"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."
Does anyone else notice that there is now a situation in which the question is no longer separate, but equal, but separate, but unequal? Some gay folks are married, but other gay folks can't get married. How is this equal justice under the law? Someone is sure to challenge the unequality in court, don't you think?
I am glad that some of the couples I know who are married will not have the indignity of having them declared null and void (one couple I know was married in San Francisco and that was declared illegal and so married again). You are right it is not equal justice. I could marry again if I so choose, but a gay couple has no choice. That's not fair either. I'm sure people will be busy trying to figure out the best way to reverse the situation.
It seems that all the CA Supremes have said is that same sex couples can't use the word "marriage" -- they can have a wedding and all the rights of a heterosexual couple but the word marriage is reserved due to Prop 8-- I know this is not satisfactory - but I think the court pulled a fast one on the Prop 8 forces.
Ann, I'll believe that when it plays out. What about Justice Moreno's dissent? Will gay couples really have equal protection under the law if their unions are called something else?
I think the CA Supreme Court copped out by its narrow interpretation of the method of amending the constitution. They also have opened another can of worms: a majority of the people of CA can revoke the rights of any group of people anytime they want by amending the Constitution. It makes a mockery of equal protection under the law.
I'd say the situation is extremely unstable. Unstable situations make for great opportunities. Now is not the time to give up.
Well, I ain't no lawyer and I don't play one on the Blogs, but it seems to me that the Supreme Court Decision actually makes the case to overturn their decision AND Prop8.
If it walks like a marriage and talks like a marriage and acts like a marriage . . . . .it's not a 'duck'.
Thank you, Mimi. You would make one hell of a fine activist judge. It does require a keen sense of justice. Here is a breakdown of the philosophical bent of the CaliJudges, all but one appointed by Republican Governors.
Voting to UPHOLD Proposition 8:
• Chief Justice Ronald M. George (appointed by Gov. Pete Wilson) • Justice Joyce L. Kennard (appointed by Gov. George Deukmejian) • Associate Justice Marvin R. Baxter (appointed by Gov. George Deukmejian) • Associate Justice Kathryn Werdegar (appointed by Gov. Pete Wilson) • Associate Justice Ming Chin (appointed by Gov. Pete Wilson) • Associate Justice Carol Corrigan (appointed by Gov. Arnold Schwarzenegger)
Voting to STRIKE DOWN Prosition 8:
• Justice Carlos R. Moreno (appointed by Gov. Grey Davis)
I am embarrassed at the cowardice of those justices concurring in the majority opinion. All but Moreno obviously feared impeachment/recall more than they love the law (which is nothing without justice).
The problem with the original decision, as Justice Corrigan pointed out in her dissent, was that California had already given all the rights it could give to gay and lesbian couples. The rights which they did not enjoy were those granted under federal laws. Because of the Defense of Marriage Act, bestowing the term "marriage" on relationships like mine did nothing to change that. That is the reason that my beloved and I decided not to get married. We became domestic partners to gain specific legal rights, and we would have chosen to marry if it had actually changed anything for us.
The decision of the court is actually quite broad and hardly timid. It reiterates that under California law any distinction on the basis of sexual orientation is subject to strict scrutiny. That makes it equal to racial categories under the federal constitution. It makes it clear that there is a right to state-recognized intimate relationships for same-sex couples. The federal constitution gives nothing like that. California is still miles ahead of most of the rest of the nation.
It is all well and good to say that the court should have overturned it, but courts need reasons to overturn laws. Prior case law has suggested that that a revision alters that basic structure of government. This just does not rise to that level. The attorney general admitted that in his brief.
If you all wish to be outraged, maybe direct it at Washington. The rights I do not enjoy are those blocked by the Defense of Marriage Act. So far President Obama has shown relatively little interest in changing this or in the related issue of gay service members. Send your letters of protest to the White House.
Oh, I think that the court very knowingly created a situation of instability and inequality, which was inevitable under the mess of the law, with the expectation that the voters will resolve it.
you can almost hear them say "If you idiots had run a proper election this would have been moot, dammit!"
Speaking as a lawyer, but one who hasn't read the Cal. S.Ct. opinion, I think this analysis gets it right:
As a technical matter, the central issue in Strauss was whether the sentence "Only marriage between a man and a woman is valid or recognized in California" was a constitutional amendment or a constitutional revision. In practice, the political question presented by Strauss was whether the California Supreme Court would strike down a popularly enacted constitutional change and restore its earlier judicial decision supporting same-sex marriage.
By upholding Proposition 8, the California Court effectively tossed the ball back to the voters of the Golden State. The Court thereby ensured the long-term outcome of gay marriage: Given the strong support of younger voters, gay marriage will be approved in California by ballot initiative, perhaps quite soon. Moreover, when gay marriage is approved by popular vote, conservatives will not be able to blame a "judicial activist" court for their loss.
Gay marriage will stand on sounder footing when it is popularly enacted rather than judicially imposed. One can imagine the wedge issue Strauss could have handed the Republican Party had the Court overturned the decision of the California electorate. Instead, opponents of same sex marriage must fight it out again at the ballot box.
