Oh my fucking God, yay! It’s so nice to have GOOD news!
From the San Jose Mercury News:
A sharply divided California Supreme Court today legalized same-sex marriage, a historic ruling that will allow gay and lesbian couples across the state to wed as soon as next month and inflame the social, political and moral debate over gay unions.
In a 4-3 ruling written by Chief Justice Ronald George, the Supreme Court struck down California laws that restrict marriage to heterosexual couples, finding that it is unconstitutional to deprive gays and lesbians of the equal right to walk down the aisle with a marriage license in hand.
The California and Massachusetts Supreme Courts are now the only top courts in the country to uphold the right of gay couples to marry.
“The California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples,” the court observed in a 121-page decision.
The reaction was immediate.
A spokesman for San Francisco Mayor Gavin Newsom sent a simple e-mail to his press staff: “We won.”
When the news was signaled to the more than 100 people gathered on the steps outside the federal courthouse in San Francisco by a thumbs up, they let out whoops of joy, and some broke out in tears.
From the ruling written by Chief Justice Ronald George: “Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and more generally, that an individual’s sexual orientation like a person’s race or gender does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental consitutional right to form a family relationship, the California constitution properly must be interpreted to guarantee this basic civil right to all Californians whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.”
Mildred Loving would be happy today.
UPDATE: a few more choice bits from the ruling, as selected by my fiance.
“One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignityand respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution. […]
First, the exclusion of same-sex couples from the designation of marriage clearly is not order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.
Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.
Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.
Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest.
Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
Thank fucking god. This is deserved and wonderful and it just couldn’t possibly make me happier.
Plus, in a purely political sense, watching the right throw a temper tantrum about this should be entertaining.
—Myca, doing the happy dance.
Yay indeed. Make that YAY!!!! You’re so right, Mandolin, it’s great to have good news for once.
Yay! In somewhat good but not that good news, New York’s court has declared that NY must recognize same sex marriages from other states and countries so while you can’t marry your same sex partner in NY if you marry them in Canada the marriage is legal here.
Yippee! Hurray for my state, hurray for my city, and hurray for humanity!!!
And I agree with Myca about watching the right’s temper tantrum. I do not think we have reached the point where the right’s temper tantrum will lead to a backlash from those in the middle, but I do think we are at the point where those in the middle just frankly do not care much about gay marriage anymore, and so the right will simply waste a lot of time and energy yelling about this.
Agreed, Decnavda. Furthermore, I’m just waiting for the chorus of, “I’m no bigot, but . . . *insert obscure philosophical justification for why opposing SSM is just peachy and not at all abhorrent to human dignity*.”
Throw a temper tantrum? Never. I’m positive the responses to this from the right will be measured and restrained, and in no way hyperbolic.
From “The Campaign For Children and Families”:
Ouch. It’s like watching someone shoot himself in the foot with a howitzer.
It’ll be interesting to hear what the candidates have to say about this. I doubt they’ll be able to duck commenting on it.
Actually, while I’m sure that there will be those who will cavil unproductively against this, serious opponents to this in California will probably set to work on amending the California State Constitution. Since there’s little hope of getting 2/3 of the members of the California State Legislature’s houses to vote to do so it would have to be done by initiative. In California that currently requires 157,686 valid signatures (8% of the votes cast in the last Gubernatorial election) to get it on the ballot followed by a bare affirmative majority in the election. This didn’t happen in Massachusetts because it has no provision for amending the State Constitution independently of the legislature, a flaw when you compare it to other State and the Federal Constitutions. It would have to be submitted to the California Secretary of State 131 days prior to the November Election, which would be June 25th. I doubt there’s time to do that, unless some organization has been planning ahead.
Well, shit, that’s GREAT news!
Well, it’s not like those against gay marriages may not have seen this coming. If you’re from California, beware this November b/c Prop. 22 is returning, this time as a constitutional amendment for the state. It was paired in signature gathering with yet another revisit of parental notification for minors and both made it on the ballot this fall. The signature checking is still ongoing but it’s probably going to be up for the vote.
More on California Marriage Protection Act
Chief Justice Ronald George targeted in reelection
Yay!
This may be the first year I don’t vote as a California resident. :(
Whoops – that would be 353,760 signatures needed. But from Radfem I see that they’re already on the case.
sweet! so proud of my state!
