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"Extreme Right-Wing":

Clayton Cramer has a (mostly) excellent point:

Governor Schwarzenegger announced that he would veto a same-sex marriage bill passed by the California legislature, and his reason for it was that five years ago, a majority--a rather strong majority at that--of California voters passed an initiative defining marriage as "one man, one woman." So what was the response of advocates for the bill?

"Clearly he's pandering to an extreme right wing, which was not how he got elected," said Geoff Kors, executive director of Equality California, one of the bill's sponsors.

Proposition 22, which defined marriage as "one man, one woman" received a Yes vote from 61.4% of the voters at the March 2000 election. So I guess in gayspeak, 61.4% of the population of California--one of the most liberal states in the nation--are "extreme right wing."

Why he wants to mar this argument with the gratuitous "gayspeak," I don't know: Misleading usage by gay activists is no more properly called "gayspeak" than misleading usage by an NAACP leader is properly called "blackspeak" or misleading usage by NOW leaders is called "womanspeak." But in any event, Cramer's essential point strikes me as correct and important.

Steve in CA (mail):
I'm not sure. It seems like using the word "gayspeak" in an otherwise rational post becomes the essential point.
9.8.2005 1:29pm
Eugene Volokh (www):
Well, if you prefer, his substantive point, and the one to which he devotes most of his time. No need to get into discussions of the Platonic ideals of other people's posts.
9.8.2005 1:31pm
Clayton E. Cramer (mail) (www):
The use of "gayspeak" was an intentional parody of the Orwellian "newspeak." If the guy who speaks for the most important gay rights group in the state (other than the Democratic Party) engages in this sort of bizarre redefinition of California voters as "extreme right-wing," what's wrong with parodying as "gayspeak"?
9.8.2005 1:35pm
Steve:
This ties into what is either the beauty or the fundamental flaw of government by referendum, depending on your point of view.

It's fair to say that a majority of Americans, and apparently a majority of Californians, are against gay marriage if you put that specific question to them.

But that does not necessarily exclude the possibility that only the "extreme right wing" would cast their vote for Governor based on that single issue. Presumably, the only people Arnold would have any interest in "pandering to" are those who might vote for him based upon this issue.
9.8.2005 1:38pm
Robert West (mail) (www):
Clayton - it's annoying, at the very least, to gay people who disagree with him. He's clearly wrong, and yet your wording implies that if I'm gay, I have to agree with him.
9.8.2005 1:42pm
Aultimer:
Cramer does have a signficant error. "61.4% of the voters in 2000" is NOT the same as "61.4% of the population of California". Extremists on both sides are almost certainly overrepresented in any group of voters, so the proxy may be generally correct, but it's an error as stated.
9.8.2005 1:46pm
von (mail) (www):
Recent polling suggests that the California is currently split 46% to 46% on the issue of gay marriage. (See this story on RedState: http://www.redstate.org/story/2005/9/7/13465/49592.) Polls are, by definition, not as reliable as votes as an indicator of the mood of the electorate. In addition, I haven't inspected the internals of this poll to see if it's a good poll; nor am I qualified to do so. But, facially at least, it does suggest that there's been significant movement away from the 61% high water mark.*

As for "gayspeak": Mr. Cramer, I got your literary reference the first time 'round. I trust you also get why your "but it's a parody" defense does not does not answer Professor Volokh's point. (Put another way, the fact that "parodies" may offend or be anti-PC does not change the fact that there are good parodies and there are dumb ones. This fits more in the latter category.)

von

*Full disclosure: I'm one of those odd ducks who favor gay marriage but oppose it being accomplished via the Courts. Accordingly, I'm disappointed by the Governor's decision.
9.8.2005 1:50pm
Richard Bellamy (mail):

Cramer does have a signficant error. "61.4% of the voters in 2000" is NOT the same as "61.4% of the population of California".


Ah, but Aultimer actually gave away too much. Because it was not 61.4% of the voters. It was 61.4% of the voters who cared enough to weigh in on gay marriage.

While it is true, as Aultimer suggests, that as a percentage of the voting age population, only 18% voted for the measure, even if you narrow the world to "Californian who voted in the 2000 election", only 41% of those supported the measure. That's because about a third of the people who voted for president in 2000 chose not to vote at all on the gay marriage issue.
9.8.2005 1:58pm
anonymous coward:
Why can't a position adopted by the majority of Californians be "extreme right-wing"? The median Soviet Russian citizen in 1930 probably was somewhat off the political center, too.

Of course a statement like that is unlikely to win friends, but "extreme right-wing" doesn't actually mean anything concrete.

(Very amused at the notion that the Democratic party, in CA or out, is a gay rights group.)
9.8.2005 1:59pm
David Berke:
Because "extreme" and "right wing" are normative statements, and when the majority of a population agrees with a given statement, it establishes a "norm." That norm obviously cannot be extremely off center from itself.

California leans further to the left than most states in the US, so comparing to the US will get you nowhere. I suspect this will be true for any reasonable grouping.
9.8.2005 2:07pm
Richard Bellamy (mail):
That too. A position is extreme based upon how extreme it is, not based upon how many people hold it. If 90% of Mississippians vote to keep slavery in 1850, that doesn't make "Slavery is Good" a less extreme position.

Take any position you find extreme. How many people will have to support it before you give up the view that it's extreme?
9.8.2005 2:08pm
Noah Snyder (mail):
Although I 100% agree that "extreme right-wing" is highly exaggerated rhetoric, if you remove the "extreme" the statement is easily defensible.

According to the survey cited above, noticeable majorities of both Dems and Independents in California support gay marriage. Thus opposing gay marriage is only likely to help you politically among Republicans, *not* among Independents.

And since no one thinks the governor is personally opposed to gay marriage, his vote comes across as a pander.
9.8.2005 2:12pm
CullenS (mail):
Conservative attacks on judge-made law resonate, to the extent they resonate, with the public because they rest on the assumption that it is better for laws to be made through the democratic process than through the decisions of, often, unelected judges. (The fallacy with the argument is, of course, that everywhere judges get their jobs, at least indirectly, through the democratic process because they are appointed by leaders who are directly, or indirectly, elected. In many places, judges are elected directly.)

Assuming, though, that there is some merit to the notion that legal developments should happen through democratically elected leaders, having a state legislature pass a law is about as democratic as it gets. Suggesting that a five-year old referendum ought to be more compelling evidence of the peoples' present day intentions, as expressed through their elected officials, turns the very notion of democratic and representative politics on its head.

Gov. Schwarznegger may want to veto the California gay marriage law because he thinks it's bad policy or bad politics or because he doesn't like gay people. But this business of old referenda trumping present day legislatures is specious and silly.
9.8.2005 2:34pm
A.S.:
I don't understand CullenS's argument that "this business of old referenda trumping present day legislatures is specious and silly". Does he not understand that laws have a hierarchy? The idea that some laws trump other laws is as old as our country.

Our federal Constitution trumps federal laws and treaties. Federal laws and treaties trump state constitutions. State constitutions trump state laws. And in California, at least, voter-passed referenda trump legislature-passed laws (but not the state constitution).

So perhaps CullenS can enlighten us as to why s/he thinks that this last bit of trumping is any different than any of the other trumping?
9.8.2005 2:46pm
David Berke:
Richard,

You said: "A position is extreme based upon how extreme it is, not based upon how many people hold it. If 90% of Mississippians vote to keep slavery in 1850, that doesn't make "Slavery is Good" a less extreme position."

Two essential issues:
(1) Your logic is circular; Whether an opinion is extreme is based upon how extreme it is? How do you determine what is extreme? By how extreme it is? You can't answer either question, making your definition useless.
(2) Is it really true that In 1850, it really was an extreme position to believe Slavery was good? In Mississippi? Now, it would surely be extreme. In 1850 in many other parts of the world, it would have been extreme. But, in 1850, in the United States? When the question was sufficiently open that honest debate on the subject took place? When it contributed to a subsequent civil war?
9.8.2005 2:50pm
A. Rickey (mail) (www):
Actually, CullenS is busy undercutting his own reasoning. If he's rejecting the idea that laws have heirarchies (i.e. supposing constitutionally a referendum can't be overturned by the legislature unless the text of the referendum allows it), then how exactly are judges ever to "make" law, at least on constitutional issues? Because any recently-passed legislative act--such as, for instance, a law mandating the teaching of creationism in the schools--will be a more reliable indicator of public opinion than the First Amendment. Certainly a silly old amendment trumping a modern day law is even sillier.
9.8.2005 2:54pm
Richard Bellamy (mail):
David,

The death penalty is an "extreme" punishment. If you support it, it is likely because you want an extreme punishment to deter crime or punish. If you oppose it, it is because it is so extreme that it is irremediable. Similarly, permitting slavery is "extreme" because it supports taking away all of a person's rights.

