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Not so fast: Is Prop 8 an "amendment" or a "revision"?

The state constitutional challenge to Prop 8 turns out to be more interesting than I initially supposed. The California constitution recognizes two types of changes: "revisions" and "amendments." The distinction, which is not elaborated in the constitutional text and barely explained in California state court decisions, matters a great deal because the state constitution places a higher hurdle in front of revisions than amendments. "Revisions" can be effected only through approval by two-thirds of each state house, followed by a majority vote of the people. "Amendments" can be effected by simple majority vote of the people, without prior legislative approval.

Prop 8, which inserted a ban on same-sex marriage into the state constitution, was styled as an amendment and accordingly went through the amendment process — requiring only the simple majority vote of the people (52%) that it got on Tuesday. It did not get the prior approval of two-thirds of each house of the state legislature. But if it turns out that Prop 8 was a "revision" rather than an "amendment" then Prop 8 violated the procedural requirements for changing the state constitution and is therefore unconstitutional. In that case, Prop 8 supporters would first need to get the approval of two-thirds of each state house, which is extremely unlikely given that the state legislature has twice voted to extend marriage to same-sex couples.

So back to the question, which is it: a revision or an amendment? Recent posts by Eugene and Stephen Bainbridge argue that Prop 8 is an amendment. They cite cases in California which indicate that the distinction turns on the extensiveness and numerosity of the changes wrought by a proposed change. (I urge you to read their excellent posts, as I will assume your knowledge of them here.) On this view, changes that affect multiple constitutional provisions, like the proposed addition of 21,000 words to the state constitution in one case Professor Bainbridge cites, would be revisions, as would be attempts to reallocate judicial power to the legislature. Changes that affect only a discrete and narrow set of rights or provisions would be an amendment.

Prop 8 added only 14 words to the state constitution, adds only one provision, and deals only with the discrete issue of defining marriage. In their view, it does not deal with a host of constitutional rights or alter the basic structure of state government or the role of the state judiciary in it. This argument may be accepted by the California courts. If forced to bet, I'd bet it will prevail.

However, the issue presented by Prop 8 is different in important respects from any that the state courts have previously confronted. In a brief filed yesterday several legal groups representing gay couples argue that Prop 8 is a revision. You should read their brief if you want to get into the weeds of the argument further, but I can summarize the heart of it fairly succinctly: Prop 8 stripped (1) a fundamental right (marriage) from (2) a suspect class (gays). Because of the importance of these changes, they argue, it is thus a revision and not an amendment.

The following issues bearing on the revision/amendment distinction are raised: First, can a fundamental right be denied through amendment, requiring only a majority vote of the people? Second, can a bare majority target a suspect class by mere amendment? Either of these alone would present a novel issue for the state courts. (Important rights of criminal defendants were at issue in Raven v. Deukmejian, 52 Cal 3d 336 (Cal. 1990), though the court didn't call them "fundamental rights" and at any rate held that the case involved a revision.) Together, they're a double-whammy of constitutional change.

Now you may disagree that the fundamental right to marry extends to same-sex couples. You may also disagree that sexual orientation classifications are suspect, requiring heightened judicial scrutiny. Both objections are well-grounded, are the majority view in other state court systems, and may well be correct. But the California Supreme Court disagrees with you on both points, as it held in its marriage decision last May. Unless it reverses its decision, the court could take the importance of the right declared and the suspect nature of the discrimination into account when it decides what kind of constitutional change Prop 8 would be.

The California Supreme Court has held that the difference between an amendment and a revision turns on both "quantitative and qualitative" factors, and that "substantial changes in either respect could amount to a revision." Raven, 52 Cal. 3d at 350 (emphasis added). Thus, even if we thought that Prop 8 affected relatively few constitutional provisions (say, the state's equal protection and due-process guarantees), changes to these provisions might be regarded as "substantial qualitative" reforms in the content of basic constitutional principles.

In determining the difference between a revision and an amendment, we might ask what purpose the distinction serves. The revision process requires considerably more deliberation and political consensus before a constitutional change is made. I can see an argument, along the lines implied by Professor Bainbridge and Eugene, that more deliberation and consensus should be required before extensive and numerous changes are made in the basic design of state government. This is because such changes involve great complexity and have far-reaching consequences that should not be decided by dueling 30-second TV ads. The distinction between revision and amendment is thus a procedural protection for the basic design of government.

But I can also see an argument, offered by those challenging Prop 8, that more deliberation (through the legislative process) and more consensus (than a bare majority vote in an election) should also be required before a majority strips a fundamental right from 3% of the population. Otherwise, fundamental constitutional rights enjoy no more protection from majorities than ordinary statutory rights. And protected minorities have no more protection against majorities than those majorities themselves see fit to grant them by grace. The revision/amendment distinction, on this view, is a structural mechanism (embedded in the state constitution itself) for shielding these vulnerable minorities against hostile majorities.

The revision/amendment distinction could, of course, serve both the procedural purpose identified by Eugene and Professor Bainbridge and the structural pupose identified by the Prop 8 challengers.

Consider a couple of analogies. (1) Suppose a majority of the people became concerned about the growing political influence of Mormons, exhibited by what the majority regarded as their huge donations to political campaigns, and decided to alter the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights. Aside from the obvious federal constitutional issues involved, would the change be considered an "amendment" or a "revision" under the California constitution? (2) Suppose a majority of the people decided that blacks were not taking the responsibilities of marriage very seriously, exhibited by what the majority regarded as high illegitimacy rates, high divorce rates, and rampant cohabitation and promiscuity, and decided to alter the state constitution to deny to blacks, and blacks alone, the fundamental right to marry? Again putting aside the invalidity of such a change under the federal constitution, would the change be an "amendment" or a "revision" under the California constitution?

Under the Bainbridge/Volokh analysis, wouldn't these proposed changes be amendments, requiring only approval by a bare majority of the state's voters? Neither involves extensive changes to the state constitution, or numerous or profound changes to the basic structure of California government, or an alteration of the judicial role. Each involves the denial of a fundamental right to a protected class, just as Prop 8 does (again, according to the California Supreme Court). If Prop 8 is different, how is it different? Just because gays are involved? Under California law, whether you agree or not, gays stand on the same plane as any other protected class. Discrimination against them is as suspect as it is against blacks or Mormons. And also under California law, marriage is as fundamental for them as it is for blacks and as important for them as political speech is for Mormons.

It's just a thought experiment, of course, since we would never dream of amending a constitution to make such outrageous changes eliminating the important rights of racial and religious minorities. But if the question were presented, it's not obvious to me that the issue would be resolved by counting the words in the hypothetical amendments, tallying the number of constitutional provisions affected, or asking simply whether the judicial role had been compromised. It's plausible that the courts would say these are "revisions" requiring approval by two-thirds of each house of the state legislature followed by a majority vote at the ballot box.

Indeed, before Prop 8, no state had ever changed its constitution to deny a fundamental right to a suspect class of people. Thus, the two state supreme court decisions Eugene cites (one from Alaska and one from Oregon) where similar procedural challenges were unsuccessfully lodged against anti-gay marriage amendments, arise from quite different doctrinal contexts than the California case presents. Neither of those state supreme courts had taken either of the landmark steps taken by the California Supreme Court last May.

I make no prediction about how the California courts will resolve these questions. What they will actually do probably depends in part on what they think the political and other consequences of overturning Prop 8 would be. A decision invalidating Prop 8 would infuriate both opponents of gay marriage and those wary of judicial intrusion in important matters of public policy. Prop 8 supporters raised some $35 million, effectively coordinated a massive volunteer effort, launched a devastating ad campaign, and won — only to be told it was all for naught? There would be a backlash, which might well result in attempts to recall some of the justices on the California Supreme Court. It's happened before in California, as anyone old enough to remember the name "Rose Bird" can tell you. While in theory the possibility of such a backlash should not matter to judicial decisions, in practice it would be surprising if it didn't. Supporters of Prop 8 need only peel off a single justice of the 4-justice majority to win on the revision/amendment distinction.

I'm also not saying that a ruling against Prop 8 would necessarily be in the long-term best interests of the gay-marriage movement. It's a complicated calculus. On the one hand, California is a big prize in lots of ways and getting gay marriage there sooner might hasten things elsewhere in the country. It would also help gay families in the state, who stand to lose a lot while waiting another decade or so for their marriages to be validated in another proposition battle. On the other hand, I think gay marriage will eventually win at the ballot box in California and will win in a few state legislatures even before that happens. The risk of invalidating Prop 8 is that you scare a few more states into enacting constitutional barriers just as the political and cultural winds are shifting in your favor. (However, there probably aren't more than a handful of states left that would enact constitutional gay-marriage bans.) I'm also dubious about the underlying constitutional claims and prefer legislative to judicial action on this subject.

Even as a doctrinal and precedential matter, moreover, the narrowest reading of the California precedents is probably closer to the view expressed by Professor Bainbridge and Eugene than it is to the view expressed by the Prop 8 challengers. The state courts are perfectly free to limit the precedents to their facts and thus dismiss the Prop 8 challenge. Prop 8 doesn't involve numerous or profound changes in the basic structure of state government.

But if the courts ask why there is a distinction between revision and amendment, and answer that the distinction also provides a structural safeguard for what the courts themselves regard as a vulnerable minority exercising a fundamental right, it's not obvious that the challenge should fail.

UPDATE: See a contrary view from Professor Calvin Massey here.

John (mail):
"First, can a fundamental right be denied through amendment, requiring only a majority vote of the people?"

Only? It used to be that a vote of the people was considered pretty important.
11.7.2008 12:51am
Cornellian (mail):
If it needed two thirds but got only majority support, I don't think "unconstitutional" would be the right word. "Not validly enacted" would be a better fit.

Anyway, the argument sounds like a long shot to me.
11.7.2008 12:51am
Cornellian (mail):
"First, can a fundamental right be denied through amendment, requiring only a majority vote of the people?"

Only? It used to be that a vote of the people was considered pretty important.


Thought not sufficiently important to remove any right from the federal constitution, fundamental or otherwise.
11.7.2008 12:52am
unhyphenatedconservative (mail):
"Only? It used to be that a vote of the people was considered pretty important."

Only when the people vote in an enlightened way. When they express qualms about redefining the basic institution of family, then those pesky votes need not be heeded.
11.7.2008 12:54am
MCM (mail):
I tend to agree that the better strategy for the gay rights movement would be to try again at the ballot box. There are three reasons for this:

1. The LDS Church is potentially in danger of losing its tax-exempt status because of its role in campaigning for Prop 8 (i.e., spending millions of dollars on TV ads). There's a good chance they'd either be unable or reluctant to repeat this in the face of such a hefty legal sanction.

2. Black voter turnout in California was extremely high, almost certainly because of Obama's presence on the ticket. Black voters were also the only demographic that voted overwhelming in favor of Prop 8 - white, Latino, and Asian voters were all within a few percentage points of evenly split.

3. A ballot victory is at least nominally more legitimizing than a legal victory. Practically I'm not concerned but it would certainly prevent some people from decrying "judicial activism".
11.7.2008 12:54am
Paul Milligan (mail):
The bottom line is, there is no 'fundamental right' to gay marriage. The people apparently understand this. Now, if the judges would just understand that THEIR job is not to legislate, nor create moral imperatives, nor to substitute themselves and their opinions for the entire political and democratic process.....
11.7.2008 12:57am
unhyphenatedconservative (mail):
Cornellian, this is the California Constitution we're talking about. The California Supreme Court case interpreted our state constitution. The voters simply clarified that despite the squinting and tea leaf reading of our justice, what generations of jurists, legislators and citizens never saw in the document really wasn't there.
11.7.2008 12:59am
Constantin:
I would LOVE to see the Obama administration try to strip LDS of their tax exempt status, considering some of the fairly high profile and political activities taking place in the President-elect Obama's former church of twenty years. Some of you might have seen something about them during the Democratic primary (though, strangely, little during the general election . . .).
11.7.2008 1:00am
Thomas_Holsinger:
If the California Supreme Court defies the people's clear will on this one, they will deserve a further amendment making the Supreme Court elective. Or worse.
11.7.2008 1:02am
Chris 24601 (mail) (www):
Aren't these two words synonyms?
11.7.2008 1:03am
Thomas_Holsinger:
MCM,

You're dreaming. The Catholic Church nationwide would come down on that one. Not to mention the Democratic Party.

For the tiny-brained folk - tax exemptions for churches also protect elected officials. Because, absent the threat of loss of their tax exemptions, churches would participate freely in partisan elections.

As in, the LDS, Catholic Church, Assemblies of God, and the Southern Baptist Convention would all have their own, official, religious political action committees, large full-time political staffs with permanent polling organizations funded in election off-years, and generous contributions to deserving congress-critters. All paid for by church tithes.

With preachers telling their congretations whom to vote for.

Which won't be Democrats.

MCM, if you think the Democrats really want to go THERE, your are out of your ****ing mind.
11.7.2008 1:09am
AngelSong20 (mail):
If the two words are synonyms, how can there be different procedures and standards for each one?

As to the first commenter's question about "only a majority vote," it would seem to me that the proper reading of the original post is that only is intended to modify "majority," not "vote." IOW, the distinction is subjecting a fundamental right to a vote that is by only a majority, a rather important distinction IMO.
11.7.2008 1:10am
Duffy Pratt (mail):
unhyphenatedconservative:

The trouble with your reading is that it means there are no fundamental rights secured by the California constitution. It protects minorities, unpopular speech, property rights, due process, etc., etc... only until a majority of the voters decides otherwise. That may be so, but its doubtful that California judges are likely to take such an extreme position.

The two things that are clear to me here are: the distinction between an amendment and a revision is not clearly defined and thus subject to interpretaion; and, no matter how the Court decides the issue, the decision will not be dictated by any precedent. In other words, ultimately the Court's decision, whatever it ends up being, will be basically lawless.
11.7.2008 1:10am
JB:
In general, gay activists should learn from abortion activists and go for the ballot box rather than the court. The years since Roe v. Wade have been a snowballing collection of FUBAR on the abortion issue, and rather than a moderate majority consensus (which exists) coming to dominate the nation is divided between two absurd extremes.

For further evidence of how California's system of amendments screws it up, just look at its budgets. If what Dale says is true, then the problem is far deeper than has been revealed, and the system is unconscionably awfully designed.
11.7.2008 1:16am
Greg Q (mail) (www):
Dale,

In The People of the State of California v. Robert Page Anderson, the CA Supreme Court ruled the Death Penalty Unconstitutional. IOW, they ruled that the Constitutional Right to avoid "cruel or unusual punishment" protected convicted murderers from being executed.

The People of CA passes and Initiative overturning that decision. In People v. Frierson, 25 Cal. 3d 142, 189 (1978), the Supreme Court accepted The People's right to do that.

It's not a revision, it's an Amendment. Stop trying to trample all over democracy and the rule of law.

You guys cheated every way you could, and you lost. Accept that. We The People have the fundamental right to decide what rights our Constitution gives and doesn't give. Stop trying to use the Courts to bully them into giving you what you want.
11.7.2008 1:16am
MCM (mail):
Thomas_Holsinger

What you are describing sounds suspiciously like the current state of affairs, with a few winks and nudges subtracted.

Regardless, the overwhelming factor in another try at the polls would be the absence of a disproportionate number of black voters showing up.
11.7.2008 1:22am
J. Aldridge:
What "fundamental right" are you talking about?
11.7.2008 1:24am
Burt Likko (mail) (www):
Thomas Holsinger, the Justices of California's Supreme Court are already elected. They can be and sometimes have been removed by the voters. You may remember the story of Rose Bird, Cruz Reynoso, and Joe Grodin, who the voters threw out of office in 1986.

Point is, if you're upset at what the Supreme Court did on the grounds that it overstepped its power, then your remedy is to throw the judges out. If you objected to the Marriage Cases on the ground that you don't like the result, then Prop. 8 was the answer.

Seems to me that the proponents of Prop. 8 cheated plenty, too, Greg Q, but you guys did win. You wrote discrimination into our Constitution. Congratulations. And I, for one, will not stop trying to undo the damage you've done. But what I wont' be doing is filing any lawsuits. I will have to accomplish my goal by persuasion and democracy and eventually seeking a repeal of Prop. 8.

You've won, but only for now.
11.7.2008 1:24am
JCC:
What a difference five months makes. Would the analysis be different if the May cases hadn't been decided yet? Is that relevant legally? How about morally?
11.7.2008 1:33am
AngelSong20 (mail):
I think that there do need to be lawsuits on this issue. There is something tremendously wrong with the constitutional procedure if the rights of the minority can be taken away by nothing more than a mere majority of the voters in any given plebiscite.
11.7.2008 1:34am
Thomas_Holsinger:
Burt,

I am PART of the California judicial system. California Supreme Court justices have always been appointed by the Governor, as have appellate court judges. Both are subject to retention elections which are yes or no votes. They are not subject to opposing candidates the way California trial court (Superior Court) judges are.

Lawyers who aren't judges can run against incumbent trial court judges, which sometimes happens, and sometimes they even win. This is not possible concerning California appellate and Supreme Court judges.

But, if the California Supreme Court overturns Proposition 8, that could change.
11.7.2008 1:42am
Gene Hoffman (mail) (www):
Anyone who brings up Roe v. Wade has to explain how Brown v. Board of Education or Loving v. Virginia isn't a more apt comparison.

-Gene
11.7.2008 1:43am
MCM (mail):
unhyphenatedconservative
Only when the people vote in an enlightened way. When they express qualms about redefining the basic institution of family, then those pesky votes need not be heeded.

I would sincerely agree with what you say in sarcasm. This is why we got rid of miscegenation laws.
11.7.2008 1:47am
Greg Q (mail) (www):
Burt,

Yep, it's "cheating" to point out that the California's Education Code, Section 51933 says

(b) A school district that elects to offer comprehensive sexual health education pursuant to subdivision (a), whether taught by school district personnel or outside consultants, shall satisfy all of the following criteria:

. . .

(7) Instruction and materials shall teach respect for marriage and committed relationships.


And it's really unfair to also point out

Regarding opt-out rights, an organization called the California Safe Schools Coalition published A Question &Answer Guide for California School Officials &Administrators. The Coalition's Steering Committee includes The California Teachers Association, Equality California, American Civil Liberties Union chapters throughout California, State Senator Sheila Kuehl, and other prominent backers of No On 8 who have already raised millions of dollars to oppose the measure.

Here's one of the questions and answers:

Can parents 'opt out' of their children's participation in school programs that discuss sexual orientation and gender identity?

State law explicitly provides that “instruction or materials that discuss gender, sexual orientation, or family law and do not discuss human reproductive organs or their functions” is not subject to the parental notice and opt out laws. Thus, where issues of sexual orientation or gender identity are raised in school programs other than HIV/AIDS or sexual health education, such as programs designed to encourage respect and tolerance for diversity, parents are not entitled to have notice of or the opportunity to opt their children out of such programs. California law does not support a broad parental veto regarding the contents of public school instruction.

Yep, it's just horrible when Proposition supporters tell the truth.
11.7.2008 1:55am
Greg Q (mail) (www):
Burt Likko,

Let's be clear here: If the 4 thugs in black robes hadn't voted to impose SSM on California, I would have encouraged people to vote no on Prop 8. And there's a really good chance it would have lost, having been shown that it wasn't needed.

So if you want to scream at someone for "writing discrimination into the California Constitution", scream at the people who brought the lawsuit, and the "judges" who threw out Prop 22.. Because they're the ones you should be mad at.
11.7.2008 1:59am
CourageMan (mail) (www):
I posted some thoughts on my site last year re Massachusetts and it touches on some of the same issues. Most-relevant quote:


Certainly amendments contradict existing or previous provisions. But that's why it's called "amending" the constitution. To change its text and thus meaning. ...
Certainly, nobody thought to challenge the 21st Amendment (repealing Prohibition) on the grounds that it was unconstitutional under the 18th Amendment (which had established Prohibition in the first place). Same thing here. Only it's even more a no-brainer because gay "marriage" isn't even an explicit amendment like slavery or prohibition, but rather the application of an amendment. Nothing in the Massachusetts laws or constitution says "gays shall have the right to marry the same sex," but rather there are general provisions -- privacy, equal protection, sex discrimination, sexuality discrimination; the exact grounds don't matter -- that the court says imply a right to gay marriage. So we aren't even talking about repealing an amendment or law, merely an interpretation in a given matter.
The whole point of constitutional amendments is to be a law beyond the law, to take things off the table, to override "regular" laws, and to clarify the application of earlier amendments. On this last point, there are at least two US constitutional amendments (the 11th and 25th) were intended to correct unintended technical errors in the text of the Constitution. Practically all of them in some way or another, reverse substantive or structural judgments (DC having no presidential vote; legislative appointment of senators; the aforementioned prohibition) that were already present in the text.
But once passed, those earlier judgments are overridden by the new amendment. What is the point of having an amendment otherwise? Whatever grounds for the Massachusetts supreme court may have thought it had in the first instance, whether persuasive or not, it would HAVE to be trumped by this amendment. Even state laws that say "gays shall not be discriminated against" would be overridden by a state constitutional amendment; the law would then have to be constructed either as "marriage law does not discriminate against gays" (this is, in fact, the case most seriously-thought-through conservatives would make) or "you cannot discriminate against gays, except under the provisions of this amendment" (which would be the controlling law in the matter of marriage).
11.7.2008 2:03am
Greg Q (mail) (www):
Gene Hoffman,

Ever heard of the 14th Amendment? It banned racial discrimination. It didn't ban discrimination based on sex, and it sure as hell didn't ban discrimination based on sexual orientation.

You want to point us to the California Constitutional Amendment that bans discrimination based upon sex? Because CA has single sex bathrooms, but doesn't have single race bathrooms. There's a reason for that.
11.7.2008 2:04am
Lior:
Prof. Carpenter: the problem with your argument is that the amendment declares that the "right" in question did not exist in the first place. Moreover, in order to claim that this amendment takes away "fundamental rights" the supreme court needs to find the certain, already-existing, provisions in the constitution trump the new provision that was just enacted. Surely the legislative body (the people, here) did not think this is the case.

[To make it clear: personally, I think that consenting parties of all gender combinations should have the right to enter into whatever marriage contracts they wish]
11.7.2008 2:04am
Greg Q (mail) (www):
AngelSong20 (mail):

There is something tremendously wrong with the constitutional procedure if the rights of the minority can be taken away by nothing more than a mere majority of the voters in any given plebiscite.

No, there's something seriously wrong with the courts when 4 "judges" feel free to override 61% of the voters, and thousands of years of history, just because their personal preferences aren't being met.

4 judges said "the CA Constitution enshrines a right to SSM." 5,417,748 voters (so far) just said "no, you're wrong".

If you have a principled reason for why we should believe those 4 judges, over those 5,417,748 voters, I'd love to hear it.
11.7.2008 2:09am
MisterBigTop (mail):
Sorry, but we need to let this go. The legal argument is a stretch and will result in a horrible backlash if successful. That backlash could result in greater restrictions and the loss of at least one pro-gay judge on the CA supreme court.

Gays have no one to blame for this loss but themselves. Turnout in gay-friendly areas was abysmal considering what was at stake. Time to regroup and bring the issue to the voters again at a future date. This can be won democratically. Judicial fiat in this day and age is for pussies.
11.7.2008 2:10am
calmom:
Try explaining all that to the voters. Politically it just won't fly. All those justices on the California Supreme Court remember Rose Bird. I don't think any justice up for retention next election wants to fall on his swords over the difference between a 'revision' and an 'amendment'. That's just the cold political truth.
11.7.2008 2:21am
trad and anon:
No, there's something seriously wrong with the courts when 4 "judges" feel free to override 61% of the voters, and thousands of years of history, just because their personal preferences aren't being met.
Thank you for that sophisticated analysis of California constitutional law.
4 judges said "the CA Constitution enshrines a right to SSM." 5,417,748 voters (so far) just said "no, you're wrong".

If you have a principled reason for why we should believe those 4 judges, over those 5,417,748 voters, I'd love to hear it.
No, the judges applied the constitution (correctly) to a set of facts. A bare majority of voters decided they didn't like the constitution, and changed it.
11.7.2008 2:24am
AngelSong20 (mail):
"4 judges said "the CA Constitution enshrines a right to SSM." 5,417,748 voters (so far) just said "no, you're wrong".

If you have a principled reason for why we should believe those 4 judges, over those 5,417,748 voters, I'd love to hear it."

That's one way of looking at it. What would be more accurate is that 4 judges pointed out that the right to be married is a fundamental right and that gays and lesbians are a suspect class. 5 1/2 million voters (so far) just said, "We don't care, we're the majority and we can be bigots and discriminate if we want to, rights of the minority be damned."

My principle is that justice, even if spoken by the voice of just one, should ring out over injustice, even if sung by a chorus of thousands. Yours?
11.7.2008 2:27am
trad and anon:
Try explaining all that to the voters. Politically it just won't fly. All those justices on the California Supreme Court remember Rose Bird. I don't think any justice up for retention next election wants to fall on his swords over the difference between a 'revision' and an 'amendment'. That's just the cold political truth.
I agree 100%. The court was playing with fire by overturning the voters once, and they got burned. They aren't going to do it again.

I don't think suing over this is a smart political strategy for the gay-rights movement, although of course anyone can file a lawsuit and the movement can't stop them. For now, better to focus on repealing DOMA and getting federal recognition of civil unions. But in the future we can propose our own amendment to repeal this one. This vote was already very close and demographics are on our side.
11.7.2008 2:30am
Greg Q (mail) (www):
trad and anon,

No, the judges applied the constitution (correctly) to a set of facts.

Bullshit.

You don't write a 121 page "opinion" on how something violates an actual Constitutional right. The dissent nailed it

The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex. Statutes enacted at the state’s first legislative session confirmed this assumption, which has continued to the present day. When the Legislature realized that 1971 amendments to the Civil Code, enacted for other reasons, had created an ambiguity on the point, the oversight was quickly corrected, and the definition of marriage as between a man and a woman was made explicit. (Maj. opn., ante, at pp. 23-36.) The People
themselves reaffirmed this definition when, in the year 2000, they adopted Proposition 22 by a 61.4 percent majority.


The judges made shit up because they didn't like the existing law. The People just slapped their hands for doing it.

The US Constitution begins with three words, bigger than all the rest
We The People
The reason for that is the We The People are sovereign. Not the Judges, not the Legislators, not the Chief Executive, We The People.

You don't have to like what The People decide (hell, I hate their choice for President). But you do have to respect their right to decide.
11.7.2008 2:52am
AngelSong20 (mail):
"You don't have to like what The People decide (hell, I hate their choice for President). But you do have to respect their right to decide."

Speaking of bullshit. That same Constitution says that all people are entitled to due process to protect their life, liberty, and property. That all people are entitled to equal protection under the law. The people don't get to use their so-called "right to decide" to violate or take away the rights of the minority.
11.7.2008 3:00am
AngelSong20 (mail):
Left out a word -- that should read "take away the FUNDAMENTAL rights of the minority."
11.7.2008 3:02am
A. Zarkov (mail):
This same "it's a revision, not an amendment" challenge was already used used to keep the proposition off the ballot. It lost. Why would the California Supreme Court decide differently now? I suppose they could call it a revision and let stand at that because the petition to keep it off the ballot was denied without comment.