Unsurprising. Hateful bigots never sleep.
I suspect they’ll have a harder time of it this time around, though, since marriages will begin officially and legally 30 days from now . . . which means that if the CA constitution is amended, we’ll suddenly have the problem of thousands of married couples who we’re forcibly divorcing.
—Myca
It’s a good day in my opinion but I’ve learned in the golden state to always be vigiliant.
::applauds::
As far as I can tell, there are no arguments against same-sex marriage that cannot also be applied to forbid either the marriage of interracial opposite sex couples, infertile opposite sex couples, or both.
Interestingly enough, when the U.S. Supreme Court struck down laws forbidding interracial marriage, a greater percentage of the population was opposed to interracial marriage then than is opposed to same-sex marriage now. (You probably know this already, though.)
Yippie.
And now a Random Moment from History:
The US Supreme Court refrained from rendering the Brown v. Bd. of Education decision until after the elections of 1952. (The death of Chief Justice Vinson further delayed the decision until 1954.) It is widely presumed that the Justices realized that the public could better marshal reasoned, dispassionate, deliberate consideration outside the polarizing context of a political season. Evidence suggests that the court was prescient. Segregationist candidates swept the South in 1955, and at least three blacks – including Emmett Till – would meet a violent end in the ensuing tension. But the public would have to wait a little longer before trying to exploit the issue for political gain in the 1956 presidential election. And by that time segregationists had already overplayed their hand, forcing the Republican President Eisenhower to send in troops to enforce the decision in Little Rock. Therefore there was no candidate to which the segregationists could appeal.
Thanks for listening to this Random Moment from History, brought to you by the People Pulling Their Hair Out Over Random Shit that Determines the Outcomes of Elections (PPHOORSDOE). As PPHOORSDOE say, “God Damn It, What Now?”
So, how will today’s decision affect the current election campaigns? Hard to say. The Religious Right has been pretty demoralized of late. I have a strong suspicion that they’re gonna feel moralized again, and will strive to make the election a referendum on homosexuality. While that will bring out votes and dollars for both sides, conventional wisdom says that it favors the Republicans.
But conventional wisdom can be wrong. Bush won in 2000 by energizing religious conservatives without scaring the middle – not a bad trick, if you can do it. I doubt McCain can do it, in no small part because Bush poisoned the well. By stigmatizing the word “Christian” in the minds of swing voters (and much of the rest of the world), Bush has almost guaranteed that anyone who attracts too much enthusiastic support from the Religious Right will scare away the middle.
Bottom line: By raising the profile of the Same Sex Marriage issue, the California Court will likely energize the Religious Right. This will mean that McCain will win Southern states by a wider margin than he otherwise would have. But that fact produces no change in the Electoral College vote. Assuming we now hear a lot of raving religious radicals filling the airwaves about the need to support McCain (and assuming we don’t hear a corresponding increase in raving lefty radicals – which we almost never do), this may undermine McCain’s appeal with moderates. And if McCain can’t win both the base and the moderates, he can’t win Ohio and Florida. And therefore can’t win the election.
This decision might also produce the salutary effect of getting the Religious Right bound up with the doomed McCain campaign. Up until now, the Religious Right has been sitting this one out, resigned to the fact that Republicans will get spanked this election cycle. And when the inevitable occurs, the Religious Right would claim that the loss was a result of picking an excessively moderate candidate. “We told you that you needed Huckabee, but did you listen? Now see what a mess you’ve made of things!” This would ultimately deepen their grip on the Republican Party. But if we can get the Religious Right to climb aboard the McCain Straight-Talk Express, they can all go over the cliff together.
That’s my best analysis based on 30 minutes consideration, anyway….
So are all people who ever married in CA now legally married there, even if their union wasn’t legal at the time? That is, is this ruling retroactive to all the marriages the mayor did and so forth? I’ve got some wedding presents to send out…
I think the couples have to remarry to make it valid. The L.A. clerk’s office was inundated with phone calls but they have to come out with guidelines. Also, there might be a court injunction filed by opponants to put a stay on the decision until after the November election.
This demolishes the various “undermines marriage” arguments put forward by opponents.
Recognises that dignity is at the heart of this, and that failing to dignify same-sex partnerships as “marriage” cause cognisable harm.
