David Link has a good point:
The Supreme Court’s decision (when it comes — under court rules the justices have 90 days after oral argument to issue an opinion) will not be a ruling in favor of or against either side.
The court will decide some very important constitutional issues. […] But the answers to these questions will not amount to a judgment by the court on the moral, legal or social appropriateness of same-sex marriage, or on the wisdom of the majority who passed Prop. 8.
This “backgrounder” at the LA Times is a good guide to the main issues the Court will be deciding.
Opponents of Prop. 8 argue that although some changes to the Constitution can be made by a simple majority of Californians, others cannot.
They note that there is a difference between an “amendment” of the Constitution, which can be approved by a majority of voters, and a more substantive “revision” of the Constitution, which requires a two-thirds vote of the Legislature before it can get on the ballot.
Proposition 8 was passed as an amendment. But, opponents say, it should’ve been passed as a revision. This may sound like a dry technical issue, one of process rather than substance. But don’t be fooled: It’s very much about substance.
Why should it have been a revision?
Because it’s so sweeping. Opponents argue that the freedom of gay people to marry whom they want is a fundamental right — protected under the California Constitution’s guarantees of liberty, privacy and equal protection. These rights can’t be denied to a vulnerable minority just because 50.1% of California voters get it into their heads to do so. If anything should require the tougher standards of a “revision,” it’s this.
Gays are considered a “suspect class” (meaning that state courts already have identified them as a group that has been historically discriminated against), and singling out a suspect class to deprive it of a fundamental right is especially questionable. It requires, at the very least, the kind of extra “formality, discussion and deliberation” that the Supreme Court has said in past decisions is available through the revision process.
We live, after all, in a constitutional democracy, not a pure democracy. That means, as every schoolchild is taught, that there are checks and balances on the majority’s power over the rights of minorities.
How do the pro-Prop. 8 forces respond?
They say it’s all a lot of hooey: Prop. 8 isn’t a revision. It only adds 14 words to the document, for goodness’ sake! As a brief from the American Center for Law & Justice noted, the amendment involves no redistribution of authority among the branches of state government, no “wholesale diversion from the stated original purpose of the Constitution.” Plenty of other amendments have required change at least as sweeping as Prop. 8, they say, and the court has rarely demurred.
I think the anti-Prop 8 forces have the stronger argument, but I could easily imagine the Court deciding either way.
Whatever the decision is, it most likely can’t be appealed to the US Supreme Court, since all the issues here come down to what the California constitution says. (I’m sure the lawyers who comment here will let me know in comments if I’m mistaken about that.) And whatever the decision is, the fight for equal rights will keep on going afterward.
You are correct that the U.S. Supremes do not have authority to overrule the California Supremes on this issue.
I’m not in agreement that the anti-8 folks have the better legal argument, though on a personal level I hope they win.
Sailorman, why do you think the pro-8 folks have the better argument?
You’re missing the crucial qualifier “legal’ in your summary. I think the anti-8 folks have the better argument in general, as they clearly have the moral high ground and deserve to win on a variety of levels. I don’t want to derail the thread by getting into the specifics of their legal argument, but I’ll try to remember to answer that after this thread peters out a bit.
I will defer to your judgement on thread derailment, but I thought the post was, at least in part, about the legal issues the court will be deciding on. (And my intent was to ask you why they have the “better legal argument,” not to imply you’re opposed to gay marriage.)
Ok, then, so long as you’re clear on the scope of our discussion and the fact that I am PRO gay marriage. i just like talking law! :) Please understand that in the interests of maintaining sanity, I am not going to constantly qualify my post with “…but of course, i disagree” statements and the like.
First, I’ll start by dealing with the “fundamental right” language which often comes up. I don’t think gay marriage is established as a fundamental right. Saying that something should be protected by the Constitution because it is a fundamental right is actually a bit circular, since a fundamental right is generally something that is protected by the Constitution. So if you hear the concept that california has denied gays a fundamental right, that’s not really correct.
Anyway, I think that the legal argument anti-8 boils down to 1) it’s a fundamental right, so it needs to be Constitutionally protected; and 2) It’s really important, and it should be viewed as a revision because it is important. There is also 3) its not good from the perspective of a constitutional democracy, and 4) it’s even worse because gays are a minority.
I don’t think that #1 is really a winning argument from a legal perspective: the U.S. Supreme Court disagrees, and a variety of states disagree. There is no binding precedent which California is obligated to follow, and it’s not clear that the nonbinding precedent is in favor of granting gay marriage status as a fundamental right. (Even Massachusetts, where I am happy to reside, didn’t decide Goodrich based on a fundamental rights argument, but on a textual reading regarding sex discrimination.)