Should the California Supreme Court quash Proposition 8, the sparks will fly. That Court will in effect tell the people of California that they are taking a side in the culture wars and don't give a damn what the people of the state want. I remember the tremendous anger against Rose Bird. She went down and took two other justices with her. But things have gotten much worse since she was removed in 1987 as the counter-culture elites are much more powerful.
11.7.2008 3:14am
James Gibson (mail):
Another wonderfully interesting discussion on the Conspiracy. Its interesting what seems to have been missed by all this though.

When this proposition came up I had two scenarios.

If Prop 8 went down I suspected like abortion that it would come back again. Regardless of those who say the Gays should come back later and have the ban voted out, to believe those against Gay marriage would simply roll over and drop dead after that is completely bogus. My personal view was that if Prop 8 failed it would take less then a year for lawsuits to be filed by Gays against churches for not performing the ceremony on the ground it violated their rights. Of course there are those who would turn around and say that it was proven by one State Constitutional expert that such lawsuits would not be legal, but considering the amount of legal expertise already being applied to overturn this vote the interpretation of one scholar is pretty skimpy. Thus, I expected we would have numerous legal attacks against all religions in this state by Gays and Gay rights advocates as well as the situation of children being indoctrinated into the Gay lifestyle in elementary school. For those interested its only the Teachers Union that said it wouldn't happen, and few hold the teachers union in any high regard in this state. All these unexpected side-effects would manifest themselves by 2010 when Feinstein and Newsom would be running for Governor. Not that we would get another Republican governor, but retaliation at the voting booth would be significant.

If Prop 8 won, which it did, I actually expected the hissyfit that has occurred. For those who think its important when a few thousand people march in LA and a few hundred in San Fran, I expected more from San Fran and given the size of LA its a drop in the bucket. The protests for illegal immigrants got massively more people out. Which to me says that the no on 8 vote was less grass roots and more I don't want any trouble. And I know people who would have voted yes on 8 if they though it would pass (and some people who didn't vote at all because they felt California is so liberal their vote doesn't count). A lot of people who voted for prop 22 were simply not going to vote this time because they have concluded that their votes already don't count. And the response by some on this blog that the next time the blacks will not be coming out because they only came out this time for Barrack is a terrible thing to say given the No on 8 people's statement that Barrack was against the measure. Besides the republicans didn't come out because of Barrack, so take your pick on opposition groups.

But that gets to the real crux of this issue. That instead of sucking it in and waiting for a better time the Gays have chosen to show their clout and override the vote by legal fiat. Instead of recognizing that both sides received large amounts of money from outside interests, the No on 8 people have decided to claim the moral high ground and attack the Mormon church. In the process my earlier concern that they would launch suits against churches for the religion's policy on Gays has been vindicated. Its only a matter of time before the State's most prominent politicians take sides on whether to support the court case or not. Heaven help the liberal Dems if at the same time they have also challenged Prop 11. Yes its still up in the air, but I expect the liberals will call for a recount if it wins, and then for it to be over-ruled by the State Supreme Court like Prop 22. Can you imagine the fun we will see in 2010, a governor's race and all the assembly seats up for grabs and after the public being shown that the party in power feels so little about the public vote as to over ride two in in one election cycle. But more importantly, after the moderate Dems and the conservatives have been shown they are not in the minority.
11.7.2008 3:17am
Frater Plotter:
Ever heard of the 14th Amendment? It banned racial discrimination. It didn't ban discrimination based on sex, and it sure as hell didn't ban discrimination based on sexual orientation.

Let's go to the text:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It doesn't say that no state shall deny equal protection on the basis of race. Hell, it doesn't even reserve equal protection to citizens! It says that no state shall deny any person within its jurisdiction equal protection of the laws.

Are socons mentally capable of telling the truth?
11.7.2008 3:20am
Greg Q (mail) (www):
AngelSong20,

It's amazing how many things you can get wrong in one short sentence.

The 4 judges decided that "sexual orientation" was a "suspect classification" (it wasn't prior to this ruling), and then decided that having the word "marriage" applied to your relationship was a fundamental right.

My principle is that justice, even if spoken by the voice of just one, should ring out over injustice, even if sung by a chorus of thousands. Yours?

My principle is that when the majority thinks justice is one thing, and a minority things it's something else, the majority has the right to have their version of "justice" win.

Ill close with a quote from the Concurring and dissenting opinion by Baxter, J.
Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.
11.7.2008 3:38am
Greg Q (mail) (www):
Frater Plotter,

Ever hear of the Equal Rights Amendment? If the 14th banned sexual discrimination, why was it thought necessary? For that matter, why was the 19th Amendment, which gave women the right to vote?

And why do we have single sex bathrooms? The 14th bans single race bathrooms, because it bans racial discrimination. If it also banned sexual discrimination, then single sex bathrooms would be banned. No?

When you try to give a Constitutional Amendment meaning that was never publicly discussed when the Amendment was being ratified, you are tromping all over democracy. And that really is a violation of a fundamental right.
11.7.2008 3:44am
Lib:
As one who supports gay "marriage" (I actually think that "marriage" should be a term left for religion, convenient prepackaged contractual "packages" such as "civil unions" may be appropriate for the state to provide as a matter of convenience and reducing friction), I voted for Prop 8 solely to discourage special interest groups from relying on the courts to overturn the will of the people. I have resolved to put "gay marriage" in the penalty box for 10 years just for this appeal to overturn Prop 8 (they were still in the 10 year penalty box for their appeal to the courts to overturn Prop 22 - the clock just got reset). In 2018, I will again consider voting for a "gay marriage" law (I would have considered it at any point before Prop 22 was challenged) - although every court challenge resets the ten-year penalty box clock - there truly are consequences for actions.
(1) Suppose a majority of the people became concerned about the growing political influence of Mormons, exhibited by what the majority regarded as their huge donations to political campaigns, and decided to alter the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights. Aside from the obvious federal constitutional issues involved, would the change be considered an "amendment" or a "revision" under the California constitution?
This is not an analogous situation. Mormons have not (in recent times at least) been specifically denied their status as a "religion". Prop 8 merely enshrined in the California Constitution the long held common understanding of most people what "marriage" was. Prop 8 was only created because the courts invented a new "right" in order to overturn Prop 22.

I would also be much more sympathetic to the gay marriage movement if they expanded it to include any two adults (including siblings and parent/offspring) couplings. Marriage does not seem to include the right or obligation to procreate (ask someone convicted of spousal rape if this right exists) nor is marriage a precondition for procreation inside or outside of marriage (effectively, premarital sex prohibitions and adultery prohibitions don't exist anymore anywhere in the United States) - just make incestuous procreation (or actions likely to result in same) illegal independent of marriage status. There's no reason that an 80 year old father and his 65 year old daughter should not decide to marry (after all, they presumably do love each other, are unlikely to be able to procreate due to the effects of menopause, and society is likely better off if each have a trusted partner to deal with health/disability/financial problems rather than these problems being foisted off on the general public).
11.7.2008 3:46am
Greg Q (mail) (www):
AngelSong20,

You would do better in this discussion if you had the slightest idea what "equal protection of the laws" actually means. A law that forbids people to sleep on park benches affects the homeless more than it affects those with homes. But it is not a violation of "equal protection of the law", so long as it is enforced the same against everyone.

There is no law in CA saying that gays can't get married. Such a law would be a violation of "equal protection."

There was a CA law, and is now a CA Constitutional Amendment, saying that only unions between a man and a woman can be a marriage. If you don't want to marry a member of the opposite sex, that is your problem, not society's. The fact that you want to marry someone who the law says you can't marry does not make the law a violation of "equal protection", any more than it would if the person you wanted to marry was already married, or too young, or too close of a blood relation to you.
11.7.2008 3:51am
Arvin (mail) (www):
You would do better in this discussion if you had the slightest idea what "equal protection of the laws" actually means. A law that forbids people to sleep on park benches affects the homeless more than it affects those with homes. But it is not a violation of "equal protection of the law", so long as it is enforced the same against everyone.

There is no law in CA saying that gays can't get married. Such a law would be a violation of "equal protection."

There was a CA law, and is now a CA Constitutional Amendment, saying that only unions between a man and a woman can be a marriage. If you don't want to marry a member of the opposite sex, that is your problem, not society's.

I'm curious.

Say California enacts a law that says only marriage of people of the same race is valid. (Omit for now people of multiple races, or put in some qualifying language to the hypothetical statute about being X% close to your spouse.) Would this be a violation of equal protection under your definition? Why or why not?
11.7.2008 3:56am
Gene Hoffman (mail) (www):
Greg Q,

Is your world view so fragile that allowing gays to wed would destroy it?

Also, your simple tyranny of the majority is exactly what white supremacists believed and expressed in southern public policy well into the 1960's.

-Gene
11.7.2008 4:02am
Stephen Clark (mail):
Dale's analysis is dead on, both his healthy skepticism as to what the court may do, given the political realities, as well as his probing analysis of the legal question.

His analysis is superior to Volokh's staid and formalistic legal reasoning, which failed to internalize the profound change in California law wrought by In re Marriage Cases.
11.7.2008 4:07am
Russ (mail):
That's right, Dale. God forbid that the people should actually decide which laws society should be governed by. Nope, that's a job for our black robed masters.

Gay rights was quietly progressing through gradual tolerance until the loobby decided that they weren't getting things done fast enough. The result has been a backlash that has cost homosexuals ten years, at least.

Be careful the fire you play with. Push too hard, and this will get written into the US Constitution. 30 States have already passed laws, and judges deciding so often and so openly against the will of the people could spur quite the backlash.

And that's the type of thing you can't get overturned in court.
11.7.2008 4:07am
AngelSong20 (mail):
Greg Q:

You would do better in this argument if you had the slighest shred of basic human decency, but that's beside the point. Interestingly, your interpretation of "equal protection" has been rejected pretty much every time it's been proposed. Well, Plessy maybe, but we all know about that one.

The fundamental right in question is not the right to "gay marriage", it's the right to marriage to the person with whom you have chosen to share the rest of your life regardless of who sticks what where. So equal protection would absolutely apply to a law that allows a heterosexual person to marry the person they choose to marry but not a homosexual person.

"My principle is that when the majority thinks justice is one thing, and a minority things it's something else, the majority has the right to have their version of "justice" win."

Spoken like a true bigot, congrats.
11.7.2008 4:14am
ToddP:
All you "the majority decided" armchair lawyers seem to forget a few simple things. 1) Prop 8 passed by 2% of those who voted- hardly a mandate going by GOP terms who scoffed at Obama's landslide. Before the negative, misleading (and outright false) tv ads started airing the polls had Prop 8 losing by over 15%. The court can take into account the ignorance of a large block of voters ("If I don't vote for Prop 8, my church will lose its tax exempt status? I'd better vote for it!") when deciding if the slim majority it got was really the INFORMED will of the people. 2) There is a reason a simple majority can't change the U.S. constitution- the founders specifically wanted to protect minorities from the ever-changing whims (and ignorance) of the majority. 3) The majority of Americans wanted segregation but the Supreme Court said "Sorry, majority, it violates the INTENT of the Constitution. Unless you can get 3/4 of the States to ratify a new smendment, we can overturn any law passed by a simple majority". No matter what happens with the California Supreme Court, there will be multiple Prop. 8 cases before the U.S. Supreme Court in a couple of years. By that time, the composition of the court will be different and we will probably get a definitive ruling from those nine "activist judges". Don't be shocked when they cite Brown and Loving and strike down any limits on the rights of same-sex couples just like they did for interracial couples.
11.7.2008 4:16am
CourageMan (mail) (www):
"My principle is that when the majority thinks justice is one thing, and a minority things it's something else, the majority has the right to have their version of "justice" win."

Spoken like a true bigot, congrats.


So pray tell, when the majority think Justice requires X and the minority thinks Justice requires not-X ... what happens? (Keep in mind that almost all political conflict is exactly this situation.)

And keep in mind the California Supreme Court's decision was also nothing but the majority thinking something. Marriage Cases (or any court decision ever on any topic ever) differed from the Proposition 8 referendum (or any referendum ever on any topic ever) only in terms of the answer to the question "a majority of whom?"
11.7.2008 4:44am
A. Zarkov (mail):
"Don't be shocked when they cite Brown and Loving and strike down any limits on the rights of same-sex couples just like they did for interracial couples."

So why shouldn't two brothers, or sisters be allowed to marry? Or for that matter, why should you be allowed to marry someone who is already married?
11.7.2008 4:59am
Latinist:
I wish people would stop referring to all supporters of same-sex marriage as "the gays," etc. There are actually quite a lot of heterosexuals who support it (and a few homosexuals who are against it, for that matter).
11.7.2008 5:12am
Perseus (mail):
The fundamental right in question is not the right to "gay marriage", it's the right to marriage to the person with whom you have chosen to share the rest of your life regardless of who sticks what where. So equal protection would absolutely apply to a law that allows a heterosexual person to marry the person they choose to marry but not a homosexual person.

Au contraire! The right is indeed essentially the right to same sex marriage because the "fundamental right" that 4 of our black-robed despots in California have most recently minted excludes (for the moment) polygamists and others who are no less capable of satisfying the criterion set forth in their decision, namely, the capability "to enter into loving and enduring relationships."
11.7.2008 5:19am
Greg Q (mail) (www):
Arvin,

If CA tried to define marriage as only between people of the same "race", it would fall afoul of the 14th Amendment, and thus not be Constitutional. It would also fall afoul of history, since cross-race marriage has existed as long as marraige has.

CA defines marriage as being between a man and a woman. This is sexual discrimination, but that's allowed (see single sex bathrooms). However, all men are treated equally, and all women are treated equally. So members of each sex are receiving equal protection under the law.

Clear?
11.7.2008 6:11am
Greg Q (mail) (www):
Gene Hoffman,

Is your world view so fragile that allowing gays to wed would destroy it?

Not at all. Get a democratic majority to vote to change the definition of marriage for their state so it includes SSM, and it will not bother me in the slightest.

Judges rewriting the laws / Constitution to force SSM on a State, that bothers me a great deal. It comes from believing in the rule of law, rather than the rule of men.
11.7.2008 6:14am
Greg Q (mail) (www):
AngelSong20,

You would do better in this argument if you had the slighest shred of basic human decency

Now that's a sad, pathetic, joke. You claim the right to ignore democracy, the rule of law, any principle at all other than "whah! Give me what I want!"

And then you have the sheer unmitigated gall to accuse me of not having the slightest shred of human decency.

Get real.

Let me be perfectly clear here: I feel nothing but contempt for any person who tries to use the courts to achieve their legislative agenda. There are no new rights. You want new laws? Great. Get them through democratic means. Can't get them through democratic means because a strong majority disagrees with you? Tough. You lose. Deal with it, just like everyone else has to. You're not God, you're not the dictator of the country. The mere fact that you want something doesn't mean you should get it.

I would be utterly indifferent to a SSM movement that tried to get its way through convincing people to vote for it. I am unalterably hostile to any attempt to do an end run around The People and get some black robed thugs to force your agenda on everyone else.

Talk to me about decency when you've decided to accept the rule of law, even when it goes against you.
11.7.2008 6:26am
Greg Q (mail) (www):
ToddP,

Do you just not read anything we say that runs counter to your prejudices?

The majority of Americans wanted segregation but the Supreme Court said "Sorry, majority, it violates the INTENT of the Constitution.

No, they said "sorry, it violates the 14th Amendment, which was passed after the Civil War, for the purpose of forbidding the States from treating people unequally based on the color of their skin."

And they were correct.

Now, when did We The People pass a Constitutional Amendment banning discrimination based on sex, or on sexual orientation? We haven't? Then nothing that you say about racial discrimination has any relevance to this situation.
11.7.2008 6:31am
Bill Dyer (mail) (www):
Question #1: Is it possible to argue simultaneously that Prop 8 is (a) an amendment and (b) retroactive? Seems to me that (b) negates (a), just using the plain English meanings of "amend" and "revise." I.e., if the state constitution never did permit those purported same-sex marriages (and therefore they're invalid, and Prop 8 has retroactive effect), and instead prohibited them, then Prop 8 revised whatever it was that did that. If Prop 8 instead merely amended the state constitution to add a provision that was not there in form or substance beforehand, then there was nothing during the interim since the court ruling to make those purported marriages illegal. They certainly were conducted under color of law and with the then-current approval of the state supreme court.

Question #2: Prof. Carpenter argues, creatively:

Now you may disagree that the fundamental right to marry extends to same-sex couples. You may also disagree that sexual orientation classifications are suspect, requiring heightened judicial scrutiny. Both objections are well-grounded, are the majority view in other state court systems, and may well be correct. But the California Supreme Court disagrees with you on both points, as it held in its marriage decision last May.


But for purposes of his further analysis, before proceeding further, don't we have to qualify that very substantially? Ought not it read, "the California Supreme Court disagrees with you on both points based on its inference of a fundamental right and a suspect classification not stated in the text of the state constitution, as it held in its marriage decision last May"?

I can see a sound policy argument for a preference for finding an "amendment" rather than a "revision" when what's arguably being revised is an implied right, rather than one that's been expressly stated. (And that's the problem, of course, with Prof. Carpenter's thought experiment: Religious and political-speech liberties aren't implied into the state constitution, but expressly written into it.)

I think Prof. Carpenter's argument is very creative and nicely stated. I'm not fussing at him, or trying to argue a particular outcome, but rather, just playing devil's advocate.
11.7.2008 7:04am
Bill Dyer (mail) (www):
(BTW, Prof. Carpenter, your link to Prof. Bainbridge is broken — should be to the URL linked here, as per Prof. V's earlier post.)
11.7.2008 7:15am
BlackX (mail):
For what other topic(s) has it happened that a legislature comes out more for individual rights than the populace? I might still be groggy but I can't think of anything offhand. Certainly not the way it normally works.
11.7.2008 7:27am
Snake90:
In my opinion, Professor Carpenter is grasping at straws. I guess all that talk about respecting the will of the people and avoiding judicial activism was just talk when it comes down to it.
11.7.2008 7:34am
Snake90:

Consider a couple of analogies. (1) Suppose a majority of the people became concerned about the growing political influence of Mormons, exhibited by what the majority regarded as their huge donations to political campaigns, and decided to alter the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights. Aside from the obvious federal constitutional issues involved, would the change be considered an "amendment" or a "revision" under the California constitution? (2) Suppose a majority of the people decided that blacks were not taking the responsibilities of marriage very seriously, exhibited by what the majority regarded as high illegitimacy rates, high divorce rates, and rampant cohabitation and promiscuity, and decided to alter the state constitution to deny to blacks, and blacks alone, the fundamental right to marry? Again putting aside the invalidity of such a change under the federal constitution, would the change be an "amendment" or a "revision" under the California constitution?


One problem with your analogy. Prop 8 didn't target homosexuals. It simply defined marriage in the Constitution.
11.7.2008 7:42am
Matthew K:
The CA leg. passed a same sex marriage bill. The governor then vetoed the bill saying that the courts should decide the issue. They did. Judicial tyranny my ass. The CA proposition system is a bad idea on many levels, most notably this one. Unfettered direct democracy leads to tyranny of the majority, plain and simple. That's why we have a bill of rights, as any libertarian or second amendment supporter should never need explained to them.

As for anyone arguing that they support proposition 8 because of those arrogant liberals who used the courts to protect minority rights, or because of that arrogant mayor, please go fuck yourself. Proposition 8 has real effects for thousands of same sex couples and their children. Their wellbeing is more important than your sensitive ego.
11.7.2008 7:45am
JohnO (mail):
Wasn't Prof. Carpenter arguing a couple of years ago that states should not enact constitutional amendments because the Massachusetts decision was an outlier and other state courts were unlikely to follow suit?
11.7.2008 8:23am
Paula (mail) (www):
Although Proposition 8 adds only a few lines of text to the California Constitution, it affects marriage rights, which are covered by about 400 state laws AND ABOUT 1000 FEDERAL ONES. That's ~1400 different laws, certainly enough to constitute a REVISION of the Constitution and not the "amendment" Proposition 8 was proposed as.

TO ALL WHO OPPOSE GAY MARRIAGE:
Most of you approve of separate domestic partnerships for gay people, but please listen to why "separate but equal" really isn't.
The federal and state governments give married people about 1400 rights which are NOT easily codified in a single enforceable legal document. Domestic partnerships permit weak versions of SOME of the 400 state rights, and NONE of the 1000 federal ones. This leaves us to seek inclusion in the one word that currently encompasses all 1400: "marriage". That's equality, and that's all we want.

Paula
11.7.2008 8:32am
Bob Van Burkleo (mail):
Same old discussion - those treating marriage as if were some social/legal construct that has no biological basis and ignoring that potentially all humans can marry and some are extremely biased to only be able to do so with someone else of a particular gender.

There's no such thing as 'gay marriage' merely 'marriage' and if the state is going to license marriages then all citizens should have reasonable avenue to do so.

I do think that removing the existing right of marriage from merely a segment of the population is a revision akin to suddenly deciding that only Republicans have freedom of speech, and not merely an amendment no matter how many words are in the change.
11.7.2008 8:42am
jgshapiro (mail):
Pre Loving v. Virginia:

There is no law in CAVA saying that gays blacks can't get married. Such a law would be a violation of "equal protection."

There was a CAVA law, and is now a CA Constitutional Amendment, saying that only unions between a man negro and a woman negro or between a caucasian and a caucasian can be a marriage. If you don't want to marry a member of the opposite sex same race, that is your problem, not society's. The fact that you want to marry someone who the law says you can't marry does not make the law a violation of "equal protection", any more than it would if the person you wanted to marry was already married, or too young, or too close of a blood relation to you.

There isn't any real difference in the EP analysis of race vs. sexual orientation when it comes to marriage. The arguments are almost entirely the same by opponents of SSM as they were by opponents of mixed-race marriage, including the stick-it-to-the-judicial-activist arguments. Occasionally you get the procreation argument, but that quickly falls apart when you ask whether seniors or sterile couples should be allowed to marry.

What it comes down to is that some people don't like, or are uncomfortable with gays, just as some people don't like, or are uncomfortable with mixed-race couples. Whether or not you call that bigotry, that is the bottom line.
11.7.2008 8:44am
Chris 24601 (mail) (www):
FWIW, since the text of the EPC came up, there's reason to think that "equal protection of the laws" is about the enforcement of the laws, protection against violence, and the right to a remedy, not generic equality. See here and here.
11.7.2008 8:45am
Just Dropping By (mail):
I voted for Prop 8 solely to discourage special interest groups from relying on the courts to overturn the will of the people. I have resolved to put "gay marriage" in the penalty box for 10 years just for this appeal to overturn Prop 8 (they were still in the 10 year penalty box for their appeal to the courts to overturn Prop 22 - the clock just got reset).

So all gay people must be punished for the actions of the handful of individuals in that lawsuit. Should gays who want your approval intimidate or kill any future litigants to stop them from going forward? Because otherwise, by your rule, the action of a single individual drives you to vote to oppress an entire class of persons.
11.7.2008 8:53am
jgshapiro (mail):
The bad news is that the pro-SSM movement lost in a blue state in a blue year, with a friendly AG writing the prop summary and with the status quo favoring SSM.

The good news is that even accounting for these factors, the vote was closer than in 2000. The other good news is that among the under 30 crowd, across all races and both sexes, the vote was overwhelmingly anti-8, and among the over 60 crowd, the vote was overwhemingly pro-8. Opposition to SSM is literally dying away, just like opposition to opposite-race marriage. This debate will be over in 20 years, if not 10.

There is no need to resolve this in the courts. It will resolve itself.
11.7.2008 8:57am
Stuart M. (mail):
The California Supreme Court will rule in whatever way will maximize its own power and discretion. That means application of vague manipulable rules using high-sounding rhetoric.

In a sane world that's called "lawlessness."
11.7.2008 8:58am
esteban J (mail):
Did we really need this thread? There was already one going on the revision/amendment topic.
11.7.2008 9:03am
hawkins:

The bottom line is, there is no 'fundamental right' to gay marriage. The people apparently understand this. Now, if the judges would just understand that THEIR job is not to legislate, nor create moral imperatives, nor to substitute themselves and their opinions for the entire political and democratic process.....


Too bad its the judges job to determine which rights are fundamental.
11.7.2008 9:06am
Dave Hardy (mail) (www):
Another reason to be glad I don't have to practice in California. Here, an amendment is an amendment. The one limitation that sometimes gets proponents into trouble is that it (like legislation) is supposed to have but a single subject, to avoid cobbling together a majority out of 20% of people want A, 20% want B, 20% want C, so 60% will vote for an initiative that features A, B and C.

(The legislature violates that rule at will, and unless the courts really dislike the result, they uphold it in unpublished opinions).
11.7.2008 9:07am
esteban J (mail):
hawkins wrote:

"Too bad its the judges job to determine which rights are fundamental."

No one has yet explained to me where the California constitution says that it's ok to use an amendment to change an "ordinary" right, but not a "fundamental" one. sheesh!
11.7.2008 9:10am
Joe - Dallas (mail):
State marriage laws are a codification of centuries old marriages. The manner in which the states adopted and created the privledges and responsibilities of marriages were primarily based on the common reliagion and customs of the early inhabitants of that state. Let's be clear - these state laws are codification into statutory law, of the rights, priviledges and responsibilities of married couples. At no point, has marriage been a constitutional right - it is only a statutory right. Same statutory right as getting a drivers license (granted we dont deny drivers licenses based sex orientation and race, but they are denied based on age, both young and old - we deny based on old age due to safety). If marriage is a constitional right, then restrictions on marriage such as right to marry at any age, or right to marry first cousins, brother sisters would be unconstitutional.

That being said - the question of whether the admendment is a revision or and admendment is moot. The California SC will rule the way they want the result to be. (ignoring the correct legal analysis).
11.7.2008 9:10am
deathsinger:
Paula,

The state of CA cannot give you the 1000 federal protections of marriage. Ask the SSM couples in Mass. or Conn. if they are eligible for SS survivor benefits. (They are not.)
11.7.2008 9:11am
some dude:
Will it ever end!?

One thing you should ask yourself, would it be a "revision" if the court never overturned the first ballot measure? That is, if this constitutional measure was passed last time instead, so the court never had a chance to overrule anything, would it be a revision?

If it is not a revision before a court acted but it is afterward, does that even make sense? It is illogical. It is either a revision or it isn't.
11.7.2008 9:23am
Matthew K:

Paula,

The state of CA cannot give you the 1000 federal protections of marriage. Ask the SSM couples in Mass. or Conn. if they are eligible for SS survivor benefits. (They are not.)


Give it a few years.
11.7.2008 9:23am
jrose:
Ought not it read, "the California Supreme Court disagrees with you on both points based on its inference of a fundamental right and a suspect classification not stated in the text of the state constitution, as it held in its marriage decision last May"?

Wouldn't this same reasoning lead us to conclude that an initiative amendment that forbade immigrants from China from marrying would be permissble (i.e., not a revision)?
11.7.2008 9:32am
Bob Van Burkleo (mail):
If marriage is a constitional right, then restrictions on marriage such as right to marry at any age, or right to marry first cousins, brother sisters would be unconstitutional.

Not at all since reasonable opportunity for marriage for all citizens would the the 'equality' property in question. The government can regulate even fundamental rights as long as it isn't done in a way that effectively proscribes any reasonable exercise of the right.

We can limit due to age just as we do individual liberty until age of majority. There are no known people who can only marry close relatives. In contrast most people can only reasonably be expected to marry someone of a particular gender.