I’m only on page 12 of the ruling, but already it’s looking like a damn good one. Dianne will be wondering why, as a Brit, I give a flying fig.
I wonder how many people could drink a glass of water while this guy says this.
As far as I can tell, there are no arguments against same-sex marriage that already haven’t been applied to miscegenation decades back. These include subtler ones, mind you, not just the shamelessly bigoted ones. Such as, the idea that marriage is a social institution, not a civil one, and that it should remain outside the reach of politics. Or that it opens up a slippery slope whereby we have no argument against bestiality*, with the inescapable implication that interracial relationships or homosexuality are themselves perversions.
There are also no anti-sex arguments against modern culture that haven’t already been used against ballet, the waltz, or bloomers. Puritan prudes’ greatest enemies are themselves, ninety years ago.
nobody.really, you may be right, but even if it means Democrats have a harder time in the fall, I’d happily accept that. Democrats in power is a means to an end, after all, not an end in itself.
*You may be wondering why I count this as “subtle”, despite the reference to animal love. Well, I guess the reason is that they are not explicitly saying homosexuality is wrong, just soberly warning of the cost/benefit ratios of treating them like human beings.
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On the signatures, 1.1 million needed
The state said 694,354 valid signatures are needed by June 26. In other news, a couple I know is getting married.
It will be 30 days before the decision takes effect. There’s no way for opponents to get an injunction; this is California’s highest court, so there’s no “please don’t put this law into effect because we’re appealing it” that would support an injunction.
Finally, a state with reasonable weather (TO ME — do not tell me MA has reasonable weather, because it is not reasonable TO ME to ever be frozen solid) has same sex marriage.
Now, if they just had a reasonable cost of living …
FCH, the Cost of living in cali isn’t bad if you stay out of big cities.
They’re not appealing the case. They want a stay until after November’s election when the state’s Marriage Protection Act is on the ballot and it passes or it doesn’t.
1. They can’t appeal the case. It’s the highest state court. Since it was decided only under state law, there’s no federal question for a federal court to consider.
2. There’s no basis for an injunction based on “but we might get an initiative on the ballot”.
3. The Court directed the State of CA to instruct county clerks to prepare to follow the law.
I hope you’re right. Liberty Counsel is certainly going to try within the next 30 days as is Protect Marriage with a couple different legal arguments. I’m not sure about any others but will keep ear to the ground. Hopefully, the court will deny them.
Yes, L.A. County and several other S.C. counties have already notified individuals who have been calling that it will take some time to lay out the guidelines to follow. Most of the phone calls in my county have been the desert communities. There’s also been people calling from out of state, according to the clerks’ offices.
About all they can really do at this point is to file a motion for reconsideration, perhaps, which is asking the court for a do-over. Won’t happen. They don’t have grounds for an injunction. That’s why the haters are so upset: there’s nowhere left go to, no appeal, no way to stall.
Dianne:
From what I understand of the ruling, the judges decided that it was unconstitutional for the state to use one term to describe a partnership between heterosexuals, and another to describe one between homosexuals, even though it gives substantially the same benefits to both. That means that every arrangement currently recognised by the state as a “domestic partnership” between gays must be dignified by the word “marriage”.
There are two other logical possibilities: The State could abandon the word marriage outright. Or the State could invalidate all currently recognised gay partnerships. The first is probably a political impossibility. The second would surely be found unconstitutional.
Daran writes:
The whole point of putting something in the Constitution is making that action constitutional. The CA Supreme Court might have thought they were doing lesbians and gays a favor, but forcing the Religious Wrong into a corner and getting it to try for a constitutional ban was not a favor.
I think there will likely be one of two outcomes — the RW wins and getting that amendment off the books takes years to achieve, or people see how mean-spirited and bigotted they are and this marks a turning point in the battle against lesbian and gay couples.
FurryCatHerder:
I wasn’t talking about the posibility of a constitutional change, merely addressing Dianne’s question about the legal effect of this ruling.
From what I can see, the CASC didn’t take whether they were doing anyone a favour into consideration They just applied the law. However, your point about forcing the RRW into a corner is well made. I’ve been having second thoughts about this ruling myself, on similar grounds. In this judgment, supporters of gay marriage won a word. Opponents lost everything. They have nothing left to lose, which makes them dangerous.