Supporters of gay marriage should recognize that we are reaching the limits of judicial leadership on this issue. While Brown v. Board enunciated important values, real change came through the politically enacted Civil Rights Act of 1964. Similarly, repeal of discriminatory measures like the Defense of Marriage Act will take legislative action. Don't Ask Don't Tell must also be retired by political, rather than judicial, means. The Court ruled on a very narrow issue, not a broad one, and it may well have done so very wisely.
Am I the only lawyer in this corner of the blogosphere who understands the principle that the law is nothing without justice?
Maybe I'm the kind who actually reads 135+ page court opinions before blasting off as I did.
Oh well, I have no clue why I still am surprised at the Uncle Tomism of some folk. Mimi has a keener common sense understanding of the words "equal protection" and "due process" than most lawyers who are content to go off half-cocked forsaking the forest of justice for the trees of pedantry.
IT, you don't trust Olsen? What about Boies? I didn't know anything about this matter at all. I hope it's not the case that their purpose is to close the federal door.
Ann, thanks for the links. I wish all these comments were attached to the post on the lawsuit by Boies and Olsen.
It seems to me that gay marriage will eventually end up in the Supreme Court, so the question is the timing of the lawsuit by Olsen and Boies. Is it a conspiracy? I'm inclined to doubt that, but I understand those who would wish to go state by state, for now, to get the weight of more state laws allowing gay marriage behind them when the suit gets to the federal level.
If you want stickers of the logo go here
ReplyDeleteBut check this out at Episcopal Café.
ReplyDelete"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."
Lapin, it could have been worse, surely.
ReplyDeleteDoes anyone else notice that there is now a situation in which the question is no longer separate, but equal, but separate, but unequal? Some gay folks are married, but other gay folks can't get married. How is this equal justice under the law? Someone is sure to challenge the unequality in court, don't you think?
I am glad that some of the couples I know who are married will not have the indignity of having them declared null and void (one couple I know was married in San Francisco and that was declared illegal and so married again). You are right it is not equal justice. I could marry again if I so choose, but a gay couple has no choice. That's not fair either. I'm sure people will be busy trying to figure out the best way to reverse the situation.
ReplyDeleteIt seems that all the CA Supremes have said is that same sex couples can't use the word "marriage" -- they can have a wedding and all the rights of a heterosexual couple but the word marriage is reserved due to Prop 8-- I know this is not satisfactory - but I think the court pulled a fast one on the Prop 8 forces.
ReplyDeleteAnn, I'll believe that when it plays out. What about Justice Moreno's dissent? Will gay couples really have equal protection under the law if their unions are called something else?
ReplyDeleteSome gay folks are married, but other gay folks can't get married. How is this equal justice under the law?Well taken point. Amen.
ReplyDeleteI think Margaret's suggestion was to just call it, uh, Holy Matrimony. How about that for a fast one?
Same sex couple can have a wedding but not be married -- how dumb is that? Right- we know separate is not equal.
ReplyDeleteI think the CA Supreme Court copped out by its narrow interpretation of the method of amending the constitution. They also have opened another can of worms: a majority of the people of CA can revoke the rights of any group of people anytime they want by amending the Constitution. It makes a mockery of equal protection under the law.
ReplyDeleteI'd say the situation is extremely unstable. Unstable situations make for great opportunities. Now is not the time to give up.
Love to all ....
This decision can't stand. It's not workable.
ReplyDeleteElizabeth, you're right. It's not time to give up.
Well, I ain't no lawyer and I don't play one on the Blogs, but it seems to me that the Supreme Court Decision actually makes the case to overturn their decision AND Prop8.
ReplyDeleteIf it walks like a marriage and talks like a marriage and acts like a marriage . . . . .it's not a 'duck'.
Thank you, Mimi. You would make one hell of a fine activist judge. It does require a keen sense of justice. Here is a breakdown of the philosophical bent of the CaliJudges, all but one appointed by Republican Governors.
ReplyDeleteVoting to UPHOLD Proposition 8:
• Chief Justice Ronald M. George (appointed by Gov. Pete Wilson)
• Justice Joyce L. Kennard (appointed by Gov. George Deukmejian)
• Associate Justice Marvin R. Baxter (appointed by Gov. George Deukmejian)
• Associate Justice Kathryn Werdegar (appointed by Gov. Pete Wilson)
• Associate Justice Ming Chin (appointed by Gov. Pete Wilson)
• Associate Justice Carol Corrigan (appointed by Gov. Arnold Schwarzenegger)
Voting to STRIKE DOWN Prosition 8:
• Justice Carlos R. Moreno (appointed by Gov. Grey Davis)
I am embarrassed at the cowardice of those justices concurring in the majority opinion. All but Moreno obviously feared impeachment/recall more than they love the law (which is nothing without justice).
Thanks for letting me vent, once again.
Elizabeth K., yes.
ReplyDeleteCrapaud, thank YOU for your information on the judges. Vent any time, my Loosiana Man.
I am going to be a bit contrary here...