Taking away someone's right to marry who he wants is clearly not as "extreme" as the death penalty or slavery. But, if you view the right to marry as a relatively fundamental one, then interference with that right is "extreme" to a lesser degree.

None of this analysis depends upon how many people support or oppose the viewpoint.
9.8.2005 3:10pm
Shelby (mail):
Richard,

The fact a given position is "extreme" in its results doesn't make that position one held only by a political "extreme", which is the issue here. Children cannot vote and have extremely narrow rights, especially at young ages. Supporting this situation is a centrist position.
9.8.2005 3:26pm
keypusher (mail):
You're using "extreme" in a different way than Geoff Kors did. He said "extreme right wing" to mean "very far right wing." You're using "extreme" to mean, I think, "very strong" or "complete and utter," as in "slavery is a complete and utter deprivation of rights" or "the death penalty is a very strong penalty."

For white Mississippians in 1850, supporting slavery was certainly not an "extreme" political position, and no one who supported it publicly would be accused of pandering to an "extreme right wing" there. Same with the California governor's current position.

"And since no one thinks the governor is personally opposed to gay marriage, his vote comes across as a pander."

Maybe he's doing what he thinks is right?
9.8.2005 3:29pm
keypusher (mail):
You're using "extreme" in a different way than Geoff Kors did. He said "extreme right wing" to mean "very far right wing." You're using "extreme" to mean, I think, "very strong" or "complete and utter," as in "slavery is a complete and utter deprivation of rights" or "the death penalty is a very strong penalty."

For white Mississippians in 1850, supporting slavery was certainly not an "extreme" political position, and no one who supported it publicly would be accused of pandering to an "extreme right wing" there. Same with the California governor's current position.

"And since no one thinks the governor is personally opposed to gay marriage, his vote comes across as a pander."

Maybe he's doing what he thinks is right?
9.8.2005 3:29pm
anonymous coward:
Calling something "extreme" (or for that matter "right wing") usually doesn't have a terrific amount of meaning. It's rhetoric intended to marginalize the opposition.

Anyway, opposing gay marriage probably seems pretty "extreme right-wing" if your friends are San Franciscan lefties. Popular views can be extreme (e.g. support for radical groups in the Middle East); unpopular views can certainly be non-extreme.

Perhaps we need a "global test" to define extremism.
9.8.2005 3:33pm
Bisch:
Noah -
I was under the (perhaps mistaken) impression that it's good that government leaders do not legislate willy-nilly from their own personal preferences. Your post seems to indicate that deference to a majority of voters (you know, those people that actually engaged enough to particpate democratically) is pandering. Here's to low expectations.
9.8.2005 3:35pm
Challenge:
"Maybe he's doing what he thinks is right?"

Yes, FOLLOWING THE LAW. It's amazing to me that so many can't fathom the following: One can be supportive of gay rights and gay marriage, but still want to, you know, follow the law.
9.8.2005 3:36pm
Challenge:
"But this business of old referenda trumping present day legislatures is specious and silly."

So, California might as well not have a Constitution at all, right? Because, you know, following that it clearly commands is "specious and silly."
9.8.2005 3:40pm
anonymous coward:
I thought we were supposed to admire politicians who believe in principles, not polls. Who are leaders, not followers. Or some such.
9.8.2005 3:42pm
jgshapiro (mail):
A position is extreme based upon how extreme it is, not based upon how many people hold it.

But who is to decide where the center (from where we determine where the extreme places are) is, if not the polls? On this logic, every position is extreme to someone at any given time, and the term becomes meaningless.

California is one of the most left-wing states in the nation, based on the way it has voted since 1996 in elections for national and statewide offices and on referenda. Prop 22 was passed by 61% of the voters during this period in a primary election in which 54% identified themselves as Democrats and only 41% as Republicans.

If 3/5 of a left-leaning state vote for a proposition, how can it be considered extreme?
9.8.2005 3:52pm
David Berke:
Richard,

You have yet to explain how we are to determine what is extreme. You instead merely offer examples, all of which many people would not have agreed with at some point in the past.

You may not believe that it is relevant if anyone (or indeed, everyone) disagrees with you, on the grounds that if one is "correct," no number of other people who are "incorrect" can change that. That is true.

However, unlike mathematical theorems and other areas of inquiry, the concept of "extreme" is purely relative, at least as it was used. Thus, the phrase "Extreme Right Wing" implies that the position held is very far to the "right" of most people. A view cannot both be "Very far to the "right" of most people, and held by a majority of said people. (provided the "people" in the example are the same.)

Therefore, although your analysis may not depend upon how many people support or oppose the viewpoint, it is not responsive to the issues I have raised.
9.8.2005 4:00pm
Rick:
Shelby, I think you unintentionally offered the explanation of the gay rights activist's statement when you said,

"The fact a given position is "extreme" in its results doesn't make that position one held only by a political "extreme", which is the issue here."

The key word there is "only", which was not in the statement. The guy didn't say the gov was pandering to the extreme right wing, who are the only people who want to prevent gay marriage. He stopped after the first section.
9.8.2005 4:06pm
anonymous coward:
This discussion has devolved into extreme silliness.
Extreme means just what I choose it to mean, neither more nor less.
9.8.2005 4:07pm
Daniel Chapman (mail):
Now are you using that literary reference as parody or as a substantive point?
9.8.2005 4:37pm
BruceM (mail) (www):
Arnold is citing 5 year old public opinion stats to veto something passed now by the same public's elected representatives? Assuming a law passed by the legislature reflects the will of the majority and is therefore sacrosanct (which has become the base principle, no matter how flawed, of the GOP), how could Arnold cite the will of the people (from five years ago, no less) to thwart the will of the people? Quite asinine. Saying "I'm going to veto this because the people don't want it" makes absolutely no sense at all. Vetoing it because it's unconstitutional, bad public policy, etc. is fine. But you can't veto something on the grounds that the people/voters don't want it.
9.8.2005 4:37pm
JAB (mail):
I said this in an older thread, but I would like to repost this here...

Contrary to Prof. Volokh's claim, Prop. 22 did NOT define marriage as being between a man and woman for the state of CA.

This point needs to be emphasized:

Section 300 deals with how CA defines marriage internally.
Section 308 deals ONLY with recognition of marriages performed outside CA. Prop. 22 amended Section 308 to read that only opposite-sex marriages would be recognized. Prop. 22 was sold to the public on the basis that it was only preventing CA from recognizing gay marriages performed in other states.

If the authors wanted to define marriage as being between a man and woman only, period, no ambiguities, then why didn't they insert the amendment in section 300, where CA defines marriage in general, instead of 308, which ONLY deals with recognition of marriages from OTHER states?

Go back and look at the whole section of statutes on CA law, and you will see that Prop. 22 inserted language ONLY, ONLY, ONLY in the section dealing with how CA recognizes marriages performed in OTHER states. It did not make any changes to how CA internally defines marriage.

The CA Assembly &House did NOT overturn Prop. 22...
It certainly isn't as clear-cut as Prof. Volokh makes it seem.
9.8.2005 5:01pm
Kscott (mail):
Was not the Proposition in fact about precluding CAs being forced to recognize what OTHER states did? And not about what CA itself might choose? If so, then the leg's vote was not contradicting the Proposition's

In addition, reasoning that what happens in a referendum represents either what the people think or what is best for them demonstrates not only a lack of knowledge of gov't but an abdication of leadership.........
9.8.2005 5:02pm
Jaime non-Lawyer:
If Arnie's base is 61% of the voters, then I would say he's in good shape for getting reelected.

BruceM, your argument makes no sense. 5 years is not a long time, and the voters spoke loud and clear on a direct question. " Assuming a law passed by the legislature reflects the will of the majority and is therefore sacrosanct." That's a big assumption, and we have clear evidence that it is wrong. 61% is an overwhelming majority, and the decision was not filtered through legislators in safe districts.