Conceding a symbolic victory (the word) to the RRW, while keeping the substantive benefits of equality (in the form of substantively equal treatment by the State of het marriage and gay domestic partnership) might have been better strategically for the gay community.
History shows that the latter is certainly possible. Let’s hope for it.
I don’t know what the “community” had to do with the ruling. Do the judges know a lot of activists personally?
If indeed people will be married for months before it can come to a vote, that gives them a good chance of retaining marriage rights.
hf write:
I’d like to think that judges consider the needs and benefits of people, especially oppressed peoples, when making rulings. Justice should be blind, but not stupid. The only hope, given the number of states that have such amendments, is to get the 14th Amendment to be read in such a way that the language —
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
applies to lesbians as gays, as well as to rule that all of these amendments are inseparably tainted with religious motivations and therefore violate the 1st Amendment.
It gives them no such thing, if the amendment is crafted the way it likely will be crafted. Recall that the laws in Ohio are so strong that even cohabitating straight couples were stripped of their rights under the law.
The current text of the ballot initiative reads —
SECTION I. Title
This measure shall be known and may be cited as the “California Marriage Protection Act.”
SECTION 2. Article I. Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
The effect of that amendment would be instantly “unmarrying” all same sex couples in California.
Given that the ballot measure proposed in California is not the ballot measure from Ohio, I don’t see any way in which this court decision can make things worse for gay and lesbian couples in California. California had two laws on its books forbidding marriage for gay and lesbian couples, and had laws on its books providing for [not quite marriage by another name]. The state supreme court ruled that the laws forbidding marriage are unconstitutional, so now marriage will be made available to same sex couples. If the ballot measure passes in the fall, then those marriages will only be legally recognized for a short time before things return to the status quo of last month. If the ballot measure fails, then California becomes a state with marriage equality.
There is no route to marriage equality in California that will be successful so long as the majority of Californian voters are opposed to marriage equality. I suppose there is a possible argument that at some unknown magic moment, there will not be enough opposition to marriage equality to pass a constitutional amendment to ban same sex marriage but not enough support to repeal a constitutional amendment and that, by acting now, the supreme court has potentially closed that window (unless, of course, we are in that window).
Charles,
The risk is that this amendment will be used to argue that the same-sex “registry” is unconstitutional.
A lot of laws are written in terms of “married persons” or language similar to “married persons”. For example, next-of-kin is often defined in terms of “married persons”. These laws, when they extend rights to same-sex registered couples, could theoretically come under attack, and based on my reading of that website, the advances since about 2000 will be the next thing to attack.
As an outsider this is all very weird to me because the impression out here in the flyover states is that California is such a leftist haven of communism, liberalism, homosexualism, vegetarianism and granola-ism that Californians amending their constitution this way just seems BIZARRE.
Ah, okay. I’m not familiar with the details of the California same sex partnership registry laws. Given that the California legislature was not able to repeal the law restricting marriage to opposite sex couples, I had assumed that the same sex partnership laws were written to make same sex partnerships a separate but somewhat equal institution, and therefore should be safe from challenges based on a constitutional amendment that simply writes the ban on recognition of same sex marriages into the constitution.
I know that some states anti-marriage amendments have been extremely broad, and would certainly invalidate the partnership law in California, but I doubt that an amendment that has much chance of doing that would pass in California, and I think they have tailored the anti-marriage amendment narrowly (although the “recognized” wording does raise some concerns).
Oregon has both a narrowly worded constitutional ban (like the California proposition) and a domestic partnership law, so it seems to me that at the very least the the partnership law could be rewritten to not be blocked by the anti-marriage constitutional amendment.
They were circulating this petition on the constitutional amendment for quite a few months before now. They were doing it b/f I had learned there was a state supreme court decision coming down.
Maybe they anticipated a loss although many acted like they were really shocked by it.
I’m worried it will pass especially if they do come out in high numbers to vote to pass it. But hopefully, the presidential election turnout will have the impact of lessening that probability.
Here’s the stats on the vote in 2000 on Prop. 22.
Fairly large portions of the state especially inland are fairly conservative including socially conservative.
The link I provided has a color-coded map and if you put your cursor on the different counties, it will give you their voting breakdown as well.