Multiple courts have recognized the fundamental individual right to marry across this nation, effectively removing the state's ability to recognize any reasonable marriage of a law-abiding citizen is most definitely a revision if anything is.
11.7.2008 9:32am
Gilbert (mail):

If the 4 thugs in black robes hadn't voted to impose SSM on California, I would have encouraged people to vote no on Prop 8


Spite is a really bad reason to deny someone equality.

Even as an ardent supporter of gay marriage, I think the fundamental rights argument, in this context, begs the question (just as I think the argument that the right to marriage is a right to heterosexual marriage begs the question on the other side).
11.7.2008 9:38am
Bob Van Burkleo (mail):
If marriage is a constitional right, then restrictions on marriage such as right to marry at any age, or right to marry first cousins, brother sisters would be unconstitutional.

No, you just aren't identifying the real question: is a 'revision' identified by rules of grammar or is it being identified by the magnitude of change?

The California Supreme Court said that marriage equality was a preexisting right and it was an error it hadn't been being treated as such previously. So Prop 8 is removing a preexisting right from just some law abiding citizens - a revision if you define such by the magnitude of the change. If the court has not identified the state's error before Prop 8 passed it would still have been a revision, it just would be harder to identify it as such since it would be removing a right that had not been properly identified.
11.7.2008 9:39am
Pao (mail):
The blog's analogies to black marital rights or Mormon political speech are logically flawed and consequently unpersuasive.
Both heterosexual marriage and political speech are fundamental rights with a long standing tradition in our society (and constitutional jurisprudence), not a judicial creation of a mere four month vintage.
The author argues that Proposition 8 stripped a suspect classification of a fundamental right. Yet this "fundamental right" was a very recent experimentation by the CA Supreme Court (far beyond that of the Massachusetts SC in Goodridge that refrained from nominating sexual orientation as a suspect classification) that has subsequently been rejected by the authors of the CA Constitution, "We the People" of CA. In fact the extreme decision that created these suspect classifications was illegitimate, straying beyond any popular warrant or judicial precedent. Judges are to interpret the laws, not make the laws.
The CA Supreme Court will not classify Proposition 8 as a revision or do anything that challenges its application. This is because they fear the losing what precious little legitimacy they currently retain.
11.7.2008 9:41am
KL:
30 States have already passed laws, and judges deciding so often and so openly against the will of the people could spur quite the backlash.

Just a clarification here - 30 states have now passed state constitutional amendments. Another 14 have DOMAs or statutory definitions of marriage, so at least 44 states have strongly codified what marriage is. And "could" spur a backlash? I would argue it already has. Those who are arguing SSM is inevitable in just a few years have a lot to work against in the meantime.
11.7.2008 9:41am
Bob Van Burkleo (mail):
sorry cut and paste didn't take - I was replying to:

If it is not a revision before a court acted but it is afterward, does that even make sense? It is illogical. It is either a revision or it isn't.
11.7.2008 9:42am
deathsinger:
Joe - Dallas


If marriage is a constitional right, then restrictions on marriage such as right to marry at any age, or right to marry first cousins, brother sisters would be unconstitutional.


Freedom of speech is a constitutional right. You still can't yell fire in a crowded building.

The right to bare arms is a constitutional right. You can't own a howitzer.

Just because the constitution guarantees a right doesn't mean the government cannot regulate portions of that right. Loving ruled that marriage is a fundamental right, but did so on 14th amendment (equal protection) grounds. Loving never declared that brothers and sisters could marry. No State thought that it did. If a State created a law that said white people can marry siblings, but black people cannot, that would be unconstitutional. However, as long as the state doesn't violate equal protection it can create a statute saying that no one can marry their sibling.
11.7.2008 9:44am
deathsinger:
Matthew K,

what is your over/under? Until don't ask don't tell is rescinded, I don't see the federal government giving serious consideration to extending marriage benefits to same sex couples.
11.7.2008 9:45am
Smokey:
Gays like to accuse the majority of voters of being intolerant. But when things don't go their way, this is the result [from an earlier thread this week]:

Enufsenuf:

"To the 70% of black California voters (75% of black women voters) who supported Proposition 8, here's something to consider: it doesn't matter who's in the White House or who's in Congress, when you're applying for a job, what matters is who's reading your resume and what s/he does with it.

If your name is Lakesha, Darnell or anything similar, those of us who work in HR presume you're black. Because of the discrimination, exclusion and hate you chose to embrace &uphold, those of us who are gay and work in HR may now pause to consider whether we should contact you for an interview or simply place your resume at the bottom of the pile. Many of us HR folk now receive 500-1000 resumes per opening due to the terrible job market and high rate of unemployment, so your chances of landing an interview - let alone a job - are slim. Due to the selection you made on yesterday's ballot initiative, you may now find it even more difficult to find a job. No bi-racial President and no Democratic majority in Congress can prevent the economic retribution you just might face from the disgruntled gay American holding the key to your next employment opportunity.

Remember: you made your decision on Tuesday, November 4th. When I receive your resume, I'll make mine." 11.5.2008 11:08pm


Plenty of gays are not only intolerant, they're outright racists. Why should they get the sympathy they deny others?
11.7.2008 9:49am
YabbaDabba:
I've found a dearth of legal analysis in the comments, which is unfortunate and surprising because I typically find more legal insight and knowledge in other threads. There's just something about gay marriage that riles up people's hyper-emotional sides.

As I summarized yesterday in Eugene's thread, the core of the plaintiff's argument here is that Prop. 8 is a revision, not an amendment because it 1) eliminates a fundamental right - the right to marry - to only a subset of CA citizens (gays and lesbians) who have been historically subject to discriminatory treatment; 2) substantively changes the CA constitution's underlying principles of individual equality on an unprecedented scale and scope; 3) prohibits CA courts from exercising their traditional role of protecting the established equality rights of a minority defined by a suspect classification; and 4) effects a far-reaching change in the nature of CA's governmental plan.

I've read the complaint and tried to skim some of the cites. I see the plaintiffs prevailing on the merits pretty easily. It's clear the CA Supreme Court recognizes marriage as a fundamental right and gays as a suspect class. Read the majority opinion again in In re - they make it very clear.
11.7.2008 10:06am
Oren:

Only when the people vote in an enlightened way. When they express qualms about redefining the basic institution of family, then those pesky votes need not be heeded.

I know. That's why, when a majority of Americans voted for the ERA, it somehow still didn't become law.
11.7.2008 10:18am
Adam J:
Pao - "Both heterosexual marriage and political speech are fundamental rights with a long standing tradition in our society (and constitutional jurisprudence), not a judicial creation of a mere four month vintage."

What tradition is that? We had anti-miscegenation laws until relatively recently. I guess mixed race marriages aren't fundamental rights under your analysis since it doesn't have that long standing tradition to back it up. The tradition argument is ludicrious... apparently since we have a tradition of discriminating against gay marriage they don't have fundamental right to marry.
11.7.2008 10:18am
Paula (mail) (www):
Deathsinger said: "Paula, The state of CA cannot give you the 1000 federal protections of marriage. Ask the SSM couples in Mass. or Conn. if they are eligible for SS survivor benefits. (They are not.)"

Correct. That's exactly what I was trying to say and apparently didn't do so hot a job! :)
11.7.2008 10:20am
some dude:

deathsinger:If a State created a law that said white people can marry siblings, but black people cannot, that would be unconstitutional. However, as long as the state doesn't violate equal protection it can create a statute saying that no one can marry their sibling.
Similarly, if a State created a law that straight people can marry members of the same sex but gay people cannot, or straight people can marry people of the opposite sex but gay people cannot, that would violate equal protection.
11.7.2008 10:23am
A.S.:
Let's face it, the California Supreme Court justices will almost certainly overturn the vote. Left-wing fascists don't have any respect for democracy - and never did. They care about voting only to the extent that the voters exercise their "right" in a manner that agrees with the fascists.

I'm a gay marriage supporter, and if I had lived in CA, I would have voted to make it legal. But the fascism on display here is horrific. I weap for democracy.
11.7.2008 10:23am
Anderson (mail):
The politics should dictate the strategy, and politically, going to the courts to reverse a proposition that reversed the courts ...

Well, that kinda smells, guys and gals. Don't go there.

Take a hint from Lenin and wait for the old folks to die off. Just don't imitate Lenin's manner of speeding up that process.

(I do think that the CA AG's compromise on allowing the interim marriages to stand is politically sensible. In fact, if the Prop 8 opponents had run with that -- instead of trying to hide TEH GAY -- they might've won.)
11.7.2008 10:23am
Paula (mail) (www):
WILL YOU MARRY ME?

Your gender doesn't matter because I was one of those 1 in 100 babies born with ambiguous genitalia (intersex), and because God made me that way, my parents didn't tamper to make me conform to "normal" male or female.

Or...

Oh noes. Does this mean I can only marry other intersex people?! Well if I'm f***ed then at least I can do it myself. Nyuk.
11.7.2008 10:29am
Adam J:
A.S.- Yeah those darn black robed fascists... how dare they not tell gays they can't get married like the good people demand.
11.7.2008 10:33am
Paula (mail) (www):
A.S. said "I'm a gay marriage supporter, and if I had lived in CA, I would have voted to make it legal. But the fascism on display here is horrific. I weap for democracy."

A.S., on behalf of Gays Who Are Less Emotional Than Others Who Just Lost The Right To Marry, please accept my abject apologies. This is grumpy backlash, and when everybody calms down I'm sure we'll all be much more amenable to hammering out a solution we all like!
11.7.2008 10:35am
M:
As A. Zarkov points out, this argument was already raised and the court rejected the petition without comment. I don't know if the parties are the same who are now challenging Prop 8, and who the party is being sued.

Collateral estoppel is probably not available as a defense, since the parties suing are probably not in privity with those who filed the previous petition.

But Professor Carpenter, isn't there some sort of waiver issue here? That the parties suing now should have sued when the Proposition was proposed to be put on the ballot? That suing after the fact, after a state-wide vote was held on it is somewhat of an abuse of the system? Were these same-sex couples not necessary parties to the previous action?

It simply seems to me that if this were a dispositive issue, the court should have dealt with it before the entire state voted on it and mountains of money was spent on the campaign. I think the court's going to look mighty dumb for not ruling on this when it was first raised.
11.7.2008 10:37am
A Berman (mail):
I guess mixed race marriages aren't fundamental rights under your analysis since it doesn't have that long standing tradition to back it up.

Actually, that's false. Mixed-Race marriages do have a long standing tradition throughout world history. Most civilizations were fine with it. The anti-miscegenation laws were the anomaly. Thus, getting rid of anti-miscegenation laws was restoring marriage to its historical traditions.
11.7.2008 10:38am
esteban J (mail):

Bob Van Burkleo wrote:

"Not at all since reasonable opportunity for marriage for all citizens would the the 'equality' property in question. The government can regulate even fundamental rights as long as it isn't done in a way that effectively proscribes any reasonable exercise of the right."

That makes sense - if the issue is what the government can do by normal law-making processes of the legislature, because the definition of a fundamental right is a part of the constitution and the legislature can't alter the constitution as part of its normal law-making activity. Doing so would be 'unconstitutional'.

Of course, *amendments* are designed to change an aspect of the constitution itself, altering the definition of a fundamental right so as to allow a regulation that previously was unconstitutional.

Sounds exactly like Prop 8 to me.
11.7.2008 10:41am
Paula (mail) (www):
Anderson said: "(I do think that the CA AG's compromise on allowing the interim marriages to stand is politically sensible. In fact, if the Prop 8 opponents had run with that -- instead of trying to hide TEH GAY -- they might've won.)"

1) Jerry Brown made no compromise, nor does he have the power to. He only made a prediction about the way he thought the ruling might go.

2) Prop 8 opponents didn't hide TEH GAY, we were trying to be respectful of our nemeses' tender sensibilities by not tossing TEH GAY in their faces! See? We know how to compromise!

I do hope you understand I'm just ribbing. :-)
11.7.2008 10:41am
Hoosier:
Adam J:
A.S.- Yeah those darn black robed fascists... how dare they not tell gays they can't get married like the good people demand.

So the ambit of their power is unlimited? Or is it defined by what you want them to do?

I'm not clear on your theory.
11.7.2008 10:48am
Adam J:
A Berman - "Actually, that's false. Mixed-Race marriages do have a long standing tradition throughout world history. Most civilizations were fine with it." Yes, and courts typically look at other civilizations when exploring historical precident, I assume you are fine with Courts looking at other civilizations when considering the death penalty's legality. My point is that tradition is is a pretty lame justification for discrimination.
11.7.2008 10:53am
deathsinger:
Paula,

Interesting. What does your driver's license say under gender? (Honest question. Here in TN it says either F or M, I is not available.)
11.7.2008 10:56am
trad and anon:
Let's face it, the California Supreme Court justices will almost certainly overturn the vote. Left-wing fascists don't have any respect for democracy - and never did. They care about voting only to the extent that the voters exercise their "right" in a manner that agrees with the fascists.

I'm a gay marriage supporter, and if I had lived in CA, I would have voted to make it legal. But the fascism on display here is horrific. I weap for democracy.
So when the courts issue a decision you disagree with, it's fascism? Oh, that explains all those ovens . . .
11.7.2008 10:56am
Hans Bader (mail):
I opposed Proposition 8 (and more sweeping state measures banning gay marriage and civil unions like Virginia's Marshall-Newman Amendment), but I think the revision argument against it is a loser, and a logical stretch.

It is difficult to think of a milder form of stupidity than Proposition 8. Civil unions still exist in California, and are virtually the same as marriages in California.

If Proposition 8 impacts a "fundamental right" it does so in the mildest way imaginable -- far less than many other state referenda affect property rights, which are fundamental rights, yet those referenda are never invalidated as revisions.

In principle and substance, I think Prop. 8 was misguided -- in principle, because monogamy is good for gays as it is for heterosexuals, and in substance because it is probably not very costly to taxpayers to let gay couples marry (they usually have two incomes and thus, under both marriage and civil-union laws, incur as much in tax and social-security-related marriage penalties as they gain in reduced inheritance taxes).

But really, it's not a significant enough issue to constitute a revision, even if it is, unfortunately, .

At some point, you have to respect the will of the voters to make garden-variety dumb decisions.

And their decision here was not based solely on animus, as would invalidate the referendum under Romer v. Evans.

Opponents cited risks that mandating gay marriage would result in court rulings requiring purely private religiously-oriented entities to treat gay marriages like straight marriages, thus impact religious freedom.

Of course, as I have previously noted, these risks existed to some extent even if only civil-unions were permitted in California, as the California Supreme Court's recent rulings ruling against country clubs and fertility treatment providers demonstrated. (Indeed, these risks exist to some extent even in states with neither civil unions or gay marriages, as the New Mexico Human Rights Commission decision in the Elane Photography case, punishing a photographer for declining to photograph a gay civil-commitment ceremony, illustrates).

But gay marriage did slightly heighten those risks, giving supporters of Proposition 8 a rational basis (if not a very strong basis) for what they did.

Proposition 8 is neither a revision, nor an invalid sexual-orientation classification under the federal Equal Protection Clause.
11.7.2008 10:57am
A.S.:
So when the courts issue a decision you disagree with, it's fascism?

No, when the courts eliminate democracy, it's fascism.
11.7.2008 10:57am
Paula (mail) (www):
Deathsinger, My driver's license says female, because I really am one. I was being a wise-ass about being an intersex person, because I really am one of those too. Uh, the wise-ass, not the intersex person. But you got my point! The choices are only M or F, and yet there is that third gender that isn't really either, and then there are gays (I'm one of those too!) who don't conform cleanly either.

It hasn't been so long ago when a couple got married and the husband wanted to take his wife's surname, but because there was no corresponding space for that sort of unusual request on the marriage certificate, it was rejected. There's got to be a way to make everyone happy!
11.7.2008 11:02am
Adam J:
Hoosier- My point is there's nothing fascist about giving gays the freedoms that straight people enjoy. It's not restricting A.S.' freedom in any way. How is fascist to say people can marry whomever they want?
11.7.2008 11:02am
Adam J:
A.S.- We don't live in a democracy, we live in a representative democracy... where judges interpret the laws, not the majority of people. We have a Constitution that was explicitly created to deny the majority the ability to discriminate against minorities.
11.7.2008 11:04am
jccw (mail):
How about this for an amendment?:

"Only marriage between persons less than 60 years of age is valid or recognized in California."

It might pass - women over 60 can't have babies, and the thought of sex between over-60's is pretty icky (note that those are arguments often used against same-sex marriage). Now, if it did pass, would the court find it legal? As noted earlier, age limitations are allowable in law. So this amendment seems quite analogous to the one in Prop 8, but it's hard to believe that the court wouldn't strike it down in a heartbeat.
11.7.2008 11:04am
MarkField (mail):

Mixed-Race marriages do have a long standing tradition throughout world history. Most civilizations were fine with it. The anti-miscegenation laws were the anomaly. Thus, getting rid of anti-miscegenation laws was restoring marriage to its historical traditions.


That's pretty sophistical in light of the long-standing, specific US tradition of banning inter-racial marriages.
11.7.2008 11:09am
Paula (mail) (www):
Hans said: "Civil unions still exist in California, and are virtually the same as marriages in California."

Hi Hans, thanks for opposing Prop 8 and the other forms of discrimination.

I do however want to inform you of my own experience with "civil unions" in California. Just one example is that to get on my partner's insurance policy, we had to provide our certificate of domestic partnership, copies of financial records proving we had co-mingled finances and lived in the same home for at least two years, and more. If I died, my partner would have to wait at least two years to add her new partner to the policy to prove the relationship was 'real'. Married people don't even need to provide a copy of a marriage license, and if their spouse died today, they could add a new spouse tomorrow. This is only one example out of MANY.

Anyway, "Separate but equal" is never equal. It's intrinsically flawed by its mere existence.
11.7.2008 11:11am
markH (mail):
So when the courts issue a decision you disagree with, it's fascism?

No, when the courts eliminate democracy, it's fascism.

No, when the majority denies privileges and rights to the minority, it's fascism.
11.7.2008 11:13am
einhverfr (mail) (www):

No, when the courts eliminate democracy, it's fascism.


I thought fascism was when the executive branch eliminated democracy.

Also upholding Constitutional principles which are unpopular would seem to be the court's role. No voter initiative should be allowed to ban, for example, a specific religious group just because the group is unpopular. Furthermore, if that were the case, I would think that initiatives aimed at eliminating handgun ownership among non-police officers, military personnel, etc, would be such you would argue against overturning should it pass....
11.7.2008 11:14am
deathsinger:
Paula,

Actually I didn't get your point. Here in TN if your "papers" say you are female then you can marry a male (and vice versa). Since intersexed isn't an option, the intersexed person is categorized as a M or F and can marry a person of the opposite M or F category.

As far as


A.S., on behalf of Gays Who Are Less Emotional Than Others Who Just Lost The Right To Marry, please accept my abject apologies. This is grumpy backlash, and when everybody calms down I'm sure we'll all be much more amenable to hammering out a solution we all like!

The militant faction of the gay movement is its own worst enemy. Blaming the blacks for prop 8 might be classified as ironic by some people, instead I find it rather sick.
11.7.2008 11:20am
einhverfr (mail) (www):
What I would like to see is a good definition of judicial activism. IMO, this would mean something like putting ideas of how society ought to work ahead of careful legal analysis. How many justices on the US Supreme Court do this? By my count, only 1.....
11.7.2008 11:21am
AntonK (mail):
Related thoughts in this excellent piece: Progressivism's Achilles Heel
11.7.2008 11:21am
rarango (mail):
Dale: have you recinded the old 100 post limit on SSM?
11.7.2008 11:21am
The General:
sure, the courts will just ignore our FUNDAMENTAL RIGHT TO VOTE, which trumps an supposed 6-month old "right" of groups of 2 people of the same gender, which was invented by a court with no basis in the written text of our Constitution.
11.7.2008 11:22am
MartyA:
Golly, it's a good thing we have enlightened judges (whatever happened to Carolyn Byrd) who know what the people really wanted.
I've written to the Mass. judge who rewrote the definition of marriage to see if he will help my kid who is having trouble in geometry class. If the judge will redefine a triangle as having either "three OR FOUR" sides, my kid will pass.
11.7.2008 11:23am
Hoosier:
No, when the majority denies privileges and rights to the minority, it's fascism.

No. Fascism is when a single party takes full control of the coercive powers of the sate, playing upon ultra-nationalist sentiments and symbols to gain the support of the populace for the subjection of the individual to the interests of the state.

It is not simply when gays can't marry.
11.7.2008 11:24am
The General:
On Tuesday, the people of California told the California Supreme Court that their decision to invent a fundamental right for gay couples was wrong. We overturned their power grab.
11.7.2008 11:25am
Randy R. (mail):
Greg Q: "If the 4 thugs in black robes hadn't voted to impose SSM on California, I would have encouraged people to vote no on Prop 8."

Oh BS, Greg. At least have the integrity of your convictions, which are clearly spelled out here: "If you don't want to marry a member of the opposite sex, that is your problem, not society's. "

Your posts have consistently stated that you dislike gays and have nothing but contempt for us and our rights. You certainly would have voted yes on 8 regardless of what any court says about gay marriage.
11.7.2008 11:25am
Hoosier:
Randy

I hope you've noticed that I like you guys. (Though to be blunt I hate your techno-rave-dance music.)

But the process of cereating rights that have never existed through judicial fiat is disturbing to me. Why am I wrong about this?
11.7.2008 11:29am
Randy R. (mail):
" Prop 8 didn't target homosexuals. It simply defined marriage in the Constitution."

And yet, it only harms gays. imagine that!
11.7.2008 11:33am
Let's Be Decent (mail):
I'm heterosexual and I support gay marriage.

Gay marriage = more freedom.

Gay marriage = less intrusion from the government into the personal lives of individuals.

That perfectly comports with libertarian and Conservative ideals.
11.7.2008 11:33am
Randy R. (mail):
Smokey: "Plenty of gays are not only intolerant, they're outright racists. Why should they get the sympathy they deny others?"

Let see -- one gay person is argubly racist or other intolerant. Therefore, we should deny rights to all gay people.

Okay -- there are some blacks that are racist or other wise intolerant. I guess you want to repeal all the civil rights laws, right?

Admit it, Smokey, you just don't like gays and you will look for any excuse to support your contention that we should just go away and leave everyone alone.
11.7.2008 11:35am
strebor:
I'm a supporter of Prop 8 and I thought this was an excellent post. Well done, Dale. I think the fundamental turning point on your comparison between denying marriage rights to gays, and denying them to blacks or Mormons is the exact thing that is at issue. The definition of marriage. If marriage is defined as a union between a man and a woman, as it always has been, then the analogy makes no sense because gays are excluded from marriage by definition. This is the traditional view of marriage and this is what we are fighting for. In order for gays to be excluded from a "right" of marriage, then they first have to redefine marriage to include homosexual marriage, and then they have to argue that they are being excluded under their new definition. I think the time-honored definition works just fine. And I'm not a bigot, and I don't think that calling people like me bigots helps the cause of those of you who disagree.
11.7.2008 11:41am
Anderson (mail):
But the process of cereating rights that have never existed through judicial fiat is disturbing to me.

So, Dred Scott -- good decision?
11.7.2008 11:44am
Cornellian (mail):
I would LOVE to see the Obama administration try to strip LDS of their tax exempt status, considering some of the fairly high profile and political activities taking place in the President-elect Obama's former church of twenty years.

Presumably it would be the California state government, not the federal government, leaving the LDS church subject to California state income taxes, but not federal income taxes.
11.7.2008 11:50am
Randy R. (mail):
Hoosier: I know you support us, and I DO appreciate it. And there is a lot of emotions going on around here, so don't take it personally. (However, sometimes, I do have to take is personally, like when people talk about how my lifestyle is so bad, disgusting, etc).

However, I think the courts are a perfectly acceptable place to secure rights. Blacks went to court in the 50s and 60s to secure civil rights -- recall Brown v. Board of Education? No one complains now about their using the courts to enforce the constitution. And Brown reversed Plessy, which was a long standing tradition of separate but equal.

Perhaps you disagree, but we will have to agree to disagree. I believe that my rights are enshrined in the Constitution under the phrase equal protection. All citizens are entitled to equal application of laws, and you can't and shouldn't discriminate. In fact, I DON'T believe this should be a matter of a vote, precisely because our framers wanted to make sure that minorities will always be treated equally in the US, and that the majority cannot vote away their rights. See Romer v. Evans for support on this issue.

Of course, I also believe that if we get the support of the majority, in the long run that is more important.

But if we look back to 1968, right after Loving was decided, a poll indicated that 80% of Americans disapproved of interracial marriage. Should Mr. and Mrs. Loving had waited until a majority would approve of their marriage? Mr. Loving died in the 70s. If SCOTUS had not approved interracial marriage, would they have ever been married?

Societal acceptance of interracial marriage would NOT have come nearly as fast if the court hadn't stepped in like it did.

Some say we should wait ten years. Great. What if I said to any engaged straight couples out there they have to wait ten years before they can get married? What if I get to vote on the legality of YOUR marriage? What if I said you can't get married so long as a few straight people are racist or intolerant, as Smokey suggests? I think people would be a little offended.

The bottomline is that most people just cannot believe that gays want to get married just like straight people. Somehow this deeply offends them. well, there are a lot of things that deeply offend me, like teaching creationism, eating at McDonald's, hard rock music, the lack of appreciation of classical music. But you know, somehow, I am able to live a full life despite all this. I don't try to ban the things I don't like or understand, nor would I ever try to deny a person's right to eat lousy 'hamburgers.'
11.7.2008 11:50am
Allan (mail):
Superstition and sanctimony aside, marriage in the context of state regulation and recognition is a bundle of fundamental rights (full faith &credit not the least of them). Minority enjoyment of such rights is a primary purpose of constitutional law. If a bare majority of voters (who have made no promise to uphold the constitution and are not accountable to any higher authority) can restrict these rights, then they simply don't exist. A constitution that permits this is, to put it mildly, flawed.
11.7.2008 11:54am
Randy R. (mail):
Stebor: If marriage is defined as a union between a man and a woman, as it always has been, then the analogy makes no sense because gays are excluded from marriage by definition. This is the traditional view of marriage and this is what we are fighting for."

And so you want to permanently keep gay from marrying merely because it has worked for you. And prior to 1968, interracial marriage was outlawed in many places. I'm sure that worked for you just fine as well, right? So no need to change anything, because heck, most were against interracial marriage anyway, right?

Apparnelty, you don't care at all whether your definition of marriage works for gays. How about the children of gay parents. Do you think that they deserve to have parents who are married? Do you think it works out just fine for them to have parents who can't get married? Or don't you care about them?
11.7.2008 11:55am
Adam J:
strebor- You believe in denying rights to others because of their sexual preference... sounds like bigotry to me. I love the definition argument though, it's not my bigotry that made me oppose gay marriage, it's the definition of marriage. It's like saying blacks or women can't be citizens because historically the definition of a citizen is a white land-owning male. If your definition discriminates on the basis of sexual orientation, your definition is wrong... marriage is not about the people's sex, it's about the commitment and love they feel for each other.
11.7.2008 11:56am
Randy R. (mail):
"I would LOVE to see the Obama administration try to strip LDS of their tax exempt status."

