Patterico's Pontifications

5/15/2008

California Supreme Court Holds That Gays Have A [State] Constitutional Right To Marry

Filed under: Civil Liberties,Constitutional Law,Court Decisions,Law — Justin Levine @ 11:33 am



[posted by Justin Levine]

It is a lengthy [PDF] decision. Vote was 4 to 3.

The majority decision goes well beyond the narrow question of gay marriage. It also holds for the first time that sexual orientation is a “suspect classification” under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to “strict scrutiny” by the court – essentially treating it the same way as laws that discriminate against racial minorities. [This part of the ruling can be found in Section V-B of the decision PDF, starting on pg. 95.]

Since California has already passed numerous legislative statutes protecting homosexuals in terms of housing, workplace, etc., this broad holding probably won’t change the practical legal landscape in the state all that much. However, this ruling indicates that even if those legislative statutes were somehow repealed, the anti-discrimination rights of homosexuals would still be retained constitutionally.

As with other court decisions on this issue (both in California and many other states), the dissenting opinions make for interesting reading and are sure to inspire another round of debate over the broader issue of judicial activism (apart from the specific political debate over gay marriage).

Updated note: The City of San Francisco performed marriage ceremonies for roughly 4,000 gay/lesbian couples, before being enjoined by the courts. The state Supreme Court originally invalidated those marriages without ruling on the constitutionality of gay marriage itself. [It merely held that San Fransisco had no power to unilaterally offer gay marriage ceremonies before the courts had ruled on the question.] As Justice Kennard’s concurring opinion underscores [starting on pg. 122 of the PDF decision], those 4,000+ marriages do not suddenly become valid with this decision. Those couples will have to go through the ceremony process again, presumably resulting in a double-dip windfall for the state in marriage license fees….

Second updated note: While I have no problems with the result of this decision as a matter of social policy, it remains problematic in terms of the judicial activism debate. In addition to the dissenting opinions, you might want to pay particular attention to footnote # 52 in the majority’s decision (starting on pg. 79 of the PDF document) which underscores the problem. Ironically, the majority doesn’t seem to grasp the obvious contradictions and tensions in their reasoning that footnote 52 presents. Merely citing past court decisions is not a valid substitute for reasoning in this instance, nor is it adequate to explain the blatant double standards in social policy (beyond the personal whims and political preferences of the Justices).

[Justin Levine]

UPDATE BY PATTERICO: Comments are now enabled. I don’t know why they were turned off before.

146 Responses to “California Supreme Court Holds That Gays Have A [State] Constitutional Right To Marry”

  1. Gay marriage seems like good social policy to me, but I’m dismayed by the judicial intervention of this sort. I think it’s a mistake. Ah, well.

    It’ll be interesting to see how this plays out.

    –JRM

    JRM (355c21)

  2. The way-too-long majority opinion is an end-run around the state’s constitution.

    This is well-explained in the dissenting opinions of Justice Corrigan and of Justice Baxter (with Justice Chin concurring). So I’d recommend reading their dissents first, and then wading through the meanderings of Chief Justice Kennard.

    The decision was supported by a very narrow majority of 4-3. The whole court, however, agreed that the man-woman criterion of marriage is not unjust discrimination on the basis of sex. The majority opinion claimed to find the discrimination to be based on sexual orientation even though the law is neutral and there is no test for gayness nor for straightness.

    Gay identity politics has thus creeped into the jurisprudence of the state’s highest court. Yet it was identity politics (of the racist kind) that the Supreme Court of California had rejected, explicitly, when it ruled against the anti-miscegenation laws that had pressed racism, and a non-marriage purpose, into marriage recognition.

    Also, in its hundreds of pages of excuses, the majority opinon (seemingly written by committee rather than solely by the Chief Justice) simply elides the actual argument in favor of the man-woman criterion of marriage recognition.

    The constitutional issue had been reduced to terminology, unfortunately, but even on that score the majority skipped past the core, or the nature, of the social institution of marriage — the institution that merits the name “marriage” — which is 1) integration of the sexes, 2) contingency for responsible procreation, and 3) these combined as a coherent whole (i.e. as a social institution recognized but not owned nor created by government).

    It is never a good idea for a branch of government to claim ownership of a foundational social institution of civil society. The majority opinion equated Domestic Partnership with Marriage even though the former is an entirely state-concocted relationship status while the latter is an element of civil society that pre-exists government authority — indeed it pre-exists the state’s constitution.

    The rush to “marry” thousands of same-sex twosomes will be followed by the false claim that the proposed marriage amendment would “take away” the right to marry. That is false because there is no such constitutional right to take away.

    What this majority opinion demonstrates is that the Domestic Partnership status provided the court’s bias in favor of the supremacy of the one-sex-short relationship type. By that view, all unons of husband and wife must be treated as if they lacked either husband or wife.

    What of the marriage presumption of paternity, for example? No such presumption can apply to a one-sex-short arrangement.

    Must the segregation of motherhood from fatherhood now be the governing context for how society “assigns” parental status to husbands and wives?

    Whatever presumption of parentage (or de facto doctrines) that might be concocted to fit the one-sex-short arrangement, it would not be based on conjugal relations — it would neither be based on whatever two men or two women might do together sexually. So this would render “marriage” a presumptively nonsexual type of relationship.

    In that case, the lines drawn around the core of marriage would be obliterated. Why should some related people be permitted to marry but some are deemed too-closely related, if the relationship type is no longer moored to the sexual union of man and woman and the contingency for responsible procreation?

    And if it is about official recognition of personal choices about all tolerated family forms, then, the preferential status of marriage will also be obliterated. If something does not fit the one-sex-short type of relationship, this majority opinion seems to say, then, it cannot be considered essential to marital status. As such, the basis for rejecting plural marriage will be lost.

    Plural marriage provides for a series of man-woman unions. Each is individually consent to by the man and the woman. We would not now presume these unions to be sexual, to be both-sexed, nor to be procreative. Instead, these are merely a way to form families. And who can say that polygamists are not an insular and oppressed minority in this society?

    I favor the constitutional amendment that will affirm the nature, the core, of marriage. The man-woman criterion stands for sex integration; the presumption of paternity stands for responsible procreation; and marital status, as a preferential status, and not merely a tolerated or protective status, stnads for recognition of the social institution — a coherent whole rather a bunch of bits and pieces owned by the government.

    That amendment also happens to provide the basis for drawing lines that prohibit closely-related man-woman couples, and that prohibit plural marriage. In fact, an affirmation of the nature of marriage will strengthen the acknowledgement of the significance of integrating the sexes in society and encouraging the social esteem for the set of principles of responsible procreation.