I meant the existence of same-sex marriages will have a good effect on voting. They have nearly half a year.
Charles,
That kind of “recognized” language is what gets used to attack other statutes.
Remember that the current constitutional amendment fight began in response to the progress that had been made getting around Proposition 22.
What has been done with “civil unions” and “domestic partnerships” as compared to “traditional marriage”, when it comes to these statutes, is determine how similar the parallel legal institution is compared to “traditional marriage”. If the parallel institution closely follows “traditional marriage” those aspects are often held to be in violation of the law and eliminated.
What this likely means is that if the amendment passes, all parallel institutions to “traditional marriage” will immediately come under attack. The problem is the closeness of the parallel institution and the uniqueness or closeness of the rights that are being granted.
The first instance of being too close is the laws which relate to who can form a “domestic partnership” (the same kind of language was in effect in Vermont when my ex-wife and I had our Civil Union there) — the requirements are, in brief, the same sex and all the things that apply to “traditional marriage” — not already married, legal majority, consanguinity, legally competent. “Domestic partnerships” have the same kinds of dissolution requirements as “traditional marriage” as well — must file a petition in court, divide assets, potentially pay support or maintenance.
as well as to rule that all of these amendments are inseparably tainted with religious motivations and therefore violate the 1st Amendment.
FurryCatHerder, could you expand on this? I’m having a hard time seeing how a law whose supporters were motivated by their religious convictions is thereby in conflict with the First Amendment.
Lots of conservatives are quite dissatisfied with having no conservative candidate in the Presidential race. There has been a fair amount of talk on the blogs about people thinking they’d sit this one out, much as some supporters of Sen. Obama and Sen. Clinton have been quoted as saying that they would sit it out if their candidate does not get nominated. I wonder if this court decision will stimulate voters to come out that would not otherwise do so, and what effect that will have on House and County and municipal races (I don’t think that it will affect the Presidential race)?
I don’t think the motivation for a law is what matters, rather, whether it amounts to the establishment of religion.
In other words, if the law would be constitutional if it was advocated by people not motivated by religion, it remains constitutional if it is advocated by people so motivated.
Daran: Thanks. As for the personal issue, at least one of the couples I was thinking of is resolving the question by going to Canada to get married since they now live in NYC rather than CA. The marriage will be recognized in NY although it couldn’t be made here. Go figure.
Daran writes:
Exactly. If the only motivation is “religious”, it is an establishment of religion. In a number of cases the claims have been made that lesbians and gays are somehow “icky”, but there is no support in any scientific literature for lesbian and gay couples to be so “icky”, or “non-traditional” that barring marriage is warranted. For example, there is no proof-of-fertility or proof-of-intent-to-reproduce that is required for straight marriage, thus “they don’t reproduce” isn’t a valid reason. There is also no proof-of-closed-marriage requirement, so even if lesbian and gay couples are into open relationships, even that wouldn’t be a bar.
What I’d really like to see is attacks made against all of the amendments and laws barring same-sex marriage on 1st Amendment grounds. I’d like to see these people questioned on their religious beliefs and what non-religious reasons they have for these laws. We have a 1st Amendment for a reason, we should use it for the reason it was created.
Exactly. If the only motivation is “religious”, it is an establishment of religion.
I suspect that you are not actually familiar with what an establishment of religion is. An establishment of religion is when one particular sect is supported by the state and other sects are either not supported or actively suppressed.
The example that our founders took (and that is still extant today) is the Church of England. The C of E is the established religion of England. It is supported by tax money. It’s bishops (including it’s Archbishops and Primate) are appointed by the government. The C of E’s 26 most senior bishops sit in the House of Lords and vote on legislation. It has civic privileges that other religions in England do not enjoy. During colonial times everyone had to atttend a particular church’s services and pay money to support those churches and their clergy. In many cases it was illegal to proseltyze for or preach non-established religions on pain of fines, corporal punishment or death.
Other examples can be found in just about every Moslem-majority state, where other religions are suppressed and there is no freedom to worship, you can’t print, import or own non-Islamic holy books, public officials must be Moslem, bodies made up of Moslem clerics have legislative power (and their membership in such bodies is a function of being Moslem clerics), and their foundational laws require that all legislation be in accordance with Sharia law regardless of the desires of the people or the legislature. It is quite common that converting yourself or someone else to a non-Islamic religion is punishable by death. In those countries, Islam is the established religion.