Congress wrote the law governing tax exempt status for nonprofits, and they wrote that several decades ago. The law is quite clear. It is up the the IRS, not the administration, to enforce the law. In fact, any political meddling by an administration is often accompanied by public outrage (See Nixon using the IRS to audit enemies).

I know that the Christian Coalition was investigated regarding its tax exempt status, and I believe that they lost it (although I could be wrong). Either way, that is a clear signal that the IRS will not tolerate violation of its regs.

Therefore, if the IRS strips the LDS of their tax exempt status, they have no one to blame but themselves.
11.7.2008 11:59am
Ken Arromdee:
So all gay people must be punished for the actions of the handful of individuals in that lawsuit.

Consider the evidence suppression analogy. We don't say "all of a criminal's future victims must be punished for the actions of one police officer who searches him without a warrant". Yet if we suppress evidence and let a crook go, that's basically what we're doing.

Not allowing abusers of the law to benefit is the only way to discourage abuse of the law, even if other people are hurt. If a criminal goes free because the police abused their authority, someone's probably going to get hurt. We let such criminals free anyway.
11.7.2008 12:00pm
You gotta be kidding me:
There is something tremendously wrong with the constitutional procedure if the rights of the minority can be taken away by nothing more than a mere majority of the voters in any given plebiscite.


But not if our masters decide for us, 5 to 4? You're kidding, right?
11.7.2008 12:00pm
Myr:
If the "majority" always dictated whether a group gains equal rights, interracial marriage would have been banned in the 70s due to majority vote. The job of the constitution and the court is to protect the minority, not allow the majority to bully them.
11.7.2008 12:02pm
Adam J:
You gotta be be kidding me- Learn some Constitutional law dude, that's a traditional role of the courts, to protect minorities from the actions of the majority.
11.7.2008 12:03pm
Jim Clay:
Randy R,
"You certainly would have voted yes on 8 regardless of what any court says about gay marriage."

Actually, I believe Greg. I am what you would probably call "hostile" to SSM. I don't like making it a constitutional amendment issue, though. Like Greg, I would be more than willing to let the voice of the people have their way on the issue. It has been very clear for years, though, that the judiciary will not let this happen. Thus, if we want to have any say in the matter, we have to do it through constitutional amendments.
11.7.2008 12:07pm
A. Zarkov (mail):
Paula:

"TO ALL WHO OPPOSE GAY MARRIAGE:
Most of you approve of separate domestic partnerships for gay people, but please listen to why "separate but equal" really isn't."


I don't approve of either gay marriage or domestic partnerships. It was easy to see that domestic partnerships are the "camel's nose in the tent" for gay marriage. Furthermore in California domestic partnerships were limited to same sex couples. Why should opposite sex couples not qualify as well? Siblings were also precluded from CA domestic partnership, another seemingly arbitrary qualification.

"The federal and state governments give married people about 1400 rights which are NOT easily codified in a single enforceable legal document."

That large number sounds suspicious. I suspect much of that 1,400 consists of trivial items. In any case I don't see why we couldn't simply print up a standard form with all those "rights," even all 1,400. Paper is cheap enough. Wouldn't that be even better? Why have governments make up all the rights that they can change at a whim? Then the parties would know exactly what they contract for. BTW I would advocate that for standard marriages as well.
11.7.2008 12:08pm
Randy R. (mail):
Adam J: "You believe in denying rights to others because of their sexual preference.."

I agree Adam. however, just a little point of argument -- we don't say sexual preference, but rather sexual orientation. I don't date gays because I prefer them to women, but rather because I have no interest in women, and only interest in men. Preference implies a choice. I prefer orange juice to pineapple juice, but will drink either if offered. Ain't no way I'm having sex with a woman, no matter what is offered!

Thanks.
11.7.2008 12:08pm
Randy R. (mail):
"Actually, I believe Greg. I am what you would probably call "hostile" to SSM. I don't like making it a constitutional amendment issue, though. Like Greg, I would be more than willing to let the voice of the people have their way on the issue."

In other words, if Prop 8 comes up again, you would simply vote against it because you are against SSM. that's my point with Greg. If the majority agrees to SSM, you would and Greg would still be opposed to it. Which of course is your right, but don't try to fool me that this but for the court's action you or Greg would have voted in favor of SSM.

Zarkov: " I suspect much of that 1,400 consists of trivial items."

Hardly. A spouse cannot be compelled to testify against another spouse. That is denied to gays. A spouse can bring the other spouse from another country and gets preferred treatment under immigration laws. That is denied to gays. There are a great many laws that apply only to spouses, and civil unions or domestic partnerships don't grant them.

"Furthermore in California domestic partnerships were limited to same sex couples. Why should opposite sex couples not qualify as well?"

Simple -- because opposite sex couple have the option of getting married, whereas gays do not. But your point is well taken: If gays can get married, then there is no point to having domestic partnership. DPs were really just a stopgap to provide the some benefits of marriage upon a group of people who otherwise can't get married.

Here's the better solution: Allow gay marriage, and that eliminate the need for DPs, and you can eliminate them altogehter.
11.7.2008 12:16pm
deathsinger:
A. Zarkhov

I'll let you parse how many of these items are trivial.

If you want the additional 300 state items, I can dig those up as well.
11.7.2008 12:17pm
Down from the Ivory Tower:
All I see on this thread is a bunch of ranting by anti-gays who haven't even bothered to read the briefs. I'm shocked.
11.7.2008 12:21pm
Randy R. (mail):
One irony that is completely lost upon the anti-gay marriage crowd is regarding the future of marriage. They say that they are against allowing gay marriage, because it somehow will destroy marriage as an institution (despite any evidence of that happening where gay marriage is allowed, BTW).

So, it forces gays who DO want to live happily ever after to not get married. Instead, they file for domestic partnership, adopt children, and otherwise lives exactly has a straight married couple. They grow old together, raise a family, and take care of each other. They get all the contracts lined up so they have as many rights as they can.

Meanwhile, straight people look at these families, and they say, see, I DON"T have to get married to live the married life. We can just live together, have or adopt children, grow old together,raise a family and take care of each other, just like the gay couples do. If it works for them (out of necessity), surely it will work for the straight couples.

And so fewer straight couples will get married. Once we establish that it can be done -- because you people leave us no choice -- we prove to everyone else that they DO have a choice. And so, by denying us the right to marriage, you are in fact laying the ground work for destroying the very thing that you purport to protect.

If, instead, you said -- even insisted -- that if you want any benefits at all, you MUST get married, then the opposite will happen. Gays will have to get married to get domestic partner benefits, and straight couples will quickly learn that merely living together provides precious few benefits. Marriage will actually be strengthened.

But such forward thinking is very difficult for some people. Basically, most straight people who oppose SSM think that by doing so, they are stopping gays from having sex or getting coupled, or some other such nonsense. They simply are not living the in real world. Nor do they care, from what I see.
11.7.2008 12:23pm
A. Zarkov (mail):
I know heterosexual couples who cohabit instead of marrying. They want no part of marriage. Before anyone contemplates marriage (at least in California) get a copy of the Rutter Group Practice Guide for Family Law (or use West Law) and read through it. Look at the cases, especially in the area of fiducial responsibility. If you really like due diligence, go sit in on the hearings of a family law court. Marriage can be great until things go wrong. Circa 1960 married men were exempted from the draft. A friend of mine asked his lawyer father if he should marry to avoid two years in the army. His father told him that he had lots of clients who would gladly spend two years in the army to get rid of their wives.

Opposing SSM is an act of mercy for gays.
11.7.2008 12:26pm
Adam J:
A. Zarkov - Are we still on a libertarian blog? How very paternalistic of you... you're opposing gay marriage for the good of gays everywhere. What a humanitarian.
11.7.2008 12:29pm
Bob from Ohio (mail):
Is the Mormon Church really at risk of losing its tax exemption?

I just read a very detailed IRS publication for churches that says opposing or supporting a political candidate or excessive lobbying a legislative body is forbidden.

Is a state ballot issue a candidate? Clearly not.

Is a state ballot issue the same as lobbying? That seems to be the main issue.

Ballot issues are not mentioned in this publication.
11.7.2008 12:35pm
SFJD (www):
(My apologies if the following has already been said in the comments.)

The brief filed by the ACLU notes some important precedents: (I read it yesterday)

1) fundamental changes to the Constitution can be qualitative or quantitative. I.e., fundamentally changing EP is just as much a revision than limiting the scope of review every court in CA can conduct.
2) In re marriage cases, IIRC, held that under CA Const law a) same sex marriage is a fundamental right; and b) same-sex couples are a suspect class.

When you further consider the wording of the amendment, i.e. "eliminates the right..." I think this it is a very strong argument that the amendment is making a fundamental change to the principle of equal protection guaranteed in Art I sec 7 of the CA Const.

It is a legit argument to hang your hat on at the end of the day. Let the courts do their job and interpret the Constitution, which is the ultimate will of the people anyway.

As far as "tactics," I could care less if 52% of the voting population voted for it. I really don't care. End it now. This is the government and the Constitution we all signed up for, and if you want to make such a drastic change to the Constitution and strip a minority of fundamental rights, get a super-majority and a constitutional convention and do it the right way, not just a simple majority vote. This is discrimination against innocent citizens trying to exercise their fundamental right to marry who they love, and it is unacceptable.

Should it really be that easy to do something like this? I don't think so.
11.7.2008 12:37pm
martinned (mail) (www):
My two cents worth: I think the more reasonable interpretation would be to consider this an amendment and not a revision, and I strongly suspect that that is how the Cal. courts will rule, if for no other reason than that there is a limit to any court's ability and willingness to defy the voting public.

That said, I share many commenters' uneasiness with the ease with which a majority can eliminate a fundamental right in California. Then again, I'm already on record as being against almost all kinds of referenda, since the combination of (rational) voter ignorance and the impossibility of compromise (it has to be a yes/no question, after all) makes it an extremely poor decision making tool. Only when these problems are outweighed by the need for legitimacy and by the benefit that referenda tend to make voters more informed than they were before, should ballot measures be an option.
11.7.2008 12:45pm
PTiger:
Regarding a point way upthread:


The LDS Church is potentially in danger of losing its tax-exempt status because of its role in campaigning for Prop 8 (i.e., spending millions of dollars on TV ads). There's a good chance they'd either be unable or reluctant to repeat this in the face of such a hefty legal sanction.


I'd understood the "millions of dollars" in LDS contributions weren't institutional; i.e. the money (barring a miniscule contribution to offset travel expenses for a few church officials) was donated by individual members rather than general church funds.

It seems untenable that a church's tax-exempt status could be revoked merely for encouraging its members to take a position on a social issue... all churches that I'm aware of encourage their members (implicitly or directly) toward various positions on various social issues. (Clearly, some of those positions are more generally accepted outside the faith in question than others are.)
11.7.2008 12:45pm
A. Zarkov (mail):
"How very paternalistic of you... you're opposing gay marriage for the good of gays everywhere. What a humanitarian."

Go sit in on family law hearings and read up on family law. Then see if you want to say that. BTW my position is extremely libertarian. When possible and practical get the government out of people's lives. Above all keep the government out of your personal relationships. I know too many men who went through utter hell for years and years in divorce. There's nothing like reading lies about yourself put in the public record. If making snarky comments about me makes you feel good, go ahead. It won't change reality.
11.7.2008 12:52pm
jpe (mail):
Bob from Ohio: the political activity rule is an exception from the general rule. The code tells us that charities can be exempt as long as (a) they don't endorse or oppose any candidates; or (b) do substantial lobbying to influence legislation. A state initiative is certainly legislation, but even it weren't the church would be in the clear. (if it isn't, then the exception no longer applies, we don't have to do the substantial portion test, and the church can engage in the activity.
11.7.2008 12:56pm
SFJD (www):
@Zarkov, I suspect your original comment was more of a joke, but nonetheless the point isn't to let gays and lesbians "embark on the wonderful journey of marriage" or any happy-flower-time nonsense, the point is to let them make the decision just like any straight couple.

Whether the decision is right or wrong or a good idea is irrelevant.
11.7.2008 1:00pm
Adam J:
A. Zarkov - The lengths you go to to justify your position is getting ludicrous. Your position is as libertarian as opposing allowing blacks to volunteer for the army because the army is authoritarian. If government is too involved in marriage (something in which we apparently agree), the solution is not have the government create barriers to marriage for some people &get more involved. The solution is obviously less involvement, let whoever wants to get married get married, and let whoever wants to get divorced get divorced.
11.7.2008 1:00pm
brad:
The whole amendment/revision distinction seems like a bit of a stretch to me on a texualist basis, but I'm not on the California Supreme Court.

That said, AFAICT this distinction has only been used to strike down three amendments to the Constitution (out of over 500 amendments and revisions since 1849.)

The first time was in 1894 (Livermore v. Waite 102 Cal. 113). It is sort of a bizarre case, there was an amendment to move the state capital from Sacramento to San Jose, but the move was only triggered once *someone* donated the money and land to build the new capital. The court decided that the way the amendment was framed it delegated amendment-like new powers to third parties, which would be a revision rather than amendment. TBH it is not all that persuasive, but judges of that area particularly in the wild west weren't the sharpest tools in the shed.


The legislature is not authorized to assume the function of a constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment, nor can it submit to their votes a proposition which, if adopted, would by the very terms in which it is framed be inoperative.


The second time was in 1948 (McFadden v. Jordan 32 Cal.2d 330). In that case the amendment being proposed was pretty close to an entirely new constitution - it contained 21,000 words in 12 articles consisting of 208 sections. It included among other things: an entirely new bill of rights, provided for reapportioning the state senate, forbid all taxation except a 2% income and provided in its own article specific constitutional protection for colored or uncolored oleomargarine. It also contained a blanket repeal of any contradictory provisions of the then existing constitution.


Applying the long established law to any tenable view of the facts which have been related, it is overwhelmingly certain that the measure now before us would constitute a revision of the Constitution rather than an amendment or ”such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purposes for which it was framed.“ Indeed, as has been shown in some detail, the effect of adoption of the measure proposed, rather than to ”within the lines of the original instrument “ constitute ”an improvement or better carry out the purpose for which it was framed,“ would be to substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast. Consequently, as is established by the Livermore case and by the other authorities cited hereinabove, such a revised Constitution, as a single measure, may be submitted to the electorate only after it has been ”agreed upon“ by a constitutional convention called pursuant to the provisions of section 2 of article XVIII of the present Constitution.



The final time was in 1990 (Raven v. Deukmejian, 52 Cal.3d 336). The change in questions was


In criminal cases the rights of a defendant to equal protection of the laws, to due process of law, to the assistance of counsel, to be personally present with counsel, to a speedy and public trial, to compel the attendance of witnesses, to confront the witnesses against him or her, to be free from unreasonable searches and seizures, to privacy, to not be compelled to be a witness against himself or herself, to not be placed twice in jeopardy for the same offense, and not to suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.



The Calfornia Supreme Court had at that time, and continues to this day, to intepret identical provisions in its own Constituion differently than the Supreme Court interprets the Federal Constiution. This amendment would have forbidden the court from doing that. Naturally the court wasn't going to go along with that quietly.


Proposition 115 imposes such an imperative for the first time in California's history. It substantially alters the preexisting constitutional scheme or framework heretofore extensively and repeatedly used by courts in interpreting and enforcing state constitutional protections. It directly contradicts the well-established jurisprudential principle that, “The judiciary, from the very nature of its powers and means given it by the Constitution, must possess the right to construe the Constitution in the last resort ....” In short, in the words of Amador, supra, this “relatively simple enactment [accomplishes] ... such far reaching changes in the nature of our basic governmental plan as to amount to a revision ....”


These cases set the bar pretty high for a challenge under the revision/amendment distinction. Remember these aren't three cases out of twenty or thirty amendments but three cases out of hundreds.
11.7.2008 1:02pm
Greg Q (mail) (www):
Matthew K,

Sorry, you don't know what you're talking about.

Prop 22 defined marriage as being between a man and a woman. The CA Legislature completely ignored when tehy passed their SSM law. The Legislature is not allowed to simply override an Initiative. It must put it's override on the State ballot. The "law" the Legislature passed didn't do that. Your Gov vetoed because they had ignored Prop 22.

The ignored Prop 22because they knew they'd lose if they put it on the ballot.

Rule of law. It's not just for "bigots."
11.7.2008 1:06pm
Fub:
Cornellian wrote at 11.7.2008 11:50am:
Presumably it would be the California state government, not the federal government, leaving the LDS church subject to California state income taxes, but not federal income taxes.
I never practiced taxation law and know little about it, but my instincts tell me that California property tax exemptions would be lower hanging fruit for that legal exercise. And in the case of the tax exempt religious organizations that funded the "Yes on 8" campaign, those property tax exemptions are a very substantial chunk of change.

I also think that any legal move by California to deny any of those religious organizations any tax exemptions would result in a legal battle that would make Armageddon look like a minor skirmish.
11.7.2008 1:07pm
nutbump (mail):
Homosexual and heterosexual couples are fundamentally different with regard to marriage, accordingly they cannot have the same rights.
Homosexual couples however can have exactly the same rights in domestic partnership excluding a right of procreation.
I do not understand what homosexual wants.
11.7.2008 1:11pm
Randy R. (mail):
Zarkov: "Go sit in on family law hearings and read up on family law. Then see if you want to say that. BTW my position is extremely libertarian. When possible and practical get the government out of people's lives. Above all keep the government out of your personal relationships. "

Okay. Then make marriage illegal for everyone. For their own good.
11.7.2008 1:14pm
Russ (mail):
" Prop 8 didn't target homosexuals. It simply defined marriage in the Constitution."

And yet, it only harms gays. imagine that!


Sorry, but this doesn't only harm gays. It also harms polygamists, group marriages, incest seekers, and others.

Or are you now arguing those should be legal too?
11.7.2008 1:14pm
Greg Q (mail) (www):
Paula, jgshapiro,

Did you bother to read any of the prior comments before you came in and posted the same drivel that has been repeatedly disproved? No? Didn't think so.

Short version: 14th Amendment. Stops discrimination based on race. Not on sex. Otherwise there wouldn't be single sex bathrooms, the 18th Amendment, or the (failed) ERA.

"Gays" are not being discriminated against. Men and women are. Men can only marry women. Women can only marry men. Get over it.

Before you prate too much about the superiority of The Curts to The People (you lovers of dictatorship), you might remember Dred Scott, and the 14th Amendment.

If you find yourself always going to the courts to get what you want, because you can't get it through the legislative process, it's a good bet that the reason why this is happening is because you are in the wrong.
11.7.2008 1:15pm
ShelbyC:
Don't all laws discriminate against the class of people with a propensity to engage in the regulated behavior?
11.7.2008 1:16pm
ForMeItWasEasy:
For the longest time, I didn't care how marriage was defined other than it be something people take seriously. That is to say, it is a commitment between two people. I don't believe that marriage, as such, is a "right" anywhere. There were some states, and maybe still are some states that will not issue a marriage license (if it were a right, there would be no need for a license) because one of the two people has an STD. Thus the requirement for a blood test. The last time I looked, "rights" could not be impacted by the state of a person's health, except mental health.

All of the above aside, here's the deal and I hope some gay folks read this carefully. If you want me to vote for something that you think is a "right," then you had better do the same for me. In other words, stop electing people who are anti-second amendment or who don't actively SUPPORT my second-amendment rights. Those rights actually exist and are written into the constitution. As if it should even be required, SCOTUS has stated that this right is an individual one. But most gay folks don't seem to care about that because they, as a block, keep insisting that anti-second people get voted into federal office.

So there is the stalemate as far as I and most of my friends are concerned. Turnabout is fair play. Vote, visibly and loudly pro-second and you have mine for what it is you desire. Simple as that! Sound like hate-speech or does it sound more like "fair?"
11.7.2008 1:18pm
Smallholder (mail) (www):
Greg Q et al:

For those of you arguing that majority rule trumps court support of minority rights, please answer the following questions:

1) Is the belief in majority rule a core belief or is opposition to gay marriage the core belief and support of majority rule a mere tactic. Put another way, if 2% of the people had voted the other way and gay marriage was upheld by a majority vote, would you now support gay marriage?

Perhaps the tactic of siding with the majority against black-robed tyrants is not a good long-term strategy, if polls disambiguated by age are correct; supporters of gay marriage will soon be the majority.

2) If your belief in majority rule over minority rights is a core belief, do you believe that Brown and Loving were incorrectly decided?

I'm not being snarky here. Both of those cases "found" a right to equality that was not historically present and ran counter to majority opinion at the time. I've never heard an anti-gay marriage activist clearly explain why their majority-rule principle wouldn't apply.

3) Were previous contra-majority judicial rulings in Brown and Loving good or bad for society in the long term? At the time of the decision, the majority viewpoint was that the judicial activism was a grave threat to our society. Were they right? If not, why should we grant chicken-little fears any more credence then we retroactively grant the segregationists and anti-miscegenationists?
11.7.2008 1:20pm
Adam J:
Russ - Yes, Prop 8 does only harm gays, it has nothing to do with "polygamists, group marriages, incest seekers, and others."

Greg Q - Short version, you don't know what the hell you're talking about. The 14th amendment reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Please direct me to the portion where it says gays &women can still be discriminated against.

Please explain how single sex bathrooms are discrimination?!?!

And lastly, please explain what the prohibition amendment (18th) has to do with this?!?!

And lastly- before you pratt on about Dred Scott, please note that was upholding democratically enacted bills by the legislature. Finally, those laws were not overturned by the majority, but the Supreme Court.
11.7.2008 1:26pm
DDG:
Challenging the results of the proposition in this manner and prevailing would greatly undermine the legitimacy of the courts. I realize that many think of the courts as just another avenue of politics -- one that is often more favorable to them than the actual political process. But try explaining to ordinary people how clearly expressed social preferences in two initiatives can be struck down on the whim of the few.

Pro-SSM folks should try to get the results they want through the ballot box, not the courthouse. They should work on changing the minds of the millions, no just the a handful of judges. Come back and try again in a few years.
11.7.2008 1:29pm
Steve in CA (mail):
It's true, Greg doesn't know what he's talking about. It was the federal civil rights laws in the 1950s and 60s that established race as a protected class, and not gender. The 14th Amendment doesn't deal with race at all. Read it again. The 13th and 15th amendments do deal with race, but I wouldn't expect Greg to know that, either.
11.7.2008 1:32pm
einhverfr (mail) (www):

sure, the courts will just ignore our FUNDAMENTAL RIGHT TO VOTE, which trumps an supposed 6-month old "right" of groups of 2 people of the same gender, which was invented by a court with no basis in the written text of our Constitution.


First, the same argument could be made for an initiative re-establishing segregation.... The right to due process is older than the right to vote on proposed laws too.....

Secondly, the question is what role the courts should play in this. IANAL, but I understand the process is largely this:

1) Determine whether proper process was followed. If not, one must rule on the basis of the most limited criteria possible.

2) Determine whether the initiative in every possible application is unconstitutional based on the process requirements. If it is, then it is struck down. If not, then it must be interpreted such that it is legally binding, but the interplay of the two may affect whether it applies to the specific case.

In short, the court should try to avoid overturning the amendment and seek to interpret it such that it can be considered as an amendment.

So now you could have a number of options, including almost any combination of:

1) Instructing the state, that both Marriage Cases and Prop 8 are binding, and therefore "Marriage Licenses" need to be renamed.

2) Upholding Prop 8, narrowing its scope significantly.

3) Overruling Prop 8 based on US Constitutional principles (for example, the idea that due process can be affected by a simple majority vote seems to violate the State's obligations under the 14th Amendment).

4) Overruling Prop 8 on the basis of California principles.

In the end, though, I am pretty sure that Prop 8 will not have the effect its supporters have suggested. I don't think it will invalidate or prevent civil unions. I don't think it will annul the gay marriages legally performed in the state. And I am not even sure it will prevent arguments that gay committed couples are legally entitled under the CA Constitution to all of the same rights as straight committed couples.
11.7.2008 1:36pm
Daryl Herbert (www):
I really, really hope Prop 8 is knocked out on a technicality.

First, I don't like Prop 8, even though it's perfectly Constitutional. I just don't like it on policy grounds.

Second, I would love to see the judges who voted for it (and who voted to strike it on technical grounds) to be <b>RECALLED</b>.

Rose Bird thought she was invincible--but it wasn't so. Does Ronald George think he can get away with thwarting the will of Californians <i>twice?</i> Does he think he can get away with raping our Constitution <i>twice?</i>

Bring it on.
11.7.2008 1:37pm
Adam J:
ForMeItWasEasy- You plea to gay people is based on the assumption that all gay people oppose the 2nd amendment &that they always vote on issues the same way... Kinda silly if you ask me.
11.7.2008 1:38pm
Parenthetical:
Prof. Carpenter,

I don't know if you saw the pleading (PDF) from S.F., L.A., and Santa Clara. I think they framed the question better--at least more directly. To paraphrase their argument that Prop. 8 is a qualitative revision:

1. Equal protection guarantees are fundamental to the structure of California government. (Insert lots of flowery quotes from well known opinions on this topic.)
2. The central feature equal protection is to establish procedural bulwarks preventing the majority from doing to a minority (in this case suspect class) what they would not tolerate for themselves. The principle mechanism of equal-protection is impartial judicial review.
3. So, either the 1911 amendment creating the initiative process or Prop. 8 has made a bare majority of the electorate, not the judiciary, the bulwark against majoritarian overreaching. That turns the core of equal protection largely on its head.

Their framing of the argument distinguishes Frierson (amendment declaring the death penalty not cruel or unusual was validly enacted). And they appeal more directly to the Raven framework (stripping the courts of one of its core functions is a revision).

At the end of the day, I doubt the court has the temerity to embrace this argument. Indeed, embracing it is probably imprudent. But the argument was framed better here than in the ACLU brief.
11.7.2008 1:38pm
KilgoreTrout_XL (mail):

But I can also see an argument, offered by those challenging Prop 8, that more deliberation (through the legislative process) and more consensus (than a bare majority vote in an election) should also be required before a majority strips a fundamental right from 3% of the population. Otherwise, fundamental constitutional rights enjoy no more protection from majorities than ordinary statutory rights.


Absolutely! Like Scalia has said in the past, Constitutions should be extremely difficult to change. The rights they provide should not be risked on the meandering whims of "bumper sticker" politics.

I hope the challenges prevail. They have, without question, a plausible argument (though the weight of the amendment arguments may be too great to bear.)
11.7.2008 1:45pm
SFJD (www):
@brad

That's an excellent summation of part of the precedent here. However, I don't think it is much of a stretch to argue that fundamentally upending EP guarantees of art I of the CA const. against a suspect class constitutes a revision. A revision can be qualitative or quantitative. When you consider the precedent laid down by this exact same court months ago in the In re Marriage cases, it is a very legit argument. It just will take some major cojones on the part of the CA Sup Ct.

