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California Prop. 8 Upheld, But Held Not To Affect Existing Same-Sex Marriages:

So reports the San Francisco Chronicle, reporting that the decision is 6-1. (Thanks to How Appealing for the pointer.) I can't access the opinion right now at the California Supreme Court site, presumably because of high traffic, but I hope to comment on it as soon as I read it. UPDATE: Got the opinion now, thanks to Chris Geidner; hope to blog about it soon.

In the meantime, good advice for the pro-same-sex-marriage forces from Chris Geidner (LawDork):

All weekend, Twitter and the blogosphere have been abuzz with the Day of Decision rallies planned across California and the nation. Its organizers, who include Robin Tyler and Andy Thayer, state: "[I]f the court rules against us, make sure that our angry voices are heard around the nation. Anger at denying an entire group of people our civil rights is perfectly legitimate and appropriate."

This reasoning is incomplete, misguided and horribly short-sighted, and it is my hope that marriage equality leaders like Evan Wolfson, Mary Bonauto and Andrew Sullivan would concur.

First, this is not a ruling about whether marriage equality is correct or just. This is a ruling about whether the California Constitution allows a measure like Proposition 8 to be voted into the Constitution by the people. Even if there is some overriding federal claim that marriage equality is guaranteed by the U.S. Constitution, it was not raised by the parties here....

Third, and most simply, this is not the righteous anger exhibited this past fall. This decision is likely to be a complex one turning one the intricacies of California constitutional law, as well as its common law history and principles of equity. That is not protest-worthy, however, so the decision will have to be simplified to the point of being unrecognizable in order to provide the tinder sought by the organizers to light the fire of protest in their attendees' spirits....

More Importantly . . .:

this is not a ruling about whether marriage equality is correct or just


Oh really? I bet that if more judges on the CA SC had an appropriate sense of empathy , then this crucial decision would have turned on what matters, rather than on

the intricacies of California constitutional law, as well as its common law history and principles of equity
.

/sarcasm
5.26.2009 1:20pm
cmr:
I'm pleased by the ruling. They did the right thing.

That is good advice by the LawDork, and I'm curious if the gay organizers realize most people wouldn't agree with that summation of the issue. I've yet to hear one person who opposes SSM say they believe it is a fundamental right, but disagree that gay people should receive it.
5.26.2009 1:20pm
J. Aldridge:
The court seems to have ruled that the 18,000 SSM marriages will remain and if if they are to be invalidated it must be done at the ballot box. Of course with the rate of gay divorces I don't think any action is needed on existing SSM marriages.
5.26.2009 1:28pm
J. Aldridge:
Here is an interesting quote from Thomas Cooley:

Many states prohibit the intermarriage of white persons and negroes; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against another; it merely forbids marriage between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede and prevent it. Race prejudice, no doubt, has had something to do with establishing this law, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege or exemption.
5.26.2009 1:31pm
Soronel Haetir (mail):
So are there any other states that recognize in-state SSM without recognizing out of state SSM? (At least that is my assumption of how CA law now stands.)
5.26.2009 1:44pm
Oren:

Race prejudice, no doubt, has had something to do with establishing this law, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary.

That factual conclusion (on which the entire argument is premised) has been discredited as of late, as restrictions on racial intermarriages are currently judged to be entirely without rational purpose and so, entirely arbitrary.

Of course, JA, since you don't believe in the rational basis test at all, it's odd that you would quote an argument that miscegenation laws pass such a test, since you don't think it's appropriate in the first place.
5.26.2009 1:45pm
Danny (mail):
Support Proposition 9 to protect traditional voting
Voting = 1 non-Mormon + 1 ballot!
5.26.2009 1:45pm
ruuffles (mail) (www):

Of course with the rate of gay divorces I don't think any action is needed on existing SSM marriages.

If I have 100 apples in a barrel, and don't add any apples, of course I will end up with 0 apples if I keep taking away apples.
5.26.2009 1:45pm
ruuffles (mail) (www):

So are there any other states that recognize in-state SSM without recognizing out of state SSM? (At least that is my assumption of how CA law now stands.)

Even before Nov, did CA recognize out of state SSM?
5.26.2009 1:47pm
Danny (mail):

So are there any other states that recognize in-state SSM without recognizing out of state SSM? (At least that is my assumption of how CA law now stands.)



No, but the reverse is true for NY, NM and DC. They recognize out of state and foreign marriages
5.26.2009 1:48pm
Soronel Haetir (mail):
Danny,

Unfortunately for your proposal you would have to meet the much higher threshold for a federal amendment. Besides, how exactly do you propose to test Mormon-ness?
5.26.2009 1:51pm
eswierk (mail):
5.26.2009 1:52pm
Stephen Clark (mail):
Based on my quick reading of the opinions, the court gave Prop. 8 the narrowest possible reading, interpreting it as limiting ONLY the use of the word "marriage." According to the court, Prop. 8 has NO EFFECT on the court's prior determination that the state must extend every right, benefit, and obligation of marriage to same-sex couples.

Having narrowly construed Prop. 8, the court avoided creating any real practical problems for same-sex couples whose prior California marriages remain valid. They and same-sex domestic partners are entitled to all the rights, benefits, and obligations of marriage, so there shouldn't be any disjunction between what a same-sex married couple and same-sex domestic partners receive under state law.