There is no established religion in the U.S., although some states had them in colonial days and even after the U.S. Constitution was passed, as the First Amendment was originally only applicable to the Federal government and not the state. The fact that, say, a ban on abortion is consonant with a particular sect’s views and that those who voted for it may have been influenced by their religious beliefs does not establish their sect as a state-supported religion. It meets none of the tests of what an established religion is.
OTOH, what it DOES do is conform to that other part of the First Amendment – “… or prohibiting the free exercise thereof;” People, including legislators, have every right to act in any fashion they choose that is in conformance with the law and base those acts on their religious convictions. To strike down a law on that basis would deprive those legislators and the voters in general of that freedom.
FCH,
I am optimistic that if a reasonably convincing case can be made that the CA constitutional amendment will overturn CA domestic partnership law, that the ballot measure will fail (2/3rds of Californians favor domestic partnerships). The Oregon anti-marriage ballot measure would have failed if it would threatened civil unions (our domestic partnership law came after, but the anti-marriage campaign had to argue strenuously that it wouldn’t block civil unions) and the Arizona anti-marriage ballot measure did fail because it would have blocked civil unions.
If the anti-marriage people over-stepped with this ballot measure, I’m optimistic that when they try another one in a few years, they will fail to even pass a minimal anti-marriage measure. We saw in Massachusetts that several years of people marrying and the sky not falling caused popular support for the anti-marriage side to wither and die. Forbidding people from marrying is one thing, but obliterating the marriages of thousands of married couples is another thing entirely for many people.
I think the “recognize” language is probably not strong enough to ban domestic partnerships. The worst anti-marriage amendments have not worked through that language, they have worked through explicit language banning parallel or similar institutions:
Ohio:
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
Michigan:
To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.
Arizona’s failed measure:
To preserve and protect marriage in this state, only a union between one man and one woman shall be valid or recognized as a marriage by this state or its political subdivisions and no legal status for unmarried persons shall be created or recognized by this state or its political subdivisions that is similar to that of marriage.
Given a state supreme court that has explicitly made it clear that the state constitution as it currently stands requires full marriage equality, I don’t think they will be favorably inclined towards an over-broad interpretation of the word “recognize”, which on its face merely forbids recognizing same sex marriages (those made in Massachusetts and Canada for example), forbidding New York’s current arrangement where marriages can’t be made in the state but are recognized if made elsewhere.
Your description might match roughly the 7 Islamic states, is an inaccurate description of the 11 states with Islam as the established religion, and your claim that these are “just about every Moslem-majority state” is flat out wrong (there are more Muslim majority states without a state religion than with a state religion, and more explicitly secular Muslim majority states than there are Islamic states).
Charles,
I think it is clear from the actions of the people opposed to domestic partnerships that the intent of the proposed amendment is to ban domestic partnerships.
Recall that this measure wasn’t just prompted by the flurry of marriage licenses issued in San Francisco a few years back to same-sex couples. The objections began from the very first moment that a law creating some recognition of same-sex couples as “couples” occurred. The circumstances surrounding the ballot initiative will be used when deciding cases, and with the history of trying to enforce Proposition 22 to mean it banned domestic partnerships, I think a reasonable court would be bound by case law which found Proposition 22 affected domestic partnerships.
RonF writes:
That’s not actually what the 1st Amendment prevents, and there is significant case law on my side.
For example, generic “Dear G-d, we want stuff” prayers are prohibited even when the specific instance of “G-d” (with or without the dash) isn’t defined.
This is what Justice Hugo Black wrote —
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”
That’s a far cry from being limited to the establishment of a national religion, or benefiting a specific sect at the expense of one or more other sects.
The goal really was to keep “religion” out of the public sector when it was purely about religion.
I realize how snotty this is going to sound, but y’all are making my head hurt. Establishment Clause law is pretty damn complicated. Also, remember that the existing California ban was a voter-passed initiative.
FCH: it’s clear as day that you HAVE NOT READ THE DECISION. If you had you would have seen the big honking preamble where the CA Supreme Court says they are not making any policy choices.
Interesting.