I for one think Arnold made the right choice. If supporters of gay marriage want to put a referendum on the ballot, they should do so. I'll vote against it, but if it passes, so be it.
9.8.2005 5:02pm
DRB (mail):
Actually, I think Arnold can veto it on any grounds he wants. It's one of the powers that comes with his elected office.
9.8.2005 5:03pm
anonymous coward:
The proposition's legal meaning should hinge on what the voters thought it meant. I suggest the California Supreme Court commission a poll.
9.8.2005 5:23pm
Kazinski:
BruceM,
Arnold wasn't citing public opinion stats he was citing an election. And why can't he veto something because the people don't want it? Does the state constitution list the valid reasons that the governor must cite before he can exercise his veto? I don't think so. If only 5 years ago (I might agree with you if it were in the 1920's or 30's) the people voted in an overwhelming fashion for banning gay marrige then they should vote again on the question. I'd be willing to wager a large amount of money case of Anderson Valley Belk ESB that if the legislature proposed an inititive to put the question back on the ballot at the next available general election the governor would sign it and allow the people to confirm or undo their previous decsion.
9.8.2005 5:34pm
Visage (mail):
Go back and look at the whole section of statutes on CA law, and you will see that Prop. 22 inserted language ONLY, ONLY, ONLY in the section dealing with how CA recognizes marriages performed in OTHER states. It did not make any changes to how CA internally defines marriage.

Actually, it inserted the language "ONLY, ONLY, ONLY" *after* the portion of the Code that deals with how CA recognizes marriages performed in other states.

Now, why use 308.5 rather than 311? That seems to indicate to me that there was intent to change only the way CA deals with external marriages... but on the other hand, if the intent was to only affect external marriages, why didn't the proposition explicitly state that?

For all that I'd wish to believe that the CA legislature can enable gay marriage in CA, when looking at the 300's *as written* I come to the conclusion that 308.5 bans gay marriage from occurring within CA.

(Of course, there's also the related point of: "Wouldn't it be awfully silly to for CA to recognize its own gay marriages, but not anyone else's?")
9.8.2005 5:37pm
JAB (mail):
I don't think anyone is saying that the governor cannot veto... of course he can... it is completely within his authority to veto for any reason, or no reason at all.

The points of contention are:
(1) The claim by the professor and some others that the legislation put through by the assembly and senate is unconstitutional because it seeks to overturn prop 22.
It does not, because Prop. 22 inserted language in the section detailing under what circumstances CA recognizes marriages performed in OTHER states.
(2) The governor claiming that the reason he vetoed is that it would not be right to sign legislation that is "knowingly" unconstitutional and the people spoke on the issue earlier via Prop. 22 and that.... but they did not speak directly on this issue... they voted to ban gay marriages from OTHER states... this does NOT prevent the legislature from changing the law on how CA defines marriage for CA.
9.8.2005 5:46pm
JAB (mail):
Visage,

I see your point, but are we to not infer ANYTHING at all by the PLACEMENT of the amendment? Could someone of the lawyerly persuasion comment on the issue of the placement of the amendment? Are we saying it doesn't matter? I thought the letter of the law was supposed to be more precise.
9.8.2005 5:50pm
RaiderXL (mail):
Let's cut through the clutter — all the formulaic, philosophical and political permutations anyone comes up, whether you agree that marriage should be redefined by one privileged group or by any group that wants to call any relationship "marriage," here's the bottom line:

The California Constitution PROHIBITS the legislature from overturning a voter referendum. End of story. Assy'man Leno knows this and this is why he has attempted a legalistic bait and switch to justify the action. He would have us believe that the CA voters in '00 were voting JUST to prohibit recognition of out-of-state same-sex "marriages." Prop 22 states that only a union between one man and one woman will be "valid or recognized" as marriage. Pretty much covers the bases — but to paraphrase Herman Cain — the CA Assy. thinks voters are stupid. We'll see how that shakes out: protectmarriage.com

The contributor that says something like "can't get any more democratic" than the legislature violating the CA Const. is either unaware of the law there or a rabid partisan. Are we to believe that a popular referendum passed JUST five years ago is invalid to the point that the legislature was justified in violating the state constitution because of a couple silly push polls? The only polls that count are at the ballot box.
Exhibit A: thetaskforce.org/downloads/StateBallotPollingData2004.pdf

To use the argument that..."well actually, if you really look at it, only X% of people actually voted on X issue"...is about the weakest duck and cover there is.
9.8.2005 6:08pm
BigBob:
I believe that it's true that Arnold was pandering to an extreme right. Sure, 61% voted against gay marriage, but keep in mind that most of them don't actually care that much; i.e., it wouldn't affect their vote for or against Arnold in another election, even if they are against gay marriage. What Arnold was concerned about was the small, extreme, well-financed right-wing groups that WOULD lead the charges against him.
9.8.2005 6:17pm
jdd6y:
Once upon a time, the President of the US used regularly veto legislation as "unconstitional." I think a fair argument can be made that this is really what the governor is up to. Especially when viewed of Lockyear's, and other AGs, willingness to fight the expressed will of the people in the courts because of a disagreement with the policy. Remember medical marijuana and prop 187?

IMO, the gov. has a Constitutional responsibility to veto to measure. How can he sign his name to a bill that he knows in contrary to the Constitution of California? At a minimum, he must not sign it. The measure is blatantly illegal and I am certain the Dems in the legislature are aware of this. This entire thing is a political ploy to make sure their gay donors keep giving them money. I think the last thing the Dems want is for this thing to pass as they would be of no use to the gay lobby. Now they can say, hey, we tried, but we need more money to do a proposition or get enough Dems in the house/senate to amend the Constitution or elect a Dem governor. Whatever. I find it amusing that the governor gets accused of "pandering" but the Democrats get a free pass here? What, other than Katrina, prompted them to push this trough in lieu of a proposition?

The gov may be pandering to primary voters but he's also pandering to people that want to Constitution and referendum system respected and not undermined by the gerrymandered, unrepresentative jokers in Sacramento. If they really think this is the will of the people, put a proposition on the ballot (which is completely within their power to do) that either legalizes gay marriage or merely repeals prop. 22.

Personally, I have no idea why we even need a legislature when every major change has to come from the people, year in and year out. All those staffs just do pass laws that make no economic sense such as raising minimum wages - yay!
9.8.2005 6:52pm
Gordon (mail):
To me Schwarzenegger is in the right (not ON the right) on this issue.

First, initiative sponsors are notoriously bad about statutorily or constitutionally implementing their policy preferences. The initiative passed five years ago was clearly sold as banning gay marriage in California. Any claim otherwise is legalistic mumbo jumbo.

Second, if the proponents of gay marriage really believe that 61% of California's likely voters have shrunk to less than 50% within the past five years, they should sponsor their own initiative to prove it. That would be the ultimate nail in the coffin of anti-gay bigotry, wouldn't it?

Third, why didn't the proponents put forward a "civil union" bill instead? It clearly would have passed, and I suspect that Arnold would have signed it - if he didn't he would certainly be a panderer. And the argument about "flouting the will of the people" would have currency only with the REAL "extreme right ring" (not Kors' definition).
9.8.2005 6:52pm
anonymous coward:
California already has civil unions, Gordon.
9.8.2005 7:09pm
Thorley Winston (mail) (www):
Gordon makes an excellent point. If the public opinion in California has really shifted by 15 percent in five years, then the proponents of so-called “same sex marriage” ought to have no problem putting up their own ballot initiative and getting it approve by voters just as opponents did five years ago.
9.8.2005 7:10pm
SKlein:
I'm not sure that JAB's point holds up, even if you grant his premise that Prop 22 applies only to the recognition of out of state marriages. If the new law were signed, that would mean that California was refusing to recognize out of staet marriages which are legal in California. It seems to me that would deny full faith and credit to the out of state marriage (and possibly deny equal protection as well), meaning that the new statue is unconstitutional on that ground. (I am aware that FF&C does not require California to recognize and out of state marriage that is contrary to California law, but the reasons for that would not justify them in refusing to recoognize a marriage thtt is lawful in California).
9.8.2005 7:52pm
Gus M (mail):
RaiderXL said, "The California Constitution PROHIBITS the legislature from overturning a voter referendum. End of story."

Please provide a cite. The first cite I could find is Cal. Const. Art. 2, § 10(c), which states, "The Legislature may amend or repeal referendum statutes."
9.8.2005 8:13pm
On Lawn (mail) (www):
I'll cross post this here.

The matter of the scope of Prop 22 (whether it was limited to marriages outside the state or not) was reviewed by the courts. From Knight v. Superior Court, 128 Cal. App. 4th 14, 23-24 (2005) :

"The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state."


The question is simple:

Is same-sex marriage legalized by AB 849?