At the same time, however, the court narrowed the scope of the revision exception to the initiative process. Now, we're suddenly told, only amendments that involve a change in the basic governmental structure of the state are revisions. In so holding, the majority ran away from the court's own precedents, which had given the revision exception a broader scope in some cases. The majority essentially held that no change in an individual rights provision can ever be a revision. The effect is to expand the scope of the initiative process--a dubious choice, given Californians demonstrated irresponsibility in using it. (See the current demand for a federal bailout because California voters have thoroughly screwed up their tax and budget system by initiative.)

Only Justice Moreno, formerly mentioned as a potential Obama pick for the Supreme Court, dissented. He and Justice Werdegar, who concurred in the judgment, refused to changed the previous interpretation of the revision exception. Werdegar then reasoned that Prop. 8 was not a revision, while Moreno reasoned that it was.
5.26.2009 1:52pm
eswierk (mail):
5.26.2009 1:52pm
Stephen Clark (mail):

So are there any other states that recognize in-state SSM without recognizing out of state SSM? (At least that is my assumption of how CA law now stands.)

It's not that simple. I think if a same-sex couple married elsewhere seeks rights, benefits, or obligations in California under California law, it would violate the California Constitution to refuse to extend them those rights, benefits, and obligations while extending the same rights, benefits, and obligations to out-of-state opposite-sex couples.

Remember, as construed by the California Supreme Court, Prop. 8 has effect on nothing but the word. Discriminatory denials of rights, benefits, and obligations remain subject to strict scrutiny under the California Constitution.
5.26.2009 1:58pm
Stealth (mail) (www):
The court essentially ruled that a simple majority of the state electorate can prohibit a minority from exercising a fundamental right, and that's not something to get outraged about?
5.26.2009 2:00pm
J. Aldridge:
Of course, JA, since you don't believe in the rational basis test at all, it's odd that you would quote an argument that miscegenation laws pass such a test, since you don't think it's appropriate in the first place.

Only rational basis test I believe in is the peoples laws, which can be changed if found irrational, not what five dummies might think is rational.

As Holmes one remarked, "if my fellow citizens want to go to hell, I will help them. It's my job."
5.26.2009 2:04pm
whit:

Unfortunately for your proposal you would have to meet the much higher threshold for a federal amendment. Besides, how exactly do you propose to test Mormon-ness?



to quote the underpants gnomes: "first step, collect underpants"

hth
5.26.2009 2:07pm
Danny (mail):
Right now, within CA, with DOMA, it is just a question of the word, so in theory it doesn't change the daily life legal reality of gays and lesbians in CA. If DOMA were repealed, the 18,000 married couples would be catapulted to a much higher status than the domestic partnership couples, since the former would obtain all the federal benefits of marriage (taxes, social security, immigration, etc.). Also, the current married couples have legal advantages over the domestic partnership couples, because a marriage status is portable to other jurisdictions, while a domestic partnership is not.

For example, if I live in CA and I get a job in another country with immigration rights, I can obtain a visa for my partner with me IF we can produce a marriage certificate. A much smaller selection of countries will accept a sub-national DP certificate. Similarly a CA married couple moving to one of the seven or eight US jurisdictions that recognize SSM will keep their status, unlike a DP couple
5.26.2009 2:09pm
U.Va. Grad:
Here is an interesting quote from Thomas Cooley:

I fail to see what a Michigan state court judge's thoughts on how state judges interpreted their state laws of equal protection have to do with either (a) the correct original interpretation of the Fourteenth Amendment's equal protection clause or (b) the correct original interpretation of California's equal protection clause.
5.26.2009 2:13pm
Tony Tutins (mail):

The court essentially ruled that a simple majority of the state electorate can prohibit a minority from exercising a fundamental right, and that's not something to get outraged about?

The decision conformed with California law. A century ago, Californians, frustrated with a legislature controlled by special interests, voted in the initiative, the referendum, and the recall. Then, the special interests were the railroads and Standard Oil -- now the special interests are gays, lesbians, firefighters, and nurses. The requirement of a bare majority to amend the constitution was put in then and it has served well ever since.

Similarly in conformance with California law, the same-sex couples who were married during the time that SSM was legal are still married.

Had the anti-Prop 8 forces run a decent campaign, it would have lost and this would not have been an issue. Everyone in California has a gay friend, a gay neighbor, a gay co-worker, or a gay family member. Who has the heart to keep them from marrying the one they love? But they did not personalize it to people; they did not elicit their sympathies.
5.26.2009 2:14pm
Andy Freeman (mail):
> See the current demand for a federal bailout because California voters have thoroughly screwed up their tax and budget system by initiative.

Initiatives had nothing to do with it. Electing legislators who spent more than likely revenues is the reason CA's budget is a disaster.

If we take CA's spending as of 2005 and add in increases for population growth and inflation, we get a number that is much smaller than current revenues.

Do you really think that CA is getting $25B better off than in 2005?
5.26.2009 2:15pm
Bart (mail):
it will be interesting to see how the CA Supremes attempted to square the circle of a definition of marriage as one man and one woman with continuing recognition of same sex marriages that fall outside this definition.
5.26.2009 2:16pm
Michael Ejercito (mail) (www):

The court seems to have ruled that the 18,000 SSM marriages will remain and if if they are to be invalidated it must be done at the ballot box. Of course with the rate of gay divorces I don't think any action is needed on existing SSM marriages.

I concur.