The brief covers its bases well, however, and also has extensive argument about Prop 8 fundamentally limiting the court's role in protecting minorities from having their rights stripped by the majority.
11.7.2008 1:46pm
Asher (mail):
Regarding the Greg Q debate, I struggle to see how sexual orientation is a suspect class, like race or gender or age. Let's grant that it's immutable, not a choice, etc. The fact still remains that sexual orientation is nothing more than a propensity to behave in a certain way, or to prefer to behave in a certain way; saying that you're gay is really a statement of the form "I like to do X." It's just like saying "I like to eat chocolate ice cream (and am genetically inclined to like chocolate ice cream)" or "I like to binge drink, and am genetically inclined to do so," or what have you. Now, when we ban a certain type of conduct, we usually don't ask ourselves whether we're violating equal protection by preventing the people who like to do that sort of thing from doing it. Take pedophilia for instance. Now, I wouldn't at all be surprised if some people have a genetic predisposition to like having sex with children. Surely, though, pedophiles can't say that they're a suspect class, no matter how hard-wired their preferences may be. The objection here, of course, is that we have compelling reasons to ban sex between adults and minors, and no such reasons to ban gay marriage. And I agree entirely; in fact I happen to think gay marriage should probably be legal, as a matter of policy at least. But banning pedophilia isn't constitutional just because there are compelling reasons to ban it; it's constitutional because pedophiles aren't a suspect class to begin with. They're just a group of people who like to break a particular law. And I'd say that, for constitutional purposes, gays shouldn't be regarded as a suspect class either.
11.7.2008 1:55pm
commontheme (mail):
Kudos to Asher for working analogies to binge drinking and pedophilia into a post about gay marriage. Bravo.
11.7.2008 2:00pm
Adam J:
Asher - I'm having trouble understanding your argument. Are you saying you think it would be okay for the government to deny the rights of people to marry if they like chocolate ice cream?
11.7.2008 2:00pm
Perseus (mail):
As for anyone arguing that they support proposition 8 because of those arrogant liberals who used the courts to protect minority rights, or because of that arrogant mayor, please go fuck yourself. Proposition 8 has real effects for thousands of same sex couples and their children. Their wellbeing is more important than your sensitive ego.

I think it is the sensitive ego of many of the opponents of Proposition 8 (who resort to such incivilities) that is driving their opposition since domestic partnerships offer virtually all of the substantive legal benefits of marriage. And as for the talk about representative democracy, I would remind people that California's constitution is closer to direct democracy given that it places clear restrictions on the ability of the representative branches to overturn the people's will as expressed in propositions, and I would further remind people of the passage from Lincoln's First Inaugural Address: "if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
11.7.2008 2:02pm
einhverfr (mail) (www):
Perseus quoted Lincoln:

"if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."


At the same time, one can't have an initiative outlawing, say, holocaust denial, so that shouldn't be taken as construing an inability of the courts to protect the rights of minorities against a hostile majority.

Certainly I am sure that Lincoln would not have supported direct votes to reinstitute slavery in the south either.

However, on your earlier point, I think you are exactly right that the lack of civil discourse and intelligent debate is responsible for a lot of the problems. I see this as happening on both sides of the issue, unfortunately.

What is really needed is for us to stop accusing eachother of cultural treason (trying to undermine society) and get on with actually discussing public policy issues in a sane and civil way.
11.7.2008 2:09pm
Adam J:
"I think it is the sensitive ego of many of the opponents of Proposition 8 (who resort to such incivilities) that is driving their opposition since domestic partnerships offer virtually all of the substantive legal benefits of marriage."

I'm sure the British felt the same way about those Bostonians when they had their tea thrown off their ships. It's really wierd how people get so upset about injustice.
11.7.2008 2:11pm
deathsinger:
Smallholder,

As et al I’ll say a few things.


1)Is the belief in majority rule a core belief or is opposition to gay marriage the core belief and support of majority rule a mere tactic. Put another way, if 2% of the people had voted the other way and gay marriage was upheld by a majority vote, would you now support gay marriage?



Depends on your definition of support. Would I divorce my wife and marry a man, No. Would I attempt to have it blocked in court, No. Would I sign a petition for a new ballot initiative against, No. Would I vote against it on such a ballot initiative, No. Does that qualify as support?


do you believe that Brown and Loving were incorrectly decided?


I believe that a couple hundred thousand men died to end slavery in the US. They wrote plain language into the Constitution that a few Southerners decided to throw away in Plessy. Brown and Loving simply returned us to the intentions of the 13-15th amendments.

Loving and Brown were both unanimous decisions, not 4-3. They have both been much better received 30 years on than Roe V Wade, which it seems is always one vote away from changing. (Hence the culture war.)
11.7.2008 2:13pm
James Gibson (mail):
Why is this beginning to sound so like the Heller case. People on the gun control side convinced themselves so quickly that they would win based on their flawless arguments. BOY WERE THEY SURPRISED.

This issue will not end in ten years because the old folks will die off. People are living longer and we have been seeing a graying of America for over two decades. The youth pool is shrinking and ask anyone 28 or over if they still support all the liberal views they had in College and the answer from even those who say they are still liberal is "NO." Expecting that the next time the Blacks will not be out in force because there will be no Obama coat-tails ignors the low turn out of the conservatives who just didn't come out for McCain. And it all ignors the rising Hispanic community which will soon be the majority race in this state (and they weren't pro Gay marriage either).

And the more the Gays fight this in court and throw the money of the Cabinet around while screaming at where the opposition gets its money, the less they will be able to convince people that they are on the moral high ground. Again, the real issue is the impact this will have on the mid-term elections and the State elections in 2010. State wide the Dems are already walking on Egg shells and Newsom has already accepted his chances for Statewide office are dead. Nationally, the dems worked real hard to find blue dogs to fill otherwise conservative seats in both the house and Senate. If a new SCOTUS justice of Obama (say replacing Kennedy) votes for Gay marriage you know what is going to happen in 2010 and in 2012.
11.7.2008 2:19pm
ForMeItWasEasy:
Adam J, no I didn't say that. I said, "as a block" and there is no doubt that the majority do vote for people who are anti-second. Look at San Francisco and who represents them and has forever.

Again, this has to do with what we are all referring to as "rights." Yours are no more important to me than mine are to you. We cannot pick and choose "rights" to defend just because we do or don't "like" them.

An individual isn't a "block" of votes. I know there are exceptions and if I could vote on their rights separately from an "anti" I would do so in a heartbeat.

If you care about RIGHTS, you care about all of them. I am tired of being the one who cares about everyone else rights when they don't give a hoot about mine. This feeling seems to be spreading. Just some thoughts...... But second amendment supporters are quite a fair sized voting block and if they knew another block of people voted for theirs with few exceptions, I suspect a point could be made the other way around, no? This isn't such an unusual thought or all that "silly," either. Think about bill riders in congress and why/how they happen. "You want yours? Gimme mine." :)
11.7.2008 2:21pm
KWC (mail):
Finally, Dale! You've come to the light.

Also, note that the equal protection clause was part of the CA constitution from its inception. It was ratified by the people and the legislature. Prop. 8 was not. Why should a provision backed by a mere simple majority vote trump a provision that was ratified through the equivalent of the revision process?
11.7.2008 2:21pm
einhverfr (mail) (www):
But if the question were presented, it's not obvious to me that the issue would be resolved by counting the words in the hypothetical amendments, tallying the number of constitutional provisions affected, or asking simply whether the judicial role had been compromised.


I think I was following you up to the last sentence.

However, I think the strong argument here is that these sort of initiatives do in fact compromise the judicial mandate to protect the fundamental rights of the minorities. I think that at the end, the main argument is that it does, in fact, remove power in fundamental ways from the judiciary and place them in the hands of a bare majority.

In all of your cases, the judiciary would be barred from protecting minority rights which are at the core of our legal system and our republican form of government.
11.7.2008 2:23pm
CAYankee:
Why anyone here is trying to argue with Greg Q is beyond me. "Never argue with a fool, for the audience won't know who he is. Arguing with a fool and a liar is twice as futile." Greg Q is both, and he isn't open to rational discussion. Just ignore him. Would that we could delete him.
11.7.2008 2:25pm
Bob Van Burkleo (mail):
since domestic partnerships offer virtually all of the substantive legal benefits of marriage.

Yeah those seats in the back of the bus are just fine, stop your complaining. ;)
11.7.2008 2:26pm
Adam J:
Formeitwaseasy- A number of gays now desire to discriminate against blacks because a fair majority of them have discriminated against gays by voting for prop 8. Under your logic this is appropriate. One bad act does not justify another.
11.7.2008 2:26pm
A Berman (mail):
To go back to the earlier point about comparing miscegenation with gay marriage. Here's another way to look at it:

Ask yourself-- Back in the 50's and 60's, could supporters of interracial marriage point to examples of successful societies with interracial marriage to support their claim that bans had no merit and were therefor discriminatory? Of course, since interracial marriage was pervasive throughout the world since the dawn of recorded history.

Now ask yourself the same question about gay marriage.

Opponents have claims that go well beyond "God tells me so." They support their claim by noting the complete absence throughout all world history of successful societies that permitted gay marriage. Unless those claims are knocked down, opponents can argue that prudence and concern for society trumps claims of discrimination. Going through the court system simply means that proponents of gay marriage are not willing to try win the debate with reasoned argument.
11.7.2008 2:26pm
eddie (mail):
Again, I never cease to be amazed that libertarians can so glibly discard arguments regarding fundamental rights. If there are any fundamental rights, should a mere majority of the electorate be able to simply "vote" them away? As the professor tries, what if one of the priviliged few here offended the majority of voters in the state they lived and had a fundamental right taken away, let's say, the right to own an AK-47. (And please ignore the Federal issue for the sake of this argument.) Are you really prepared for such a facile means of re-adjustment in constitutional rights versus legislative rights? That is truly a slippery slope of which any one who professes a love of liberty should be afraid.
11.7.2008 2:34pm
Perseus (mail):
I'm sure the British felt the same way about those Bostonians when they had their tea thrown off their ships. It's really wierd how people get so upset about injustice.

It really is a bit weird how people get so upset over perceived slights to their sense of dignity when there are virtually no substantive legal rights at stake. But isothymia is a powerful force in modern democracies.
11.7.2008 2:35pm
Adam J:
A Berman- Gee, possibly the reason they couldn't get married is because of the rampant discrimination against gays is because they would get stoned or worse if they tried. It's so annoying how now that they don't have to worry about getting killed or ostracized (actually they still have to worry about that) for coming out of the closet they have become all pretentious and ask for all those rights that the rest of us humans have. You're using our world's long and sordid history of discrimination against homosexuals to support your argument... I just don't find that very compelling.
11.7.2008 2:37pm
Adam J:
Perseus - I sincerely doubt you would think there were no substantive rights involved if the government denied you the right to marry.
11.7.2008 2:38pm
ForMeItWasEasy:
Adam J, I hear you. But we are talking about a privilege here as opposed to a right. Like I said earlier, I don't believe that marriage is a universal right anywhere, federally or otherwise. Privileges usually involve licenses, while rights shouldn't. Remember the poll tax?

We can make it a "right" in every state if we so desire, of course.

Who said anything about "discrimination?" I certainly hope that isn't a correct statement you made because that is a blatantly illegal activity since it is based upon a person's color (you did say blacks, after all). How marriage is defined isn't discrimination, to the best of my reckoning. It is a definition. Remembering that marriage is a "licensed" activity. Can blind people apply for a driver's "license" to acquire the driving privilege? Of course they can..... Will it be approved? Uh.... no. Driving is usually defined as an activity that requires a person with "eyes" that work. So is that discriminating against the sightless? Are they being denied what many think to be "right?"

Before anyone goes there, I am not saying there is anything "wrong" with gay folks by using a blind person as an example. It was just an example of a group of people who are denied something based upon a physical characteristic.

Again, the first question in this whole argument should be, "Is marriage a right?" If so, why do we have to pay a "poll tax" to get a license? I believe the truth of the matter is that is isn't a right and, thus, can be denied to anyone. Any legal beagles here know if it really is a right or a privilege?
11.7.2008 2:43pm
Perseus (mail):
since domestic partnerships offer virtually all of the substantive legal benefits of marriage.

Yeah those seats in the back of the bus are just fine, stop your complaining. ;)


That's the same thing we tell rich people with progressive taxation, so I don't find the argument very persuasive.
11.7.2008 2:47pm
Daryl Herbert (www):
Prop 8 does not have retroactive effect.

It does two things, going forward:

1 - prohibits same-sex couples from "marrying" (in the legal sense) in California

2 - All marriages between same-sex couples, no matter where or when performed, are no longer "valid" or "recognized" by California courts. They are not retroactively annulled. They simply cease to be recognized or otherwise have legal effect.
11.7.2008 2:52pm
FREEDOM!:

There isn't any real difference in the EP analysis of race vs. sexual orientation when it comes to marriage. The arguments are almost entirely the same by opponents of SSM as they were by opponents of mixed-race marriage, including the stick-it-to-the-judicial-activist arguments. Occasionally you get the procreation argument, but that quickly falls apart when you ask whether seniors or sterile couples should be allowed to marry. What it comes down to is that some people don't like, or are uncomfortable with gays, just as some people don't like, or are uncomfortable with mixed-race couples. Whether or not you call that bigotry, that is the bottom line.


Baker v. Nelson

Supreme Court of Minnesota, 1971

191 N.W.2d 185

OPINION

PETERSON, Justice.

The questions for decision are whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.

Petitioners, Richard John Baker and James Michael McConnell, both adult male persons, made application to respondent, Gerald R. Nelson, clerk of Hennepin County District Court, for a marriage license, pursuant to Minn.St. 517.08. Respondent declined to issue the license on the sole ground that petitioners were of the same sex, it being undisputed that there were otherwise no statutory impediments to a heterosexual marriage by either petitioner.

The trial court, quashing an alternative writ of mandamus, ruled that respondent was not required to issue a marriage license to petitioners and specifically directed that a marriage license not be issued to them. This appeal is from those orders. We affirm.

[1] 1. Petitioners contend, first, that the absence of an express statutory prohibition against same-sex marriages evinces a legislative intent to authorize such marriages. We think, however, that a sensible reading of the statute discloses a contrary intent.

Minn.St. c. 517, which governs "marriage," employs that term as one of common usage, meaning the state of union between persons of the opposite sex./1/ It is unrealistic to think that the original drafts-men of our marriage statutes, which date from territorial days, would have used the term in any different sense. The term is of contemporary significance as well, for the present statute is replete with words of heterosexual import such as "husband and wife" and "bride and groom" (the latter words inserted by L.1969, C. 1145, § 3, subd.3).

We hold, therefore, that Minn.St. c. 517 does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited.

[2] 2. Petitioners contend, second, that Minn.St. c. 517, so interpreted, is unconstitutional. There is a dual aspect to this contention: The prohibition of a same-sex marriage denies petitioners a fundamental right guaranteed by the Ninth Amendment to the United States Constitution, arguably made applicable to the states by the Fourteenth Amendment, and petitioners are deprived of liberty and property without due process and are denied the equal protection of the laws, both guaranteed by the Fourteenth Amendment./2/

These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court

The iinstitution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner V. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), which invalidated Oklahoma's Habitual Criminal Sterilization Act on equal protection grounds, stated in part: "Marriage and procreation are fundamental to the very existence and survival of the race." This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), upon which petitioners rely, does not support a contrary conclusion. A Connecticut criminal statute prohibiting the use of contraceptives by married couples was held invalid, as violating the due process clause of the Fourteenth Amendment. The basic premise of that decision, however, was that the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship. Mr. Justice Douglas, author of the majority opinion, wrote that this criminal statute "operates directly on an intimate relation of husband and wife," 381 U.S. 482, 85 S.Ct. 1680, 14 L.Ed.2d 513, and that the very idea of its enforcement by police search of "the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives * * * is repulsive to the notions of privacy surrounding the marriage relationship," 381 U.S. 485, 85 S.Ct.1682, 14 L.Ed.2d 516. In a separate opinion for three justices, Mr. Justice Goldberg similarly abhorred this state disruption of "the traditional relation of the family--a relation as old and as fundamental as our entire civilization." 381 U.S. 496, 85 S.Ct. 1688,14 L.Ed.2d 522./3/

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. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that "abstract symmetry" is not demanded by the Fourteenth Amendment./4/

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations./5/"

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.

We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.

Affirmed.

NOTES

[NOTE 1]. Webster's Third New International Dictionary (1966) p. 1384 gives this primary meaning to marriage: "1 a: the state of being united to a person of the opposite sex as husband or wife."

Black, Law Dictionary (4 ed.) p. 1123 states this definition: "Marriage *** is the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex."[BK]

[NOTE 2] We dismiss without discussion petitioners' additional contentions that the statute contravenes the First Amendment and Eighth Amendment of the United States Constitution.[BK]

[NOTE 3] The difference between the majority opinion of Mr. Justice Douglas and the concurring opinion of Mr. Justice Goldberg was that the latter wrote extensively concerning this right of marital privacy as one preserved to the individual by the Ninth Amendment. He stopped short, however, of an implication that the Ninth Amendment was made applicable against the states by the Fourteenth Amendment.[BK]

[NOTE 4] See, Patsone V. Pennsylvania, 232 U.S.138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539, 543 (1914). As stated in Tigner v.Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 LEd. 1124, 1128, 130 A.L.R.1321, 1324 (1940), and reiterated in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 540, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1659, "[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."[BK]

[NOTE 5] See, also, McLaughlin V. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), in which the United States Supreme Court, for precisely the same reason of classification based only upon race, struck down a Florida criminal statute which proscribed and punished habitual cohabitation only if one of an unmarried couple was white and the other black.[BK]
____________________________________

Baker was summarily affirmed by the United States Supreme Court in 1972. It is the law of the land, "whether you like it or not." :)
11.7.2008 2:55pm
CJS (mail):
This seems quite a stretch of an argument when the bottom line is that we're arguing over the use of the word "marriage" rather than the phrase "domestic partnership."
11.7.2008 2:55pm
koan0215:
"What is really needed is for us to stop accusing eachother of cultural treason (trying to undermine society) and get on with actually discussing public policy issues in a sane and civil way."

Hear Hear.

I'm an ex-Mormon and strongly opposed Prop 8. My immediate family are practicing Mormons and strongly supported Prop 8. I had some of the most enlightening political discussions ever with my family over this issue. I don't think that they are bigots for opposing gay marriage, I just think that they are wrong (and devastatingly so). I hope to be able to change their minds on this issue, but calling them bigots isn't going to help my cause.

I expect the court to uphold Prop 8, and I think that doing so would be correct on the merits, from what I can tell. I do think that the electorate will revisit this issue within the next decade and repeal Prop 8. The demographics are simply against the retention of traditional marriage standards.
11.7.2008 2:55pm
Adam J:
ForMeItWasEasy- Straight from Loving v. Virginia;

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
11.7.2008 2:57pm
MCM (mail):
ForMeItWasEasy


How you define marriage can't be discrimination? What if I defined marriage as being between one white man and one white woman, and or one black man and one black woman, et cetera? I'm not saying black people can't get married and I'm not saying white people can't get married. Everyone black man is free to marry a black woman, and every white man is free to marry a white woman, and so on. The dichotomy you are trying to draw is nonsense.


I can't stop laughing out loud at the question of whether or not any "legal beagles" might be here. In any case, the Supreme Court has said marriage is a fundamental right or fundamental freedom since 1967 and reaffirmed that in the 70s and 80s.
11.7.2008 3:00pm
Toby:
"A government powerful enough to give you all you want is powerful enough to take it all away"

So, if you don't like discriminatory language written into 1400 laws, ask yourself "Why do we have 1400 laws", Privatize retirement and you won't care wht some admin clerkl says about inheritance of SS benefits. Fins the fundamental problemm - too much law.
11.7.2008 3:01pm
Randy R. (mail):
Ken:"Not allowing abusers of the law to benefit is the only way to discourage abuse of the law, even if other people are hurt. If a criminal goes free because the police abused their authority, someone's probably going to get hurt. We let such criminals free anyway."

Since about 50% of straight marriages end in divorce, and many of them involve domestic abuse, then we should ban straight marriages as well, as Zarkov argues.

It shouldn't matter if some straight people are hurt, because this is the only way to discourage abuse of the right to marriage.

Shelby: "Don't all laws discriminate against the class of people with a propensity to engage in the regulated behavior?" No, of course not. IN our country, we have the right to do anything we want, unless it is prohibited by law. (Other systems might have the oppposite -- you can't do anything unless it is protected by law). There is no law that says I can buy an newspaper. Therefore, anyone can buy a newspaper. There are plenty of things that do not need any sort of regulation, and buying newspapers or telling me who I can or cannot marry are just two of them.
11.7.2008 3:03pm
Perseus (mail):
Perseus - I sincerely doubt you would think there were no substantive rights involved if the government denied you the right to marry.

Then you don't know me very well. I'm a critic of the modern obsession with abstract equality, so I would have no principled objection, say, to restricting marriage to couples with children or who are of child-bearing age. Unlike most, I see the government's interest in marriage as chiefly serving the good of society as a whole, not the desires of individuals.
11.7.2008 3:06pm
Angus:
There was a time in America when the vast majority of people would have and did vote for anti-black provisions. No longer.

In 50 years, Americans will look back on those who voted for anti-gay provisions with the same spite and derision we today reserve for white supremacists and segregationists.
11.7.2008 3:10pm
MCM (mail):
Then you don't know me very well. I'm a critic of the modern obsession with abstract equality, so I would have no principled objection, say, to restricting marriage to couples with children or who are of child-bearing age. Unlike most, I see the government's interest in marriage as chiefly serving the good of society as a whole, not the desires of individuals.

Even if you're not intentionally trolling, knowingly posting an idea like that here is tantamount to trolling.
11.7.2008 3:11pm
Randy R. (mail):
Formeit was easy: " Remembering that marriage is a "licensed" activity."

Sure is. And yet somehow Massachusetts found a way to grant that license to gays, as has Connecticut. Not to mention CAnada, Spain, Belgium, The Netherlands and S. Africa.

Try as we might, we keep as you people -- where is the harm of granting gays the right to marry? You can't come up with harm that has occured in any of those jurisdictions. Oh, sure, you say things, like well, my sense of what marriage should be will be harmed, but nothing concrete.

You can prohibit a blind person from driving a car because they will probably get into car accidents. Where is the harm in letting two guys get married?

persueus: "I think it is the sensitive ego of many of the opponents of Proposition 8 (who resort to such incivilities) that is driving their opposition since domestic partnerships offer virtually all of the substantive legal benefits of marriage."

No it does not. If you have bothered to read some posts, you would have learned that there are about 1400 benefits that only marriage confers. There are plenty of legal ramifications for married couples that occur, such as testifying against a spouse. Domestic partnership in CA confers zero federal benefits as well, and there are many of those.

We have pointed these matters out to you time and again, and yet you ignore them. Why?
11.7.2008 3:16pm
ForMeItWasEasy:
Adam J and MCM, thank you for the citations. As well as FREEDOM for that decision paper. I know, I know..... there are certainly legal beagles here..... I was hoping for some kind of response that included citations, since they are the most meaningful.

MCM, I didn't mean to imply that the definition of marriage cannot be made discriminatory, it certainly can and you named one very good example. But what about my example of blind folks?

You see there is a problem with the citations, the don't refer to a *right* as such, but the assumption that it is a right. Where in the US Constitution, for example, is it written that marriage of any sort is a right? The fact that a judge assumes it to be so doesn't necessarily make it so. You could say that the judge was practicing the job of the legislature since he/she didn't quote a place where it was actually written as a fundamental right.

I am not a lawyer, but it does seem to me that there are some major assumptions being made about what the status of marriage actually is. To you and I, it is certainly our "right," but is it really? Not if it isn't written as such, in my humble opinion.

At any rate, like I said, we can certainly make it a right, right? :) But, to make that happen requires the cooperation of many people and if you want someone to care about your rights (real or yet imaginary) you must show the same. Then, together, we can protect each others' rights and we will have a darned good reason to do so. Again, just an opinion and certainly not the only one allowed :)

By the by, I am very happy a good friend of mine introduced me to this site. I have watched this discussion and, with very few exceptions, it has remained incredibly civil. You folks should be proud of yourselves. This is an incredibly divisive issue for some and still..... the name calling and insults are, for the most part, absent! Well done, folks... I mean that!
11.7.2008 3:18pm
CJS (mail):
BTW, Prof. Gail Harriot had an interesting series of posts back in 2005 laying out what is essentially a Burkean case against expanding the definition of marriage. See here and here and here and here and here and here and here

Megan McArdle nee Jane Galt had one too, here

On the same theme, this is good here

And there is a good brief from Canada too, here
11.7.2008 3:20pm
Randy R. (mail):
Formeitwaseasy: "If you want me to vote for something that you think is a "right," then you had better do the same for me. In other words, stop electing people who are anti-second amendment or who don't actively SUPPORT my second-amendment rights."

Oh please. This is just a part of a long line of petty excuses to deny rights to people. We are told that if gay people just stop having sex, stop being promiscuous, stop dressing all weird, stop kissing or holding hands in public because it makes people uncomfortable, stop any and all illegal activities, stop pursuing our rights in courts, stop having children, stop adopting children, stop all advertising on tv because kids might hear it, then and only then will you graciously grant us our rights.

In short, every single gay person has to act how you would like us to act, or else you will take all your marbles and go home, leaving us all alone. So now each and every gay person votes in favor of unlimited gun rights, you will allow us to get married? Sorry, but the goalpost always moves, and never in our direction.

And it's silly to think that any rights for a group should hang on whether any one person acts individually 'properly.'
11.7.2008 3:22pm
ForMeItWasEasy:
Randy,
That is my point. I believe, legally, that marriage is a "privilege" and can be restricted due to that very thing.

To understand my stance, you need to read my little missive above concerning why I voted YES this time. To make it clear, I have always voted NO to restrictions on marriage. But I have noticed that the people who would benefit from my NO vote don't seem to care much about a written right that is near and dear to ME!

I have absolutely no issue, morally or otherwise, with allowing gay folks to marry, in that "word" or any other. BUT, I will not be "in favor" of it until they, as a voting block, care about my rights. Again, go up a bit in this chain and you will see what I am talking about and the reason I voted YES to the restriction. Call it selfish if you like, it may well be, but the 2nd is again going to be under attack, despite what happened in the Heller case and I am tired of having to fight (and worry), every election cycle, if my right "to keep and bear" is going to be infringed by yet another do-gooder because people keep putting those folks into elected office. See my point?

SO please don't assume that I "hate" or in any other way really dislike gay folks, because I really don't. I care about the people they, as a voting block, tend to put in elected office. Trust me, if the gay folks in SF told Feinstein and Boxer (or whoever is appropriate)to lay off the gun control garbage, she/they would do it in a heartbeat! So....... do it already and I will not only vote for your right, I will actively campaign for it (as a straight guy, so it has some impact). Fair?
11.7.2008 3:30pm
Randy R. (mail):
formeitwaseasy: "MCM, I didn't mean to imply that the definition of marriage cannot be made discriminatory, it certainly can and you named one very good example. But what about my example of blind folks?"

The US Consitution states that all people have the right of equal protection under the law. That means that all people must be treated equally under the law. You can't have one law for blondes, and another law for brunettes.

You CAN make exceptions where discrimination or treatment is warranted. Not allowing blind people to drive is a good example. Everyone has a right to a license, once they pass certain requirements. It can't be taken away unless you violate certain laws.

Same thing with marriage, but even more so. The right to marriage for staight people can never be taken away. Even felons can get married! No matter how many times you get divorced, no matter how many times you beat your wife, you can still obtain a marriage license. If you kill your kids, or refuse to have kids, guess what -- you can still get married!

So what is the threshold with regards to marriage? Basically, everyone has a right to it -- except gay people. When you allow felons to get married, and multiple divorce people to get married, then you have to have a pretty good reason why gay people can't. And what is the reason?