If it is, then it is clear that 308.5 has either been repealed or amended by the court established interpretation of 308.5. Either that or we are to pretend that inconsistency in laws is the new consistency.
9.8.2005 8:20pm
On Lawn (mail) (www):
Sorry, also on Cramer's comment I'd like to offer this as a parallel perspective to help nail down what I think is the intended meaning. It is from blogger Cannadi-anna, describing C-38's passing and subsequent politics:

Canadians are proud of their moderate tendencies. We are peacemakers, looking for conciliation rather than confrontation. Traditionally, the Liberals have been seen to hold the centre of the political spectrum -- able to straddle the fence on tricky issues and come to some consensus.

[...]

All of the main political parties agreed that government recognition of the 'unions' of same-sex couples was inevitable. Even the majority of those who are personally opposed to homosexual activity on a religious or moral level, were willing to make this concession.

At some point, it stopped being reasonable and moderate to respect the right of gay people to live their lives and go about their business [...] The Liberals have annihilated the centre. They have taken the position they themselves recently vacated and have labelled it 'extreme'. It didn't happen because the Liberals thought it was the right thing to do - enlightenment doesn't affect a vast number of people simultaneously. Progress amongst moderates is deliberately slow -- only extremists want change with speed -- and that's only so they can't take in the damage they're doing.
9.8.2005 8:23pm
Robert West (mail) (www):
Gus M - it's important to be precise here. Article 2, Section 10 of the California Constitution says: "The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval."

There's an important difference between referendum statutes and initiative statutes. A referendum statute is a statute which was adopted by the legislature, challenged by a petition, and then approved by the voters; the legislature may subsequently change that. An initiative statute is a statute which was proposed by the voters via petition and then approved by the voters - the legislature cannot change that unless the change is first submitted to a vote of the people.

Proposition 22 was an initiative statute, not a referendum statute.
9.8.2005 8:25pm
RaiderXL (mail):
Thanks RW. My language was imprecise in a substantive way. I hope your response answered GM's question for me.
9.8.2005 8:54pm
Student (mail):
Responding to OnLawn:

The basis of the full faith and credit provisions of the federal DOMA, I believe, is that no state should have another state's definition of marriage forced upon them, but should be allowed to make decision regarding the definition of marriage itself. One manifestly efficient way to accomplish this, I think, is to amend the sorts of out-of-state marriages recognized, while leaving the in-state portion unamended.

I'm not sure how much quoting a sentence of dicta adds.
9.8.2005 9:08pm
On Lawn (mail) (www):
Student,

You can rest assured it means that Prop 22 applies to all marriages in California no matter their origin. The reasoning is succinct enough to put in two sentences, both of which I quoted.

It seems that the consistency between 300 and 308 (i.e. as a reaffirmation) is intended by the simple language as well as the placement in section 308. Therefore to pretend amending 300 doesn't impact 308 was wishful and erroneous thinking on the part of Mark Leno. A ruse that would not likely hold up in court as it already was tried and failed.

As mentioned previously, this is consistent with the discussion at the time. I have much of the literature of the time in my possession should we wish to try to re-write history and pretend Prop 22 only intended a limited impact.
9.8.2005 9:27pm
Student (mail):
On Lawn,
You can rest assured that the "two for the price of one" maxim of statutory construction has not yet made it into any Latin dictionary.

Claiming that 308.5 does not allow amendment of 300 requires an argument that the two cannot be consistent. I have given a reason that the two are consistent; moreover, given that this reason is the very one underlying the full faith and credit provision of the federal DOMA, it's a bit of a stretch to call it "pretend." Today, how would you advise a state who wishes to take advantage of the DOMA provision, yet wishes to allow itself the ability to choose as it may in the future? Is what way is this a ruse?
9.8.2005 9:44pm
Noah Snyder (mail):
Bisch-
I hope that the people I elect will be leaders, and not just followers. I'd like to have a wise person integrity running my state. And that means someone willing to do the right thing even when the electorate disagrees.
9.8.2005 10:43pm
Noah Snyder (mail):
Suppose you believe, as I do, that not allowing gay marriage is unconstitutional. (I can't find a way to distinguish it from Loving v. Virginia.) Is it then unconstitutional to pass a law that conflicts with an unconstitutional ballot initiative?
9.8.2005 10:47pm
On Lawn (mail) (www):
how would you advise a state who wishes to take advantage of the DOMA provision, yet wishes to allow itself the ability to choose as it may in the future?

The constitution sections cited in this thread provide the answer of how to "choose as it may in the future".

Prop 22 could also have said, "California will only recognize marriages that would be legal to perform in this state" or other language that referenced, rather than re-affirmed 300. That would accomplish exactly what you wish without the conflicting situation of accepting same-sex marriages in the state but not from, say Massachusettes should AB 849 have stood muster.

Even if I put out of my mind what I experienced during the campaign and work the theory gratuitously from different angles I can't find any corroboration, sorry. You show great faith in your theory, so perhaps you know something I don't but what you are giving me to work with just isn't panning out.
9.9.2005 1:12am
Op Ed. (mail) (www):
Student:

The law is the law, and Prop 22 does not contain any language that limits it to out-of-state marriages, period. No degree of "what the meaning of is is" parsing is going to change that.

Noah:

The law is the law, and there is no provision in the California Constitution that allows the legislature to override the vote of the people simply because they think the people can't read the constitution as well as they do.

As for not being able to distinguish same-sex marriage from Loving, you clearly haven't read Loving, for if you had, you'd have a hard time finding any similarity between the two situations.
1) Loving dealt with a criminal law, not the definition of marriage
2) The Lovings were a male-female couple, not some same-sex combination.
3) The rationale behind Loving was to equate racial restrictions on marriage with the English caste system rejected by the colonies long before the Constituion was ratified. Such rationale cannot extend to matters related to gender since gender is not a matter of lineage.

Even the fatuous and legally vacant Goodridge ruling didn't try to extend Loving to the extent you are.

As for your interest in being ruled by a wiser than "we, the people" dictator, you need to look for another form of government. Clearly democracy is not your cup-o-tea.

Student and Noah:

The two of you are clearly so over-enamored of the ends to invest any critical thinking in the means. Both of you advocate extra-legal activities by those entrusted to uphold rather than flaut our laws. Our laws and constitutions are the only thing standing between our orderly and free society and the oppression of a capricious dictatorship. Consider if the legislature had used exactly these same means to accomplish something like logging in an old-growth forest, granting a tax break to a powerful California corporation, or restricting abortions. You'd rightly be incensed that the legislature acted contrary to the law. Don't trade your freedom, your vote, for any just-this-once noble cause.
9.9.2005 1:31am
Student (mail):
Note to self: Rhetorical questions have a way of coming back to haunt me. The thrust of my argument was whether this is a permissible way for a state to accomplish the goal, not whether there are any other permissible methods that someone might have imagined. So, I guess I should have asked whether this is a rational method in which a state might accomplish their goal, not whether there are any other ways for the state to accomplish it.

More to the point, it just seems to me that one has to abandon traditional methods of statutory construction to arrive at your conclusion.

When inquiring into the meaning of a statute, a court is supposed to 1) construe the statute so as to avoid constitutional problems - i.e. If there is one constitutional construction and one unconstitutional construction, choose the constitutional; and (2) construe the statute so as to avoid internal inconsistency. These two general maxims of statutory construction are designed to keep the courts out of the legislature's hair and away from proclaiming policy, something I would bet both you and I value.

So, here we have an ambiguous statute (text that appears to reach in-state; but placed in an out-of-state section); and we have two constructions. To reach your construction we would first have to ignore the entire structure of the statute and the purpose of the section in which it resides. This exercise in willful blindness would then result in reaching a construction which renders the statute both internally inconsistent and unconstitutional. When faced with another plausible interpretation which is neither internally inconsistent nor unconstitutional, and which perfectly adheres to the purpose of the section in which it resides, to choose the former is an exercise in public policy that borders on judicial fiat.
9.9.2005 2:05am
Student (mail):
Section 1. Definition.
An "illegal abortion" is an abortion not required to be permitted by the federal constitution.