Wells v. Allen was the California court case the Supreme Court relied on to validate the pre-existing "marriages".
5.26.2009 2:17pm
John (mail):
This decision doesn't seem to do a lot, except say that same-sex couples can't use the word "marriage."

Here's the court:

"Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship."

So, same-sex couples are entitled to all the rights they would have if they could marry, but just can't use the word "marriage" to describe their relationship.

Well, that certainly was what the electorate had in mind.
5.26.2009 2:17pm
Stephen Clark (mail):
Wrong on both counts, Danny.

First, the federal government won't recognize California sames-sex marriages or domestic partnerships. And there is no reason to suppose that when the federal DOMA is eventually repealed, the resulting solution will be to recognize only same-sex marriages but not domestic partnerships and civil unions. That would be an irrational federal policy.

Second, most states will not recognize either a California same-sex marriage or a California domestic partnership. A small number of states will recognize either of them interchangeably. Only New York recognizes same-sex marriages but not domestic partnerships or civil unions, and it's law has not yet stabilized on the recognition question. (A challenge is now pending before the state high court.)

Most European states will accept either a domestic partnership or a marriage and are probably more likely to recognize a domestic partnership than a same-sex marriage. Far more foreign countries have civil unions, domestic partnerships, etc. than have same-sex marriages.

These interstate and federal recognition arguments against California domestic partnerships don't work, even though gay-rights advocates have been trumping them up for some time.
5.26.2009 2:17pm
Thales (mail) (www):
Aldridge quotes Holmes: "if my fellow citizens want to go to hell, I will help them. It's my job."

Pretty much what the California Supreme Court decided today as well. I hope that the protesters will now direct their ire, and more constructively, efforts at education, at their bigoted fellow citizens (and out of state financial support), not at the court, which acted in a model of judicial restraint and careful, doctrinal application of California constitutional law regarding the distinction between revision and amendment.

The electorate of California officially gets my nomination for an idiocracy award: in the same one year period, they vote against the prudent advice of Gov. Schwarzenegger essentially to let the state bankrupt itself, while taking a firm stand against the horror of boys kissing each other (at least in tuxedos).
5.26.2009 2:18pm
A Law Dawg:
The court essentially ruled that a simple majority of the state electorate can prohibit a minority from exercising a fundamental right, and that's not something to get outraged about?


No they didn't.

They ruled that a simple majority can amend the California Constitution. Period.

Whether fundamental rights recognized by the Federal Constitution have been denied was not raised by the parties.
5.26.2009 2:19pm
Michael Ejercito (mail) (www):

The court essentially ruled that a simple majority of the state electorate can prohibit a minority from exercising a fundamental right, and that's not something to get outraged about?

The process is not as simple as you make it out to be.

I will go on record as to write that I have no problem with society creating a separate institution where same-sex couples enjoy the same privileges married couples enjoy.
5.26.2009 2:20pm
Real American (mail):
the ruling is a total sham anyway. All it says is that gays can't use the word marriage, except for the ones that do and then goes on to implicitly strike the term "valid" from the amendment, rendering the amendment toothless. These judges need to be removed from office post-haste. they make a mockery of our legal system.
5.26.2009 2:20pm
Oren:



Only rational basis test I believe in is the peoples laws, which can be changed if found irrational, not what five dummies might think is rational.


So, a State can, say, refuse to recognize marriages between people with the same first initial without violating "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men"?

Or the converse, refusing to recognize marriages by spouses with different first initials come to think of it (of course, that's the beauty of an arbitrary law -- it can be equally arbitrary as its converse).
5.26.2009 2:21pm
Danny (mail):
@ Stephen Clark


And there is no reason to suppose that when the federal DOMA is eventually repealed, the resulting solution will be to recognize only same-sex marriages but not domestic partnerships and civil unions. That would be an irrational federal policy.


There is no limit to the hypocrisy and irrationality in the way gays are treated under the law, so nothing would surprise me. It is my understanding that the federal government has a list of benefits, rights and responsibilities that they automatically confer on the status called "marriage" (a legal term). For Washington "domestic partnership" is not a civil status.


Most European states will accept either a domestic partnership or a marriage and are probably more likely to recognize a domestic partnership than a same-sex marriage. Far more foreign countries have civil unions, domestic partnerships, etc. than have same-sex marriages.


I know from experience that this isn't true. Civil unions / civil partnerships / civil unions etc. are national ad hoc institutions in Europe and they general don't cross borders well. The civil unions of the various countries are all different from each other in terms of associated rights and obligations, but the marriages are similar. Marriage is an internationally recognized, portable legal status.
5.26.2009 2:29pm
Stephen Clark (mail):
Proposition 13 and associated absurdities are the ultimate source of California's dysfunction, that and initiatives that keep piling unfunded mandates onto the state budget. For 30 years, California voters have been living in a fantasyland where their property taxes can't increase, taxes have to surmount a supermajority in the legislature, and voters get to keep enacting more and more spending requirements.

The last three decades have proved that the 20th-century progressives were extremely naive. The only thing worse that a corrupt legislature is an uncritical, non-deliberative system of direct democracy.
5.26.2009 2:30pm
Larry Fafarman (mail) (www):
The original post says,
"Anger at denying an entire group of people our civil rights is perfectly legitimate and appropriate."
This reasoning is incomplete, misguided and horribly short-sighted,

If gay marriage activists were rational, they would be pushing for civil unions (or domestic partnerships) instead of gay marriage. It is obvious that the support for gay marriage is not great enough to produce uniform and stable gay marriage laws in all the states. A goal of having civil unions available in all states is much more realistic. And with gay marriage available in only some states, gays in those states are more equal than gays in other states.