My contracts to provide computer support aren’t a “marriage between a man and a woman”. Does that mean that they are not valid or recognized?
This amendment is going to prove a significant obstacle for small businesses.
mythago writes:
I’ve been known to be dense some times, but the part that led me to the conclusion I reached was the acknowledgment that “domestic partnerships” were intended to be exactly like marriage, only a little different. See page 9 of the ruling.
If you look at the use of Prop 22 to attack domestic partner rights I don’t see how anyone can say a constitutional amendment isn’t going to provide an even greater platform from which to attack same sex couples.
Bjartmarr,
Wow, that amendment would dissolve the entire government of California!
Nothing in California except marriage between a man and a woman would be valid or recognized. The government of California is a not a marriage between a man and a woman, therefore it will be invalid and unrecognized. Given that the amendment is not a marriage between a man and a woman, I guess it will also be invalid and unrecognizable. Of course, that makes the amendment a paradox as well, as it would be a valid amendment to the constitution, except for the fact that it renders everything except marriage between a man and a woman invalid. If it is invalid, then everything is still valid, but if it is valid, then it isn’t.
Clearly, Californians need to be aware that passing this measure will cause monstrous bat creatures to appear and eat everyone who voted for it, in order to protect the Universe from the paradox it will inflict.
FCH,
I think that would be an extremely broad interpretation of the amendment. The California amendment is nearly identical to the Oregon amendment:
“It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”
No one has ever suggested that the Oregon measure barred domestic partnership laws, one of which Oregon passed after that amendment was inserted into the constitution, and which has received no legal challenges on the basis of that amendment. While history is given some consideration by the courts, the plain language of the measure is more important. “Recognized” does not mean “there can’t be any similar type of arrangement recognized by the law,” it means “recognized.”
Yes, but WHICH marriage is recognized? And where does that leave all the other het couples?
FCH, I really, really don’t understand post #56. The opinion spends an awful lot of time explaining that they are not attempting to base their decision on policy, or on “same sex marriage good/bad”, only on the constitutionality of Prop 22.
I think it will probably have to be decided by a battle to the death. Last married couple standing is the one true married couple of California, with the incumbent super powers of Het-dom.
And just to be precise, it’s not the utterance of prayers but the requirement to pray which is prohibited in State institutions such as public schools. That’s what you meant, I’m sure, but some some followers of ‘the thruth’ have been promulgating the lie that the anti-establishment clause has been used to suppress private acts of worship within State institutions.
However, RonF’s broader point stands. Just because something is religiously motivated doesn’t make it unconstitutional.
Daran,
Something can be “religiously motivated”, but it must still have a secular purpose. “Lo tamut” (loosely translated as “Thou Shalt Not Murder”) is pretty religious in nature (even comes straight from a couple of stone tablets, supposedly etched by the Finger of G-d), but not murdering people serves a secular purpose.
The question that should be raised is what secular purpose does banning same-sex marriage serve? We know the religious purpose — what is the secular purpose?
We wouldn’t accept pseudo-scientific reasons why praying is “good for the psyche”, why do we accept pseudo-scientific reasons why banning same-sex marriage is “good for the psyche” as well?
(And yes, I’m referring to state mandated instances of “Dear G-d, we want stuff”, not individual students praying for all the right answers this time of year as final exams approach ;)
Again, it’s a lot more complicated than that; for example if the government appears to be *sponsoring* the prayer, that would violate the Establishment Clause in the US. (e.g., if the school principal at a public school reads the Lord’s Prayer over the intercom every morning, but students are told they can sit quietly if they don’t wish to recite along with her.)
No, that’s not really true. Or, to the degree it is true, the purpose of “because I like it that way” is frequently good enough. There are a variety of exceptions that get applied to individual actions, but not to constitutional amendments.
IOW, if an anti-gay-marriage amendment is entered into the constitution successfully, I don’t think that the religious underpinnings of its supporters would provide any support for overturning it on 1st amendment grounds.
I suppose that an amendment which said “no gay marriage because it’s God’s will” would have problems. But an amendment that said “no gay marriage because it’s immoral” would be fine, even if the REASON people thought it was immoral was related to religion. You are permitted to vote and make laws based on your personal morality, and the State is not permitted to restrict you basedon the source of your morality.