    As such the amendment bolsters laws against incestuous marriages and against polygamous marriages.

    This majority opinion, however, does the opposite.

    Chairm (7b607c)

  3. JRM: it’s really not judicial intervention as far as I can see.

    Granted that I haven’t finished reading the opinion (at 172 pages it’s a time consuming monster which is unwelcome at the moment). But from what I’ve read, one of the key arguments seems to be: the California constitution prohibits discriminating on the basis of sexual orientation.

    If that’s so, that’s in the constitution as a result of a constitutional amendment approved by the voters.

    So the voters have said two contradictory things: “don’t discriminate based on sexual orientation” and “recognize straight marriages but not gay marriages.”

    Deciding what to do when the voters (or the legislature) issue contradictory commands is entirely the job of the courts, and “constitution trumps statute” is one of the normal rules for such decision-making.

    aphrael (db0b5a)

  4. The majority opinion claimed to find the discrimination to be based on sexual orientation even though the law is neutral and there is no test for gayness nor for straightness.

    That’s really the gist of the dispute, isn’t it? Does a law which allows mixed-sex couples to marry but doesn’t allow same-sex couples to marry discriminate between individuals on the basis of sexual orientation?

    I’d argue that it does every bit as much as a law which allows same-race couples to marry but doesn’t allow mixed-race couples to marry discriminates between individuals on the basis of race.

    If you accept that premise, the result in the decision follows as naturally as night follows day. If you don’t accept that premise, the decision is probably incomprehnsible.

    aphrael (db0b5a)

  5. There is one human race and its nature is two-sexed.

    The nature of human generativity is both-sexed and the nature of human community, also, both-sexed.

    From this marriage arises.

    The racist analogy does not survive scrutiny.

    Chairm (7b607c)

  6. “The racist analogy does not survive scrutiny.”

    But what if sexual orientation discrimination is a suspect classification which requires strict scrutiny? That seems to about do it.

    stef (8a983a)

  7. The gays would have a easier time getting civil unions approved if they would just drop their demand to call it a “marriage”, but they won’t. It makes my head spin to thing of all of the new words, names and phrases that political correctness has demanded of the American public. Eskimo, Policeman, Peking and Retarded all had to be redefined and changed to other words. So why can’t the gays and liberals leave Sacred Marriage alone and get their own word? Why have they so openly adopted the concept of “Newspeak” in their political agenda but they just can’t have any other word than marriage?

    tyree (38e5ba)

  8. “The gays would have a easier time getting civil unions approved if they would just drop their demand to call it a “marriage”, but they won’t.”

    Its not just the gays that demand it.

    “Eskimo, Policeman, Peking and Retarded all had to be redefined and changed to other words.”

    So was gay. And Queer.

    stef (5e2e3a)

  9. I would like to make two points:

    1st off regarding legal definitions, “…holds for the first time that sexual orientation is a “suspect classification” under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to “strict scrutiny” by the court…”, how is that “sexual orientation” is the term of art for homosexual? The issue before the court is the right of people of homosexual orientation to marriage. Since “sexual orientation” is a much much broader category than just homosexual orientation, this Supreme Court ruling has truly opened Pandora’s Box!

    The second point I would like to make is about gun rights. Does anyone harbor any illusion the court would be as generous supporting the right of gun ownership as they have just supported the right to gay marriage? True the California constitution has no specific language enumerating a right to ‘keep and bear arms’. But the constitution does have a provision protecting non-enumerated rights! The tension between the California Supreme Courts ruling on gay marriage and the U.S. Supreme Courts expected ruling on gun rights next month, will make for a very interesting election season.

    Brad (14e8b6)

  10. Be careful what you wish for. The California voters will likely have their say on the matter come November.

    aunursa (9e17b1)

  11. When California last had an initiative on the subject, the one that this decision declares unconstitutional, nearly 2/3rds of Californians voted against same-sex marriage. Does anyone really believe that a constitutional amendment to reverse this tortured decision will not pass?

    If it appears on the November ballot, as others have observed, it puts California into play again and the Democrats will need to spend more funds to offset a shift in turnout toward McCain.

    SPQR (26be8b)

  12. I always believed that at some time society would embrace same-sex marriages

    but when judges decide to grant a non-existent right and dress it up in risible reasoning that amounts to no more than “I want it and I have the power to make it happen, so you all can go pound sand”, then I get a little onery.

    One doesn’t tell 61% of the voters of CA to go eff off

    If nothing else, this decision has convinced me to vote for amending the state Constitution to define marriage as between one man and one woman.

    Darleen (187edc)

  13. Judge Baxter’s dissent is a searing indictment of the majorities distrust of democracy and rule by judicial fiat.The majority opinion is yet one more example of “liberal fascism” in action. There is no doubt in my mind that this decision will be overturned in November by Constitutional Amendment. The majority may be in for a rough political ride. Does anybody remember the turmoil of the Rose Byrd Court?

    Ron Crawford (56a0a8)

  14. The difference between a “black” man and a “white” man is insignificant. It’s a level of melanin and most people of either “race” (which is really a biological myth) are not “pure”.

    Yet, the vast majority of people are either XX or XY. Men and women are not interchangeable.

    To equate a biological myth like “race” with a biological reality like sex, would be laughable if so many people weren’t so politically invested in proving such triteness.

    Darleen (187edc)

  15. Well said, Darleen.

    SPQR (26be8b)

  16. Chief Justice Kennard has just ensured that CA will be in-play November; and, that he will be the 2nd CJ re-called by the voters.

    Another Drew (8018ee)

  17. “So was gay, and queer”

    Exactly, Stef, so why can’t gays make up their own word this time?

    tyree (38e5ba)

  18. “One doesn’t tell 61% of the voters of CA to go eff off”

    – Darleen

    Uhh… yeah. One does. When one is a judge and one believes telling 61% of the voters of CA to eff off is the proper constitutional course of action, that’s exactly what one does.

    It’s fairly safe to assume that the people of California (or any other state, for that matter) don’t know shit about the Constitution. Thus, they don’t get to dictate its interpretation. That’s the whole point of an independent judiciary.

    Leviticus (62f019)

  19. “the Constitution” = their Constitution

    My bad.

    Leviticus (62f019)

  20. stef, a new suspect classification or not, the man-woman criterion does not discriminate on the basis of sexual orientation.

    But what if sexual orientation discrimination is a suspect classification which requires strict scrutiny? That seems to about do it.

    Darleen, your closing sentence is well-worth reposting:

    To equate a biological myth like “race” with a biological reality like sex, would be laughable if so many people weren’t so politically invested in proving such triteness.