As for the comparison to interracial marriage --

I am not a fundy, but I just want to point out that gay marriage is contrary to the bible whereas interracial marriage is not. Genesis 2 says that a man shall "cleave unto his wife," not his "husband" (as gay marriage spouses are often called) --
Therefore shall a man leave his father and his mother, and shall cleave unto his wife:

Actually, gays today have more sexual freedom than straight people.
5.26.2009 2:30pm
Stephen Clark (mail):
@ Danny

Same-sex marriages don't cross European borders any more easily. It's not about the name. And the European Parliament has urged member states to move toward seamless recognition of each other's same-sex unions, whatever the name.

As for the federal government, the word "marriage" in federal statutes was construed to exclude same-sex unions a decade before DOMA was ever enacted. Again, it is not about the word; it is about the underlying concept of a same-sex union.

"Marriage" is not some kind of magic talisman. The question for the federal government, for other states, and for other countries is whether to bestow legal standing upon same-sex relationships. The name is secondary.
5.26.2009 2:36pm
U.Va. Grad:
Bart:

it will be interesting to see how the CA Supremes attempted to square the circle of a definition of marriage as one man and one woman with continuing recognition of same sex marriages that fall outside this definition.

See the discussion at pp. 128-135 of the opinion. It's relatively straightforward.

--Under CA law, for retroactive applicaiton, an initiative must either explicitly apply retroactively, or the surrounding "legislative history" type materials must make it clear and unambiguous that the initiative applies retroactively. Neither the initiative itself nor any of the supporting documentation--e.g., the ballot description of its effect and similar official sources--says a word about retroactivity.

--The interveners argued that the plain language of the statute (a) compelled derecognition of the existing marriages and (b) showed that this derecognition would be prospective rather than retrospective--that is, even though the marriages occurred in the past, any acts of derecognition would be purely prospective. However, it is established in California law that every law affecting vested rights or transactions that occurred in the past is considered retrospective. Thus, it is a retrospective law.

--The interveners also argued that even if it were a retrospective law, its application to the existing marriages would not violate due process. California has a multifactorial test for determining whether a retroactive law violates due process--this is not a scenario where "the vote on the initiative is all the due process you get." In short, the court found that the married couples themselves, as well as the numerous business relationships predicated on those marriages (e.g., creditor-debtor relationships, health insurance, etc.) legitimately relied on the court's earlier gay marriage ruling, and disrupting that reliance would have nasty consequences for sorting out property rights, contractual relations, and the like. The state's interest in protecting traditional marriage--which, per the language of Prop 8, was purely a prospective interest--was not strong enough to overcome that disruptive effect.
5.26.2009 2:38pm
GahGorian (mail):

So, a State can, say, refuse to recognize marriages between people with the same first initial without violating "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men"?

Or the converse, refusing to recognize marriages by spouses with different first initials come to think of it (of course, that's the beauty of an arbitrary law -- it can be equally arbitrary as its converse).


I'll support this.

It's not saying whether or not a law is stupid of not. The point is who should be making the law, and that's not the job of the court. If a legislature is going to waste time creating silly laws, their consituents will tell them to change the laws or they'll be replaced.

Thomas's dissent in Lawrence was spot on.
5.26.2009 2:38pm
paul lukasiak (mail):
Based on my quick reading of the opinions, the court gave Prop. 8 the narrowest possible reading, interpreting it as limiting ONLY the use of the word "marriage." According to the court, Prop. 8 has NO EFFECT on the court's prior determination that the state must extend every right, benefit, and obligation of marriage to same-sex couples.

that's my reading as well....and IMHO, its a completely ridiculous reading. The initiative was a direct response to the Court's prior decision providing same-sex couple with marriage equality -- it was not designed simply to prevent the word "marriage" from being used, but to deny equal rights to same sex couples.

Its clear that the arguments, both pro and con, offered to voters pursuant to Prop 8 were about whether gays deserved a fundamental right to equal treatment under the California Constitution. For the Court to declare that it was about nomenclature, rather than rights, makes no sense.
5.26.2009 2:40pm
paul lukasiak (mail):
It's not saying whether or not a law is stupid of not. The point is who should be making the law, and that's not the job of the court. If a legislature is going to waste time creating silly laws, their consituents will tell them to change the laws or they'll be replaced.

so you think it would be permissable to pass an initiative that taxes at 100% all income for anyone who uses, or has ever used, the pseudonym GahGorian?

There is a reason why certain rights are considered "fundamental" -- and its to prevent majorities from using the democratic process to discriminate against the minority.
5.26.2009 2:44pm
Danny (mail):

If gay marriage activists were rational, they would be pushing for civil unions (or domestic partnerships) instead of gay marriage. It is obvious that the support for gay marriage is not great enough to produce uniform and stable gay marriage laws in all the states. A goal of having civil unions available in all states is much more realistic.


This reminds me of when Sweden switched to driving on the other side of the road in one day. It worked because they were organized and everyone was on the same page. If the US were so organized as to institute federal civil unions AND sign treaties with the EU and other western countries stipulating that civil unioned Americans abroad should be treated like married Americans, then this might have worked rather well. The United Kingdom pulled this off well and has side-stepped the "marriage" debate so far. Unfortunately the US is such a crazy, disorganized patchwork even just with the marriage laws, it would become legally even more of a mess if we started adding duplicate or quasi-parallel institutions. For example a Washington couple with a "weak" domestic partnership that moves to CA with its "strong" domestic partnerships, what is their legal status?