I also don’t think that #2 is necessarily a winning argument from a legal perspective, largely because of the reasons quoted from the the ill-named “American Center for Law & Justice.” However, I have not read all the California case law on this. I will say nonetheless that the distinction between “amend” and “revise” can be based on a variety of things (length, effect on government operation, etc) and does not need to include much or any consideration of the ultimate effect on the people of the state.
Which leads to #3. That doesn’t make much sense, either: While California may be a U.S. State, within certain criteria each state has the power to run itself as it sees fit. That includes allowing the passage of laws which make “constitutional democracy” closer to plain old democracy. Other than Federal constitutional requirements, there is no default requirement to have a state representative democracy that mirrors the U.S.–we all just do it.
With reference to #4, there is little question that gays are a numerical minority, comprising ~10% of the population. But an interesting issue is that gays in California don’t appear to be a significantly disempowered POLITICAL minority, given that gay marriage got passed in the first place, and that gays lost the right to it by a very small margin. So while gays almost certainly require protection on an individual level from the various discriminations society throws at them (ergo protected class status), the catch-22 is that the success of the gay political lobby may mean that they do not require protection on a political level.
Which brings us back to #1 again, and the way I tend to think of this from a legal perspective:
If gays do not have a fundamental right to marry, then the question of whether gays should be allowed to marry is a political question of viewpoint. If a majority of California voters have voted against it, then the court will not overturn prop 8; they tend to support the wishes of the majority. I have a lot of difficulty seeing a court conclude BOTH that it is not a fundamental right, and ALSO that it is a right important enough to automatically count as a revision, not an amendment.
On the other hand, if gays DO have a fundamental right to marry, then the issue of whether it was a revision or an amendment is entirely moot: it belongs in the Constitution, and it will be enforced even if it’s not there (fundamental rights can be implied; see, e.g., the “fundamental right to privacy.”) This would be my preferred outcome, but I think it is unlikely.
So when the California Supreme Court allowed gay marriage last year, did they or did they not find a fundamental right? And does the way they decided that case bind them in any way to how they think about this case?
I could have sworn they did find a fundamental right. I got in a big argument a few months ago with someone at work who was insisting that no, they didn’t, they only found it wasn’t prohibited. The news articles I pulled up to bolster my case all referred to fundamental right, but you can’t believe everything you read in the paper ;)
Edit: I understand what you’re saying about fundamental rights being a circular argument, but it seems to me that there’s a difference between people who want to see marriage equality saying it’s a fundamental right and a court actually finding that it’s a fundamental right. The difference being the court has the ability to make that right one people can exercise, as opposed to just a theoretical right.
The CA Supreme Court found it as a fundamental right under the CA constitution. Correct me if I’m wrong, but I believe when Sailorman uses Big-C Constitution, he is referring to the US Constitution. If my assumption is right, he is absolutely right. SCOTUS has yet to determine whether or not gay marriage is a Constitutional right protected by the US Constitution (and will likely decline to see the case in light of the way they’ve treated DOMA). On the other hand, if it did make it up there, there is definitely an equal protection argument under the 14th amendment.
What I find interesting here is that the question of whether or not the electorate validly overrode the will of the California Supreme Court will be decided by … the California Supreme Court. Sounds like an inherent conflict of interest.
You don’t have as much danger of that with the U.S. Constitution because there’s only one way to ratify an amendment to the U.S. Constitution, and while there are two ways to propose an amendment the product of both is the same for purposes of ratification.
But an interesting issue is that gays in California don’t appear to be a significantly disempowered POLITICAL minority, given that gay marriage got passed in the first place, and that gays lost the right to it by a very small margin.
I disagree with this. Gay marriage didn’t come about in CA through the political branches; it was ordered by the judiciary. We didn’t assume in 1954 that blacks no longer were a significantly disempowered POLITICAL minority simply because SCOTUS was on their side for Brown v. Board. Heck, I wouldn’t say that blacks had ceased to be a significantly disempowered POLITICAL minority even in 1964, when the political branches brought us the Civil Right Act of 1964.
However, I have a longstanding skepticism of seeing homosexuals as a “discrete and insular minority,” for multiple reasons including:
the fact that most homosexuals are born to heteros (and thus not really “insular”);
most people’s sexuality is somewhere in the middle of the hetero-homo spectrum;
Anglo-American legal tradition has rarely treated homosexuals as a specific group with a different set of rights and privileges than other groups (and thus not “discrete”; contrast with women, Jews, blacks, et al);
but mainly because I see this as a sex equality issue (opposition to same-sex marriage is almost universally founded in essentialist views about sex and gender), and that framing brings it within federal Constitutional precedents. If the government cannot discriminate on the basis of sex, it cannot refuse, based on the sex of the spouses, to recognize marriages.