    The criminalization of “inter-racial marriage” was based on looking at society through a racist identity filter. The sexes were selectively segregated, based on such a filter. This went beyond marriage — a white man could not legally cohabitate, or even “date”, a non-white woman, for example. In addition to the sex-segregation, the anti-miscegenation system directly undermined the principles of responsible procreation. A “mixed-race” couple could not legitimize their children through marriage; the presumption of paternity was inapplicable where a white person had children with a non-white person. Their offspring were set into a caste system that excluded them from the “White Race”.

    But today, to choose to form a nonmarital arrangement (gay or not) is a liberty exercised, not a right denied, much less a felony as it was with “inter-racial” marriages — or as it is today with polygamous families.

    Yet what is the nature or the core of “gay marriage”? And what are its definitive legal requirements, if any?

    To give a special status to a relationship type, society needs to identify the core around which boundaries are drawn.

    SSMers attack the core of marriage and reject the obvioius legal requirements that identify the core: they reject the sex-integration that comes with the man-woman criterion; and they are very dismissive of the marriage presumption of paternity which begins with the principle that each of us, as part of a procreative duo, is directly responsible for the children we bring into this word, barring dire circumstances or tragedy. These aspects of marriage are central to the high esteem and preferential status that the social institution is accorded. Combined they form the core of marriage. For example, society prefers the union of fatherhood and motherhood and so we vigorously enforce the presumption of paternity — even in unwed scenarios.

    The majority opinion in this case reminds me of a basketball player who plants one foot and pivots in circles. The four justices began with their conclusions and circled around it: 1) the man-woman criterion classifies people based on sexual orientation and 2) the one-sex-short arrangement is a subset of marriage and 3) a new suspect classification is due homosexuality. But on all 3 points they are in error. The majority opinion is a political statement best presented to the electorate by someone seeking approval via votes to win public office.

    And that political statement basically says that the merger of non-marriage with marriage is more important than protecting, and strengthening, the most pro-child social institution that integrates motherhood and fatherhood. It says that identity politics rises to the level of importance that it can justify the use of marriage for a non-marriage purpose that cuts right through the heart of the social institution itself.

    That stands in contrast to the California Supreme Court’s rejection of identity politics when it was pressed into marriage for the non-marriage purpose of entrenching a caste system based on racial identity politics.

    Chairm (7b607c)

  21. Darleen: what should a court do when the voters give it two contradictory commands: “don’t discriminate against gay people” and “treat gay people differently with respect to marriage?”

    The normal rule is that the constitutional command takes precedence.

    Would it be better to throw that out the window?

    aphrael (db0b5a)

  22. i applaud this decision. i’m laughing at the various bigots and crypto-bigots waxing wroth. gay marriage doesn’t threaten me. if it threatens you, maybe you’re too easily threatened.

    assistant devil's advocate (e63173)

  23. SPQR: the amendment was going to appear on the ballot in any avent.

    I believe my side has a chance of defeating it. It helps considerably that the Governor has declared himself to be on our side.

    aphrael (db0b5a)

  24. Chairm: whether the law discriminates on the basis of sexual orientation is the essence of the dispute.

    Does a law that prohibits a gay man from marrying the love of his life, because that love is a man – while still allowing his best friend to marry the love of *his* life, because that love is a woman – discriminate on the basis of sexual orientation?

    I think the assertion that it doesn’t is absurd on its face. I suspect that you think the assertion that it does is absurd on its face.

    That’s a pretty good sign that (a) this is a subject on which reasonable people can differ, and (b) this difference goes to the core of the dispute about gay marriage as a policy matter.

    aphrael (db0b5a)

  25. Nope, Leviticus, you have got it backwards. The constitution provides the framework by which society is self-governed. The People have a government, not the other way around.

    When one is a judge and one believes telling 61% of the voters of CA to eff off is the proper constitutional course of action, that’s exactly what one does.

    But if the four justices in this case believed that this was the “proper constitutinal course of action”, then, they have failed to connect that belief with the constitution they were supposedly interpreting as experts.

    Their failure reveals that they chose to reject the state constitution AND the will of the People as expressed, constitutionally, in a direct vote on a statutory measure.

    They did not perform their basic function, as judges, and so the “effing off” part makes their error all the more egregious.

    Chairm (7b607c)

  26. ADA, typical – just call people who disagree with you bigots. Brilliant. Just eloquence, such logic, such mastery of legal principles …

    Aphrael, those 61% of the electorate are almost all still in California. This decision is going to have a backlash. I would not be surprised if the vote was even greater against same-sex marriage next time.

    SPQR (26be8b)

  27. aphrael, agreed this is a policy matter.

    However, how is it reasonable to claim that the man-woman criterion discriminates on the basis of sexual orientation?

    You mentioned love but there is no legal requirement — no test — for love whether it be drawn from same-sex attraction, gay identity, or some other source.

    Or is there such a requirement in the domestic partnership law that would not apply to the marriage law? Is there some requirement that two men, or two women, partake of specific acts of sexual behaivor? Nope. So it is neither love nor sexual behavior based on love that stands as reason to confuse the one-sexed arrangement with the conjugal relationship.

    The majority opinion is a political statement but it fails to show how a reasonable person can agree with the merger of non-marriage with marriage. Can you?

    That’s a pretty good sign that (a) this is a subject on which reasonable people can differ, and (b) this difference goes to the core of the dispute about gay marriage as a policy matter.

    Chairm (7b607c)

  28. don’t worry spqr, you’re no more likely to engage in gay sex tomorrow than you were yesterday as a result of this ruling. four justices mastered the legal principles for me. chief justice ronald george mastered the principles (somewhat surprising). governor schwarzenegger is on board too. if you feel that this threatens your marriage, maybe you’re not being 100% of the loving spouse that you could be, or maybe you’re married to senator larry craig.

    assistant devil's advocate (e63173)

  29. ADA, you really need to grow up. Your discussion is just juvenile. I’m not bigoted against gays, I’m not “threatened” by homosexuality. I’m not even against gay marriage. I’m against judicial destruction of our democracy.

    SPQR (26be8b)

  30. I hope that the trollish comments will not derail the substantive discussion of the high court’s ruling.

    There is an actual disagreement about the nature, or the core, of the relatinship type that is recognized by society, through its government agents, via the special status of marriage, at law.

    No need to get sidetracked by non-disagreement based on name-calling and personalized attacks, right?

    Chairm (7b607c)

  31. Chairm: we’re conflating two different discussions. One of them is, as a policy matter, is gay marriage good policy? The other is, as a legal matter, does the state constitution require the state to recognize gay marriage?