So far, the only reasons anyone has ever come up with is tradition and religion. First, religion should NOT be governing our laws, as we have separation of church and state. Second, tradition isn't good enough. Slavery was a tradition for centuries in America and in Europe until we outlawed it. Second class status for women was legal until we outlawed it. Jim Crow laws were traditional in the south. There are plenty of times when we said that the force of tradition isn't good enough to justify treating another class of people differently.

Puruse all these comments again. The ONLY reasons to deny gays marriage ultimately come down to these two reasons. (Three actually. There is the "I hate gays' argument, but then people don't like to be called bigots, and so I won't). They haven't ever defined any harm to anyone in Massachusetts, which has had gay marriage since 2002.

Got any other reasons?
11.7.2008 3:32pm
ForMeItWasEasy:
Randy, my goal post, as you call it, is "fixed." I don't care if there are a few holdouts. I said, "as a block," not that there wouldn't be some who wouldn't.

Again, a right is a right. You protect and care about all of them or none of them. Since I don't believe that marriage is a "legal" right, I am not being a hypocrite here. Even if it were, I wouldn't be because I did this intentionally so that I could speak to this very thing. If you don't care about MY rights, I find it pretty hard to care about YOURS.

That is a very "fixed" goal post. Rights are rights and if the gay community would address it that way (no matter which right is being attacked or infringed), they might well find alot of sympathy from unusual sources. Just a thought..... it wouldn't take much to get me to vote the other way! I am sure I am not alone here.
11.7.2008 3:38pm
Randy R. (mail):
"Fair?" Of course it isn't fair. Rights are not something that should be bargained over. Gun rights may be near and dear to you, but it has nothing to do with marriage. Did you say to blacks in the 60s, I'll vote for your civil rights but only if blacks back my right to own a gun?

And if blind people all agree to vote for gun rights, you would actualy vote to allow them to drive a car? This is simply absurd.

You know that there are several million gay people out there. Do you really mean to say that unless I get an affidavit from each and everyone of them that they will vote for gun rights, then gays shouldn't have the right to marry? Again simply absurd. You are just using guns as an excuse to deny this right.

And even if you could, where would it stop? How about some blackmail here. Just tell people that if they don't support your gun rights, you will vote to take away their right to drive a car. Or you will institute a poll tax. No one would ever want to bargain or play games with their rights.

So how about this one: We gay people will consistently vote down your gun rights until you come around on marriage rights. We will take away your guns until we can get married.

Fair?
11.7.2008 3:39pm
Adam J:
ForMeItWasEasy- Nice, so basically you're extorting gays. I'll deny you your rights unless you help me get mine. Classy.
11.7.2008 3:47pm
ForMeItWasEasy:
Randy, "he right to marriage for staight people can never be taken away. Even felons can get married! No matter how many times you get divorced, no matter how many times you beat your wife, you can still obtain a marriage license. If you kill your kids, or refuse to have kids, guess what -- you can still get married!" More's the pity, but we don't need to go there.

I am, whether you believe me or not, an atheist. So please don't lay a single religious thing this direction. Like I said, I have no problem with you morally or in any other way. What you do in the privacy of your own home is, and always will be, your business alone. So the fact that there has been no harm in Mass., doesn't mean anything to me. I KNOW there will be no harm.

The argument, for me and many of my friends, is now one of tit for tat. Why should I, who could care less if you get married or not, vote to allow it when you don't bother to do the same for me and my important rights? In this regard, you and I are absolutely identical. You worry about yours and I worry about mine. Help me with mine, and I will again help you with yours. That, sir, is a promise I can make and anyone who knows me knows that I keep every one I make. Vote against Boxer and Feinstein and I will most definitely vote FOR you. Heck, I would be willing to vote you into office, never mind the marriage argument.

Again, tho, I think maybe I am helping this train to leave the tracks and that wasn't my intent. The real question is, is marriage a real written right or is it just assumed to be so. Federally, I don't believe that it is...... and that has alot to do with why there is an argument here in the first place. Sooooooo, let's make it a right first, a real WRITTEN right in the constitution, if needs be. First, Boxer/Feinstein must go...... :)
11.7.2008 3:48pm
Isocrates:

No, there's something seriously wrong with the courts when 4 "judges" feel free to override 61% of the voters, and thousands of years of history



It would also fall afoul of history



Sorry, I feel I must object to the repeated invocation of appealing to "history" as the proof of hetero-only marriage that is apparently for keeping lovers together. History--not the one in your head but *actual* history--has seen many cultures not only embrace same-sex unions of one stripe or another but even in some cases *invented a third category* of gender--berdaches in Native American cultures--to describe what we over-simplify as homoerotic.

Need more examples? Ancient Greece &Rome saw plenty of same-sex relationships, as do the Azande in Africa (it is expected of adolescents to engage in same-sex activity, though they are also expected to embrace heterosexual activity primarily as adults) and the Sambia of New Guinea.

As for the history of "sanctified" marriage that seems repeatedly invoked as well, marriage in our venerable Western tradition dating to ancient Greece and Rome was in those societies primarily an arrangement for enshrining property rights, not one of love or romance or even of sex in general. They had concubinage and "use" (i.e., taking your slaves by your 'right' as their master) for that...
11.7.2008 3:50pm
Isocrates:

No, there's something seriously wrong with the courts when 4 "judges" feel free to override 61% of the voters, and thousands of years of history



It would also fall afoul of history



Sorry, I feel I must object to the repeated invocation of appealing to "history" as the proof of hetero-only marriage that is apparently for keeping lovers together. History--not the one in your head but *actual* history--has seen many cultures not only embrace same-sex unions of one stripe or another but even in some cases *invented a third category* of gender--berdaches in Native American cultures--to describe what we over-simplify as homoerotic.

Need more examples? Ancient Greece &Rome saw plenty of same-sex relationships, as do the Azande in Africa (it is expected of adolescents to engage in same-sex activity, though they are also expected to embrace heterosexual activity primarily as adults) and the Sambia of New Guinea.

As for the history of "sanctified" marriage that seems repeatedly invoked as well, marriage in our venerable Western tradition dating to ancient Greece and Rome was in those societies primarily an arrangement for enshrining property rights, not one of love or romance or even of sex in general. They had concubinage and "use" (i.e., taking your slaves by your 'right' as their master) for that...
11.7.2008 3:50pm
ForMeItWasEasy:
Adam, yup! Call it what you will and I cannot be "shamed" into changing my mind, either. If that is the only way to get people to stop electing those who attack my rights, you bet! Yes, that right is as important to me as my own life. SO I may be just a bit over the top to you.

By the way, as I said earlier, that which you call "extortion" is the norm up on capital hill, right? Why do you think riders on bills occur?
11.7.2008 3:51pm
Adam J:
ForMeItWasEasy- Actually, you're trivializing your own rights when you start thinking rights are something to be peddled and traded. What would you do if some folks said I'll help give you your gun rights so long as you're willing help take away a Jew's right to marry.
11.7.2008 4:03pm
ForMeItWasEasy:
Randy, are you actually reading what I write? "....Do you really mean to say that unless I get an affidavit from each and everyone of them that they will vote for gun rights, then gays shouldn't have the right to marry?...."

Where did I say you had to get ANY affidavit? Point it out to me. Or are you just exaggerating to try to make a point? If you read carefully what I said, you would note that I didn't say anything about YOU voting for gun rights..... I said vote those people out who are elected and do so. There is one thing I know for sure, if the gay community in california voted, as a block, to get rid of some elected official or other, it would likely happen. No need for an affidavit, the proof would be that they are "gone" or at the very least they got a darned good scare :)

It's the elected officials that are the problem, not you. But you put them there. Get 'em out and you have my vote!

Yup, I guess you could call it extortion, but that is where I and many of my friends are coming from. We really don't have a problem with you getting married, if that is what you want to do because you are that devoted to another human being (I DO draw the line at animals). But we are tired of voting in favor of things you folks want when you turn around and stab us, figuratively, in the back.
11.7.2008 4:03pm
Hoosier:
Angus:
There was a time in America when the vast majority of people would have and did vote for anti-black provisions. No longer.

In 50 years, Americans will look back on those who voted for anti-gay provisions with the same spite and derision we today reserve for white supremacists and segregationists.


Do you have a glass eye to go with that crystal ball?
11.7.2008 4:07pm
Perseus (mail):
If you have bothered to read some posts, you would have learned that there are about 1400 benefits that only marriage confers. There are plenty of legal ramifications for married couples that occur, such as testifying against a spouse. Domestic partnership in CA confers zero federal benefits as well, and there are many of those..

You know full well that federal benefits are irrelevant to the discussion of Proposition 8 because of DOMA. As for domestic partnerships in California, the language that I use is taken literally from the majority's opinion in the CA Supreme Court's In re Marriage Cases decision, and that characterization seems accurate given the Domestic Partnership Act of 2003, whose provisions "shall be construed liberally" to secure to domestic partners "the full range of legal rights, protections, and benefits" available to married couples.
11.7.2008 4:07pm
ForMeItWasEasy:
Adam, you almost got me there...... but the answer would be NO. I am not talking about taking rights away, I am talking about adding them. If to add mine (which you cannot add, since it is already aw written individual right, as affirmed by SCOTUS) you would want me to remove anothers', the answer would be NO. Absolutely not would I trade my right for yours or the other way around.

I am saying they all deserve protection and, to add yours, I need you to stop attacking mine! I am not going to add one for a group of people bent on the removal of mine. That would be pretty stupid, no? Again, I mean this mostly to the people elected, not you personally. YOU cannot restrict my rights, but the people you have elected can and have and will in the future, too.
11.7.2008 4:09pm
Hoosier:
Randy R

Somehow this deeply offends them. well, there are a lot of things that deeply offend me, like teaching creationism, eating at McDonald's, hard rock music, the lack of appreciation of classical music.

Wait a minute. Is SSM just a surreptitious attempt to take away my Mudhoney CDs? To stigmatize Dinosaur Jr.?

What's next for you and your people? Removing Kurt Cobain from Mount Rushmore?

Gawd! I just knew there was a secret agenda. (Laid-out on bordered card-stock stationery, and written in a perfect, flowing cursive.)
11.7.2008 4:16pm
NesterT (mail):
What your entire post is missing is the fact that the constitution isn’t being revised at all. Prop. 8 is simply an amendment which articulates the people’s demand that the State Constitution return to the original understanding/meaning it had before four lawyers on the Supreme Court “found” a right that had apparently been hiding there undiscovered for years. In other words, it reverses the Supreme Court’s ruling, returning us to the status quo ante the ridiculous ruling a few months ago. Overruling the Court is the people’s right guaranteed them by the State Constitution and has been reserved for instances such as this: where a tyrannical court oversteps its bounds.

As attorneys, we should be more concerned that the court has usurped perhaps the most fundamental right of all: the right of self government.
11.7.2008 4:18pm
Down from the Ivory Tower:
From reading the briefs, it is safe to conclude the California Supreme Court will strike down Proposition 8 on the legal merits, unless the justices have lost their nerve since May.
11.7.2008 4:23pm
Adam J:
ForMeItWasEasy- I don't understand your distinction between taking away rights or adding them. You think its okay to barter for someone's else rights when they don't have them, but not when they already do have them? You shouldn't barter with peoples rights, period. Would it have been okay to barter with blacks for their rights back before they had them? I'll vote to let you have civil rights... but only if you vote for my right to bear arms. Doesn't sound kosher to me.
11.7.2008 4:34pm
einhverfr (mail) (www):

What your entire post is missing is the fact that the constitution isn’t being revised at all. Prop. 8 is simply an amendment which articulates the people’s demand that the State Constitution return to the original understanding/meaning it had before four lawyers on the Supreme Court “found” a right that had apparently been hiding there undiscovered for years. In other words, it reverses the Supreme Court’s ruling, returning us to the status quo ante the ridiculous ruling a few months ago. Overruling the Court is the people’s right guaranteed them by the State Constitution and has been reserved for instances such as this: where a tyrannical court oversteps its bounds.


I suppose that is one way to look at it. Another would be to find that a small majority cannot target a suspect class in this way, and hence while the amendment might stand, it could only do so if the state stopped issuing marriage licenses.
11.7.2008 4:35pm
einhverfr (mail) (www):
Hoosier wrote:

Do you have a glass eye to go with that crystal ball?


Odin wasn't one-eyed for nothing, you know, and he was pretty darned close to omniscient ;-)
11.7.2008 4:38pm
Adam J:
NesterT - If democracy is the most important right then I guess you wouldn't mind if the Democratic majority started using its democracy to discriminating against Republicans.
11.7.2008 4:39pm
Gex (mail):
Very, very tired of hearing people complain that we should go the legislative route when the CA legislature HAD passed legislation granting same-sex marriage which was then vetoed by the governor, who wanted it decided by the courts. Thank you so much for the heads we win, tails you lose game you play with our lives.
11.7.2008 4:42pm
darrenm:
Since when did marriage become a "fundamental right"?
11.7.2008 4:47pm
Harvey Mosley (mail):

As far as "tactics," I could care less if 52% of the voting population voted for it. I really don't care. End it now. This is the government and the Constitution we all signed up for, and if you want to make such a drastic change to the Constitution and strip a minority of fundamental rights, get a super-majority and a constitutional convention and do it the right way, not just a simple majority vote.


I agree. This IS the government and the constitution we all signed up for, and a mjority vote is the right way to amend the California constitution.

I don't like the idea of gay marriage, but I would vote in favor of an amendment allowing gay marriage. I know that my discomfort is probably just irrational predjudice, that's why I would vote to support such an amendment. (Hard to believe, I admit)

However, my dislike of judges making up rights is not due to an irrational predjudice. For me, that is a matter of principal.

So, if you want me to support gay marriage, put it on the ballot. If you want me to oppose it, have the courts shove it down our throats.
11.7.2008 4:49pm
Perseus (mail):
Very, very tired of hearing people complain that we should go the legislative route when the CA legislature HAD passed legislation granting same-sex marriage which was then vetoed by the governor, who wanted it decided by the courts.

The California constitution specifically prohibits the state legislature from enacting any law that has the effect of repealing or modifying any voter-approved initiative (unless the initiative itself provides for it), which was one of the main reasons that the governor offered justifying his veto of legislation that would have in effect overridden Proposition 22.
11.7.2008 5:01pm
Philistine (mail):

Since when did marriage become a "fundamental right"?


Well, it became official in 1967: "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival"
11.7.2008 5:03pm
Gex (mail):
PTiger:

The leadership of LDS sent out a letter and spoke with members calling upon them to "actively support" proposition 8. The letter in itself should show that they are trying to affect legislation and to me should be sufficient evidence that their tax exempt status should be revoked. The did not simply discuss their views on marriage and allow their members to form their own opinions or choose to become active on the issue unprompted. Rather the LDS told their members which side of the vote the church thought "correct" and told them to go out and make it happen.
11.7.2008 5:12pm
Honey:
Randy

I truly agree with most all you have posted and I have read all the posts to date.

However, as one gay person to another, please know that even CA marriage would not give you the Federal protection that is paramount to attaining our full civil rights. Perhaps you know that. I think it is imperative that SSM supporters approach this issue with more strategy and a bit less (overt) passion. What we have to do is redefine what "marriage" is for us now in a modern society. We have to take the power out of the hands of the "marriage" folks, and move forward. Marriage is a failed institution. Almost 2 out of 3 marriages fail in CA. I think we can do better than that. I believe there is a sea change coming in the next several decades. More young people are seeking a secular form of "marriage" and are not hung up on antiquated terms. We need to expand that way of thinking into a definition of Civil Unions that is inclusive of these folks and demand our rights as tax paying citizens of the United States. Although I voted against Prop 8 and am aghast at the outcome, I cherish my rights under AB 205 and urge all gays couples to make sure and protect themselves by registering as domestic partners.

We all know that much of this vote is rooted in bigotry, hatred and division. I want these pro-8 people to know that they cannot keep me down or determine my fate. i have the power to protect myself and my family from their oppression and am actively doing so. If approached correctly I do think "marriage" will look a heckuva lot different in a few years.

On a slightly lighter note (filled with truth):
I say treat their "marriage" just like we have treated their fashion, food and homes. We moved into their old neighborhoods, redesigned and remodeled their run-down, abandoned homes, raised our property values and then sold it back to them at a premium and they beg to pay the price. I think marriage needs a radical makeover and we are just the folks to do it.

Please know, I do not take this lightly. My point is that we need to get in control of our civil rights, not beg a backwards thinking, biased group to let us into their crumbling club.
11.7.2008 5:34pm
A. Zarkov (mail):
Randy R.

"Okay. Then make marriage illegal for everyone. For their own good."

Yes, I'll take that. Let's do away with civil marriage and let people draw up contracts to form domestic partnerships. Put the entire divorce industry out of business. I'll vote for that. This way we can reduce an immense amount of suffering that enriches lawyers, judges, mediators, psychologists, special masters.

How about only gay marriage? That would help a lot. Nevertheless I see no reason to extend the problems to additional 3% of the population.
11.7.2008 5:35pm
ForMeItWasEasy:
Adam, you said "If democracy is the most important right then I guess you wouldn't mind if the Democratic majority started using its democracy to discriminating against Republicans."

Uh, you said it, not me! They do by exclusion, they do by not permitting simple up/down votes on Judicial appointments, etc, etc. Shall I go on?

Now, to be fair, it happens the other way around, too. Dems and Repubs discriminate against each other all the time. With this new administration, it will likely be the worst it has ever been in the history of both houses. I hope that is not the case, but it is shaping up to be a rough next 4 years. And I have to worry about MY rights being violated for the entire time. Ah well, I am used to it.

Hey, I have a house that is larger than 2400 square feet, wanna buy it? Do you know what I am talking about.

Oh wait, that was WAY off topic..... sorry :)
11.7.2008 5:47pm
darrenm:
With a Democratic president and overwhelming majorities in both houses of congress, when can we expect to see the Federal Same-Sex Marriage Amendment introduced in Congress?
11.7.2008 5:49pm
Russ (mail):
Adam J said: "Russ - Yes, Prop 8 does only harm gays, it has nothing to do with "polygamists, group marriages, incest seekers, and others."

Um, can you please explain how it has nothing to do with those groups? Don't resort to platitudes, but explain in specific terms how restricting marriage doesn't affect polygamists or those seeking group marriage(2 men/3 women, etc.).
11.7.2008 5:58pm
Greg Q (mail) (www):
Adam J:
If democracy is the most important right then I guess you wouldn't mind if the Democratic majority started using its democracy to discriminating against Republicans.

You think that won't be happening over the next 2 - 4 years?

The Democrats won. That means they get to pass laws embodying their ideals instead of my ideals. That's why we have elections.

Is that really some sort of surprise to you?

Am I going to fight them? Sure.

Am I going to be the kind of worthless scum who appeals to the Courts to strike down perfectly Constitutional laws, just because I don't like them?

No.
11.7.2008 5:58pm
Greg Q (mail) (www):
Randy R.

Okay. Then make marriage illegal for everyone. For their own good.

Ah, the last resort of the spoiled child: "If I can't have it, nobody can!"
11.7.2008 6:00pm
Greg Q (mail) (www):
Steve in CA (mail):

It's true, Greg doesn't know what he's talking about.

Oh? You mean the 19th Amendment doesn't really exist? You mean there wasn't an Equal Rights Amendment being pushed during the 70s, to explicitly bring "equal protection of the laws" to women?

What color is the sky in your reality? It's blue over here.
11.7.2008 6:03pm
Adam J:
Greg Q - You're confusing laws you don't like with laws that embody someone elses ideals versus laws that explicitly discriminate against you.
11.7.2008 6:04pm
Greg Q (mail) (www):
Randy R.:

You really need to learn how to read.

I have nothing but contempt and hatred for people who try to use the court system to short-circuit democracy.

Homosexuality? Couldn't care less. You want to boink willing members of the same sex, go for it.

You want to use the courts to impose your agenda on society? Screw you.

That clear enough for you?

Think I'm lying? Fine. Stop spitting on democracy, and see my response.
11.7.2008 6:08pm
einhverfr (mail) (www):
Daryl wrote:

They simply cease to be recognized or otherwise have legal effect.


Maybe, but I think you would run into profound constitutional problems with that. I think the CA Atty General has chosen the much more defensible interpretation (which he stated before the election, BTW) that such a ban would not invalidate or affect existing legal marriages between people of the same sax.
11.7.2008 6:08pm
Adam J:
Ugh, I've been staring at this screen to long. What I mean is that you're confusing laws you don't like with laws that that don't like you. The democrats, despite their majority, can not discriminate against you, because our Founders believed that there were many things more important than the will of the majority. Hence why we have the Bill of Rights which deny government the power to deny you rights- even if they were democratically elected. The judges you so despise protect those rights for you. They also protect those rights for gays... apparently much to your dismay. And you don't know what your talking about, the 14th amendment doesn't mention skin colors, it says equal rights for all citizens- that means all citizens. I don't see what the 18th amendment or 19th amendmentor ERA has to do with this.
11.7.2008 6:12pm
einhverfr (mail) (www):
Greg Q Wrote:

I have nothing but contempt and hatred for people who try to use the court system to short-circuit democracy.


Back to my cultural treason point... You assume that people are trying to undermine society and therefore have hatred and contempt for them. Yet by the same measure, suppose an initiative were to pass confiscating all real estate from people worth more than $10M and providing land grants to the middle class. Would you propose trying to overturn that in the court on the basis that it is a deprivation of property without due process?

Why should due process apply to property rights but not things like marriage?

So to the larger point, isn't it better to have intelligent and civil discussions with people you disagree with than resort to accusations of cultural treason?
11.7.2008 6:14pm
Adam J:
Greg Q - I'll gladly spit on your pathetic version of democracy. Under your version of democracy, its okay to discriminate against people simply because the majority thinks its okay. Under your version of democracy genocide is okay... so long as the majority properly votes on it. Ludicrious.
11.7.2008 6:15pm
Bob Van Burkleo (mail):
Adam J said: "Russ - Yes, Prop 8 does only harm gays, it has nothing to do with "polygamists, group marriages, incest seekers, and others."

Um, can you please explain how it has nothing to do with those groups? Don't resort to platitudes, but explain in specific terms how restricting marriage doesn't affect polygamists or those seeking group marriage(2 men/3 women, etc.).


Seriously? Humans naturally 'marry' - its part and parcel to the oxytocin-vasopressin mammalian pairbonding response which we as primates have. And some people pairbond with males, some with females regardless of their own gender. That, to answer someone else's question, is why marriage is a fundamental right - a government that doesn't recognized this inalienable right is just a flawed government, the people have the right to marry regardless.

That being said, there are no known natural mechanism that make someone only pairbond with siblings, or with more than one spouse. Shoot even polygamists start out with one generally, they just want more. Governments can regulate fundamental rights they just can't selective remove any practical exercising of same. Everyone should have reasonable ability to marry with some other law-abiding citizen. Can the government limit them to one? Sure. Can they remove immediate relatives from the otherwise massive pool of potential spouses? Sure again. Can they tell a citizen they are limited to a pool from which they are unlikely to every find a suitable spouse? No, they can't.

That's the difference.
11.7.2008 6:22pm
Greg Q (mail) (www):
Randy R. (mail):

However, I think the courts are a perfectly acceptable place to secure rights. Blacks went to court in the 50s and 60s to secure civil rights -- recall Brown v. Board of Education? No one complains now about their using the courts to enforce the constitution. And Brown reversed Plessy, which was a long standing tradition of separate but equal.

Amazing the number of mistakes you can pack into such a small space.

Plessy established "separate but equal." For the next 50+ years, people brought court suits showing that separate wasn't equal. So in 54, the Supreme Court reversed. They babbled a lot of BS in Brown, but the key issue was that "equal" had been written into the Constitution, and "separate" hadn't, so when the two came into conflict, "equal" won.

And, nu duh, people don't complain about them suing to enforce their legitimate Constitutional Rights. That's not what you, however, are doing. You are suing to get a non-existent right created by a small majority of "judges", and forced on the rest of society.

The only legitimate Constitutional Rights that exist are ones that We The People explicitly and deliberately voted into the Constitution. We have never voted into the Constitution a restriction on discriminating based upon sex. We've never voted into the Constitution a restriction on discriminating based upon sexual orientation. So you have no Constitutional right to have laws rewritten and institutions redesigned to suit your preferences.

You are free to try to convince the voters that they should want what you want.

Hard to do that when you're constantly calling them bigots for disagreeing with you.
11.7.2008 6:23pm
Akaison (mail):
Let's strip out idealogy, gays and of gay marriage.

The central question is one of equal protection analysis, and whether the CA S. Ct. wants to set the precedent that equal protection is subject to the majority. This is a concept of which the founders of the country, if not the writers of the CA Constitution, were expressly concerned.

If the court fines that equal protection analysis is subject to majority vote, then I don't see how this doesn't turn equal protection its head?

The thought exercise in the article above is quite right. How does one deal with issues of immigration or other fundamental rights? Can due process that doesn't implicate the U.S. S.Ct. precedents or immigration issues in the same way be subject to majority rule?

The more I think about this- this has far ranging implications for California law that goes outside of gay marriage or what people feel about it. What a hornet's nest. I wouldn't want to be them either way.
11.7.2008 6:25pm
Steve in CA (mail):
Greg says: The only legitimate Constitutional Rights that exist are ones that We The People explicitly and deliberately voted into the Constitution.

The 9th Amendment to the U.S. Constitution says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Who you gonna believe?
11.7.2008 6:34pm
Greg Q (mail) (www):
Randy R.:

don't try to fool me that this but for the court's action you or Greg would have voted in favor of SSM.

Randy's clearly a true liberal: "don't try to fool me with the facts."

1: What makes you think I'm registered to vote in CA?

2: If the court had accepted The People's right to make the law as they see fit, and left Prop 22 alone, I would have encouraged people to vote against Prop 8. Then the situation would have been simple: any time the pro-SSM side thought they could win, they could put together an Initiative for SSM, and made their case to the voters.

Would I have supported that Initiative? Well, not if it's supporters did as poor a job of making the case as did the anti-Prop 8 people. I'm still waiting for anyone on the pro-SSM side to tell me how society benefits from SSM. Given that none of the pro-SSM people seem interested, I'm assuming the answer is "it doesn't."

As long as that remains the case, I won't support SSM. But, if they'd just stay out of the Courts, I'd be happy to stop opposing it.
11.7.2008 6:35pm
Akaison (mail):
I have a thought question:

What if the majority by 50 plus one decided that it wanted to have different reason for why women could divorce than for men? Would this be permissible under CA Law given the gay marriage ban approach? Such a law probably could be tailored to avoid federal con law issues. How, then, would it not be okay under the precedent of letting prop 8 stand?
11.7.2008 6:35pm
Greg Q (mail) (www):
I posted this in an early comment, but some people seem to have missed it, so I'll reiterate it here:

In The People of the State of California v. Robert Page Anderson, the CA Supreme Court ruled the Death Penalty Unconstitutional. IOW, they ruled that the Constitutional Right to avoid "cruel or unusual punishment" protected convicted murderers from being executed.

The People of CA passed an Initiative overturning that decision. In People v. Frierson, 25 Cal. 3d 142, 189 (1978), the Supreme Court accepted The People's right to do that.