ReplyDeleteThe problem with the original decision, as Justice Corrigan pointed out in her dissent, was that California had already given all the rights it could give to gay and lesbian couples. The rights which they did not enjoy were those granted under federal laws. Because of the Defense of Marriage Act, bestowing the term "marriage" on relationships like mine did nothing to change that. That is the reason that my beloved and I decided not to get married. We became domestic partners to gain specific legal rights, and we would have chosen to marry if it had actually changed anything for us.
The decision of the court is actually quite broad and hardly timid. It reiterates that under California law any distinction on the basis of sexual orientation is subject to strict scrutiny. That makes it equal to racial categories under the federal constitution. It makes it clear that there is a right to state-recognized intimate relationships for same-sex couples. The federal constitution gives nothing like that. California is still miles ahead of most of the rest of the nation.
It is all well and good to say that the court should have overturned it, but courts need reasons to overturn laws. Prior case law has suggested that that a revision alters that basic structure of government. This just does not rise to that level. The attorney general admitted that in his brief.
If you all wish to be outraged, maybe direct it at Washington. The rights I do not enjoy are those blocked by the Defense of Marriage Act. So far President Obama has shown relatively little interest in changing this or in the related issue of gay service members. Send your letters of protest to the White House.
Oh, I think that the court very knowingly created a situation of instability and inequality, which was inevitable under the mess of the law, with the expectation that the voters will resolve it.
ReplyDeleteyou can almost hear them say "If you idiots had run a proper election this would have been moot, dammit!"
Official garb, buttons,, stickers here.
I'm with IT!
ReplyDeleteMe, too! It's really the only logical conclusion.
ReplyDeleteSpeaking as a lawyer, but one who hasn't read the Cal. S.Ct. opinion, I think this analysis gets it right:
ReplyDeleteAs a technical matter, the central issue in Strauss was whether the sentence "Only marriage between a man and a woman is valid or recognized in California" was a constitutional amendment or a constitutional revision. In practice, the political question presented by Strauss was whether the California Supreme Court would strike down a popularly enacted constitutional change and restore its earlier judicial decision supporting same-sex marriage.
By upholding Proposition 8, the California Court effectively tossed the ball back to the voters of the Golden State. The Court thereby ensured the long-term outcome of gay marriage: Given the strong support of younger voters, gay marriage will be approved in California by ballot initiative, perhaps quite soon. Moreover, when gay marriage is approved by popular vote, conservatives will not be able to blame a "judicial activist" court for their loss.
Gay marriage will stand on sounder footing when it is popularly enacted rather than judicially imposed. One can imagine the wedge issue Strauss could have handed the Republican Party had the Court overturned the decision of the California electorate. Instead, opponents of same sex marriage must fight it out again at the ballot box.
Supporters of gay marriage should recognize that we are reaching the limits of judicial leadership on this issue. While Brown v. Board enunciated important values, real change came through the politically enacted Civil Rights Act of 1964. Similarly, repeal of discriminatory measures like the Defense of Marriage Act will take legislative action. Don't Ask Don't Tell must also be retired by political, rather than judicial, means. The Court ruled on a very narrow issue, not a broad one, and it may well have done so very wisely.
Thanks, John and Rmj for your elucidations. I'm beginning to take a more sanguine view of the outcome now.
ReplyDeleteI think Rmj is probably right about this.
ReplyDeleteAm I the only lawyer in this corner of the blogosphere who understands the principle that the law is nothing without justice?
ReplyDeleteMaybe I'm the kind who actually reads 135+ page court opinions before blasting off as I did.
Oh well, I have no clue why I still am surprised at the Uncle Tomism of some folk. Mimi has a keener common sense understanding of the words "equal protection" and "due process" than most lawyers who are content to go off half-cocked forsaking the forest of justice for the trees of pedantry.
Now I've really vented, haven't I?
Crapaud, I've also thought that the law had a bit to do with simple common sense, but I could be very wrong about that.
ReplyDeleteWhy marriage? Well for one thing, the states that will recognize it (I know most won't, but some will explicitly recognize my marriage)
ReplyDeleteMy marriage also exists in many countries.
Civil unions, not so much.
Leaving us 18,000 married ensures a fundamental instability.
That said, I don't trust Ted Olson and the new federal suit at all. I wonder if they are using it cynically to slam the federal door.
IT
IT, you don't trust Olsen? What about Boies? I didn't know anything about this matter at all. I hope it's not the case that their purpose is to close the federal door.
ReplyDeletehere is what was on Rachel Maddow last night about this. Also see post on Friends of Jake
ReplyDeleteAnn, thanks for the links. I wish all these comments were attached to the post on the lawsuit by Boies and Olsen.
ReplyDeleteIt seems to me that gay marriage will eventually end up in the Supreme Court, so the question is the timing of the lawsuit by Olsen and Boies. Is it a conspiracy? I'm inclined to doubt that, but I understand those who would wish to go state by state, for now, to get the weight of more state laws allowing gay marriage behind them when the suit gets to the federal level.
Mimi- you can add a link to that post to this story - and note that the discussion is here.
ReplyDeleteThanks, Ann. I did that.
ReplyDelete