    The court decision asserts that, as a legal matter, the state is required to recognize gay marriage because failure to do so would discriminate against gay people without being narrowly tailored to meet a compelling state interest. It’s not a political statement at all; it’s a reasoned legal argument.

    There’s could be a reasonable legal argument on the other side — for one thing, you could argue that there is a compelling state interest in ensuring that only opposite-sex marriages are recognized, and then enumerate the things which make it a compelling state interest.

    But I don’t see anything in your argument which attempts to do that. Instead, you seem to be arguing that, by definition, a gay couple cannot be ‘married’, and that because of that, it’s impossible for there to be discrimination against gay couples in a rule which doesn’t allow them to marry.

    ———-

    In answer to your question “how is it reasonable to claim that the man-woman criterion discriminates on the basis of sexual orientation?”, I refer you to pp. 51-52 of the court’s decision, which cited Perez‘s argument that the substance of the constitutional right to marry is the freedom “to join in marriage with the person of one’s choice.”

    Prior to this ruling, a straight person had that freedom and a gay person did not. That seems to me to be clearly discriminating based on sexual orientation; it treats people in identical situations differently based on their sexual orientation.

    aphrael (db0b5a)

  32. SPQR: ISTM that this decision is consistent with democracy: the voters gave two conflicting commands, and the court adjudicated the conflict based on the normal rules for such adjudication.

    What would you have had the court do?

    aphrael (db0b5a)

  33. judicial destruction of our democracy.

    priceless. if our democracy could survive brown v. board of education, it can most assuredly survive this. the sun will continue to rise in the east, and hens will continue to lay. my democracy is intact.

    assistant devil's advocate (e63173)

  34. Aphrael, the reference to Perez was a circular argument. So far as I’ve gotten, the majority opinion really is poorly written. Reminds me of the atrociously written Lawrence v. Texas.

    SPQR (26be8b)

  35. What would I have them do, aphrael? Not fake a conflict where one did not exist.

    SPQR (26be8b)

  36. SPQR: granted that i’m not familiar with the historic interpretation of California’s equal protection clause; can you please explain to me how the court’s recitation of it at pp95-101 is inconsistent with existing California precedent?

    aphrael (db0b5a)

  37. Does a law that prohibits a gay man from marrying the love of his life, because that love is a man – while still allowing his best friend to marry the love of *his* life, because that love is a woman – discriminate on the basis of sexual orientation?

    I’m sure you’ll be able to cut-n-paste the relevant Family Law statute that obligates a finding of “love” before marriage license is issued.

    The law says one man, one woman are allowed to contract for marriage. It says nothing about “love”. As long as both people volunteer to enter into it, they can even not even have laid eyes upon each other before the marriage (and yes, I know at least a couple of people who were in arraigned marriages).

    This isn’t about gay marriage, it is about same-sex marriage.

    The law sets all sorts of parameters for who/who cannot enter into contracts. The marriage contract is little different … age, number, family relation … all are limits regardless of “love”. If love were the only criteria or most important than the state has no compelling interest in stopping two adults from marrying even if they are siblings, or parent/adult offspring, or one man and three women. Indeed, while same-sex marriage has absolutely no historical precedent, polygamy most certainly does. Aren’t we discriminating by denying state-sanctioned marriage to people who love each other just because we arbitrarily limit it to 2?

    Darleen (187edc)

  38. I hereby DEMAND that California stop their ludicrous age-based discrimination against younger drivers and allow my sister’s infant to drive.

    Anyone who disagrees with me is a bigot.

    Foxfier (74f1c8)

  39. The law sets all sorts of parameters for who/who cannot enter into contracts. The marriage contract is little different … age, number, family relation … all are limits regardless of “love”. If love were the only criteria or most important than the state has no compelling interest in stopping two adults from marrying even if they are siblings, or parent/adult offspring, or one man and three women.

    That reminds me.

    I demand the right to be married to my brother, despite the fact that I am currently married to Elfie, the most awesome geek on the planet–after all, any denial is discrimination. If I love him, isn’t it wrong to keep us apart?

    Foxfier (74f1c8)

  40. Darleen: what the statute says is more or less irrelevant to the question of what the constitution says. :)

    According to the decision, California courts have for some time an *individual constitutional right to marry* under California’s constitution. That right includes the right to marry the person of one’s choice.

    If that is true, then of course it’s discriminating based on sexual orientation to say people of one sexual orientation can marry the person of their choice, while people of another sexual orientation may not.

    aphrael (db0b5a)

  41. Foxfier: the question is whether the discrimination is based upon a classification which is subject to strict scrutiny, and if so, whether the discrimination is narrowly tailored to meet a compelling state interest.

    What’s the argument that the rule that prevents you from marrying your brother while you are still married is based upon a classification which is subject to strict scrutiny?

    aphrael (db0b5a)

  42. foxfier, have you been cheating on elfie with your brother? if you and your brother want to get nasty in private, it’s no business of mine. incest isn’t any more contagious than homosexuality.

    lol@darleen’s “arraigned marriages”. i did a number of divorces back in the day, and some of those marriages must have been like arraignments. i’m happy to have walked a number of my clients.

    assistant devil's advocate (e63173)

  43. California courts have for some time an *individual constitutional right to marry* under California’s constitution

    But does it say “right to marry who I love”?

    No. A gay man has the same right as a straight man to marry a woman.

    No discrimination there.

    If you don’t like the way the contract is set up, persuade your neighbors to join with you to change it legislatively.

    Otherwise, if one judge can do a coup YOU agree with, another judge can do a coup you don’t agree with.

    Darleen (187edc)

  44. ada

    why the laughter? One couple was from Kuwaitt and the woman (I met her since our kids were in band together) didn’t “love” her husband. The marriage was expected of her and she did as her culture demanded … married for a long time, five kids. It only ended because he was much older and died.

    Stop being a putz.

    Darleen (187edc)

  45. Darleen: the court cited sixtyish year old precedent for the notion that the state’s individual marriage right includes “the right to marry the person of one’s choice.”

    SPQR finds the reasoning circular; I don’t. I think it’s fairly clear that a gay man would choose to marry another gay man, if given the freedom to choose. If the individual marriage right includes the right to marry the person of his choice, how is it *not* discriminating to deny him that right?

    And if it is discriminating, what (aside from sexual orientation) would you argue the discrimination is based on?

    aphrael (db0b5a)

  46. why the laughter?

    because you said “arraigned” instead of “arranged”. imagine it’s your wedding day, and the officiant says “i’m gonna read the charging document to you, ask if you understand it and ask for your plea.” so many heterosexual marriages are like that, it seems unfair to deny to gay people the same opportunity for big trouble.

    as you can probably tell, i have never been married myself.

    assistant devil's advocate (e63173)

  47. The thing to do is to remove state-licensed marriages, and replace them with state civil unions — everyone gets them, and current marriages and civil unions are converted to them.