So, we have a set of facts:
1: Court claims to find in the Constitution a "right" that The People did not think was there.
2: The People pass a Constitutional Amendment, by Initiative, to eliminate that "right".
3: Court upholds The People's decision.

So, if the current CA Supreme Court is honest, what will they do? Follow the precedent that's directly on point? Or once again say "we don't care about anything but our own person desires. Screw you, People of California."
11.7.2008 6:43pm
Adam J:
Greg Q- "Liberty to all" is a benefit in and of itself to society. That's something you no doubt pledged to while in grade school. Too bad you broke that pledge.
11.7.2008 6:48pm
Adam J:
Greg Q - The distinction is obvious to me. The amendment regarding cruel and unusual punishment did not eliminate a right- it merely said the death penalty isn't cruel and unusual.

This amendment however still contradicts section 7 of the Constitution- which gives all California citizens equal protection. When some people have a fundamental right to marry but others do not, there is no equal protection of the law.
11.7.2008 6:58pm
Steve in CA (mail):
I'm still waiting for anyone on the pro-SSM side to tell me how society benefits from SSM.

Millions of people benefit by being able to marry the person they love. Their children benefit, too, by their parents becoming legally wed. I can't actually think of any individual person who would be harmed by gay marriage. Millions of people better off, nobody worse off. Therefore, it's a net benefit to society.
11.7.2008 7:02pm
FREEDOM!:
I can't stop laughing out loud at the question of whether or not any "legal beagles" might be here. In any case, the Supreme Court has said marriage is a fundamental right or fundamental freedom since 1967 and reaffirmed that in the 70s and 80s.


*COUGH* *COUGH*

BAKER v. NELSON 409 U.S. 810 (1972)

*COUGH*
11.7.2008 7:06pm
Bill Dyer (mail) (www):
jrose (11.7.2008 9:32am): No. My question pre-supposed a base level of knowledge about constitutional equal protection analysis which I know Prof. Carpenter has, but which even some lawyers never grasped or have forgotten, and most laymen, even very bright and well-educated ones, may lack.

Racial classifications -- unlike classifications based on sexual preference -- are expressly addressed in the existing text of the state constitution.

That's the foundation of traditional equal protection analysis -- the classifications that get strict scrutiny by the courts are those which are based on classes which are protected by the express terms. The state and federal constitutions protect free speech and free exercise of religion and proscribe racial discrimination; therefore governmental classifications based on the content of your speech or the exercise of your religion or the color of your skin must withstand strict scrutiny to be constitutional, meaning there must be a compelling state purpose to justify them. And there almost never is a sufficiently compelling purpose, so those classifications -- e.g., "All Republicans/Mormons/Asians have to pay $1000 fines every Jan 1st" -- always are unconstitutional as violations of the state or federal equal protection clauses.

But the state constitution, as written, says nothing about sexual preference. There's no reason -- except for the say-so of activist judges who are ignoring the text of the state constitution -- for classifications based on sexual preference to be constitutionally suspect, because no class of persons defined by their sexual preference is a "protected class" under the literal written terms of the state (or federal) constitution.

If there's no "suspect class" involved and no "strict scrutiny," then "any rational basis" is enough to sustain a governmental decision to treat separate classes differently. Blindness, for example, isn't a suspect class; laws that discriminated against the sightless aren't tested for equal protection purposes under the strict scrutiny analysis. And any plausible, rational reason -- "Blind people can't see the traffic lights or the edges of the road," for example -- is enough to justify a government classification that discriminates against them, e.g., the state law which says you can't get a driver's license if you can't pass the vision test.

That's why same-sex marriage proponents always lose under traditional (pre-1970s) equal protection analysis.

But the federal constitution also doesn't make classifications on the basis of gender automatically suspect; gender isn't mentioned in the Fourteenth Amendment or anywhere else. And yet the federal courts very, very badly wanted to find a way to extend equal protection analysis to advance goals of gender equality, so the SCOTUS and lower courts began tinkering around the edges of equal protection doctrine. For gender discrimination cases, they came up with an intermediate level of scrutiny -- one which they could use to, for example, strike down a state law which required that women had to get parental permission to marry at age 16, but men didn't, but which would not force the Army to put women into combat front-lines.

This was socially and politically very expedient, the sort of thing a former state legislator and consensus-builder/negotiator like Justice O'Connor found particularly attractive.

It was unprincipled constitutional analysis, though, in the view of legal conseratives (of which I'm one) precisely because once you start making stuff up without reference to what's actually written in the constitution, you've lost your moorings and you've become a society in which there is no constitution, but rather there's a rule of robed despots pretending to interpret it.

Sorry to be pedantic. One can disagree with my evaluation of the legitimacy, or lack thereof, of the modern sort of equal protection analysis that ignores what's actually in the written document, and many legal scholars (especially liberal law professors who are committed to progressive social policies) would do so. I'm not wrong about my description of the traditional analysis, though, and you have to understand that before you can dive into the modern debate.

Finally, NB: As a matter of social policy, I support gay marriage. I would vote for a constitutional amendment to either the state or federal constitution to make sexual preference a protected class, just like race. I think it's bad social policy to assume that gays can't form socially stable and productive families that raise children (including straight children), and while I think that there are lots of things that need to change to improve the institution of marriage, denying loving gay couples the opportunity to make that commitment -- to undertake the responsibilities and to enjoy the benefits -- is wrong.

But I hate to see those policies shoved down the throats of the public by a 4/3 margin in a judicial decision. The cure for bigotry is education and persuasion, not revolution by nondemocratic decree. And it makes me genuinely sad to see well-meaning folks in California blow this so badly by engaging in counter-bigotry and trying to sidestep the political processes. It's going to end up lengthening the time my gay friends here in my home state of Texas, for example, will have to wait because it's drawing battle lines in which those who oppose activist judiciaries are being pushed into the same side with those who want to continue discriminating on the basis of sexual-preference.
11.7.2008 7:13pm
Russ (mail):
Humans naturally 'marry'

Sorry, but this is laughable. Women "naturally" marry, but men "naturally" seek out many partners so as to have the best chance of spreading their genes. If "natural" was all this was about, then polygamy would be celebrated.

Can the government limit them to one?

Not if SSM is enacted. If words have no meaning - ie, one man and one woman - then why limit to just one. If polygamists willingly enter into polygamous marriages, who are you to limit them?

Can they tell a citizen they are limited to a pool from which they are unlikely to every find a suitable spouse? No, they can't.

Sure they can, and about 30 states have already done so. No one is talking about saying you can't be with them, just that it isn't marriage.

The SSM movement has never been about "tolerance." It is about open acceptance. Gay rights groups overreached this time and are upset about the backlash. Maybe next time they'll actually put some thought into overturning 50,000 years of societal evolution overnight.
11.7.2008 7:32pm
Akaison (mail):
Bill:

Your comment is cute, but wrong legally as you know. Why? Because suspect classes aren't a matter of what is ennumerated in the U.S. Constitution, and, nor, I suspect the California. There would not be a need for a test for determining whether a class is suspect if as you say all classes are defined as the document is written. You do what many conservatives do. You rely on the ignorance of your audience then argue what any first year law school student with a good Con Law professor can refute.
11.7.2008 7:43pm
Akaison (mail):
And, then, there is Russ.

Russ, you know that these slippery slope arguments or as I prefer to call them (Santorium's dogs) are interesting in that they seek to use logical fallacy. They work by again using the common conservative trick of playing off the audience's ignorance about reasoning. If you allow women to vote, then society at we know it will end. If you allow blacks to vote, then society as you know it will end. This isn't a new argument. It was used to rationalize the attempts in the 1910s to write an amendment into the U.S. constituation which would have banned marriage between the races. The basis of equal protection anlysis is very specific. There is a test which one must meet. It is not an easy test to meet. That's why so few classifications ever meet the standard. One has to meet each element of the test. You ask what's to prevent x, when y has occured. The variables that go into x (polygammy) are different from y (the gender of those marrying).
11.7.2008 8:00pm
einhverfr (mail) (www):

We all know that much of this vote is rooted in bigotry, hatred and division.


I am not so sure I would characterize it this way. Some of the vote is motivated by bigotry, but a lot more of it is based on more complex questions that some people genuinely struggle with.

For example, in the Bible, Christ opposes divorce on the basis that it violates the sacred division of male and female. While Christ is arguing against divorce rather than gay marriage, people whose opinion of marriage is deeply informed by religious study are likely to apply it there too. Many are unable to see through the timbers in their own eyes however. There was a great cartoon on Reason.com some time ago, where one guy says to another:

"As I told my third wife, gay marriage violates the sacred bond between a man and a woman."

The thing is... marriage is an institution that greatly entangles religious, legal, and social elements. Most people are unable to untangle these in their minds in order to see the world through the eyes of people with different religious and social ideas. The fundamental fear is that if the social institutions are changed to reduce the influence of their religious ideas, they are afraid that it will unravel all of society. This is a structural issue with their worldview, not a simple prejudice about homosexuality per se.

I can understand the opposition to gay marriage and that it is not necessarily merely based solely on bigotry.
11.7.2008 8:23pm
MCM (mail):
ForMeItWasEasy:
How marriage is defined isn't discrimination, to the best of my reckoning.
MCM, I didn't mean to imply that the definition of marriage cannot be made discriminatory
Forgive my confusion, although I might complain that your diction is pretty soft.
You see there is a problem with the citations, the don't refer to a *right* as such, but the assumption that it is a right. Where in the US Constitution, for example, is it written that marriage of any sort is a right?
I don't have the time to teach you Civics 101, but you're asking the wrong question. Rather, the question is, what in the US Constitution gives the government the power to regulate or recognize any marriages whatsoever?
11.7.2008 8:25pm
MCM (mail):
FREEDOM!
*COUGH* *COUGH*

BAKER v. NELSON 409 U.S. 810 (1972)

*COUGH*


*YAWN*

Baker v. Nelson is perfectly irrelevant to the question ForMeItWasEasy posed, which was, Is (heterosexual) marriage a right in the first place?

Now you'll notice he's actually arguing that the Constitution gives nobody the right to get married. Had you been paying attention in the first place you might have saved yourself a sore throat.
11.7.2008 8:28pm
Demosophist (mail):
ForMeItWasEasy's quid pro quo argument isn't inappropriate simply because it's idiosyncratic. Since he doesn't view marriage between two people of the same sex, or between multiple people of both sexes, as "marriage" then any appeal to "marriage as a fundamental right" has to be conditioned on what society defines marriage to be. I should note that even though the ancient Greeks did not regard homosexuality as a perversion, and in fact may have honored it above heterosexual union, they did not think it advisable to redefine marriage so as to decouple it from the societal and cultural need to *raise children*. Clearly they weren't constrained by anti-gay prejudice, so perhaps something else advised them?

At least Honey is honest about the fact that the redefinition of marriage is central to establishing same sex marriage, but it is a little "odd" to insist on being allowed into a franchise when you also insist on changing the franchise by redefining it. I have never seen any advocate of same-sex marriage who will acknowledge the primacy of child rearing and raising (not procreation), and the reason is simple. If one acknowledges such a primacy then there's no good reason to include same sex unions in the institution. In fact, such an inclusion signals the fact that the definition of marriage *has changed* and ought now to be regarded as a kind of "personal fulfillment accessory."

I don't think same-sex marriage will cause the destruction of traditional marriage. It isn't a causal relationship at all. The pressure for same-sex marriage is an *effect* of the decline of marriage from an institution designed or evolved to support the vital function of child raising to, as I suggested, a mere "personal fulfillment accessory." The latter definition is the problem, not same-sex marriage. The Greeks intuitively understood that because life was harsh, and they were in touch with the consequences of ignoring the human condition. We're on the verge of a fatal amnesia.
11.7.2008 8:52pm
jrose:
Bill Dyer: Ought not it read, "the California Supreme Court disagrees with you on both points based on its inference of a fundamental right and a suspect classification not stated in the text of the state constitution, as it held in its marriage decision last May"?

jrose: Wouldn't this same reasoning lead us to conclude that an initiative amendment that forbade immigrants from China from marrying would be permissble (i.e., not a revision)?

Bill Dyer: Racial classifications -- unlike classifications based on sexual preference -- are expressly addressed in the existing text of the state constitution.

My hypothetical wasn't about race. It was about national origin.
11.7.2008 9:06pm
Smokey:
Russ makes some good points. And if I may expand on them a little:

Marriage is like an old timey religion, in a way. And now, some new folks want in -- but they don't agree to abide by the doctrine. They want to set new rules. Their rules. And now they're flabbergasted that the members are saying that they can't join, with their newfangled beliefs. So they're mad.

Why not think like Groucho, and tell them that you wouldn't want to be a part of any club that would accept you as a member?

Also, let's just forget that inappropriate comparison with race, OK? It doesn't compute. Gays are defined by what they do; blacks are defined by the race they were born with. It isn't the same. Gays do not have to do what they do, whereas blacks have no choice in the matter. It's just not the same.

I know we won't convince the 3% or so who feel their newly invented 'rights' have been violated. And so far, they haven't convinced the rest of us that they have a "right" to horn in on the traditional definition of marriage.

But at this point it doesn't matter. Nobody is convincing the other side of anything.
11.7.2008 9:11pm
einhverfr (mail) (www):
I think Demosophist hit the nail on the head:

I don't think same-sex marriage will cause the destruction of traditional marriage. It isn't a causal relationship at all. The pressure for same-sex marriage is an *effect* of the decline of marriage from an institution designed or evolved to support the vital function of child raising to, as I suggested, a mere "personal fulfillment accessory." The latter definition is the problem, not same-sex marriage.


The same-sex marriage issue is largely a byproduct, not a cause, of around eight-nine decades of redefinition of the traditional role of marriage (by my count, probably started in or around the 1920's). Most people probably support this redefinition to some extent, but the real question is who it includes.
11.7.2008 9:18pm
trad and anon:
Zarkov: " I suspect much of that 1,400 consists of trivial items."

Hardly. A spouse cannot be compelled to testify against another spouse. That is denied to gays. A spouse can bring the other spouse from another country and gets preferred treatment under immigration laws. That is denied to gays. There are a great many laws that apply only to spouses, and civil unions or domestic partnerships don't grant them.
Exactly. Zarkov wants to replace marriage with contracts, but no contract can give you a testimonial privilege, a right to participate in your counterparty's health insurance, survivors' Social Security benefits, or the right to a green card merely because your counterparty is a citizen. Only a special state-sanctioned status such as marriage can do that (though no state can grant the latter two rights to same-sex couples either).
11.7.2008 9:20pm
trad and anon:
Is a state ballot issue the same as lobbying? That seems to be the main issue.
The IRS regulations about this actually treat the issue explicitly. For the purposes of qualification for a tax exemption under section 501(c)(3), the public is considered a legislature when dealing with advocacy of or opposition to a ballot initiative or referendum. "Lobbying" the public to enact legislation is treated the same as lobbying a legislature to do so.
11.7.2008 9:27pm
Demosophist (mail):
Correction:

I may have misstated ForMeItWasEasy's position. He doesn't believe marriage is a civil right, no matter how it's defined. Me, I'm not so sure. If marriage is a good it clearly can't be denied on the basis of race. But I'd submit (without the need for elaborate argument) that the marriage between people of different races doesn't conflict with the primacy of child rearing, and that it's the latter that's fundamental. Even the Jim Crow opponents of misogination opposed it on the grounds of procreation, not child rearing. They opposed the production of mixed race children, for obviously insubstantial reasons. Clearly neither side of this argument makes any sense in the case of SSM, and that ought to signal that something is wrong with the very assumption upon which SSM is based. We aren't talking about some sort of genetic "superior race" concept here. The issue is that marriage is not an accoutrement, but a vital cultural and social function. You'd only oppose the maintenance of that function if you had little or no respect for the society or culture that it was designed to preserve. Again, the problem isn't same-sex marriage, but the radical shift in priorities that it signals. By definition (literally) we will have made preservation of the culture and society a secondary or tertiary concern. I submit that this radical shift in priorities is, well... suicidal.
11.7.2008 9:40pm
Hoosier:
"We all know that much of this vote is rooted in bigotry, hatred and division."

Like "It is obvious that . . .", "We all know . . ." is a signal that what follows is an opinion backed by no evidence.
11.7.2008 10:10pm
Demosophist (mail):

The same-sex marriage issue is largely a byproduct, not a cause, of around eight-nine decades of redefinition of the traditional role of marriage (by my count, probably started in or around the 1920's). Most people probably support this redefinition to some extent, but the real question is who it includes.


It doesn't matter who is included, because it's functionally irrelevant. In point of fact it can't exclude anyone. Which would make it something of an empty prize, I should think. The real issue is that the vital function it served has been relegated to an afterthought, so we either find some other way to fulfill that function or watch the tapestry unravel... confident that piles of old thread have the same value as the original piece.
11.7.2008 10:19pm
Russ (mail):
Akaison,

You say there is a logical fallacy in the argument without ever pointing out what the "fallacy" is. You say equal protection must meet a "specific test," but never elaborate as to what that test is.

You also try to suggest I said that society would end if there was SSM. I looked back at my posts and couldn't find an example of that. Perhaps you could find it for me.

I believe words have meanings, otherwise my comments would have been something here along the lines of "Jupiter greets desk by the wax job on midnight. Blork blork!"

In the same vein, marriage has a meaning - one man and one woman. It's not one man/one man or two men/three women or two sisters. If that upsets you, I'm sorry, but if you change its meaning for one thing, then you must include others who will feel discriminated against.
11.7.2008 10:27pm
trad and anon:
You see there is a problem with the citations, the don't refer to a *right* as such, but the assumption that it is a right. Where in the US Constitution, for example, is it written that marriage of any sort is a right? The fact that a judge assumes it to be so doesn't necessarily make it so. You could say that the judge was practicing the job of the legislature since he/she didn't quote a place where it was actually written as a fundamental right.
The California Supreme Court lacks the authority to overturn Loving v. Virginia (ban on different-race marriage unconsttutional), Turner v. Safley (prisoners must be allowed to marry), and Zabloki v. Redhail (overturning ban on marriage by people in arrears on their child support). And it has followed the Supreme Court's decisions in those cases in interpreting the California constitution as including a fundamental right to marriage.

Basically the people who raise this argument are complaining that the problem with in re marriage cases is that the court didn't, sua sponte overturn decades of precedent upholding the right to marry.
11.7.2008 10:29pm
A Berman (mail):
It comes down to this:

If the SSM advocates do not engage and deal honestly with people who are against or nervous about SSM, then they will not win them over.

If the SSM advocates continues with a court-based approach, the backlash will only increase in multiple ways.

The SSM advocates will fail utterly and devastatingly if they equate their movement to the black-rights movement without understanding the differences between their claims.
11.7.2008 11:02pm
dm (mail):
Given that marriage is something that religion has staked a claim of ownership on, shouldn't the state then get out of the marriage business and instead recognize partnerships only.

Why do we want the state to be in the marriage business anyway?
11.7.2008 11:08pm
A Berman (mail):
Given that marriage is something that religion has staked a claim of ownership on, shouldn't the state then get out of the marriage business and instead recognize partnerships only.

Why do we want the state to be in the marriage business anyway?


It's not something we're used to thinking about because we all grew up where these things were assumed. But, it turns out that States are in the marriage business because States full of married couples have more, better raised children than States that don't have lots of married couples.

David Blankenhorn wrote a very good book on this issue.
11.7.2008 11:30pm
marksleen (mail):
I find it a bit disturbing that Mr. Carpenter assumes in his analysis that, because a justice ruled one way on the issue of the California Equal Protection Clause, this ipso facto means that they would determine whether Prop 8 was an amendment or revision on that basis:

"Supporters of Prop 8 need only peel off a single justice of the 4-justice majority to win on the revision/amendment distinction."

Isn't it a judges role to look at each issue separately? Have we gotten to the point where legal scholars just assume the politics in judicial decision making without being somewhat disturbed by it?
11.7.2008 11:53pm
Hoosier:
Russ: "Jupiter greets desk by the wax job on midnight. Blork blork!"

I'm calling bullshit.

Jupiter wasn't visible at midnight. So how could you possible KNOW that?
11.7.2008 11:55pm
Sargon Bighorn (mail):
We want the state in the Marriage business because marriage is a civil contract NOT a religious contract. Proof? One does not need to go to a place of worship to get married in the eyes of the state, but one MUST go to a Civil Servant to obtain the license, hence it's a civil contract. Buying a house is a civil contract. Both contracts must be recorded and the state informed of the contract. Why involve the state? To make sure the terms of the contract are adhered to. When one citizen is denied the right to have a civil contract, regardless of it's name or purpose (Marriage, house ownership, any contract) that his fellow citizen enjoys, then an unequal state of affairs ensues.
11.7.2008 11:56pm
Greg Q (mail) (www):
Adam J:
"Liberty to all" is a benefit in and of itself to society. That's something you no doubt pledged to while in grade school. Too bad you broke that pledge.

Some day you'll grow up, and learn the difference between "liberty" and "license."

But, ok, so Adam J can not think of any way in which SSM actually benefits society.

So noted. Thanks.
11.8.2008 12:05am
Greg Q (mail) (www):
Adam J:

The distinction is obvious to me. The amendment regarding cruel and unusual punishment did not eliminate a right- it merely said the death penalty isn't cruel and unusual.

Wrong. The State Supreme Court said that, thanks to the ban on cruel or unusual punishment, convicted murderers had a right to life, and could not be sentenced to death.

The State Supreme Court said that, thanks to section 7 of the Constitution, gays have a right to get married.

Both of those claims have now been overturned by Initiative. Since the first overturn was found valid, there's no reason at all to believe the second is not also valid.
11.8.2008 12:09am
Greg Q (mail) (www):
Me:
I'm still waiting for anyone on the pro-SSM side to tell me how society benefits from SSM.

Steve in CA:

Millions of people benefit by being able to marry the person they love.

How, precisely, do they benefit by being able to call their relationship a "marriage" rather than just a "civil union".

Their children benefit, too, by their parents becoming legally wed.

Again, what difference does it make? Do you have any studies? Any numbers? Or is it all feelings (which is to say: worthless)?
11.8.2008 12:13am
Greg Q (mail) (www):
trad and anon:

All the rights of marriage that CA can give to a married couple, they've given to civil unions.

The Federal DoMA says that same sex couples don't get the Federal benefits of marriage, even if their State says they're "married".

So there is absolutely nothing to gain from SSM.

Except the "right" to force your agenda on people who disagree with you.

And that's why Prop 8 won.
11.8.2008 12:24am
Greg Q (mail) (www):
jrose: Wouldn't this same reasoning lead us to conclude that an initiative amendment that forbade immigrants from China from marrying would be permissble (i.e., not a revision)?

Bill Dyer: Racial classifications -- unlike classifications based on sexual preference -- are expressly addressed in the existing text of the state constitution.

jrose: My hypothetical wasn't about race. It was about national origin.

Same thing.
11.8.2008 12:26am
Zoe E Brain (mail) (www):
Greg Q - the amendment does however affect that very tiny minority of Intersexed people who are in law neither men nor women. It may, depending on future legislation, affect a much larger minority of Intersexed people who are only "mostly" men or "mostly" women rather than being so close to the middle that no inarguable call is possible.

For example, my UK birth Certificate says "boy", while my UK passport says "F" for "female".

Until the "gay marriage" push started, people like me could keep a low profile, not make waves, and because we were such a small minority, some latitude was given, and it was a case of "don't ask questions, and you won't be told lies".

This is no longer an option. I know that I'm female, as does my OB/GYN. But the various legal systems disagree, sometimes within the same jurisdiction.
11.8.2008 12:31am
Greg Q (mail) (www):
trad and anon:

Allow me to introduce you to Baker v. Nelson:
Baker v. Nelson, 291 Minn. 310 (Minn. 1971), 409 U.S. 810 (1972), was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal "for want of [a] substantial federal question". That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage.
The same Supreme Court that gave us Loving v. Virginia said that there was no right to SSM.

So claiming that Loving forced the CA Supreme Court's hand is utter bullshit.
11.8.2008 12:37am
Kevin Murphy:
There would be a backlash, which might well result in attempts to recall some of the justices on the California Supreme Court. It's happened before in California, as anyone old enough to remember the name "Rose Bird" can tell you.

I'm pretty sure that Bird, Reynoso and Grodin were not recalled, but rather failed to win retention. However, Art 2, Sec 13-14 of the CA Constitution appear to allow recall of judges, although Sec 13 may contradict Sec 14 in that regard, depending on what an "elective officer" means.
CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL

SEC. 13. Recall is the power of the electors to remove an elective officer.

SEC. 14. (a) Recall of a state officer is initiated by delivering to the Secretary of State a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have 160 days to file signed petitions.
(b) A petition to recall a statewide officer must be signed by electors equal in number to 12 percent of the last vote for the office, with signatures from each of 5 counties equal in number to 1 percent of the last vote for the office in the county. Signatures to recall Senators, members of the Assembly, members of the Board of Equalization, and judges of courts of appeal and trial courts must equal in number 20 percent of the last vote for the office.
11.8.2008 1:04am
akaison (mail):
Russ:

I am not the guy for your argument style.

I did in fact mention that you were engaged in slippery slope argument.Your ignorance about what you were doing is irrelevant.

If you don't know bringing up polygamy in the context of gay marriage is a slippery slope much like Santorum's asking about marrying humans marrying a dog, then maybe that explains why you do not know that is what you are doing.

The salient question before the Courts is about gays, but only as to whether gays are a protected class, and from this , what rights derive. If you can show me where polygamous are proven through the rigorous standards of equal protection analysis to be a protected class then do so, but do so separately.

That's it. The rest is the fevered imagination of the conservative that has turned you into the party of just the South.

For the record, here's slippery slope defined:

http://en.wikipedia.org/wiki/Slippery_slope

I know it is not conservapedia, but you will have to trust me that slippery slope arguments are considered fallacious.

Your belief about marriage to me is irrelevant. I had the unfortunate pleasure of sitting through a whole courses about property law, and one of those big topics was marriage. I am also on the bright side blessed to have several friends who theologians. Not the kind who memorize Bible passages so they think they understand religious history, but the kind who actually studied the history. Marriage has changed significantly over the centuries. You know this. But persist in only looking at the part you think proves something. it doesn't. And here, the kicker even if it did- it doesn't matter because the religious argument is not the question about whether one can file jointly as married on their tax returns, whether a couple can marry so as to visit each other in the hospital, about what happens with the disposion of assets, etc. You know- those things that you "conservatives" care about that free Americans get to do. Apparently, this is so long as they are your "type" of American.

That's the whole problem with the Christianists in conversations. This is not about your belief. We do not live in a theocracy. This is the battle as I see it. You think we live in one. I do not. I will fight you until the end over that. The conservatives I knew appreciated that we live in a democratic constitutional democracy. I do not know what you people are. But conservative seems more a phrase you use for theocratic dogma. What happened to competence?

Words do have meanings, but they are not dependent on Russ or Akaison for that matter. The relevant issues here are legal questions. Not Webster's or more likely conservative dictionaries. They are questions about specific terms of art like "equal protection." Specific ideas like the test for suspect class. Specific broader implications like what happens to protecting the majority from the minority (which , if you think about it, the revision system does) but also protecting the minority from the majority (which, if you think about it the amendment system, with its like of deliberation does not). You can read some of the La Times annecdotes for the Yes on 8 to tell you why people do not appreciate the legal processes involved.