Section 3. Literature to be provided. (previously enacted via voter initiative)
Section 3.5.
An "illegal abortion" is an abortion the patient did not choose.
9.9.2005 2:30am
Student (mail):
Op Ed: My example in the post above admittedly isn't a great one, but I hope that it illustrates that my concerns regarding statutory construction are real, rather than quibbling about what the meaning of "is" is. I sincerely believe that it is you, not me, who is willing to throw away something valuable, for a just-this-once.
9.9.2005 2:38am
On Lawn (mail) (www):
Student,

So, I guess I should have asked whether this is a rational method in which a state might accomplish their goal

I guess I should have stated more explicitly then that the answer is no, it is not a rational way for the reasons stated above. Even if it were rational the legislature has no power to position a popular initiative as you describe.

Please don't underestimate another's ability to get or even answer your question. I've heard it said that AB 849 was an insult to the intelligence of the Californian voter. I do not think it was intended to be so, but I get the feeling you wish your comments to follow that grand tradition.

For instance, I appreciate your lesson on judicial propriety but to be quite frank, I was wondering when you'd realize it. To meet the maxims as enumerated:

1) The constitutionality is not dependent on its scope of inter-state or intra-state impact. A breach of equal protection (to name an example) would apply equally to both.
2) The consistency of 300 v 308.5 is the very point that the judge meets in Knight when it says, "The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300 [...] This limitation ensures [...] that California will not permit same-sex partners to validly marry within the state."

To reach your construction we would first have to ignore the entire structure of the statute and the purpose of the section in which it resides.

This is simply not true. To notice (as the judge did) that these statutes are inseparably tied together is in no way ignoring the understood scope of the statutes in that section.

What you are presuming is that that perhaps California wanted the express possibility of a situation where same-sex marriages were allowed only if they were performed in the state. I am personally unclear on how you expect DOMA to extend to inter-state marriage recognition where the marriage is legal in both states in question. I see no language in DOMA that could even support such a proposition. I see no power the legislature or court has in massaging such self-contradictory pretense into being.

This exercise in willful blindness would then result in reaching a construction which renders the statute both internally inconsistent and unconstitutional.

Yet, assuming specifically gender neutral language in 300 and specifically 308.5 will not be inconsistent?

This, I offer, is the camel you swallowed while straining at gnats. Gnats that apparently were nothing for Prof Volkoh and the Knight decision to move past yet you presume they are all suffering from willful blindness.

Honestly, you would do better trying to understand what others are trying to tell you than hide the deficiencies of your with presumptive language pretending no one who disagrees is sharp enough to keep up with your dizzying intellect.

As David Lo Pan said to Jack Burton, "You were not put on this earth to get it, Mr Burton". I'm not on this earth to make you get any particular point either. I simply rest on the fact that your own faith in your legal acrobatics is so fatuous that life will provide you the reality check better than I ever could.

Good day.
9.9.2005 2:41am
Student (mail):
On Lawn,
I did not mean to condescend or insult(other than to reply to "rest assured"), I just got a little worked up after I read Op-Ed. You are obviously a smart and well-informed person whom I disagree with, and I didn't mean to imply otherwise. I apologize for any insult given, it was not intended. I'll think about your comments.
9.9.2005 3:03am
jgshapiro (mail):
I'm a bit conflicted on this one.

I voted in the 2000 CA primary election where Prop 22 was on the ballot, and I cannot recall any emphasis on the issue of recognizing out of state same-sex marriages as opposed to in-state same-sex marriages. People who voted on this proposition, including me, were voting based on the belief that they were (or were not) banning same-sex marriages in CA, not just banning the recognition of same-sex marriages performed outside of CA.

Moreover, the language of the proposition, if not its placement in Section 308.5 vs. Section 300, does not specify that it would allow same sex marriages performed in CA. So it is hard to argue with a straight face that the proposition did not intend to ban same-sex marriage and that's what the voters thought they were doing when 61% of them voted for it.

On the other hand, you could argue that an initiative statute, much like a contract, should be construed against the drafter(s), and if the proponents were sloppy enough to neglect to put the language in the right section, the legislature should not be bound by their poorly-executed intent.

The real question, though, is why the legislator proponents of same-sex marriage did not simply put forward the new law as a referendum statute or an initiative statute that would supersede Prop 22. If it passed, it would remove any doubt as to where CA voters stand on this issue and remove any question as to the lingering impact of Prop 22. One can only surmise that they did not believe it would pass.
9.9.2005 3:04am
Cyn23 (mail):
"Loving dealt with a criminal law, not the definition of marriage"

If Loving was purely a civil case, the Lovings still would not have lost. This is a bit of a canard.

"2) The Lovings were a male-female couple, not some same-sex combination."

They were barred by race. Same sex couples are barred by sex. Sex in CA is a strict scrutiny issue as well as race. See, e.g., opinion in Baehr for the relevance to same sex marriage.

"The rationale behind Loving was to equate racial restrictions on marriage with the English caste system rejected by the colonies long before the Constituion was ratified. Such rationale cannot extend to matters related to gender since gender is not a matter of lineage."

Since slavery and property qualifications for voting was prevalent into the mid-19 century, I'm not so sure about the whole English caste system rejecting thing. The issue was a consistent application of strict scrutiny in racial discrimination cases.

"Caste" for 14A purposes however was not defined as narrowly as you suggest. If it was, it would be dicta, since only racial discrimination was at stake. But, the underlining principle of depriving the fundamental right to marry cited goes beyond race.

The question would be what is "supportable" to so deprive. Since sex as well as race is a matter of strict scrutiny in CA (and heightened by SC precedent such as US v. Virginia), Loving is rather relevant.
9.9.2005 3:15am
Op Ed. (mail) (www):
Student -

I sincerely believe that it is you, not me, who is willing to throw away something valuable, for a just-this-once.

Dictatorship is neither something valuable nor something I reject in just this one case, but in every case where our freedom is threatened, so you are wrong on both counts.

Your hypothetical, besides being just that, a hypothetical, illuminates nothing. In your argument you attempt to impute verbiage into Prop. 22 that is not there. In your hypothetical, you do not. The power to amend an initiative ex post facto as you are advocating is the power of tyranny, plain and simple. In the words of Benjamin Franklin: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."
9.9.2005 3:19am
Cyn23 (mail):
jgshapiro has a pt, but is putting it in front of the electorate necessary by law?

Also, honestly, I don't believe the Gov. really is vetoing the bill for the reason granted. I say this in part on the assumption, perhaps wrong, that the limited interpretation cited by some on this thread is quite reasonable.

Secondly, this reliance on public will is questionable taking everything into consideration, esp. since inaction will lead to court action that will probably result in the same result. Court action he is fully willing to be totally supportive of. This seems a bit too precious to take seriously.

I don't think the guy is such a stickler that if things were politically different, he would not veto. But, maybe I'm a suspicious sort. Anyway, he can veto for any reason he wants ... I just don't buy the reason he supplied.
9.9.2005 3:23am
Noah Snyder (mail):
--Op Ed.

First off, my question of whether a legislature can and should pass laws contradicting referendum statutes they believe to be unconstitutional was a serious one, not a rhetorical one. I'm not sure what I think on this one, and thought people might have interesting opinions on that question.

Secondly, actually I did read most of Loving. I'm not a lawyer or law student, so I probably missed a lot of the details. Nonetheless I was struck over and over again at how closely the anti-miscegenation arguments matched the current anti-gay marriage arguments. Reading Loving was actually the thing that changed my mind from supporting civil unions to supporting gay marriage.

My amateur one-sentence description of the rationale in Loving was that equal protection is *not* satisfied by saying "black people can get married as long as it is to a black person." Similarly it seems to me that equal protection should not be satisfied by saying "gay people can get married, as long as it is to someone of the opposite sex."

I'd love to hear some of the experts here who actually know what they're talking about explain how the two situations might differ, but I honestly can't see any important differences.
9.9.2005 3:56am
Student (mail):
On Lawn,

1) The constitutionality is not dependent on its scope of inter-state or intra-state impact. A breach of equal protection (to name an example) would apply equally to both.
I may not have been clear: I did not mean that the California Family Code would violate Equal Protection, but that if we give AB 849 and Sct. 308.5 your construction, then AB 849 would violate the Art. 2, Sct. 10 of the California Constitution. I mean to say that your argument works against you, because I have offered another plausible interpretation which doesn't render AB 849 unconstitutional.

2) The consistency of 300 v 308.5 is the very point that the judge meets in Knight when it says, "The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300 [...] This limitation ensures [...] that California will not permit same-sex partners to validly marry within the state."