In lesser but still cool gender-equality marriage news from California, we’ve recently joined the handful of states where any person can change his or her name upon marriage, to any name, for the same bureaucratic fees (before, a man had to pay about $300 for the change, a woman about $50):
http://www.smh.com.au/news/world/husbands-battle-to-take-wifes-surname/2008/05/06/1209839596100.html
The City of Hialeah decision says otherwise.
Mythago, I don’t think an amendment to a Constitution can be struck down on the basis of anything in that Constitution. If a state put something in their Constitution that contradicted the Federal Constitution, then the U.S. Supremes could strike it down, but if such an amendment made it into the Federal Constitution I can’t see how there would be any rationale for nullifying it.
RonF, I was talking about Sailorman’s comment that the motivation doesn’t matter as long as the language is correct.
(Whoops, double-posted.)
If Californians amend their constitution to reject “progressive” legal developments and reinstate “traditional” law, could federal courts overrule them? Yup, if they wanted to.
In the 19650s and 60s California adopted fair housing laws design to outlaw racial discrimination in property sales and leases. Property rights advocates then drafted, promoted and passed a constitutional initiative re-establishing common-law property rights. But in Reitman v. Mulkey, the US Supreme Court struck the initiative down.
The rationale is tricky. No party disputed that the California legislature could have achieved the same legal outcome as the initiative simply by repealing the fair housing statutes, and no party argued that the legislature would have faced any constitutional impediments to doing so. But the Court appears to hold that the symbolic consequences of the voters’ actions violated the Fourteenth Amendment.
The only legal distinction the Court specifies between rights “authorize[d]” or “create[d]” and those merely permitted is the ease with which they may be changed. The Court found no greater distinction between rights “embodied in the State’s basic charter” and those embodied in common law. It appears the Court was concerned not merely with rights, but with the legitimization of their exercise.
I guess Alliance Defense Fund whoever they are has made its move and filed for a five month stay.
Meanwhile the L.A. Times has come out with a poll showing 54% of voters favor the amendment overriding the California Supremes’ ruling, 35% oppose it. By my math that shows 11% were uncertain/undecided/threw a pie in the pollster’s face, which I find interesting – that seems high to me. The survey polled 800 people and purports to have an error rate of /- 4% of likely voters. Of course, it’s pretty early yet.
I suppose there’s no chance of persuading Fresno to secede between now and November…
I don’t understand the Fresno reference.
Presumably Fresno is a strongly anti-gay chunk of California. Let it secede, and the rest of California can has marriage equality.
I ran across an interesting legal opinion arguing that the constitutional amendment is too late, that because the court has declared marriage equality a fundamental right, that an amendment can’t strip a fundamental right. What would be required instead is a constitutional revision, which must be proposed by the legislature or by a constitutional convention, not by a ballot measure brought by petition.
I don’t have any idea whether that is actually a convincing argument or not. Apparently, it is not something that would prevent the measure from being on the ballot, but is something the courts would have to rule on if it is approved by voters.
Not true, unfortunately. The link I posted above allows you to click on each county to find out its vote on Prop. 22 which passed in a handful of counties solely in the Bay Area. There were some relatively close calls but turn your cursor towards those inland counties and click away.
It didn’t pass in the other highly populated coastal counties and there will be a snow flake’s chance in Hell before anything banning gay marriage or gay rights anything would fail to pass inland.
If you allowed all these areas to secede, California might just go from the state with the most electoral college votes to one with much, much fewer.
In my city, you couldn’t even put up anti-Prop. 22 signs without them getting ripped asunder.
You can theorize until the cows come home, but often what California should do, is anticipated to do is not what it does. Several organizations including one actually out of state have filed stays or plan to do so. It will be interesting to see what happens there.
A Field Poll out recently found a majority of Californians opposing the ballot measure. The majority also approve of same sex marriage.
It’s just one poll, but the Field Poll is pretty highly regarded.
I hope it’s true (even though it’s actually pretty split given a margin for error) but as much as I’d love to trust it or any poll that looks positive on any issue, I’m not sure I do. I hope those who are campaigning against the amendment don’t.
I’ve seen enough polls flip at the only poll that counts in my day to be anything but cynical.
A lot of people think California is really liberal but outside two urban centers, it’s really not.