The second practical problem is that in real-life situations agencies and authorities (insurance companies, hospitals, employers, etc.) tend to ignore civil unions because they have a different name, so a couple has to constantly argue and sue to actually get the equal benefits, which is what happened in NJ..

The whole question has sort of declined with states jumping directly into marriage equality
5.26.2009 2:46pm
cmr:

If gay marriage activists were rational, they would be pushing for civil unions (or domestic partnerships) instead of gay marriage. It is obvious that the support for gay marriage is not great enough to produce uniform and stable gay marriage laws in all the states. A goal of having civil unions available in all states is much more realistic. And with gay marriage available in only some states, gays in those states are more equal than gays in other states.



I agree 1000%

Can I just say, this would be where all the tin-foil hat theories about gay agendas and them wanting to destroy marriage comes from? I mean, they are hyperbolic and I myself don't get too involved in considering them, but the fact that gays are so willing to engage the broad, millennial question of marriage, and claim that there's some constitutional technicality that we simply must allow it, instead of going for the less politically divisive issue of civil unions (and work to endow those with the substantive benefits gay and lesbian couples want), seems very antagonistic. It doesn't seem like a noble fight for equality; it seems like a way to thumb their noses at social conservatives for not liking them.
5.26.2009 2:47pm
Michael Ejercito (mail) (www):

so you think it would be permissable to pass an initiative that taxes at 100% all income for anyone who uses, or has ever used, the pseudonym GahGorian?

Depends on the text of the constitution and the relevant case law.
5.26.2009 2:47pm
cmr:

The second practical problem is that in real-life situations agencies and authorities (insurance companies, hospitals, employers, etc.) tend to ignore civil unions because they have a different name, so a couple has to constantly argue and sue to actually get the equal benefits, which is what happened in NJ..


So you think the state should force these people to acknowledge your relationship? That sounds really selfish and entitled.
5.26.2009 2:48pm
GahGorian (mail):

so you think it would be permissable to pass an initiative that taxes at 100% all income for anyone who uses, or has ever used, the pseudonym GahGorian?


Sure. And if it were passed, I would campaign to have it reversed, and I have enough confidence in my fellow man that my use of a pseudonym should not result in such a law, and they would agree, and the law would be overturned.


There is a reason why certain rights are considered "fundamental" -- and its to prevent majorities from using the democratic process to discriminate against the minority.


Groan. Yes, let's have the elite geniuses decide what is fundamentally right and the rest of us morons will only get to listen.

The only fundamental rights are those guaranteed in the Constitution. There's a process to change that. Otherwise we have to depend on a minority's definition (that is, the elite few on the bench) of what is fundamental.
5.26.2009 2:52pm
Danny (mail):

Same-sex marriages don't cross European borders any more easily. It's not about the name. And the European Parliament has urged member states to move toward seamless recognition of each other's same-sex unions, whatever the name.


Not true at all. If you are married in an EU or EEA member state (Spain, Belgium, Netherlands, Norway, Sweden for now) you can travel between any of these countries and you are married. Then among the civil union countries there are three very separate tiers:
Tier 1: Those in which the civil union is virtually identical to marriage: UK, Denmark, Finland, Hungary
Tier 2: Those in which the "civil union" is legally far weaker than than a marriage or tier 1 civil union: the French PACS and the German life partnerships
Tier 3: Those with the extremely weak "registered partnerships" that are almost symbolic for how legally useless they are: Slovenia, Croatia, and the various sub-national registries

If you have a marriage you can take that to any marriage equality country or to a Tier 1 country. You may obtain the Tier 2 benefits in a Tier 2 country or you may not. Tier 1 civil unions do in general transfer between each other but not to Tier 2 or 3 countries. You can almost never "upgrade" your civil union by crossing a border in the EU so your Tier 2 or Tier 3 civil status is useless in a Tier 1 or marriage equality country.

European laws don't tell EU countries what rights they have to associate with a civil union, as that is one of the national competencies. In terms of free movement, Directive 2004/38/EC says that marriage equality and Tier 1 countries should recognize each others' marriages and civil unions, but says nothing about Tiers 2 and 3. There is some chance that in the near future same-sex marriages will be recognized for the purposes of free movement within the whole EU, but there is no prospect of this happening with any of the civil unions
5.26.2009 2:58pm
Perseus (mail):
If gay marriage activists were rational, they would be pushing for civil unions (or domestic partnerships) instead of gay marriage.

California's domestic partnership has virtually the same legal benefits as marriage, which is why I'm not convinced by the Court's argument that converting same sex marriages into domestic partnerships would have been especially disruptive.
5.26.2009 3:00pm
Stephen Clark (mail):
@ paul lukasiak

But the advocates of Prop. 8 also told voters that passage would in no way affect domestic partnerships, which were already receiving almost all the rights, benefits, and obligations of marriage. And proponents did that because they didn't think an amendment would pass if it took away tangible rights.

So you're asking the court to hold that laypeople who voted for Prop. 8 had the very sophisticated intention of leaving all the rights, benefits, and obligations in place via "domestic partnerships" but holding that those rights, benefits, and obligations were not matters of constitutional dimension when they voted for a measure than spoke only of "marriage." I seriously doubt that many non-lawyers had any such understanding.