Ironically, my position, although 'liberal', in our system of governance is in fact the one that the founders wanted. Oddly it is the most conservative although I do not consider myself one of you. Your position is in fact that of the radical saying that we do not live in a constitutional democracy. You argue for a theocratic mob rule system. Ironically, you are the exact opposite of what the founders wanted.
11.8.2008 1:42am
akaison (mail):
One final point- citing case law as many of you do is retarded by half. You are essentially arguing on the face of it analysis. "See it doesn't say SSM is okay" therefore it's not. If that were the case, there wouldn't be an need for the courts at all. I know some of your radical belief system thinks this to be the case, but in reality, that's not our system. The reality is that precedents come out cases of first impression. What seemed true in 1953 shouldn't stop Brown v board in 1994. If it did, the courts function for protecting rights and dealing with new questions would be unnecessary. the very fact the courts are given judiciary review makes much o this silly just on a theorectical level.

I can understand for political reasons the court may decide different here, but to me the die was cast when they made gays a suspect class. I don't see how they get around this without ending any meaningful approach to equal protection. My though question remains- if the state of CA decided it wants to change divorce law to favor men over women and this law was not found inpermissible by the US Constitution, would this change in state con law that says equal protection is essense 50 plus one mean the broad implication of what I think it means? I don't have an answer. I just thinkt he original post asks a very difficult question that but-for gay marriage many people with a legal mind would be saying "hmmm"
11.8.2008 1:51am
Ken Arromdee:
I know it is not conservapedia, but you will have to trust me that slippery slope arguments are considered fallacious.

It's very ironic that you should post that here, of all places.

http://www.law.ucla.edu/volokh/slipperyshorter.pdf
11.8.2008 2:55am
Russ (mail):
Wow Akiason, you managed to be condescending, presumptive, and narrow minded, all in one post. How exceedingly efficient of you!

The first part was the line "The rest is the fevered imagination of the conservative that has turned you into the party of just the South."

I must be going either blind or have a failing memory, for I can't recall anywhere in my posts that I claimed to be a Republican(which is what I assume you are referring to). I also missed where California somehow became a majority Republican state as it just passed Prop 8. Unless I'm way off base here, it took a large number of Democrats to pass it as well.

As for what you say you pointed out, I'll grant that you did say I was engaged in a slippery slope argument. The problem was that you never managed to show how that was wrong other than an exasperated, "Well, everyone just knows that's bullshit."(yes, I paraphrased here) I've learned over time that those who resort to such tired phrasing have usually already lost the argument and try to talk down to others in a vain attempt to convince others to just give up and acknowledge how intelligent you are.

We do not live in a theocracy. This is the battle as I see it. You think we live in one. I do not. I will fight you until the end over that.

Again, please find anywhere that implied we live in a theocracy. We live in a representative republic with the rare foray into direct democracy via the ballot proposition. That means living with outcomes you sometimes do not like. I have never agreed with California's medical marijuana law, but I didn't pout like a two year old when the vote went the other way. I accepted it as the expressed will of the people, and if it can be overturned by the democratic process, then I'll help do it. But I won't do it through the courts.

You seem to like our system until it produces a result you don't care for. How very mature of you. Gosh, we wouldn't want to work towards convincing people of why our position is right and convincing them in the arena of ideas. Heavens no! We should just go through the court and bully those who disagree with us.

Ironically, my position, although 'liberal', in our system of governance is in fact the one that the founders wanted.

This might be your most historically laughable position. Do you seriously think the Founders ever saw anything like SSM coming down the road? They knew there could be changes to society, but they put in place a system for recognizing that, and it wasn't through judicial fiat. They'd be appalled at your tactics.

BTW, you never said anything about the legal definition of equal protection. I've read the Constitution and haven't found anything about sexual orientation in there. Words have meanings, and until recently, marriage meant one man and one woman(yes, before you go all snobbish again, I know marriage isn't in the Constitution, but neither is your perverse definition of it).

I think you're afriad to acknowledge the "slippery slope" argument b/c you know how much harder it would be to sell this stuff to the American people if you did. They know is that all it would take is another politically powerful lobby group to start agitating for something akin to polygamy since SSM had been accepted, and we'd have to change yet another definition. In fact, it was just like that until the 1890 Manifesto outlawed polygamy in the Mormon religion, although, to be fair, the practice was scorned beginning around 1875. Still, SSM comes back and we will see chalenges to bigamy laws using SSM as a basis. You might not like this fact, but it will happen. And based on this, group marriage will begin to rise(its history in the US goes from the Onieda Community of 1848 through the Kerista Commune in San Fransisco as recently as the early 1990s).

On a personal note, you might want to change your argument style, as it looks like it was formulated by a teenager who lost an argument about curfew. You assume things never said and ascribe all those on the opposite side as not just wrong, but evil, which is a pretty simplistic vision of the world.
11.8.2008 2:56am
Anatid:
Greg Q:

So there is absolutely nothing to gain from SSM.

Except the "right" to force your agenda on people who disagree with you.


So you would have no problem if you were forbidden to marry but could get a civil union with the woman you love?

The simple fact that people on both sides of the battle are willing to fight tooth and nail over the right to use a word suggests that there is, in fact, something to be lost/gained. Marriage is a social institution. The ability to get married instead of joined, to have a wedding instead of a commitment ceremony, to have a wife instead of a partner ... Denying this to any group says "You're different, you don't get to do what we do." Even if the difference is in name alone, it still marginalizes that group.

I keep on seeing people in this thread refer to their vote/opinion on Prop 8 as a response to the judicial mess that SSM went through before it got to the ballot. Apparently, you're annoyed by the inappropriate actions of some vocal activists, who represent a very small minority of homosexuals ... so, to punish them, you're casting a vote that will affect ALL homosexuals who wish to wed in California? At what point did human rights become a game?
11.8.2008 5:02am
jrose:
jrose: Wouldn't this same reasoning lead us to conclude that an initiative amendment that forbade immigrants from China from marrying would be permissble (i.e., not a revision)?

Bill Dyer: Racial classifications -- unlike classifications based on sexual preference -- are expressly addressed in the existing text of the state constitution.

jrose: My hypothetical wasn't about race. It was about national origin.

Greq Q: Same thing.

No. To make that point clearer, change "China" to "Canada" in my hypothetical.
11.8.2008 8:03am
jrose:
So claiming that Loving forced the CA Supreme Court's hand is utter bullshit.

True. Except, trade and anon did not make any such argument.
11.8.2008 8:07am
esteban J (mail):
Greg Q, that's an outstanding point about the death penalty:

In the 1970s the CSC struck down the state's death penalty, on the grounds that it violated the cruel-unusual punishment rights of convicted criminals. Surely, the right to be free from cruel/unusual punishment is "fundamental", and jailed criminals are a "suspect group" in the sense of being a minority that the majority traditionally has had a negative attitude towards, thus invoking that high judicial purpose of protecting a disfavored minority from the wrath of the majority.

Indeed, in its 1972 decision, the CSC said:

"The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority."

Nevertheless, the voters of california used the amendment, not revision, process to overturn that decision.

That amendment has stood, even though it clearly contravened the CSC's independent judgement that the death penalty violated the fundamental right (to not be subject to C/A punishment) of a vulnerable minority.

Indeed, the amendment actually goes beyond just the very-weighty fundamental right of avoiding C/A punishment. It says:

"The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution."

See that last line? How much more far-reaching into the underlying and fundamental principles of the constitution can you get? It says that even if the CSC were to determine that the DP violates other constitutional provisions such as Equal Protection or Due Process, nevertheless the DP remains valid and the independent judgement of the CSC is null and void.

Since the DP was reinstated by the amendment, not revision, process, it seems clear that a gay marriage ban is of a similar nature.
11.8.2008 9:19am
Bill Dyer (mail) (www):
Akaison (11.7.2008 7:43pm): Perhaps you ARE a first-year law student, or perhaps you're just being disingenuous.

It's not possible -- without LYING -- to dispute my description of the original tie between equal protection analysis and what's actually WRITTEN in the Constitution.

I also wrote of the modern caselaw which goes beyond that -- caselaw that I disagree with, but pointed out because I'm intellectually honest.

Comparable intellectual honesty for proponents of an expansive reading would be to say, "We don't think that the only suspect classes are those referenced in the text of the Constitution, and we think instead that judges ought to get to make up other classes as they see fit."

You resist being that honest, because a lot of regular citizens don't think judges ought to get to make up new constitutional provisions at their whim, and you want to conceal the fact that that's what's been going on.
11.8.2008 10:07am
Bill Dyer (mail) (www):
jrose: If your hypothetical was about national origin rather than race, then:

(a) I think there's no basis in the Constitution to treat national origin as a suspect class, hence no need for anything other than rational relationship scrutiny for classifications based upon that;

(b) I recognize that the Supreme Court made a contrary ruling in one of Justice Blackmun's typically muddled opinions in Graham v. Richardson, 403 U.S. 365 (1971), which was one of the cases I had in mind when I described the Court as slipping loose from traditional equal protection analytical moorings in the 1970s (although there are also some earlier examples of a tendency to move in that diretion); and

(c) as a policy matter, I would oppose making national origin a suspect classification, whereas by contrast, I personally would approve of making sexual preference one. But regardless of how you or I might come out as a policy matter on whether laws affecting particular classes ought to be considered suspect classifications, these determinations ought to be made through democratic means -- as evidenced by the texts of state constitutions and the federal Constitution, as amended (or revised) -- rather than by legislative enactment or judicial fiat. (NB: That doesn't rule out policy-based legislation, e.g., the Civil Rights Act of 1964, which may confer legal protection against certain types of discrimination, including private acs, on bases other than equal protection and on classes not specifically referenced in the Constitution -- a distinction missed by "Prof." Obama in his 2001 Chicago Public Radio appearance in which he seemed to think that his right, as a black man, to sit at a lunch counter in a private business stemmed from the Constitution rather than from a statute.)
11.8.2008 10:23am
No one important:
Doesn't Proposition 8 overrule In re Marriage Cases? If so, then how can one be intellectually honest in using it's equal protection analysis?

Opponents to the proposition cite the clause but on what foundation? Do they have any other caselaw to concur with their opinion (I haven't seen a through legal argument yet)? And, I understand that there are "evolving standards of decency" but it appears (at least, to me) that the country, on both levels, is rejecting the notion of same-sex marriage over and over; doesn't that count for something in the legal analysis?

I would sincerely like to read the opponents legal (rather than emotional) case. Thanks.
11.8.2008 10:40am
jrose:
Bill Dyer,

Thanks for your thoughts on whether national origin ought to be a suspect classification. But, what about my hypothetical?

Wouldn't this same reasoning lead us to conclude that an initiative amendment that forbade immigrants from China from marrying would be permissble (i.e., not a revision)?
11.8.2008 10:44am
jrose:
I'm going way off topic but,

[Obama believes] his right, as a black man, to sit at a lunch counter in a private business stemmed from the Constitution rather than from a statute.

In your opinion, where is the Constitutional authority that premitted the statute (Federal Civil Rights Act)?
11.8.2008 10:48am
jrose:
Doesn't Proposition 8 overrule In re Marriage Cases

The finding that sexual orientation is a suspect classification was not affected by Proposition 8. Thus, if you accept the argument that the denial of a right to the members of a suspect class amounts to a revision, then Proposition 8 is invalid.
11.8.2008 10:53am
jrose:
esteban J,

Criminals aren't a suspect classification.
11.8.2008 11:01am
trad and anon (mail):
So you would have no problem if you were forbidden to marry but could get a civil union with the woman you love?
Actually, what you mean is "if you, unlike everyone else, were forbidden to marry, but could only get a civil union, a special category that was created for the sole purpose of symbolically denigrating your relationship as inferior to marriage."
11.8.2008 11:09am
rg112008:
I'm not a legal scholar, but why exactly are we focusing solely on Gay rights issues with relation to the passing of Prop 8. Prop 8 says absolutely nothing about removing rights from Gays. It simply states that in California Marriage is been a man and a woman. This precludes not only gay marriages but also plural marriages, cross-species marriages and anything else that does not meet the Prop 8 definition. It may disproportionately affect gay marriages, but it is not solely directed at removing any gay rights and therefore the suspect class distinction is irrelevant.

The example above of removing Mormon or Black rights would be unconstitutional, because they would involve a majority focusing an amendment at a single defined minority group. That is not the case with Prop 8. It simply provides additional guidance for the courts as to what the people of California want marriage to be defined as and precludes anything else.

After all, if the people of California can re-institute Execution by amendment after it was found by courts to be a violation of fundamental constitutional rights, then how could it be considered a Revision to simply clarify the majorities definition of Marriage. If changing one section of the constitution by amendment is considered a Revision because it affects a suspect class, then ALL amendments would have to be invalidated and the People's right to decide constitutional direction without going through the legislature or courts would be removed.
11.8.2008 12:17pm
Smokey:
trade and anon:
...no contract can give you ...a right to participate in your counterparty's health insurance, survivors' Social Security benefits...
Ah. Now we get to the real heart of the matter.

SSM is not, and never has been, about denial of "rights." It is about money. Other people's money. And how yet another conniving new special interest group can get its hands into the taxpayers' and shareholders' pockets.

Anyone can enter into traditional marriage, and receive all those benefits. We don't need another self-centered, money hungry group acting like ravenous hyenas when they smell a way to take away yet more income from already overtaxed workers, by changing the rules that have always been in place so the 3% can start feeding off the other 97%.

Very, very few gays have dependents. That's why their standard of living is so much higher than people with families. Yet they want more taken from working families -- and handed over to them.

SSM is all about other peoples' money -- and how yet another special interest group can get their hands on it.
11.8.2008 12:20pm
Bob Van Burkleo (mail):
Sorry, but this is laughable. Women "naturally" marry, but men "naturally" seek out many partners so as to have the best chance of spreading their genes. If "natural" was all this was about, then polygamy would be celebrated.

Sorry Russ you are wrong. If you want cultural references to indicate how wrong you are just reference classic literature like 'Romeo and Juliet' and all those country western tunes about love lost. Common law marriage is another indication that people naturally marry. Are all people identical? No. Does that mean the trait doesn't exist? No.

If words have no meaning - ie, one man and one woman - then why limit to just one.

What words are you talking about? Marriage? Sorry Russ that ship has sailed - there are same gender married couples around the world as we would naturally expect. Again, a government that pretends they don't exists is just a flawed government.

Can they tell a citizen they are limited to a pool from which they are unlikely to every find a suitable spouse? No, they can't.

Sure they can, and about 30 states have already done so. No one is talking about saying you can't be with them, just that it isn't marriage.


Hahahaha! As if the government can decide what reality is! Russ, like it or not, same gender couples marry. Governments that pretend they don't are just flawed tools that don't try to see the world the way it really is. Same biological basis, same desires, same benefits, same results. Can a governmental system dedicated to serving the citizens and their inalienable rights turn its back on that obligation? Sure. Does it mean the people don't have those rights regardless? Nope - they still are human beings that can and do marry regardless.

But then you are in a mindset that lets you ignore that same gender couples have married throughout all 50,000 of those years of 'societal evolution' and society is the better for it.

Agenda-driven argument like yours isn't very convincing.
11.8.2008 1:57pm
einhverfr (mail) (www):
Perseus wrote:

I'm a critic of the modern obsession with abstract equality, so I would have no principled objection, say, to restricting marriage to couples with children or who are of child-bearing age.


As long as this was actually implemented, I would have no problem with restricting marriage to heterosexuals. However, since it is not, I think this argument lacks somewhat. However, I think if we go down that road, maybe we should also require that married couples have children within the first five years of marriage. That seems reasonable to me if this is really where we want to go.....

And now a note to Greg Q regarding death penalty being cruel and unusual. The difference in this case is that "cruel" and "unusual" are both social constructs. They do not mean the same today as they did a hundred years ago and, IMO, they largely reserve the right of the PEOPLE to be free from undue government persecution.

In short I think there is a very strong argument that 1) there is an evolving standard regarding what is at least "unusual" (the electric chair would have been entirely unusual in 1789!) and probably what is "cruel" as well, and 2) that these are largely on the basis of social consensus. If the people find that a certain punishment is not cruel or unusual within reasonable limits (maybe except torture), why should the courts challenge this?

This is fundamentally a different question than other certain requirements which are far more fixed. I don't think the people could redefine habeas corpus via a constitutional amendment. That doesn't merely clarify some terms which have living meanings, but seeks to redefine bedrock principles which establish the rule of law.

Similarly, I think that when the courts rule that a minority group of people is a suspect class and therefore entitled to additional scrutiny when applying due process challenges, and the people go much beyond this to enshrine discrimination against those people in the state constitution by a bare majority, this needs to be seen as a fairly deep change and a strong attack on the rule of law. Yes, race and religion are good parallels. This may run afoul with 14th Amendment requirements as well (since it allows the people to override any judicial ruling in this direction), which require states to guarantee equal protection under the law.

I am not saying that it should be entirely impossible to override these types of judicial decisions, but I think that it ought to require some semblance of social consensus. This is obviously not the case here (a 5% lead is not social consensus). Because this redefines what due process means, in a way I think is at odds with the American tradition of governance, it is open to challenges in a way that clarifying that the death penalty is not "cruel and unsual" is not.

My last point has to do with the intent of the people. The CA AG has stated (before the election), that the ban would not be retroactive, and that the state would continue to recognize existing gay marriages as legal and in force. Since this was not the goal of the Prop 8 campaign, who is going to sue the state to enforce the will of the voters?
11.8.2008 2:29pm
einhverfr (mail) (www):

Common law marriage is another indication that people naturally marry.


In my state (Washington), courts recognize same-sex common-law marriage....
11.8.2008 2:30pm
Steve in CA (mail):
I don't know if anyone still cares, but Greg is wrong again:

How, precisely, do they benefit by being able to call their relationship a "marriage" rather than just a "civil union".

I don't really care. People are the best judges of their own interests. If a gay couple doesn't think they'll benefit by getting married, then they won't do it. If they get married, obviously they think they're better off than they would be if they weren't married.
11.8.2008 2:39pm
esteban J (mail):
jrose wrote:

"Criminals aren't a suspect classification."


You're kidding, right? Who can possibly be more hated and subject to the whims of a majority than criminals incarcerated in jails? They are (a) a despised minority, and (b) because they are in jail, they are totally helpless and defenseless against state power.

And in my previous post, i noted that in its 1972 ruling striking down the DP, the CSC said as much, describing the cruel/unusual punishment clause as a fundamental right designed to protect a vulnerable minority.
11.8.2008 3:26pm
Demosophist (mail):
Akaison:

I don't see how one can, in good principle, deny marriage to anyone whose pursuit of personal fulfillment is considered legitimate, if you define marriage in such a way that it's about personal fulfillment. It would only be an ingrained caution that would argue against plural marriage, but there's surely no obvious or clear principle involved. Moreover, one might have to tweek Singer's utilitarianism a bit to vest animmals with a right to fulfillment, but it's a shorter leap than you imagine. The crux of the problem isn't same-sex marriage, it's the will to define the basic function of marriage out of existence. And simply put, that function is to provide children with two loving parents who will at least take a stab at nurturing the development of IQ, and values such as fair play and rule following behavior. I'm sure there are same-sex couples who would do that, but given the lengths they've had to go to become parents in the first place I don't think society needs to provide them with the additional incentives of the status of marriage in order that they fulfill that function. The problem is not "deliberate" parents, but accidental ones. Those are the people who need the context and status of marriage in order to fulfill the function that society needs fulfilled, unless it wants to develop a permanent underclass of ungovernable stupid dysfunctionals.

I have no problem at all with homosexual unions, or with homosexual "parents" (although having two genders as role models may well provide more benefit than we assume). But I simply don't see any social benefit in expanding the marriage franchise, and to the extent that doing so implies a pernicious redefinition of what marriage is, I see such a move as harmful. We ought to be moving in the other direction, if we have retained any instinct for self preservation in a less-then-benign world.
11.8.2008 3:48pm
jgshapiro (mail):
Greg Q:

The same Supreme Court that gave us Loving v. Virginia said that there was no right to SSM

Baker came 24 years before the Court's decision in Romer and 31 years before its decision in Lawrence, which completely altered the legal backdrop of the SSM argument substantively.

Scalia, dissenting in Lawrence:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.?

Of course, Scalia was decrying this development, but also recognizing that there is no logical distinction between straight marriage and SSM once you concede that homosexual conduct cannot be criminalized.

Resting your anti-SSM argument on Baker is like resting an argument in favor of anti-miscegenation laws on Plessy.
11.8.2008 4:07pm
jrose:
esteban j,

In California, a suspect classification is one where "the defining characteristic must (1) be based upon an ‘immutable trait’, (2) ‘bear[] no relation to [a person’s] ability to perform or contribute to society’; and (3) be associated with a ‘stigma of inferiority and second class citizenship,’ manifested by the group’s history of legal and social disabilities." (In re Marriage Cases).

Of course criminals do not qualify. If I have this wrong, please cite a case that has given criminals suspect class status.
11.8.2008 4:17pm
einhverfr (mail) (www):
jgshapiro noted:

Of course, Scalia was decrying this development, but also recognizing that there is no logical distinction between straight marriage and SSM once you concede that homosexual conduct cannot be criminalized.


It is further worth noting that Scalia alone seemed to have a problem with this. Certainly Thomas calling the anti-sodomy laws a poor way to spend law enforcement resources and an uncommonly silly law would suggest that he might have a hard time finding a rational basis in such laws (AFAICS, rational basis review was not a part of Lawrence v. Texas, so based on the arguments presented, he felt he had to rule against Lawrence. He certainly grumbled enough while he did so, though).
11.8.2008 5:27pm
einhverfr (mail) (www):
Greg Q:

Regarding Loving, I don't think you can read too much precedence into the court's opinion of an issue which was not before the court at that time. I think that precedence works in the same way that collateral estoppel does (IANAL), in that it applies primarily (or possibly even exclusively) to issues which were decided as a necessary part of a specific case. If the issue of Loving was not an issue of same sex marriage, then we can't really look to what the court said about that as valid precedence.

For example, if you are facing 2 civil suits, and the first one rules against you and finds a number of facts that the second one seeks to use, you are barred from re-litigating those facts if:
1) Circumstances apply equally to both cases
2) Those facts were decided as a necessary part of the case. If the case doesn't hinge on the facts, collateral estoppel doesn't apply. On the other hand, Microsoft can't try to argue in court that in the 1990's they didn't have market power in the PC operating system market because this fact was found as a necessary part of the case.

I think the same distinction largely applies to precedence in that either differences in circumstances or a court expressing an general view of an issue not before them would more or less invalidate the application of the precedence to the case at hand (and in the latter case, invalidate the idea as precedence).
11.8.2008 5:42pm
einhverfr (mail) (www):
The Microsoft case actually being any of the major anti-trust lawsuits against them in the late 1990's.
11.8.2008 5:43pm
Smokey:
Notice how everyone in favor of SSM ignores the fact that if it were made legal, every employed gay man and woman would have a non-insured marriage "partner" feeding off the benefits provided by shareholders and taxpayers? Divorce lawyers specializing in SSM would have a giant business due to the incessant turnovers -- and all at the expense of the rest of us.

If SSM were not a case of another "victimized" group demanding to put its hands in my pockets, I would be completely on board with gay marriage. Completely.

But, you see, SSM is all about the money: other peoples' money, and how this new special interest group can expropriate the earnings of workers who are hard-bitten enough when it comes to paying the freight for everyone else.

When gays, as a group, are less well off that the general population, get back to us about that benefit thingy.
11.8.2008 6:23pm
akaison (mail):
Russ:

If you are going to feign ignorance over the basis of the opposition to gay marriage, then we can not have a conversation. At a minimum, I require in a debate that the opponent not lie to me. This perhaps is what makes me different from other "libruls." I do not know rewarding lying and manipulation or legitimatize it by accepting the liar at his or her words when the facts clearly show why people voted yes on 8.

Bill:

You write irrelevancies since nearly every legal person involved as said this is a case law question of first impression for the S.Ct. You may consider you case law relevant, but then that's not the point. My response to you don't change because you think its modern law. If that modern law pertains specifically to an instance where the Courth has found a suspect class and a fundamental right (the core of equal protection analysis) please, by all means, provide that comparision. My issue with the thrust of your post remains- its a strawman that has no particular meaning. The question for the courts is whether a class is suspect according to the test that it sets forth, and if so found, what does this mean? The court made this determination with its earlier decision. Like I say elsewhere in this post- there ruling here will determine to me whether equal protection analysis in the state of CA has any real teeth or not. Ruling in favor of Yes on 8 is to say that equal protection analysis is meaningless. How can you protect the rights of the minority (any minority or suspect class whether gender, race, religion, or whatever, if all one needs to do is vote 50 plus 1.?

I'd love to hear a non change the subject type of answer to my actual question that does not resort to discussing the federal constitution or ouside sources. The question for me is the California constitution- does it have any meaning under such a decision that would let 8 stand? If so, how? Why not simply have an adminstrative court thats an arm of the legislature or executive branch?

Demo:

The problem is really a complicated one. The chief problem with not using the marriage entity is the associated legal questions that civil unions raise. THe lawyers here, if there are any, know that any new entity such this concept raises a lot of unanswered questions as much as it answers some. The reason for marriage is simple- the law knows the associated rights involved in a marriage, but doesn't yet know the associated rights involved across jurisdictions in a civil union. THis issues is coming into play in NJ where they presently have civil union. It's the old separate but equal and whether it can truly be equal issue. I am not sure it can be because well- let me give you a practical example- as I remember when LLCs first came into existence it took decades for the laws to catch up fully, and yet still there are open questions that (again as I remember) are not present for the better defined corporation and they are treated under the law.


RE Death Penalty

People are confusing different areas of law. This is a question of due process of law, not equal protection analysis. This needs to be understood in that context. The problem here is that unless the court reverses itself regarding gays being a suspect class, I am still struggling to see how they will address equal protection analysis having any real teeth going forward into the future. To say that a rule meant to protect the minority requires a bare majority is to say that equal protection analysis is meaningless. That's the simple equation outside of the gay issue. The court has a really big problem here.
11.8.2008 7:01pm
akaison (mail):
please excuse my many mispellings, typos and grammatical errors.
11.8.2008 7:04pm
Hoosier:
Again, a government that pretends they don't exists is just a flawed government.

Protect me, Oh Lord, from those who would try, through light of their reason, to make my government perfect. Archangel Michael, ora pro nobis.
(Prayer of St. Hoosier, recited each March 24, "Robespierre Day")
11.8.2008 11:03pm
esteban J (mail):
Jrose wrote:

"In California, a suspect classification is one where "the defining characteristic must (1) be based upon an ‘immutable trait’, (2) ‘bear[] no relation to [a person’s] ability to perform or contribute to society’; and (3) be associated with a ‘stigma of inferiority and second class citizenship,’ manifested by the group’s history of legal and social disabilities." (In re Marriage Cases)."

I'll take your word for that.

That conceded, it seems to me that the principle underlying the suspect-class designation is to signal heightened judicial awareness of situations where the majority has imposed a penalty on a vulnerable minority. As i've explained, criminals in jail probably are the most vulnerable of all such people, because they are a minority, are stigmatized, and since they are in confinement, are totally at the mercy of the majority/state.

And in its 1972 case striking down the DP, the court said as much when describing the cruel/unusual punishment clause and its applicability to criminals.
11.8.2008 11:28pm