    If you want a marriage in addition to your state civil union, go to your church (your church sets its own requirements for marriage, and your church decides if they want to recognize your previous marriage that’s been converted.) If you want no marriage, you’ve completed the process. If you want marriage without state civil union [shrug], fine, that’s a private matter that the state doesn’t recognize or care about, no tax, no medical, no property, … there are no government recognition to marriage without state civil union. (“… no respecting an establishment of religion …”)

    So many people so eager to tell others how to, and not to, live.

    htom (412a17)

  48. the right to marry the person of one’s choice.”

    So you have no problem with sibling marriage? How about polygamy? Isn’t that choice, too?

    Come on, you can slice it five ways from Sunday and it still comes out that sex is NOT race and judicial fiat that makes a radical redefinition of a long-standing, socially beneficial institution is more than troubling. It is a dishonest ruling and taints the integrity of the judiciary.

    These judges are little different in action than mullahs.

    Darleen (187edc)

  49. aphrael, I have pointed to the legal requirements that show that marriage is both-sexed.

    One can’t just start by the bald assertion that the one-sexed arrangment (you might focus on gays but the category is much larger than that) is a subset of marriage. You start with what marriage actually is. Then you look at the boundaries drawn around its core — its essentials — and determine social policy priorities.

    These justices failed to connect their assertions with the constitution they were supposed interpreting. So they skipped straight to a policy reform and made a political argument, not a constitutional analysis, to explain their preferred outcome.

    Sure, they dressed-up their predrawn conclusion, but that did not fool the dissenting justice who was both against their ruling AND in favor of merging SSM with marriage.

    For an example of the core of marriage consider the meaning of consent. Couples are required to consent to the marriage presumption of paternity; it is enforced very rigorously in our legal system. Indeed it is one of the strongest laws in our customs, traditions, and jurisprudence. As a legal presumption it is rebuttable on a case-by-case basis. However, there is nothing to rebut in all arrangements that are female-only or male-onlyh. The presumption is inapplicable to “gay marriage”. That presumption, however, makes of the conjugal relationship a sexualized relationship type. It also makes it a pro-child relationship type in that it unites fatherhood and motherhood. There is nothing comparable with the relationship type described as “gay marriage”.

    Or maybe there is and you can point to it?

    See, if you cannot point to such a thing, then, the claim that the man-woman criterion is a form of unconstitutional discrimination based on sexual orientation simply fails.

    As a point of reference, note that the Goodridge plurality opinion failed to use sexual orientation as a suspect classification — the court was unanimous in that respect; and that court produced a 6-1 majority against the claim of unjust sex-based classification. The plaintiffs in this California case made both sex-based and sexual orientation claims — which contradict one another — and the justices chose one, at random I believe, and built a castle out of sand upon it. They did so because it was politically expedient — there is a constituency based on gay identity politics. But as I said earlier, this was merely to defend their predrawn conclusion.

    Prior to this ruling, a straight person had that freedom and a gay person did not.

    This is demonstratably false. There is no prohibition based on gayness. You are confusing sexual orientation with the sex-based claim of discrimination. That is understandable because the majority opinion muddles this very well.

    On the other hand, to choose a nonmarital alternative is a liberty exercised, not a right denied.

    Marriage is a social institution recongized, not owned, by the government. Couples enter the social institution, they do not reinvent it one private choice at-a-time. This institution has public meaning such that couples know what they are getting into or, at least, our marriage culture teaches what threshold these newlyweds have crossed when they walk through the doorway into marriage.

    Marriage integrates the sexes; “gay marriage” is a form of selective sex segregation — voluntary, yes, but it lacks the integration of man and woman.

    Marriage provides the contingency for responsible procreation; “gay marriage” is incapable of providing this — not due to malice or neglect but due to the very nature of the one-sex-short arrangement. Children might be attained via third party procreation, but that’s extramarital procreation even when married couples use it. Adoption is not the core of marriage even if it is a vital and related social institution but it does not bestow marital status — no matter the sexual orientation of the adoptor.

    Marriage is a social institution and, as all foundational social institutions of civil society, it is a coherent whole — a set of principles, practgices, customs, and, sure, of legal requirements. “Gay marriage” is something new that stands outside of the marriage category — the deliberate confusion of terminology notwithstanding.

    So my argument, such as it is, is based on legal requirements and the constitutionality of government recognition of a foundational social institution of civil society. Marriage is not a bunch of bits and pieces to be offered by government on a cafeteria menu. It is the combination of sex integration and responsible procreation. Basically, this is a universal description of the conjugal relationship type across time, cultures, and geography.

    So the right to “gay marriage” is not based on the right to authentic marriage. Rather, it is a newly concocted right, based on government-created domestic partnership status. This is an important distinction. Marital status, at law, is merely a legal shadow of the social institution. Domestic partnership is not the shadow but, as the four justices outlined, it is the actual thing itself.

    Chairm (7b607c)

  50. sorry for the typo… I suppose I’m so used to touchtyping arraign rather than arranged.

    Darleen (187edc)

  51. I have pointed to the legal requirements that show that marriage is both-sexed.

    You have? Where does this reside? In statute or constitution? If constitution, what does it actually say?

    “You start with what marriage actually is.”

    Sure.

    These justices failed to connect their assertions with the constitution they were supposed interpreting

    I’d be willing to give this argument more credence if you could cite either constitutional provisions or case law that demonstrates that their interpretation is wrong. As it is, it seems to me that you’re failing to connect your assertions with law.

    note that the Goodridge plurality opinion failed to use sexual orientation as a suspect classification

    Is there any particular reason why a Massachussets court opinion interpreting Massachussets law is relevant to a California court opinion interpreting California law? ISTM that the two laws are different, and that what is an appropriate interpretation of one set of language is not an appropriate interpretation of another set of language.

    Rather, it is a newly concocted right, based on government-created domestic partnership status.

    It’s true that parts of the court decision can be interpreted as saying that the existence of domestic partnership status as a seperate-but-equal institution is part of why the gay marriage ban is discriminatory. But the majority opinion rejects this interpretation on page 68. “Contrary to the assertions in Justice Baxter’s concurring and dissenting opinion [citation removed], our reference to numerous statutes demonstrating California’s current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment [citation removed] does not suggest that an individual’s entitlement to equal treatment under the law — regardless of his or her sexual orientation — is grounded upon the Legislature’s recent enactment of the Domestic Partner Act or any other legislative measure.”