At 52 percent support, you have basically no room to maneuver in arguing for a broader interpretation. Maybe 40 percent of voters thought it had broader effects, but the margin that put it over the top very well may not have agree with that interpretation.

But, really, who the h-ll knows? Government by initiative doesn't even require deliberation, let alone precision in drafting, anticipation of technical problems, or care in specifying effects. What's the court supposed to do? Extrapolate from contradictory editorials, manipulative campaign flyers, and divergent sermons to figure out what the 52 percent thought? Should they go with what Rick Warren said in 2008 or what Rick Warren says in 2009 that he said in 2008?
5.26.2009 3:01pm
PC:
So you think the state should force these people to acknowledge your relationship? That sounds really selfish and entitled.

Take that married people!
5.26.2009 3:06pm
Seamus (mail):

There is a reason why certain rights are considered "fundamental" -- and its to prevent majorities from using the democratic process to discriminate against the minority.



Except that there's nothing in the California constitution identifying some rights as more "fundamental" than others, and therefore as less susceptible to the amendment process that applies to other provisions of the constitution.

In the same way, if 2/3 of each house of Congress were to pass a constitutional amendment repealing the Bill of Rights and the 13th Amendment, 38 state legislatures were to ratify that amendment, and the president were to withdraw from the International Covenant on Civil and Political Rights (and all other treaties banning slavery), and Congress were then to pass a law providing that bankrupts be sold into slavery to satisfy their creditors, the courts would have no basis for invalidating such a law as a violation of "fundamental" rights.
5.26.2009 3:08pm
Stephen Clark (mail):
@ Danny

And how does your analysis establish that California's same-sex marriages are more portable than California's Tier 1 domestic partnerships? Your argument is that only marriage brings interstate and federal recognition. That's demonstrably not true. And, in fact, whether any given couple is better off with a marriage or a domestic partnership depends, specifically, on where they want recognition. My point is that you can't make a universal argument that marriage always gets recognition and is therefore the superior relationship form. If I'm a Californian who tends to spend a lot of time in Oregon and Washington, I'm better off with a domestic partnership, which Oregon and Washington will recognize. But if I have a California same-sex marriage, it might not be recognized. How the recognition issue cuts is completely situational, and there's enough diversity that no one form guarantees clear portability.
5.26.2009 3:10pm
NickM (mail) (www):
whit wins the thread.

Nick
5.26.2009 3:18pm
Stealth (mail) (www):
They ruled that a simple majority can amend the California Constitution. Period.


Well, no, that was not what they ruled, and that was not the issue in the case. The question was whether Prop 8 was an amendment or a revision, and they ruled it was an amendment.
5.26.2009 3:19pm
Garth:
if you can't figure out that the right to marry should be fundamental for all adult citizens who choose to, there's no point in having a conversation. we shall simply have to agree to disagree. however, it was my view that the constitution was supposed to guarantee blankets of rights, does any one remember the 9th amendment and the dreaded penumbras, and is not, strictly speaking, limited to strictly construed, enumerated rights.

and i agree that this decision should be protested, simultaneously with the launching of a new amendment, one that will surely pass.

what is truly "selfish and entitled" are homophobes claiming sole entitlement to the institution of marriage.
5.26.2009 3:20pm
Danny (mail):
@ Stephen

Well right now if you are a married Californian you can go to any state with marriage equality plus NY and NM and DC and keep the married status. With the DP you can go to Oregon and Washington (I guess they will recognize it) but not to the others, so maybe a DP works *better* for some people than a SSM. However as a married Californian you can also go abroad and keep your status in the countries I mentioned while with a Californian DP your options abroad are much more limited

It's true that both have portability issues, but in general "marriage" exists already in every jurisdiction, so the question is limited to the couples' gender. With a non-marriage status you introduce the second variable of the mismatch between the institutions themselves

I can't speak for all gay people, but I don't care about the name. My partner and I travel a lot, so I care about the benefits and having control over my own life, so I would take a federal civil union over a same-sex marriage recognized only in one state.


Actually, gays today have more sexual freedom than straight people.



How so?
5.26.2009 3:21pm
Seamus (mail):

if you can't figure out that the right to marry should be fundamental for all adult citizens who choose to, there's no point in having a conversation.



Even if the right to marriage is regarded as fundamental, the right to marry whomever you want to is not. I can't, for example, marry the dead, the nonconsenting, my relatives, or people who are already married. (Nor, come to think of it, can I marry anyone other than the woman I happen to be married to. (Now you may argue that I can always divorce her and marry the dream girl who just came into my life. But that would require that divorce be a legal option for me. Are you going to argue that no-fault divorce is a "fundamental" right?)
5.26.2009 3:57pm
Stephen Clark (mail):
@ Danny

The assertion that "marriage" exists already in every jurisdiction relies on the word itself while ignoring its legal definition in all those jurisdictions. If you go to Kenya with a same-sex "marriage" from California, you do not have a "marriage" as that institution exists in Kenyan law. So claiming that having the word "marriage" attached to your California union somehow gets you something in Kenya--or Chile or India--is just plain wrong. Those places do not have any civil institution that accommodates same-sex couples. Even the European Court of Human Rights and the U.N. Committee on Human Rights have interpreted the word "marriage" in international human rights conventions to mean, by definition, only the union of a man and a woman.