I agree that the judge wrote this, and that it construes the statute. Our disagreement is whether it is the holding or dicta. Knight held that recognition of domestic partnerships do not violate any prohibition on recognizing same-sex marriages. The judge was not required to decide 308.5 prohibits in-state same-sex marriage, because he can decide that even if so, domestic partnerships are still legal. Again, because I think that Knight's reasoning regarding this question was not required to decide the question before it, I don't think that it should control future cases regarding this question. Moreover, although it should be discussed in a futher case, it should be rejected. If I were to make any concession, I would say this: If it is not dicta, the California Supreme Court should overturn it - it goes against the unamended text of Sct. 300, the structure of the california family code and purpose of the section (entitled "Foreign marriages; validity"), and traditional methods of statutory interpretation. I think that the role of the judiciary simply points in the opposite direction on this one.

What you are presuming is that that perhaps California wanted the express possibility of a situation where same-sex marriages were allowed only if they were performed in the state. I am personally unclear on how you expect DOMA to extend to inter-state marriage recognition where the marriage is legal in both states in question.
The DOMA provides that:

"No State...shall be required to give effect to any public act, record, or judicial proceeding of any other State... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State... or a right or claim arising from such relationship.'.

My thought is that (1) the DOMA is pretty clear, and that (2) if it has constitutional problems in this situation, then probably has some problem in other situations. I will admit that I don't quite understand the constitutionality of this DOMA provision, but my understanding of the theory behind it is that it allows states to decide the question for themselves. My thought is that if constitutional deference is given to this end, then deference should be given to the manner in which a state chooses to pursue it.

Again, I apologize for any insult. I think that when people start explaining the purpose of the judiciary, it will more than likely come off as condescending and piss somebody off. But, in the end, although I understand your point, I disagree with it.
9.9.2005 3:58am
Op Ed. (mail) (www):
Cyn23 -

If Loving was purely a civil case, the Lovings still would not have lost. This is a bit of a canard.

If Loving were "purely a civil case" it still would not have been about the definition of marriage. Yours is the canard.

"Caste" for 14A purposes however was not defined as narrowly as you suggest.

"Caste" is not defined at all in the 14th Amendment, narrowly or otherwise, neither do I say it is. Again with the illegitimacies.

Since sex as well as race is a matter of strict scrutiny in CA (and heightened by SC precedent such as US v. Virginia), Loving is rather relevant.

Your whole argument rests on this one absurd point, but sex and race are not interchangeable whatever level of scrutiny California applies. Using your reasoning, California rejects dressing rooms segregated by race therefore it must reject dressing rooms segregated by sex. Since California does not reject dressing rooms segregated by sex, sex is not race. In your own words, therefore, Loving is irrelevant:

They [the Lovings] were barred by race. Same sex couples are barred by sex.
9.9.2005 4:36am
Op Ed. (mail) (www):
Noah -

Loving was that equal protection is *not* satisfied by saying "black people can get married as long as it is to a black person." Similarly it seems to me that equal protection should not be satisfied by saying "gay people can get married, as long as it is to someone of the opposite sex."

Your two "similar" statements are anything but. To be the same argument you would either have to change the second one to "gay people can get married as long as it is to a gay person," or change the first one to "black people can get married as long as it is to someone of the opposite sex." The latter is essentially what the Loving ruling does say, and the former sounds more like the argument for same-sex "marriage" than the argument against it. If anything your simplification drives to the opposite conclusion from the one you reached.

As for your not-rhetorical question, my answer still applies. The legislature is rightly restricted from overruling the voters. The examples I gave of ends that would convince you against those means are still just as valid. So why are you still unsure? What case can you make in a government of, by, and for the people for a legislature to usurp power from the voters who elected them?
9.9.2005 5:18am
jgshapiro (mail):
Cyn23:

Putting it in front of the electorate may or may not be necessary by law.

The CA constitution bars the legislature from amending an initative statute (such as Prop 22) unless the initiative statute expressly allows amendment by the lesiglature, which Prop 22 did not. But that begs the question of whether Prop 22 barred all same sex marriage or just same sex marriage performed out of state. Clearly, Prop 22 intended to do the former, but seems to have done only the latter.

So will the courts enforce what the proponents of Prop 22 (and the voters) tried to do, or did?

There is no way to know this without challenging Prop 22 in court, but query whether you can do that without a law to hold up against it? Can you get declaratory judgment in California from the CA Supreme Court as to whether a proposed law would conflict with a previous initiative statute, or would that be deemed an advisory opinion? I don't know the answer but my guess is that no you can't, and yes it would.

If you put the proposed statute permitting same-sex marriage in front of the voters though, you don't need to worry about it being struck down as conflicting with Prop 22: a new initiative statute would supersede a previous initiative statute with which it conflicted. Problem solved.
9.9.2005 7:05am
On Lawn (mail) (www):
Student,

if we give AB 849 and Sct. 308.5 your construction, then AB 849 would violate the Art. 2, Sct. 10 of the California Constitution.

Correct.

I mean to say that your argument works against you, because I have offered another plausible interpretation which doesn't render AB 849 unconstitutional.

I will be more clear then as you continue to presume that somehow I have not understood or have not replied to your plausible interpretation. I actually see many hurdles which prevent me from considering it even "plausible" should such an interpretation be given post hoc.

Perhaps spelling it out for you again after a good nights sleep will help...

1) The legislature can position popular referendums, and chose to give itself it ability to change marriage in the future. It cannot do such a thing.

2) that a situation where SS"m" was legal to be performed in California but not allowed from other states (which would be the result of AB849) is justified by DOMA.

3) That a situation where SS"m" was legal to be performed in California but not allowed in other states is not immediately and easily in violation of equal protection and full faith and credit.

Prop 22 was a fully public initiative, it was not put on the ballot by the legislature and the court battles over it makes it clear that it was put to re-affirm section 300 (meaning impact the intra-state weddings) and also impact intra-state weddings. This is consistent with the public literature and simple and absolute language which is dubious to conclude is restricted by its placement in 308 in the first place. (Consider that a fourth hurdle, that I believe is Prof Volokh's stance when he says, "Moreover, the initiative text is clear, and "ballot materials can help resolve ambiguities in an initiative measure . . ., but they cannot vary its plain import." People v. Wheeler, 4 Cal.4th 284, 294 (1992) (superseded by statute on an unrelated point). The legislature is trying to overturn the people's will without a vote of the people, a step that violates the California Constitution.").

A fifth hurdle is Knight. You can postulate whether Knight needed to find the impact of 308.5, but what is clear that it did find it for its own purpose. This hurdle is not overcome by contemplating whether it was held by the court or found (though we can say that this was a question presented before the court and not volunteered by it). No doubt this is just a product of finding the other hurdle's mentioned insurmountable.

And while no one doubts that DOMA lets states decide for themselves whether or not to recognize same-sex couples from other states, it does not allow for states to recognize SS"m" from within the state and not from without. That would require additional language as that is a deeper breach of full faith and credit. Nowhere is a marriage legal in the state allowed to be considered illegal if performed in another state. Honestly, (consider this a sixth hurdle) you have not explained why someone would want such a situation in the first place. To me this means your grasp of the "rational" description of your interpretation is premature.

The rest of the hurdles means your self-description of "plausible" is very pre-mature and involves straigning at gnats and swallowing some pretty sizable camels.

P.S. I've seen this crop up in enough different places that I suspect it is being circulated as a GLAD mailer or KOS (or simular site) treatment. If someone can provide me (link or email) with the origional thinking behind this theory I'd be very appreciative. I'm not accusing anything, I would simply like to see the origional thinking behind this theory. Any help would be appreciated.
9.9.2005 12:09pm
Student (mail):
1) The legislature can position popular referendums, and chose to give itself it ability to change marriage in the future. It cannot do such a thing.
This presumes that 308.5 defined intra-state marriage and begs the question we are asking. If this isn't a sufficient answer, it is only because I am unsure what you mean by "position popular referendums" (putting aside that this is an initiative, as you later note.)

2) that a situation where SS"m" was legal to be performed in California but not allowed from other states (which would be the result of AB849) is justified by DOMA.
This is simply a restatement of what I argued, not a counter-argument.

3) That a situation where SS"m" was legal to be performed in California but not allowed in other states is not immediately and easily in violation of equal protection and full faith and credit.
And while no one doubts that DOMA lets states decide for themselves whether or not to recognize same-sex couples from other states, it does not allow for states to recognize SS"m" from within the state and not from without. That would require additional language as that is a deeper breach of full faith and credit. Nowhere is a marriage legal in the state allowed to be considered illegal if performed in another state. Honestly, (consider this a sixth hurdle) you have not explained why someone would want such a situation in the first place."
I'm pretty sure that your third and sixth "hurdles" are about the same. Again, I admitted that I am unsure of the constitutional basis of the full faith and credit provision of the DOMA, but my argument is that the plain text of the DOMA covers this situation, and if its constitutional reasoning is state choice, then it should be equally applicable to this situation. You can't have it both ways.