What I find interesting here is that the question of whether or not the electorate validly overrode the will of the California Supreme Court will be decided by … the California Supreme Court. Sounds like an inherent conflict of interest. You don’t have as much danger of that with the U.S. Constitution because there’s only one way to ratify an amendment to the U.S. Constitution, and while there are two ways to propose an amendment the product of both is the same for purposes of ratification.
?
We’ve certainly had the U.S. Supreme Court decide whether a law (Religious Freedom Restoration Act) intended to override the Supreme Court’s interpretation of the U.S. Constitution (in Employment Division v. Smith) validly did so (and the answer in City of Boerne v. Flores was “No, it didn’t”). Presumably, that was a conflict of interest.
We’ve also had constitutional amendments that had as their overt intent the overriding of a Supreme Court decision (e.g., 11th Amendment passed to override Chisholm v. Georgia). But because there’s no mechanism for determining whether an amendment to the U.S. Constitution is itself unconstitutional — any apparent conflict between the new Amendment and the rest of the Constitution must simply muddle itself out through subsequent litigation — we’ve never had exactly CA’s situation.
Well, most PWD born with disabilities are born from able-bodied parents.
Most intersex people are born from non-intersex parents.
Most transsexual people are born from cissexual people.
and this definition of insular:
detached; standing alone; isolated.
still seems to apply to all those groups
PWD, IS, or TS people don’t make a 10% proportion of the population, so maybe GLB aren’t as isolated, but if someone can fire you because they don’t like your category, it doesn’t bode well.
GLBTQIA* groups (not a specific organization), as well as PWD, often share things together. Many an IS person can have delibitative symptomss associated with their IS condition (such as salt-wasting CAH), many need medical help, or therapy services if only to overcome the scorn they’ve been victim of.
* Gay, Lesbian, Bisexual, Trans (includes transgender and transsexual), Queer and Questioning, Intersex, Asexual
GLBTQIA might seem like a disparage group, but well, T doesn’t have to do with sexuality, and it’s been in the GLBT since the 60s. Those are all minorities, often victimized for their deviation from norms regarding sex and gender. Intersex people are victimized by doctors, often since birth, and misinformation abounds.
No. No, it doesn’t.
Apologies for going a bit off-topic…
Schala,
I’m referring to “discrete and insular” within the context of being a politically dis-empowered group. Certain racial, ethnic and even some religious minority groups tend to be seen as “discrete and insular” because they don’t have an obvious connection to the majority group. A person with disabilities — whether born disabled or disabled later in life — who is born to non-disabled parents has people in the politically empowered group who presumably care about him and his interests. Ditto for intersexed and transsexual people. (I am aware that this legal assumption may not map onto reality, particularly for transsexual — or homosexual — people who are seen as having chosen their minority status and are thereafter ostracized by their own family, but it is how I understand the reasoning behind the application of the phrase “discrete and insular minority.”)
In contrast, WASP parents generally don’t have black Cuban-descended Catholic children (BCCC), and therefore the WASPs have no self-interested reason to care about what becomes of BCCC.
There’s also the question of whether the law — not just private parties such as physicians — singles out the group to be disfavored and possibly even forbidden from political participation (most obviously in the form of voting). Women and people of color historically were not allowed to vote. While the physically disabled face difficulties of literally being able to get to the ballot box, and the severely mentally/ emotionally disabled have been discriminated against in their legal access to the ballot box (Anglo-American law historically has forbidden the civic rights of voting, jury duty and firearm ownership to felons, the mentally retarded and the insane), I don’t know of any voting regime in U.S. history that forbade homosexuals, intersexed people or transsexuals from voting.
Moreover, the rights of the disabled in this country have been secured almost entirely through democratic processes (i.e. by statutes rather than by courts’ Constitutional interpretation). The ADA itself had strong support from several prominent conservatives (including Bush I and Bob Dole) because it was framed as a way to make PWD more self-sufficient and participatory members of society. If anything, the Supreme Court has been more backwards on this than Congress has, e.g. by the Court’s ruling that Congress doesn’t have the power to force states to comply fully with the ADA because disability doesn’t come under the 14th Amendment.
Many countries, including some US states, prevent legal changes to birth certificate, which can trap both trans and intersex people in legal limbo, unable to get employed in most jobs that have even a mild degree of competition over who can do it. This is the situation in Thailand, even with wide acceptance of trans due to Buddhism’s live and let live philosophy, they are not recognized under the law, and only a small proportion recognizes them otherwise as really being who they claim to be (50% think its “something wrong in the head” according to Dr Sam Winter).
I include intersex people as well, because the sex recorded at birth is often regarded as “a historic document”, ergo: not subject to change. Even if it determines practically all other legal documents and often the right to marry (this was the UK’s position on the matter for 1970-2004, and is common elsewhere). Countries may be more lenient towards changing legal identification for intersex people than trans people, but it’s not been without legal battles. A high enough proportion of intersex people transition, but I also extend this to those who don’t, but also don’t look generally normative.