There is actually no existing legal authority to support the proposition that NM recognizes out-of-state same-sex marriages. And some if not all of those marriage-equality states may well recognize a California domestic partnership as a marriage. A Massachusetts court, for example, has given a Vermont civil union the same standing as a marriage. For purposes of portability, it does us no good to reify distinctions between civil unions, domestic partnerships, and marriages, as you're doing. Interchangeability regardless of name is what facilitates portability, not insisting on any particular name in any particular jurisdiction.
5.26.2009 4:02pm
Stephen Clark (mail):
@ Seamus

Yes, I would argue that no-fault divorce--which just about every state now has--is a fundamental right. The historical trend has been away from restrictions on divorce--first by allowing divorce, then by eliminating restrictions on remarriage after divorce, and finally by moving to no-fault divorce. The evolution is basically complete and demonstrates that divorce is now firmly grounded in the conscience of the American people as a right.

Moreover, each of your examples of marriage bans, such as marrying your relatives, has a distinct policy rationale to justify the exception. So what's the policy rationale justifying the exception for same-sex marriage? If it isn't the same as the rationale for banning marriages without consent or to a corpse, then your examples are pointless.
5.26.2009 4:06pm
ChrisTS (mail):
The second practical problem is that in real-life situations agencies and authorities (insurance companies, hospitals, employers, etc.) tend to ignore civil unions because they have a different name, so a couple has to constantly argue and sue to actually get the equal benefits, which is what happened in NJ..


So you think the state should force these people to acknowledge your relationship? That sounds really selfish and entitled.

Ummm... how does expecting or requiring agencies and authorities to afford legally promised benefits count as 'selfish and entitled'? The 'relationship' referenced is, ex hypothesis, a legal one. Why shouldn't everyone be 'forced to recognize' it?
5.26.2009 4:14pm
Chairm (mail):
Why did the CA Supreme Court not stay its order for the issuance of licenses for SSMs?

They could foresee that if the vote went in favor of SSM there would be no "interim" SSMs.

And, they could foresee that if the vote went against their re-Marriages opinion, then, there would be a mess to clean up.

Today the Court did nto clean up its own mess.
5.26.2009 4:15pm
Seamus (mail):

Yes, I would argue that no-fault divorce--which just about every state now has--is a fundamental right.



If you really believe that, then the "fundamental right to marriage" which you champion turns out to be pretty ephemeral. Kinda like a contract rights--where the contracts are all written on Etch-a-Sketches.
5.26.2009 5:07pm
Heh:

if you can't figure out that the right to marry should be fundamental for all adult citizens who choose to, there's no point in having a conversation. we shall simply have to agree to disagree. however, it was my view that the constitution was supposed to guarantee blankets of rights, does any one remember the 9th amendment and the dreaded penumbras, and is not, strictly speaking, limited to strictly construed, enumerated rights.


Interestingly, I believe all of that about the right to CARRY :)

What I have learned over time, though, is that calling your opponents names and generally trying to act superior to them doesn't win the battle. And saying that you can't have a conversation with someone who doesn't accept your definition is just silly. If the pro-gay-marriage side can learn that lesson here, they may see their fortunes rise, as those of us on the right-to-carry side have in the post-heller world (no, it's not perfect; but I've seen positive changes in the last several months that I never thought I'd see) :)
5.26.2009 7:32pm
Larry Fafarman (mail) (www):
Dan said (5.26.2009 3:21pm) --
It's true that both have portability issues, but in general "marriage" exists already in every jurisdiction, so the question is limited to the couples' gender.

That's a pretty darn big limitation! In fact, that is the whole ball of wax! If you go to Nigeria and ask for recognition of your same-sex marriage, you are likely to be thrown in prison! If you try it in Iran, you are likely to be executed! What a crock.
Actually, gays today have more sexual freedom than straight people.

How so?

There are lots of examples. For example, for a long time the FDA balked at making the "Plan B" emergency contraceptive "morning after" pill available to younger teenagers -- gays obviously don't have a problem with that. The government has been pushing abstinence education and not providing teenagers with the information they need for safe sex -- I don't think that gays are affected much by abstinence education. And the cops are still using decoys to entrap johns -- the cops gave up on doing that to gays several decades ago.
5.26.2009 7:50pm
Danny (mail):
@ Stephen Clark

I don't have time to go into all of those details.. but there are countries you can take a California marriage certificate to and be recognized as married, but you can't do that with a DP cerficate. Not Kenya or China, obviously not Iran, but South Africa, and other countries that have SSM without civil unions, which is a growing list. Some jurisdictions have gone to marriage without ever having had civil unions, other places got rid of the civil unions when they started having marriage equality. Still other places (like a few Canadian provinced, and I think the Netherlands) kept the previous civil unions so you have a choice if you move there.

In European law it is by no means certain that "marriage" still refers only to opposite-sex couples at the supra-national level - there will probably be a clarification on that this summer under the Swedish presidency. This was the subject of a recent debate in the EU parliament related to implementation of directive 2004/38/EC. Some EU countries (even very conservative ones with no civil unions or any process for their own citizens) have started to grant free movement rights to gay couples with marriage certificates, so the difference in status really does matter at an international level


For purposes of portability, it does us no good to reify distinctions between civil unions, domestic partnerships, and marriages, as you're doing. Interchangeability regardless of name is what facilitates portability


In a rational world, you are right, but bureaucratic authorities are so petty and childish and slow to adapt


There are lots of examples. For example, for a long time the FDA balked at making the "Plan B" emergency contraceptive "morning after" pill available to younger teenagers -- gays obviously don't have a problem with that. The government has been pushing abstinence education and not providing teenagers with the information they need for safe sex -- I don't think that gays are affected much by abstinence education. And the cops are still using decoys to entrap johns -- the cops gave up on doing that to gays several decades ago.