    Marriage is a social institution recongized, not owned, by the government. Couples enter the social institution, they do not reinvent it one private choice at-a-time. This institution has public meaning such that couples know what they are getting into or, at least, our marriage culture teaches what threshold these newlyweds have crossed when they walk through the doorway into marriage.

    I agree. But (a) we’re back to the policy argument here, and (b) I’ve long argued that the fundamental problem is that some sectors of society have already accepted gay marriage as a social institution, while others haven’t. Certainly in my social circle, gay marriage is *entirely uncontroversial* and is widely assumed to be just like straight marriage.

    Marital status, at law, is merely a legal shadow of the social institution. Domestic partnership is not the shadow but, as the four justices outlined, it is the actual thing itself.

    Here I must disagree. Domestic partnership is also merely a legal shadow of a social institution … as is attested by the many long-term gay couples who consider themselves married and are so considered by their friends and family, even in the absence of state recognition.

    aphrael (db0b5a)

  52. The politics of this is enormous. Obama has a running mate in CA, Gay Marriage!

    Also, you note that the CA Supremes held there is a “fundamental human right” to be married regardless of form, and “no compelling state interest” in regulating marriage.

    Open door to polygamy. And welfare benefits for each wife. And tax benefits for each wife. And yes, child marriage.

    Over/Under to when the first Muslim or FLDS polygamist sues for recognition of his polygamous marriages?

    You can’t have “just” Gay Marriage under this (or realistically, any decision OK’ing it) decision any more than you can be “a little bit pregnant.”

    Good times.

    Jim Rockford (e09923)

  53. Darleen, at 48:
    sibling marriage? How about polygamy? Isn’t that choice, too?

    Sure, those are choices.

    Are they prohibited based upon a classification which is subject to strict scrutiny, whose use is not narrowly tailored to meet a compelling state interest?

    What’s the classification that’s subject to strict scrutiny in those cases?

    ——

    Given a fairly old precedent which says that you have the right to marry the person of your choice, how do you construct an argument which denies gay people the individual right to marry the person of their choice and is consistent with that precedent?

    If you can’t come up with that argument, aren’t you basically arguing that the precedent is wrong and the correct thing for the court to have done was to toss the precedent?

    aphrael (db0b5a)

  54. Jim: the court didn’t say there is no compelling state interest in regulating marriage, just that the discrimination against gay people isn’t narrowly tailored to meet a compelling state interest.

    There’s a mile or two of reasoning between those two statements.

    That said, I don’t like the larger political context: I think this is bad for Obama in swing states.

    aphrael (db0b5a)

  55. aphrael, the point of comparing Goodridge with this California ruling is that in both the majority of justices elided the actual disagreement about the nature, or the core, of marriage. Meanwhile they both began with the same pre-drawn conclusion that “gay marriage” is a subset of marriage.

    It is not really about the particulars of each state’s constitution since neither court’s majority was restrained by its constitution. However, in both there are dissenting opinions that express a favorable view of the merger of SSM with marriage but which also point out both the elisions and the predrawn conclusions of the majority opinion.

    You say it is reasonable to conclude that the man-woman criteiron discriminates on the basis of sexual orientation. But so far you haven’t provided the basis for that assertion.

    But we need to back-up the truck and identify the core of the relationship type you have in mind when you refer to “gay marriage”.

    Presumably there are legal requirements that define its essentials, its core, its nature.

    Obviously, you’d reject the man-woman criterion, but do you reject the significance of sex integration in our society? I mean, if we didn’t have marriage, would we still not need to promote the integration of man and woman?

    If the union of husband and wife must be treated as if it was an all-male or an all-female union, as per the anti-discrimination claim, then, you’d reject the marriage presumption of paternity, — right? Or would you just apply it to husband/wife scenarios because it is okay to discriminate on the basis of sexual orientation?

    On the ther hand, would you reject the significance of integrating fatherhood and motherhood in our society? Must the segregation of motherhood from fatherhood be treated as desirable as integration, now?

    The right to marry is based on what marriage actually is.

    I’ve described the legal requirements that point to the core of the social institution that the government recognizes and does not own. You know of the man-woman criterion. You know of the marriage presumption of paternity. You have acknowledged that the government recognizes the social institution — and that there is a constitutional right to marry. So I’m not sure there is really more I need to outline to show the core of marriage is both-sexed.

    Could you do likewise and point to the core of the social institution of “gay marriage” that the government has not created?

    Chairm (7b607c)

  56. aphrael, if I were to sum-up the disagreement it is that marriage and “gay marriage” are distinguishable and are not one and the same thing.

    In fact, the phrase “gay marriage” is nonsensical. The one-sex-short arrangment (gay or not) is nonmarital.

    Now, just as with that phrase, you’d prefer that society merge different relationship types into one category.

    In policy-making, this is an option but it is not up to the courts to impose it.

    In constitutional interpretation, this is not an option because the there is no fundamental right to “gay marriage”, there is no discrimination on the bases of sex, nor on the basis of sexual orientation.

    The only way to overcome the lack of a constitutional objection to the man-woman criterion of marriage is to merge marriage with non-marriage. And that requires that one begins with the conclusion rather than reach that conclusion via constitutional interpretation.

    Which takes us back to policy-making. If society wishes to merger marriage with non-marriage, or to do away with the preferential status accorded the social institution based on what marriage actually is, then, in a democracy we are free to make such an error. And, based on legislation, such a merger could be corrected later through amendment or repeal.

    That sort of corrective action cannot be left on the table if a court has imposed by diktat that there is no option but to forge such a merger.

    It makes little sense to treat sex-segregation as if it was sex-integration. In fact it looks too much like seperate-but-equal.

    It makes little sense to claim equality in the name of sexual orientation only to deeply discount the significance of the marriage presumption of paternity — and with it the set of principles of responsible procreation.

    Whether it is on policy terms, or in constitutional jurisprudence, the California Supreme Court’s majority opinion amounts to an attack on the nature of the social institution of marriage. As such it is an attack on civil society’s bedrock social institutions which provide the buffer between the heavy hand of the government and the most vulnerable amongst us.

    Chairm (7b607c)

  57. Darleen beat me to the punch. Agreed.

    Apogee (366e8b)

  58. I said:

    These justices failed to connect their assertions with the constitution they were supposed interpreting

    aphrael replied:

    I’d be willing to give this argument more credence if you could cite either constitutional provisions or case law that demonstrates that their interpretation is wrong. As it is, it seems to me that you’re failing to connect your assertions with law.

    I’ve said that there is no sexual orientation test in the marriage law.