They may not be prevented to vote, but being elected is another matter. While possible it’s generally considered a tour de force. Participating in economic life is another as well. Some have tried to paint young trans women as particularly addicted to sex, rather than having many forced into prostitution by basically being thrown in the street, and being refused employment everywhere else, due to discrimination and lack of education.
The law generally considers it lawful to fire someone for being transsexual, wether they do or could do (if being hired) the job right, is not even questioned. Their image for the company is what matters apparently. Can’t be seen with “those” people. Title VII protections apparently don’t count except in very few instances. Discrimination on the basis of sex – and it clearly is, if my sex on my birth certificate said female, what leg could they stand on? But the US have repeatedly interpreted matters of gender identity and expression as being outside the scope of Title VII.
You know the transgender lawyer I mentioned before? She was fired from her job as university professor in the mid-80s for being seen cross-dressed in a mall outside her work hours. She holds six jobs now, but let’s say she’s not typical.
This can also happen to gay and lesbian people who don’t “pass for straight”, or who don’t “act straight”. It’s seen as an employer’s right to hire whoever they want…even as everyone in the world needs some income to subsist. Same for housing and landlord’s rights.
Ah yes, and until 2008, in Thailand, any transsexual woman who was exempted from military service for being trans, was labeled as having a permanent mental illness. This went on record for employment and loan applications. I’m not sure if this mode of thinking, within law, is pervasive.
They may not be prevented to vote
But that’s one of the things that matters for having political rights. If you cannot vote, you cannot elect politicians or pass referenda that will protect you. If you are legally prohibited from holding property (as Catholics once were in the UK; as Asians once were in some U.S. states), you’re far more economically disempowered than someone who isn’t protected from private sector discrimination.
There is a hugely important distinction in American law between what the government can do to you, and what private actors can. To bring this back to same-sex marriage, the argument is over whether the government can refuse to recognize SSMs; there’s no argument over whether churches or workplaces, which are private sector entities, can refuse to recognize SSMs, because of course they can. (I don’t mean they can refuse to obey the law on matters of employee pensions and such, but a church can refuse to perform an SSM, and a workplace theoretically could refuse to invite a same-sex partner as a spouse for the company holiday party.)
I don’t think anyone has specifically said this here yet: the reason Prop 8 is a revision is NOT because of its “sweeping changes” or even because it removes a right from a group of people, but because it contradicts parts of the constitution.
The California state constitution provides for certain inalienable rights to be enjoyed by all members of the population. It says that everyone is entitled to them equally. This is a fundamental part of California’s constitution, and I would imagine that most people in California find it important (at least when it applies to them).
The California supreme court, being tasked with interpreting the constitution, has determined that the ability to form a legally-recognized marital relationship with the person who makes that relationship valuable, is of such importance as to be considered a fundamental right.
Prop 8 addressed neither of these issues, but overrode both of them. It did not say “Eliminates equal protection under the law” or “marriage is not to be considered important to enjoying or defending life or
liberty, acquiring, possessing, and protecting property, or pursuing
or obtaining safety, happiness, or privacy,” yet these are its effects; it goes against and nullifies three important, significant parts of the constitution, and for this reason it is a revision.
Other, more sweeping amendments may not be revisions because they managed to be make sweeping changes without contradicting other parts of the constitution.
If you represent 1% (intersex), or 0.2% of the population (trans), I doubt you can elect someone who will represent you either, with enough force to make significant changes. At best you can hope organizations with more clout (LGB ones) will support you.
While gay, lesbian and bisexual people represent a pretty-sizeable portion of the electorate population, issues regarding discrimination in employment that have to do with gender expression (which touches them), have been generally overlooked. Heavily gendered dress codes that are grounds to fire someone, in all impunity. Someone’s expression could also be considered “offending” by the employer (and grounds for firing said employee), because it disturbs their image of a binary black-and-white view of gender and sex, where no middle-ground exists. Trans and intersex are only the extreme in this direction (and have extreme measures taken against their existence as well).
Yes, PG, but that’s my point; the U.S. Supreme Court will never be in this position. It can determine if a law that was meant to overrule it is Constitutional but it can never determine if a Constitutional amendment to overrule it is constitutional. Neither the Federal judiciary nor the Federal executive are involved in the proposal or ratification processes for Constitutional amendments. In fact, the U.S. Constitution even provides for a way to almost completely bypass the Federal legislature as well.
In fact, the U.S. Constitution even provides for a way to almost completely bypass the Federal legislature as well.
If you’re referring to conventions, which Congress still has to call (and Art. V specifies that Congress always chooses the method of ratifying amendments), they’ve never has been used, but hey.