Yeah but we have our own issues. A much smaller population with few meeting places. We still have a much higher HIV rate, so being "liberated" (is "liberation" synonymous with sleeping around or not using protection?) is a dangerous way of living. Having unprotected sex with a strange guy is like playing Russian roulette. Gay teenagers are some of the biggest casualties of abstinence education. They have no role models, they also tend to have lower self-esteem, high anxiety and strained social networks in the teen years which makes them easily pressured by unscrupulous or sexually aggressive boyfriends or susceptible to alcohol and drug use (with attendant sexual risks). Also being gay man you face some of the dating and domestic violence issues that women face and that straight men don't have to deal with..
5.26.2009 8:41pm
Putting Two and Two...:

the cops gave up on doing that to gays several decades ago.


Yeah, ask Senator Craig about that. Or do you think the police were there enforcing a no tap-dancing provision.
5.26.2009 11:25pm
Andy Freeman (mail):
> Proposition 13 and associated absurdities are the ultimate source of California's dysfunction, that and initiatives that keep piling unfunded mandates onto the state budget. For 30 years, California voters have been living in a fantasyland where their property taxes can't increase, taxes have to surmount a supermajority in the legislature, and voters get to keep enacting more and more spending requirements.

The "unfunded mandates" are significantly less than the revenues.

Since the legislature is full of folks who were supported by the folks who got said "mandates" passed, it's somewhat absurd to argue that that same legislature wouldn't have spent the money.

We know that the legislature (and Governor) would rather put the state in bankruptcy than cut back on the "not mandates" because that's what they did.

We don't have $25B/year in "unfunded mandates" since 2005, but that's how much spending has increased more than population and inflation since then.

And, CA property taxes can and do increase. In Santa Clara county, there's been a huge drop in property values yet property tax receipts will go down only 2% - most people will actually pay more this year than last. Prop 13 stabilized property tax receipts.

What doesn't happen after Prop 13 is that property tax receipts don't skyrocket when property values increase. And, we know that they raise the rates when property tax values fall.
5.27.2009 1:14am
Larry Fafarman (mail) (www):
Putting Two and Two together and getting five said (5.26.2009 11:25pm) --
Yeah, ask Senator Craig about that. Or do you think the police were there enforcing a no tap-dancing provision.

That was different -- that concerned gay sex activity in an airport head. I am talking about the kind of entrapment described as follows by Wikipedia:
Entrapment usually consisted of an undercover officer who found a man in a bar or public park, engaged him in conversation; if the conversation headed toward the possibility that they might leave together — or the officer bought the man a drink — he was arrested for solicitation. One story in the New York Post described an arrest in a gym locker room, where the officer grabbed his crotch, moaning, and a man who asked him if he was all right was arrested.
5.27.2009 11:03am
Stephen Clark (mail):
@ Danny

South Africa provides for both same-sex marriages and same-sex civil unions. The Civil Union Act of 2006 gives the couple the choice of which label they want to use.

At any rate, my only point in all of this is that interjurisdictional claims are, today, weak and shaky foundations for marriage-equality claims. Marriage-equality advocates in California (and other states) have grossly overstated the interjurisdictional recognition of same-sex marriages and have grossly understated the interjurisdictional recognition of civil unions/domestic partnerships. I find that advocacy either deliberately manipulative or terribly ill-informed. Given that more of the world's jurisdictions authorize same-sex civil unions or domestic partnerships than authorize same-sex marriage, the interjurisdictional claims do not clearly cut in favor of marriage-equality. Long term, marriage may become the more prevalent term for same-sex unions, but it isn't today. So today the interjurisdictional appeals for marriage-equality are weak.

The crux of the argmuent in California isn't about interjurisdictional portability; it's about being relegated to a second-class status for no reason other than prejudice masquerading as religion, neither a legitimate basis for a secular law.
5.27.2009 11:57am
Putting Two and Two...:

getting five


Uh... your link describes one kind of entrapment used by police in NYC in the 60s. It may have stopped in NYC, but it continues to this day in plenty of places in the U.S., even after Lawrence.

Here's just one example
5.27.2009 1:25pm
Putting Two and Two...:

I find that advocacy either deliberately manipulative or terribly ill-informed.


Speaking of which...


Given that more of the world's jurisdictions authorize same-sex civil unions or domestic partnerships than authorize same-sex marriage, the interjurisdictional claims do not clearly cut in favor of marriage-equality.


Why the focus on "authorization"? Isn't the salient point recognition? Places that recognize civil unions also recognize SSM as civil unions, no? On the other hand, there are places which recognize SSM and DO NOT recognize civil unions, no?
5.27.2009 1:30pm
Larry Fafarman (mail) (www):
Why in the hell should California tailor its marriage and domestic partnership laws to suit the laws of other jurisdictions? Does Mahmoud Ahmadinejad care whether gay marriage is legal in California or not?
5.27.2009 7:31pm

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