    You pointed to the man-woman criterion of marriage, but that’s not a test of sexual orientation even in the way you described it. You described the sex-based discrimination claim. The California court unanimously rejected that claim.

    Maybe one really has to want to see it, to see what is not there.

    On the other hand, the dissenting opinions provided a highly competent and detailed explanation of how the jurisprudence of California’s judiciary does not support the establishment of a new suspect classification based on gayness, nor the imposition of a merger with marriage, again based on gayness.

    I realize there is a lot to take in — almost 200 pages — but before we exchange citations let’s at least clear away the underbrush.

    Chairm (7b607c)

  59. (Cross-posted on PJM)

    I may be a bit of a romantic, but I’m all in favor of celebrating relationships. I generally support gay marriage as a concept.

    The problem, as I see it, is that government has piggybacked all sorts of things onto the one word, “marriage”, and linked them exclusively. Everything from “married filing joint” tax status to “surviving spouse” pension benefits.

    Taking that latter example a bit further, such benefits accrue over time, and are funded over years based on actuarial data that depend on the spouses being one of each gender. In 2005, male life expectancy at birth was 75 years in the US, while for females it was 80 — a substantial difference. So every pension that has been building up over the decades would have to have its funding recalculated if significant numbers of male-male and female-female pairs were to join the pool. Potentially, there could be millions of dollars of additional contributions needed.

    So far as I know, there has not been a serious effort to inventory all of the places where marriage is referenced in our society. While it would make sense to take such an inventory, evaluate whether each item would change if gay marriage were recognized, and produce a transition plan balancing costs and benefits, this decision does none of those things.

    I understand that there is to be a constitutional amendment to ban gay marriage on the November ballot. While I would count myself as a gay marriage supporter, I would also likely vote for the amendment — because I’d rather see a historic slight continued than have chaos by judicial fiat. Unfortunately, it seems, there is not going to be a third option of taking a reasonable, thoughtful approach.

    (As it’s a California issue, I hope that this might fit here.)

    cthulhu (4e7c76)

  60. (Cross-posted on PJM)

    Thinking about this further, I’d go so far as to state that the courts could (and should) allow gay couples to marry just as soon as interested parties under the old regime waive any distinctions or depart this vale.

    The deal-killer for me is that society has initiated a variety of actions under one set of rules, and the judiciary has presumptively declared that the rules should change — without any adjustment of the actions. It’s as if you had previously agreed to sell your kid brother something at 1/10 its real value, and the courts declared that you now had to sell everything you owned at the same discount to anyone who asked.

    It’s not that gay relationships don’t deserve consideration. It’s not that the government shouldn’t recognize two persons’ commitment to each other. It isn’t that there haven’t been injustices and that things couldn’t be better. It’s that a bunch of incompetent jurists have decided to wave a magic wand over a state where millions of transactions make sense under one set of facts and change the facts into something else without regard to consequences.

    I’d support a reasoned program to identify laws or contracts relating to marriage; determine whether they should be linked to civil marriage, mutual pledging, contract law, some other factor, or even exist in the first place; determine a cost/benefit analysis for re-implementing them in the preferred manner; create an implementation plan; and rationalize these laws or contracts to ensure that social goals are furthered. And I would assert that a social goal is the fostering of long-term, caring relationships between individuals capable of creating a household and supporting such dependents as are appropriate.

    But when the alternatives at hand are judicial interference to millions of “deals” already in progress or carving the existing inequities into granite, I’m afraid that I’d be voting for permanence.

    (As it’s a California issue, I hope that this might fit here.)

    cthulhu (4e7c76)

  61. foxfier, have you been cheating on Elfie with your brother? if you and your brother want to get nasty in private, it’s no business of mine. incest isn’t any more contagious than homosexuality.

    ADA, please explain why
    1) my sexual relations are relevant
    and
    2) you are willing to discriminate against my right to marry those I love–and I surly do love my brother–but you aren’t willing to discriminate against a homosexual couple?

    Incest is a very widely accepted limit on marriage–which, since you seem ignorant, is the religiously based union of a man and a woman with the assumption that has a chance at children, God Be Willing–which falls FAR short of your assumption that : “loving” someone means “the state should accept my right to f*** their brains out, with all the same support as a man and woman who might raise children;” we can’t even figure out who is “dead” and you want us to re-define marriage?

    Foxfier (74f1c8)

  62. […] “The majority decision goes well beyond the narrow question of gay marriage. It also holds for the first time that sexual orientation is a ’suspect classification’ under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to ’strict scrutiny’ by the court – essentially treating it the same way as laws that discriminate against racial minorities.” -Justin Levine at Patterico […]

    LA bloggers reactions to gay marriage ruling « California Faultline (30e6a7)

  63. hey foxfier, i don’t mind at all if you have a close physical relationship with your basset hound, as long as you keep it private. i don’t agree with your definition of marriage…

    the religiously based union of a man and a woman with the assumption that has a chance at children [sic]

    i am a pagan. my last girlfriend (still on excellent terms) calls herself spiritual but subscribes to no religion whatsoever, and she is well past menopause, so, “no chance at children”. by your def, she and i could not get “arraigned” as darleen would say. the laws against incest apply to gay and straight alike, so there is no denial of equal protection, which means that your suite of red herrings, marrying your brother, marrying your dog, etc., are just a tattered fig leaf insufficiently concealing your homophobia. why don’t you tell me how gay marriage hurts your personal interests directly, as opposed to your sense of heteronormative superiority? i will probably never be invited to a gay wedding, and there’s no law compelling you to attend one.

    assistant devil's advocate (e63173)

  64. When the news reports of the hearings were published, I took note of this exchange between City of S.F. attorney Therese Stewart and the justices (and referenced it tangentially in this Patterico.com post, bold mine):

    [Justice Joyce] Kennard, however, noted that many long-standing traditions relating to marriage – including treating women as property – have been deemed illegal over the years.

    Lawyers for the plaintiffs have pointed to the court’s 1948 decision striking down California’s ban on interracial marriage, and have compared domestic partnership to “separate but equal” segregation. The 1948 ruling, the first of its kind by any state’s high court, recognized a “right to join in marriage with the person of one’s choice.”

    (snip)

    In her arguments, San Francisco Chief Deputy City Attorney Therese Stewart insisted … [existing marriage law] violates equal protection. … Once the state has entered into the regulation of marriage … it has to do so on an equal basis.”

    (snip)

    Justices also asked whether the concept of equality evolves, and, if so, why this is the time to allow same sex marriage.

    The concept of equality does evolve, Stewart said, “but just because society doesn’t see something as unequal until a given time, that doesn’t mean it wasn’t always unequal or unjust. It just means we were blind to it.”