Kyra:
I don’t think anyone has specifically said this here yet: the reason Prop 8 is a revision is NOT because of its “sweeping changes” or even because it removes a right from a group of people, but because it contradicts parts of the constitution.
That’s only true if you view marriage as a bond between any two people. However, that in itself represents a fundamental change from the way that marriage has always been viewed in this country, which is that marriage is a bond between a man and a woman. Using the terms in the context introduced above, what the California Supreme Court did was a “revision” of the meaning of the word marriage, not just an “amendment”, with no approval from either the legislature or the people they represent. Prop 8 sought to correct that.
If you’re referring to conventions, which Congress still has to call (and Art. V specifies that Congress always chooses the method of ratifying amendments), they’ve never has been used, but hey.
Yes, Congress does have some involvement regarding the use of State conventions to ratify amendments (which is why I said “almost”). But they have no involvement regarding the creation of a Federal Constitutional Convention to propose amendments, other than to schedule it – which they must do if 2/3rds of the States so resolve. They cannot ignore the States and they cannot determine it’s structure, it’s operating procedures, etc. Unlike in the other method of proposing amendments the Congress in such a case has no control over the amendments being proposed.
I imagine this was put in so that the States could restructure or put limitations on the Congress against it’s will. It ensures that the States have a recourse if the Congress started to invade their sovereignty. It hasn’t been used yet; but what might Congress have done if it was not there?
Um, legalistically I’m pretty sure this was the definitive argument on the constitutionality on marriage and prohibitions against it: Loving v Virgina. To quote: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”.
As such, this law constitutionally HAS to be reforming a basic civil right, by its very definition.
Now whether or not the CASC has the stones to do what’s right, that’s a separate issue, but legalistically, it’s unconstitutional so it’s just a matter of time and I strongly doubt it’ll last to the next election for overturning if they try to go the compromise route where some are married and others aren’t.
I’d also love it if they put some more limits on the public’s ability to change the constitution directly in this state so we are no longer bound by stupid laws that bankrupt our state because someone got 55% of the vote by lying their ass off.
Lov-ing v Virginia listed marriage as a fundamental civil right, so there’s that. Denying marriage is US Constitutionally seen as a deprivation of a civil right, thus goes against the CA Constitution and that’s the argument.
I’m also shocked, shocked, shocked that Ron disbelieves that the Judicial branch has any merits and believes his religious arguments trump everyone else’s and even still believes that marriage has somehow been immutable when even in the last 150 years, it’s morphed to an obscene degree and that’s just in America. I would expect nothing less from the troll that successfully caused most of your old commenters to give this blog a miss in frustration.
I disbelieve that the judicial branch has any merit? What are you talking about?
Marriage has been immutable? No, I don’t believe that I’ve argued that. A number of things have changed about marriage since laws regulating it first started to be passed here in what is now the U.S. (a bit more than 150 years, you might want to brush up on your history – remember that “bicentennial” back in the ’70’s?). But regardless of changes (degrees of consanguity, interracial, ages, divorce, etc., etc.) one thing that has been fixed is that it’s a bond between a man and a woman. Even in other countries and cultures, even those that recognize polygamy the link has been defined as between a man and a woman. And it’s not been the exclusive property of any one given religion, either, or even religion at all. I certainly don’t remember atheists holding forth favoring same-sex “marriage”.
Oh, and laws that have bankrupted your state are I think more closely related to rapidly expanding your social programs without ensuring that you had revenues to match and without taking into account that economies have cycles of ups and downs and that goverment has never yet been able to control that. The liars in that case would be the California state legislators who kept telling the electorate that they could get something for nothing. Of course, the electorate would thus qualify as fools for retaining them in office, but that’s a different issue.
Not for at least 20 years, it hasn’t. And that’s just in the western, first world. Your assertion is absolutely false, as has been noted as such (and supported w/ references) multiple times on this very blog.
Ron, if you keep making this claim unsupported, you’re going to be banned. You have been warned about it too many times for this to be otherwise.
—Myca
RonF,
Yes, Congress does have some involvement regarding the use of State conventions to ratify amendments (which is why I said “almost”). But they have no involvement regarding the creation of a Federal Constitutional Convention to propose amendments, other than to schedule it – which they must do if 2/3rds of the States so resolve. They cannot ignore the States and they cannot determine it’s structure, it’s operating procedures, etc. Unlike in the other method of proposing amendments the Congress in such a case has no control over the amendments being proposed.
Yes, in theory the States could have Congress call a Convention. But it’s never happened. All our amendments have been proposed by Congress, and Congress — as you acknowledge — determines what method is to be used for the amendments’ ratification.
