to the institution of marriage (being defined as the arrangement that is traditionally associated with all the rights and benefits of what one calls 'marriage') by Proposition 8, only that the name marriage is reserved to a particular group. As such, I'm not sure how Equal Protection would apply. The judges were very meticulous in examining the (rather short) language of Proposition 8 and noting that it was simply a semantic name-withholding.
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it all comes down to whether or not you think marriage is a civil right
if you don't, then prop 8 isn't doing wrong or unconstitutional
if you do, then prop 8 is akin to something like having a vote on whether or not slavery is cool again, aka a flagrant violation of the constitution
For one thing, I found the argument that it's a revision, not an amendment, and thus needed a substantially higher threshold to pass fairly convincing. It's not always as simple as "lol people voted for it now it's law".
I hate this post, because it means the only legit way to undo this terrible terrible prop 8 bullshit is through another vote.
California did democracy right for the wrong fucking reason. This is twisted shit.
They just did it in the most stupid way imaginable where basically everything is up to a referendum. That may work at PTA meetings, but not for the most populous state. Hell, it'd still suck for the least populous State. Personally I kind of like how Nebraska is setup with a unicameral 'nonpartisan' legislature.
I agree.
I think it's stupid shit. I think it should never have been brought to a vote. I think anyone who voted to support it is a horrible wrong bigot and needs to get a handle on reality and realize that they are holding back humanity and America. The sort of person who would support Prop 8 is the sort of person I want nothing to do with. They are wrong and the Prop 8 is wrong. Marriage should be available to everyone. The idea that giving civil "marriage" benefits without calling it marriage is stupid shit, because it still implies that Gay love is something different than Straight love and allows for the restrictions on gays too easily.
But whether refusing the term marriage, while still providing the ability for the civil benefits is unconstitutional is not the strongest and clearest argument, it was ruled to be a revision, not an amendment, and was voted on and passed. It's sick and stupid, but I don't think saying "Hey, looks like the majority of people here are hateful bigots... so fuck what they decided through the democratic system" certainly isn't constitutional.
No it was ruled as not to qualify as a revision when carving out a niche in an already existing Constitutional Right which is basically the cornerstone in ensuring minority rights. The CSCOTUS disagreed, but I still feel they were wrong and are eroding a bulwark against tyranny of the majority by letting an amendment alter such a basic right as equal protection.
So... seperate, but equal?
That said, it is my understanding that California recognizes a difference between constitutional amendments and constitutional revisions. In the original court case, the California Supreme Court found for gay marriage on the grounds of the state constitution's equal protection clause. It is unclear to me how Prop. 8 can alter such an essential principle as the equal protection clause without being considered a revision, but there must be some kind of criterion a revision must meet to be considered such. Since the decision wasn't even close (6-1), I can only conclude that Prop. 8 fails to meet the definition of constitutional revision for some reason.
Oh fuck it's the 50's all over again. When do we start sitting in churches and drive-thru wedding chapels in Vegas to protest?
Edit - Y'know the moment I hit submit I thought, "this is dumb."
Yea, I keep reading over the relevant articles and this ruling's insistence on the designation to just changing the name seems to parallel those arguments rather starkly.
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Not with a simple majority vote, though. Which is the point. Allowing 51% of the country to say that "everyone deserves equal protection and rights! ...except for gays" is mind boggling. It's like letting the Protestant majority change the First Amendment to say 'the Free Exercise of Religion (unless you're a Catholic; then you can sit and spin.)' I realize I am not a lawyer, or a judge, but you'd figure that somebody who is would be able to explain this decision better to the LA Times.
Californians are entitled to any shitty constitutional procedure they see fit. It's not for the court to say California's scheme is good or bad.
The court sidestepped the issue by noting that because Prop 8 has no substantive effect on equal protection (by them noting it doesn't affect the decision of In re Marriage Cases), there was thus no need to determine whether it was a revision (since a revision would have to substantively alter something).
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That strikes me as surprisingly sleazy reasoning considering this is the same court that ruled for gay marriage in the first place.
It is for the Court to say whether or not a Constitutional Amendment can Revise the Equal Protection Clause so that it now ignores gays.
I'm not sure I follow exactly. Sleazy reasoning in what way?
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I'd say it's more skeazy. And its the reason why I just don't get this ruling. Then again, as an Illinoisan, I suppose it isn't for me.
There are still 18,000 married homosexuals in California. One would think that a subsequent ratio of children are imperiled. Not to mention God's slightly more subdued wrath that shall still nonetheless persist in...continuing what it's been doing to California since forever.
I mean, seriously, you guys have seasonal fires, followed by seasonal floods, followed by seasonal landslides. Not to mention the devastating earthquake every now and again. I don't know what you did to piss in God's eye, but it's been happening since long before 'Frisco was ringed with leather bars.
I guess this gay marriage thing was something foreseen!
Now I'm not an extremist, so I'll allow we can't know that for sure. Maybe it's all that porn you guys are making, maybe it was taking god out of the schools, who knows. I'm just saying gays are gross.
I heard the mayor of San Francisco on Anderson Cooper tonight on the drive home and he brought up all the significant points that have been making the rounds of these threads- separate but equal, Loving v. Virginia, and so on- and he all but said that this issue is going to be on the ballot again in 2010, and every two years until it passes. I think it has a good chance in 2010, a very good chance in 2012, and all but certain by 2014.
I'm of the opinion that people who support civil unions are 90% of the way to supporting gay marriage, they just haven't heard the separate-but-equal argument yet.
I've given people that argument. Doesn't sway them.
Wish it would, though.