Prop 22 was a fully public initiative, it was not put on the ballot by the legislature and the court battles over it makes it clear that it was put to re-affirm section 300 (meaning impact the intra-state weddings) and also impact intra-state weddings. This is consistent with the public literature and simple and absolute language which is dubious to conclude is restricted by its placement in 308 in the first place. (Consider that a fourth hurdle...").
A fifth hurdle is Knight. You can postulate whether Knight needed to find the impact of 308.5, but what is clear that it did find it for its own purpose. This hurdle is not overcome by contemplating whether it was held by the court or found (though we can say that this was a question presented before the court and not volunteered by it). No doubt this is just a product of finding the other hurdle's mentioned insurmountable.
I'm not sure what your fourth "hurdle" is, unless it is pretty much the same as your fifth. (court battles and Knight.) I'm also pretty sure that I've covered both of these, and if you disagree that the Knight statement is dicta or shouldn't be overturned, then that's your position. I just don't see a strong basis for it.


My motivation is not GLAD or KOS (I'm much more conservative and rarely go to those sites), but simple respect for traditional and neutrally principled methods statutory construction, and for the role of the judiciary in a public debate. I see one side of a public debate not achieving what they really wanted in a voter initiative, losing enough elections so that they don't get what they want in the legislature, and then going to the courts to ask a judge to bail them out. If I play basketball, and I'm down by 3 and sink a jumper at the buzzer, but my foot is only 19 feet, 18 and one-half inches out, I only get 2 points. It doesn't matter that I would have gotten 3 if I would have skooted my foot back. I believe in getting what you bargained for, no less, no more. Politics is a little better than basketball: you get a do-over - go get another voter initative and try not to screw it up this time. But don't ask the courts to bail you out. They're supposed to be neutral.
9.9.2005 1:22pm
On Lawn (mail) (www):
This is simply a restatement of what I argued, not a counter-argument.

Which is not surprising, the enumerated hurdles are not counter-arguments, they are the points one must presume to follow your point. I apologize for the confusion as the language that made it more explicit was deleted between revisions. The hurdles come not from saying them, but actually believing them. Had I continued the theme with "camels" as my metaphor started with, it may have been clearer.

For instance, the first presumption is false (can't be swallowed) because the legislature cannot position the scope/impact of a popular initiative. By position, I mean "to take advantage of the DOMA provision, yet [provide] to allow itself the ability to choose as it may in the future". The legislature cannot have such an impact, and you presume it not only could have such an impact it meant to have such an impact.

The post above where I outline just how the constitution already provides for "change" was met by a mushy him-haw and not really replied to how it impacts the "plausibility" of the plan. It was not your mistake in explanation that needed correcting.

The second hurdle, you kindly provided the reasoning against that so I will move on.

The third hurdle (which you are right is pretty much the sixth) does not depend on the constitutionality of DOMA at all. DOMA does not provide for such an instance where you are not recognizing a marriage that is legal within your own state, and nothing else does either. If DOMA were unconstitutional you would still have the problem to overcome in trying to reach your presumptive conclusion.

I'm not sure

As that is hardly a counter argument I'll just let it slide. The Judge who made the Knight decision is sure, and so is Volokh you thinks AB 849 is "clearly" (his words not mine) unconstitutional.

That makes (of five) two hurdles attempted, one agreed with and two sloughed. Neither of the attempts made, one can say conclusively, succeeded.
9.9.2005 3:03pm
Student (mail):
the first presumption is false (can't be swallowed) because the legislature cannot position the scope/impact of a popular initiative. By position, I mean "to take advantage of the DOMA provision, yet [provide] to allow itself the ability to choose as it may in the future". The legislature cannot have such an impact, and you presume it not only could have such an impact it meant to have such an impact.
Again, I think this is question-begging: Whether or not the legislature is in fact having an impact depends on what 308.5 defines, which is exactly what we are debating.

The post above where I outline just how the constitution already provides for "change" was met by a mushy him-haw and not really replied to how it impacts the "plausibility" of the plan. It was not your mistake in explanation that needed correcting.
I hope I'm not redundant, I apologize if I am. But just to clarify the thrust of my argument (so that it isn't "mushy him-haw"): A state in the midst of this public debate might wish to not recognize out-of-state marriages, while wishing to retain the ability to later choose in-state marriages. My point is that this is a plausible objective, and a plausible manner in which to accomplish it. Moreover, courts do not generally reprimand a state for acting inartfully by striking down statutes.

DOMA does not provide for such an instance where you are not recognizing a marriage that is legal within your own state, and nothing else does either.
Again, I don't want to be redundant, but I would argue that the plain text of the DOMA (above) does not rule this out, and that the reason for this provision of the DOMA (allowing states room to debate) supports this position. In the end, I have to recognize that I'm no scholar of the constitutional Full Faith and Credit provision, and so, in an act of intellectual honesty, I recognize that my analysis may be flawed. However, whereas I've given a reasoned analysis of the DOMA's application, you've only offered conclusory statements.

If DOMA were unconstitutional you would still have the problem to overcome in trying to reach your presumptive conclusion.
If you want to argue that this provision of the DOMA is unconstitutional, go ahead. If it is unconstitutional, then 308.5 may be as well, as a violation of the federal constitution's Full Faith and Credit clause.

The Judge who made the Knight decision is sure, and so is Volokh you thinks AB 849 is "clearly" (his words not mine) unconstitutional.
We've discussed Knight, and I've never thought of Professor Volokh as one to expect complete agreement. That is, after all, why he gave us comments.

I'm tiring, and I realize that it as it isn't the easiest question of statutory interpretation I might be wrong; it would be interesting to hear what Professor Volokh (or any other law blogger on here) has to say in light of this discussion.
9.9.2005 3:50pm
Noah Snyder (mail):
--Op Ed
You're not seriously saying that it would be constitutional to pass a law banning same-race marriages, but unconstitutional to pass a law banning miscegenation, are you?
9.9.2005 5:01pm
On Lawn (mail) (www):
Again, I think this is question-begging: Whether or not the legislature is in fact having an impact depends on what 308.5 defines

Which may be our disagreement as I find whether or not the legislature is having such an impact depends on what the constitution defines. Most assuredly the impact is out of the legislature's hands in popular initiatives. If you wish to disagree, please do so by showing where such provision of the constitutional you are building your case off of rather than assuming that I am ignoring what you are saying. That would open the door to the possibility of your theory, and one would figure that a minimal requirement.

A state in the midst of this public debate might wish to not recognize out-of-state marriages, while wishing to retain the ability to later choose in-state marriages.

Yes, that is your offered theory. How plausible it is depends not on the ability to present its theoretical possibility, and I'm yet to see you raise your argument above such reliance. Neither do you explain why a state would want to do so (speaking of conclusory statements). Neither (I feel) have you attempted to meet with the problems arising from the theory.

The hurdles it takes to accept that explanation, the camels that are swallowed in that dish are simply too great, and I would hope that you could offer help. No one doubts that they are easily swallowed in the theoretical world where intellectual articulation is all that is needed to conceive any notion. But that is no help at all.

I would argue that the plain text of the DOMA (above) does not rule this out

Which is also not in doubt. At the risk of also being redundant, whether or not DOMA explicitly outlaws the scenario is immaterial. DOMA does not outlaw anything, it allows something. It gives an exception for states who may wish relief from full faith and credit when recognizing marriages from another state of a particular construction. It is explicit in that exception. It does not provide an exception for recognizing marriages that are legal within that state. It does not, therefore allow the scenario you suggest.

More simply put, full faith and credit precludes your scenario, and DOMA (which is an exception to it) gives no protection for the possibility. It is simply not in DOMA. In contrast you accuse me of debating its constitutionality, yet I debate its impact. It exists, and were it constitutional or no, in the words of Inigo Montoya, "I do not think it means what you think it means".

You are free to attack my statements validity with facts and the like, but you tread into egregious territory to dismiss them as conclusory. What full faith and credit does for marriages is common knowledge, I presume such knowledge is not outside your reach or comprehension. Should a conflicting interpretation of Full Faith and Credit arise from you research, I would be happy to entertain it. But to infer that because I don't spell it out for you that I am avoiding supporting it is diverging to the behavior you apologized for earlier.