I imagine this was put in so that the States could restructure or put limitations on the Congress against it’s will. It ensures that the States have a recourse if the Congress started to invade their sovereignty. It hasn’t been used yet; but what might Congress have done if it was not there?
Uh, where do you see Congress as having been restrained in its invasions of State sovereignty? The only pushback on Congress has been the Supreme Court, beginning in the recent era (i.e. post Warren Court) with U.S. v. Lopez. Congress has dictated to the states whom they must hire (by forbidding discrimination on the basis of race and sex), the wages that must be paid (federal minimum wage laws), the accessibility of courts and other public buildings for the disabled, etc. Every time, a state has protested; the Supreme Court either rules for or against the state; and no Constitutional Convention is called.
This makes perfect sense politically, because you’re unlikely to be able to get two-thirds of states to be opposed to something that a simple majority of Congress passed. For example, when Congress passed the Civil Rights Act of 1964 and Voting Rights Act of 1965, there were several states opposed to having to treat people of color equally with whites. But those states were a minority of the 50 states, just as their senators were a minority of the 100 Senators. If 51 senators, i.e. the representatives of 25 states (assuming maximum clumping) are in favor of a restriction on state sovereignty, that means you have only 25 other states where that restriction is likely to be very unpopular. 25/50 is less than 2/3.
Jake Squid,
RonF is still in denial that the Constitution has no more support for interracial marriage (particularly an interracial marriage like mine, i.e. not involving a black or Native person) than it does for same-sex marriage. If he’s not going to admit that about a widely available text, the founding document of our nation, why would he concede that same-sex marriage ever has existed before now?
Since it’s probably unfair for me to just swat you on the nose without providing some kind of backup or way for you to further your education on this topic, I’ll direct you to:
The Wikipedia article on the History of Same Sex Unions
This article begins with the lines, “although state-recognized same-sex marriage is a relatively new phenomenon in Western society, there is a long history of same-sex unions around the world.” It goes on to discuss the legal status of Same Sex Marriage in ancient Rome, where it was not only fully legal, but was practiced by several historic notables.
The Wikipedia Article on the Timeline of Same Sex Marriage
This is where we learn that the first government-sanctioned Same Sex Marriage in the USA was performed 38 years ago, in 1971.
And, “When Same Sex Marriage was a Christian Rite“.
This discusses a church-sanctioned wedding between St. Sergius and St. Bacchus, two early Christian martyrs.
I’m currently reading “Same Sex Unions in pre-Modern Europe,” by John Boswell, the Harvard historian who did the legwork on the last article, and it’s fascinating.
Now, my focus is almost exclusively on the western world, but I’m certain that if Mandolin chooses to enter the discussion, she’d have much to offer on non-western/non-European cultures.
—Myca
Are there two issues the CA Supreme Court is deciding or one? That is, is the question only whether the method used to pass Prop 8 was not appropriate for a measure taking away a fundamental right, or is it that issue and a question of whether taking away a fundamental right is compatible with the rest of California’s constitution? And to the lawyers, are there precedents in the U.S. of state courts’ finding constitutional amendments inconsistent with a state constitution?
RonF@24 makes a logical error and a number of historical misrepresentations. He argues that previous legal changes to marriage provide no precedent for same-sex marriage because marriage was–in the U.S.–never previously changed to include anything but heterosexual couples. But the point is that marriage has changed in the past. Legally. Radically. In the U.S. In retrospect, there’s a consensus that the changes were desirable. But that’s only in retrospect. There’s very little difference between this and my arguing with my son about trying blue cheese. “I’ve never eaten it before, and there’s no reason to think I might like it.” But he’s tried and liked asparagus, mustard, and anchovies. “No, that’s no precedent, none of those are blue cheese!” Let’s face it, this isn’t a logical or historical argument. It’s emotional.
The other claims are worse. He’s flatly wrong about “other countries and cultures.” I assume he means that everywhere, across all time, marriages always have included at least one man and one woman. But that’s not right. Female-female marriage was not uncommon in precolonial sub-Saharan Africa. Nuns were (and are) married to Christ. Okay, the idea was he’s fully man and fully God, but still! Some places it was possible to marry dead people (though, as far as I know, that was always heterosexual). Forget cross-cultural or trans-historical arguments; there’s very little that applies to all cases.
The account of California’s legislative politics is similarly skewed. It’s completely insane to blame the state’s budgetary woes on social programs. At the very least, one has to admit there’s a structural anomaly in requiring a super-majority for tax increases but not for programs (social or otherwise), especially when the initiative system created a whole series of programmatic mandates. Let’s face it, there are a lot of lying politicians in California. But most of them aren’t wild-eyed creators of social programs. They’re conservatives who refuse to compromise.
Ron, if you keep making this claim unsupported, you’re going to be banned. You have been warned about it too many times for this to be otherwise.
The last time this came up someone (you?) said you were considering making a posting with references. I said that I’d be interested in doing so. No posting was forthcoming. Now that one has been made, I’ll take a look.
Understood, and that’s why you haven’t been given a vacation from posting yet.
My only standard here is that if you post something like that again, you’ll need to include some sort of backup or evidence other than “this is what I hear.”
See, I think the claim is either ignorant or deceptive. If it’s ignorant, I’m fine providing the needed information. All kinds of people end up taken in by right-wing bullshit, after all, and that’s not necessarily their fault. If it’s deliberately deceptive, though, that means that the person making it isn’t interested in honest discussion … and well, that’s fine, but then why engage?
I’m not accusing you of deception. I understand that you hadn’t seen the information yet … but now you have (Or some of it at least. Like I said, I’m sure Mandolin will have more to add.)
—Myca
Two issues – the first is the various binding conventions on human rights the US is signatory to. The US has stated that its ratification is not self-executing, but merely that it will enable the various states to become compliant, and that it will pass Federal legislation in due course, after deliberation.
One of the human rights is the right to get married, and the Yogjakarta declaration clarified that that meant same-sex marriages as well as mixed-sex ones.
passim DOMA would seem to me to contravene the US’s very limited obligations here.
The point is though, that the argument could be put to the California court that, while the state of California is under no obligation to follow international treaty provisions in enacting legislation, that it is under the obligation to follow the definitions therein when interpreting its own existing constitution.
The second point – I’m Intersexed. My UK Birth Certificate says “boy”, as that’s what I looked like at birth. My UK passport says “F”, as that’s biological reality.
There is no good definition at Federal level, or within the Californian constitution, of “man” and “woman”. If I went to California, who could I marry there? I’m a dual Australian/UK citizen, and in Australia I’m legally female, and in the UK I’m legally male- despite the passport.
Many of the laws against miscegenation led to similar absurdities, and that was a major factor in leading them into disrepute in many states, long before the Supremes looked at the issue.
Zoe Brain,
If you’re referring to the Yogyakarta document, that’s merely a set of principles developed by a group of human rights experts. They had no authority to define what marriage is for Art. 16 of the UN Declaration of Human Rights, and their interpretation is not binding on anyone.
Indeed, Art. 16 impliedly does not require same-sex marriage, as it states, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” Notice that the bases on which discrimination is prohibited — race, nationality, religion — do not include sex or gender.
Also, I can’t think of anything less persuasive to the typical American who is on the fence about or opposed to same-sex marriage than the statement that a bunch of human rights activists have said it’s required. We will have much better luck founding the right to same-sex marriage in our own Constitution, legal tradition and social movement toward sex equality than in saying we have to do what some foreigners tell us to do. (It’s not as though the Bush Admin paid much attention to Articles 5, 9, 10, 11…)
Two issues – the first is the various binding conventions on human rights the US is signatory to.
Zoe, while the U.S. Ambassador to the U.N. may have signed this or that treaty or declaration, according to the Constitution it is not binding on the U.S. unless and until it has been signed by the President of the United States and ratified by 2/3 of the Senate. Article II, Section 2, Paragraph 2:
So when you say that the U.S. is signatory to something, please specify whether it’s actually been signed by the President and ratified by the Senate. Because if it hasn’t, we’re really not a signatory to it – certainly not from the viewpoint of being legally binding on the U.S.
Fair enough, Myca. It’ll take me a while to go through that material. For example, one cannot accept what is on Wiki for controversial topics without doing some verification.
Are you aware of SSM having been accepted under American legal tradition other than the recent exception of Massachusetts and the brief excursion by the California Supreme Court?
Oh, certainly, and if you have any counter-evidence that would be lovely too.
Of course the larger point underlying all of this is that the Appeal to Tradition is a logical fallacy, and shouldn’t be taken to mean anything anyhow … even if it were true … which it’s not.
—Myca
Also, how many times have I been on these threads and pointed out that same sex marriage has existed / exists in cultures other than western? Sigh.
Yes! Right! This is what I’m saying.
It’s also why I’m finding it amusing to watch the apparent standard whittled down:
1) Marriage has always been between one man and one woman always everywhere in the world, and that’s why I oppose gay marriage!
2) Oh damn, I mean, sure, maybe sometimes there was polygamy, but it was always male and female everywhere in the world!
3) Crap, okay, maybe same sex marriage has existed in other cultures, but in Western civilizations it’s always been between men and women.
4) Fuck. Rome? Goddammit. That’s like . . . the Westernest of Western cultures. I figured Greece, but Rome? Okay. *sigh* Okay. In Western civilizations post-Christianity marriage has always been between men and women.