I've never thought of Professor Volokh as one to expect complete agreement.

There is a difference between "complete agreement" with a conclusion and being "sure" of a conclusion that agrees with others. With this clarification you are free to re-read the statement to understand its intended meaning in relation to the expressed uncertainty of yours it replied to.

I agree that no progress is being made as you continue to rely on re-stating your opinion as a plausible theory (as in it can exist as a theory) rather than meet the explanations of its failings so that it can be a real plausible theory (as in adequately explaining all of the machinations involved).
9.9.2005 5:07pm
Student (mail):
On Lawn,
I'll let you have the last word if you want it, this is my last post.

I find whether or not the legislature is having such an impact depends on what the constitution defines.
The California constitutions does not define 308.5. It operates to void an act which amends 308.5. Therefore, amendment of 308.5 is logically prerequisite to the operation of the California constitution. Because whether amendment occurs depends on the prior meaning of 308.5, and because this is a matter of statutory construction, your point beggs the question. I'm not sure what else to say to you on this matter.

Yes, that is your offered theory. How plausible it is depends not on the ability to present its theoretical possibility, and I'm yet to see you raise your argument above such reliance. Neither do you explain why a state would want to do so (speaking of conclusory statements). Neither (I feel) have you attempted to meet with the problems arising from the theory.
Because you are the party who is challenging a statute, the burden is upon you to prove that it is unconstitutional, not upon me to prove that it's fine. If you don't think my explanation is plausible, that's your problem, not mine. You would have to, for example, (a) explain away the unamended 300, and the placement of 308.5; (b) explain away the language in the ballot that talks about "why is this act necessary" (from its supporters); (c) Prove that a state would not want to act in such a manner. This is your problem, not mine.

It gives an exception for states who may wish relief from full faith and credit when recognizing marriages from another state of a particular construction. It is explicit in that exception. It does not provide an exception for recognizing marriages that are legal within that state. It does not, therefore allow the scenario you suggest.
The text of the DOMA has a general category that it allows a state to ignore. (any public act, record, or judicial proceeding of any other State... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State...) The text of this general category, on its face, includes situations where there is an out-of-state same-sex marriage, and in-state. The statutory argument that another exception is required depends upon a constitutional argument regarding full faith and credit. (i.e. were there no full faith and credit clause, then the DOMA would certainly apply to this situation.) So, again, it is you rather than me who has to come up with a full faith and credit constitutional argument. And my point is that any full faith and credit constitutional argument you give must give room for congress to act to allow states breathing room while waiting to act on their own. And, if your constitutional argument accomplishes this end, then I don't see how it can exclude a state from taking the means to accomplish it. I'm no scholar on this point, and part of the reason is that full faith and credit is difficult, it is not "common knowledge." But, in any case, it's not my problem, it's yours.

And finally, I'm not sure how much citing Prof. Volokh adds. We might disagree. Big whup.
9.9.2005 5:40pm
Xrlq (mail) (www):
Student:

Because you are the party who is challenging a statute, the burden is upon you to prove that it is unconstitutional, not upon me to prove that it's fine.


He met that burden early on. The plain language of Section 308.5 leaves no other possibility. If only a marriage between a man and a woman is valid or recognized in California, then it stands to reason that, well, only a marriage between a man and a woman is valid or recognized in California.

If you don't think my explanation is plausible, that's your problem, not mine.


Um, no. If you can't read plain English, that's your problem, not his. And if you really believe your own claim that codifying a statute under a number that includes a decimal point will (or should) cause a court to construe the statute differently than it would if it was codified under a different number without a decimal point, you're in a very rude awakening when you stop being a student and try your hand as a practitioner.
9.10.2005 12:56am
Xrlq (mail) (www):
Richard Bellamy:

That's because about a third of the people who voted for president in 2000 chose not to vote at all on the gay marriage issue.


That may be technically true, but it is misleading in the extreme. Prop 22 was on the ballot in March, while the general election for President was in November. More people always vote in the primary than do in the general election.
9.10.2005 1:17am
GhostMonkey:
I wonder why people always scream about Loving V Virginia, when they should be refering to Baker V Nelson.

In 1971 two Male Subjects, Richard John Baker and James Michael McConnell, applied for a Minnesota Marriage license and were denied. The two filed litigation that made it's way before the Minnesota Supreme Court, citing violations of various Federal Constitutional Provisions. The Minnesota Supreme Court ruled that Marriage in the State of Minnesota was limited to One man and One Woman. Upon Baker and McConnell losing their case they appealed to the United States Supreme Court Invoking the Supreme Court's then-mandatory appellate jurisdiction, in 28 United States Code ' 1257(2) (repealed in 1980).

Upon review, the United States Supreme Court dismissed the appeal "for want of [a] substantial federal question." 409 U.S. 810 (1972).

Examining Precedent of the United States Supreme Court shows the clear and explicit directive that dismissals "for want of a substantial federal question" are binding precedents on all lower Federal Courts.

"[U]ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial". Hicks v. Miranda, 422 U.S. 332, 344 (1975) "[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 176 (1977). Lower Federal Courts are expressely prohibited from ruling in a way inconsistant with binding precedent. “[Summary Decisions] prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977)

This is explicit not only in the holdings of the United States Supreme Court, but also the holdings of other Circuit Courts. [L]ower courts are bound by summary decision by this Court ‘until such time as the Court informs [them] that [they] are not. Doe v. Hodgson, 478 F.2d 537, 539 (2nd Cir. 1973)

Baker is binding precedent and until overruled by the United States Supreme Court, it remains that way.

Baker explicitly and with clarity addressed the 14th Amendment's Due Process and Equal protection claims in regards to Same-Sex Marriage. These are the same claims being brought up by Homosexual Activists today. The High Court specifically affirmed that The due process clause of the Fourteenth Amendment is not a charter for restructuring [Marriage] by judicial legislation. Baker V Nelson (Citation Omitted).

With regards to Equal Protection the court stated: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination... Baker V Nelson (Citation Omitted). They also noted that "abstract symmetry " is not demanded by the Fourteenth Amendment. Baker V Nelson (Citation Omitted).

Baker is not alone in this regard, indeed A long line of Court decisions make clear that: "[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Patsone v. Pennsylvania, 232 U.S. 138 (1914). Tigner v. Texas, 310 U.S. 141 (1940), and Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)

Baker also expressly distinguishes Loving V Virginia 388 U.S. 1 (1967), upon which homosexual activists rely, as not being applicable to the same-sex marriage debate.

Loving V Virginia was decided on the grounds that it unconstitutionally prohibited marriages by invoking invidious racial discriminations.

At issue in Loving was the Marriage between one Man and One Woman, who happened to be of a different race.

As the Minnesota Supreme Court stated, which was affirmed by the United States Supreme Court: "Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." Baker V Nelson (Citation Omitted).

Without Doubt, Baker V Nelson expressely establishes that a State's decision to limit marriage to One man and One Woman does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. The same applies to the Federal Government's decision to codify the traditional marriage relationship soley for the purposes of Federal law and Federal benefits.

It is also of note that when the Framers of the 14th Amendment drafted that amendment, there not even a contemplation of the idea of homosexual marriage, indeed all but 5 of the 37 States in the Union had criminal sodomy laws. To suggest that an amendment, who's framers didn't even imagine the idea of homosexual marriage, magically imparts that right, is a trip through the looking glass that this court is not about to take.

Homosexual Activists in California, just like anyone else in the State of California, can receive a marriage license. The Activists, just like anyone else in the State of California have to comply with the accepted criteria for marriage, including an intended spouse of the opposite gender, in order to receive that license. In that sense, the Activists in this case are in the exact same position as all other California residents. The State makes the same benefit, that being mixed-gender marriage, equally available to all individuals on the exact same basis. It does not matter that the Activsts do not wish to enter an opposite sex relationship. It is the availability of the right on equal terms, not the equal use of the right that is central to the constitutional analysis.

What is quite clear is that the Activists do not simply seek to lift a barrier to marriage, instead they wish to change its very essence.
9.10.2005 10:28am
Op Ed. (mail) (www):
Noah Snyder snarked: You're not seriously saying that it would be constitutional to pass a law banning same-race marriages, but unconstitutional to pass a law banning miscegenation, are you?

Nothing I said can be construed even remotely to say the above. Poor reading comprehension on your part doesn't garner points for your side of a debate, nor is it a substitute for a rational argument.
9.12.2005 10:16pm