5) What? Goddamn gay saints? Belgium? The Netherlands? Norway? Spain? Freaking Spain! They’re uber-Catholic, aren’t they? How could we not have held on to Spain? Fuck. Okay. New standard: In America, marriage has always been between men and women!
6) Goddamn you, Massachusetts.
—Myca
Don’t forget Canada, your closest first world neighbor. Legal unilaterally in Canada since 2006, conferring exactly the same rights and privileges, and using the same name.
Ah, good catch, Schala.
The other thing that I think it’s worth pointing out is that there has been a lot of variance throughout different cultures when it comes to what exactly a ‘marriage’ is . . . so I end up hearing a lot of arguments that an “other-cultural-life-partnership-between-people-of-the-same-sex” isn’t really same sex marriage, and ought to be thought of as a civil union or something, while ignoring all of the ways that their “other-cultural-life-partnership-between-people-of-differing-sexes” differ from what we would think of as marriage.
As long as you draw the line carefully enough, there will always be a way to put all of the evidence in the world on one side and Same Sex Marriage on the other, but it’s unlikely to be an honest effort.
—Myca
The United States Senate ratified the International Covenant on Civil and Political Rights in 1992, with 5 reservations, 5 understandings, and 4 declarations. It gained presidential signature.
See U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992).Source
The relevant areas are:
Decalaration(1)
That the United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing.
Understanding (5)
That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant.”
DOMA is in clear violation of this. It is one thing to say “oh, we’ll take some affirmative action sometime, when the moment is propitious”. There is no obligation to take such action in a timely manner. But to take action which is not affirmative but negative is a breach.
I just saw clips of Ken Starr’s statements before the Calif Supreme Court on CNN… I thought I was having Clinton Admin flashbacks for a minute. Oh God, not HIM again!
It just fucking figures, don’t it?
Yes, but did the societies which allowed these same-sex unions consider them to be marriages according to their own societal definitions of the term? Did a union between two persons of the same sex confer the same rights, benefits, duties and responsibilities on the participants as a marriage did on heterosexual couples in that same society?
This isn’t a rhetorical question. I’m genuinely curious about it.
ZoeBrain,
But which part of the 1992 Covenant do you think precludes DOMA?
The reservations include: The United States understands distinctions based upon race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status – as those terms are used in Article 2, paragraph 1 and Article 26 – to be permitted when such distinctions are, at minimum, rationally related to a legitimate governmental objective.
State courts, including that of New York, have found that distinguishing between men and women for the purpose of deciding who can marry whom (i.e. why Eve can marry Adam, but Steve is forbidden from doing so), has a rational relationship to a legitimate governmental objective.
However, when it comes to sex, our own domestic Constitutional standard for sex discrimination by the government is heightened scrutiny (a more demanding standard than rational relationship), and so far as I know, no court has applied that to same-sex marriage and found that SSM bans can survive.
This isn’t specifically my area of expertise, so your question is better addressed to Mandolin, when it comes to the specifics of various culturally recognized same-sex relationships.
That said, my take is that internal consistency between same- and opposite-sex marriage within a culture when it comes to ‘rights, benefits, duties and responsibilities’ isn’t necessarily what we should be looking at.
Hmm. Clunky explanation ahead. Bear with me.
Let’s say a modern US marriage provides ‘rights, benefits, duties and responsibilities’ of W, X, Y, and Z.
If an other-cultural-same-sex-relationship provides A, Q, W, X, and Y, and an other-cultural-opposite-sex-relationship provides B, Q, L, R, and Z , then it’s clear that:
1) The other cultural same-sex and opposite sex relationships have very little in common (only ‘Q’),
2) The same-sex relationship is much closer to offering the ‘rights, benefits, duties and responsibilities’ we’ve come to associate with marriage. (W,X, and Y)
3) The opposite sex relationship offers a modern ‘right, benefit, duty or responsibility’ that the same sex one does not (Z)
Now as clunky as that explanation is, I don’t think it’s unreasonable in its meat. Much of the stuff we attach to marriage isn’t attached by other cultures, and much of the stuff they attached isn’t recognized by us.
For example, from the Wikipedia page on Two-Spirit people:
Magic powers? Good luck? Boost to masculinity? How the hell is that supposed to translate to modern American law? Furthermore, the fact that a relationship with a two-spirit person offered that, but a relationship with a single-spirit person did now doesn’t really seem relevant when it comes to whether or not the two-spirit relationship ought to count as a legal marriage in modern terms.
If that makes sense, anyhow.
—Myca
Canada offers exactly the same provisions, rights, benefits, duties and responsabilities for same-sex marriage as other-sexed marriage. This basically means that any adult can marry another unrelated adult, in Canada, and wether the other is male, female, intersex, transsexual pre or post-op, two spirit, hijra, kathoey or any other classification, their marriage will have equal footing.