    From Justice Baxter’s dissent (bold mine):

    In a footnote, the majority insists that, though same-sex couples are included within the fundamental constitutional right to marry, the state’s absolute bans on marriages that are incestuous […] are not in danger. Vaguely the majority declares that “[p]ast judicial decisions explain why our nation’s culture has considered [incestuous and polygamous] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry. [Citations.]” […] Thus, the majority asserts, though a denial of same-sex marriage is no longer justified, “the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. [Citations.]” […]

    The bans on incestuous and polygamous marriages are ancient and deep-rooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deep-rooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.

    That approach creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory.

    Who can say that, in ten, fifteen, or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?

    L.N. Smithee (700c1f)

  65. assistant devil’s advocate wrote to Foxfier: …which means that your suite of red herrings, marrying your brother, marrying your dog, etc., are just a tattered fig leaf insufficiently concealing your homophobia.

    Well, here we go folks — an early preview of the Obama November strategy. “You disagree with me, so your just a hater!

    And let us please stop with the use of the phony term “homophobia,” because the word as it is commonly used is etymologically inaccurate if one wants to embrace its scattershot definition.

    L.N. Smithee (700c1f)

  66. assistant devil’s advocate wrote: i will probably never be invited to a gay wedding, and there’s no law compelling you to attend one.

    Oh, really? If Foxfier is a photographer living in New Mexico, there sure is.

    (April 11, 2008)

    ALBUQUERQUE, N.M.—A professional photographer who refused to take pictures of a gay couple’s commitment ceremony because of her religious beliefs violated New Mexico discrimination law, a human rights panel ruled.

    Vanessa Willock filed a complaint with the New Mexico Human Rights Commission in 2006, contending that Albuquerque photographer Elaine Huguenin told her she photographed only traditional marriages. Huguenin and her husband, Jon, own Elane Photography.

    The commission’s one-page ruling Wednesday said Elane Photography violated the state Human Rights Act by discriminating against Willock on the basis of sexual orientation, and should pay $6,637 for Willock’s attorney’s fees and costs.

    Willock, through her attorney, said in an e-mail that she was pleased by the finding.

    “I feel that it is an important decision towards defining the responsibilities of business when they offer their services to the public in this state,” she said…

    L.N. Smithee (700c1f)

  67. “Exactly, Stef, so why can’t gays make up their own word this time?”

    Its not just the gays.

    “To equate a biological myth like “race” with a biological reality like sex, would be laughable if so many people weren’t so politically invested in proving such triteness.”

    This isn’t gender discrimination, but sexual orientation discrimination.

    “However, how is it reasonable to claim that the man-woman criterion discriminates on the basis of sexual orientation?”

    Because gay people can’t get married. If gay people could get married, we wouldn’t be having this problem.

    stef (487395)

  68. “Oh, really? If Foxfier is a photographer living in New Mexico, there sure is.”

    Next thing you know we’ll have gays in lunch counters.

    stef (e66d8d)

  69. For some folks, like me, the policy issues are easy. Want to marry a guy? You’re an adult (an adult human; we’re not talking about chickens, here), he’s an adult — no problem. You’re already married to a woman, and you don’t want to divorce her? Yeah, like I said — no problem. If she doesn’t like it, she can divorce you. He’s your brother? See above.

    Some other folks really hate the idea? Hey, not my problem. Or yours, unless you want it to be.

    Not my ox being gored, long as I don’t have to marry a guy, or one (or more) of my sisters.

    But the implications of a court finding rights where they didn’t seem to exist before is very troubling. Not nearly as troubling as making rights go away, but . . .

    Joel Rosenberg (677e59)

  70. There is obvious confusion regarding constitutional rights vs statutory rights.

    Same sex marriage and hetrosexual marriage is not a constitutional right, Both are statutory rights. Free speach, the right to keep and bear arms are constitutional rights. License to drive a car is a statutory right. The court got jumble up forgetting the difference between statutory rights vs constitutional rights.

    Joe - Dallas (652b46)

  71. “John Hagee apologises for comments he made about the catholic church and about gays…” As a practising evangelical, I am a little bit disappointed in Pastor John Hagee. Why did he have to stoop so low? Every bible scholar worth his salt knows that what he said about the catholic church being the great whore is accurate. His position on gay marriage is not just his, it is the position clearly stated in the bible. The bible is unapologetic in its denunciation of that type of lifestyle. I could give you scriptural evidence of that. The catholic church has not been free from its own share of blame, in its activities through history. Especially her role during Hitler’s effort to destroy the jewish nation in that terrible holocaust. Why should a man of God, attested by all as a man of integrity allow himself to become a political tool and a caricature. First of all he had no business coming out to endorse anybody. That singular mistake has left a serious scar on his reputation as a man of truth who says it as it is. I hope he recovers from this dent. Men of God should keep away from politics. They are supposed to be seen as non partisan. That way they can make more impact. Their words will not be reduced to another political lie, or pandering. Politics is a dirty game, not a game for men of the cloth. His apology will go down in history as one of his greatest mistakes. The word of God is what it is. You either take it or leave it. it is not subject to argument or amendment. It is settled for ever in heaven and on earth. John Hagee owes God and the body of bible believers an apology. Politicians speak to get vote. Sometimes they lie and try to be who they are not just to get votes. It’s a charade. Men of God are not politicians. They are representatives of God to the people, not of the people. They dont preach based on exit polls. They speak based on the moving and inspiration of the Holy Ghost. As a case in study, california has just overturned the ban on gay marriage, making it legal for people of the same sex to get married. and as the saying goes, so goes california, so goes the nation. More than ever we need men and women of God who will arise and call back this nation to its godly roots. Before it is too late.

    love2008 (d2a57f)

  72. The California Supreme Court 4-3 pro-gay marriage ruling…

    I haven’t had a chance to look at the opinion on the CSC ruling in favor of gay marriage (I plan on reading it this evening), but wanted to link up to others who have and wrote about it. National Review has several opinion pieces up today devote…

    Sister Toldjah (fd6805)

  73. […] Justin Levine at Patterico’s The majority decision goes well beyond the narrow question of gay marriage. It also holds for the first time that sexual orientation is a “suspect classification” under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to “strict scrutiny” by the court – essentially treating it the same way as laws that discriminate against racial minorities. [This part of the ruling can be found in Section V-B of the decision PDF, starting on pg. 95.] […]While I have no problems with the result of this decision as a matter of social policy, it remains problematic in terms of the judicial activism debate. In addition to the dissenting opinions, you might want to pay particular attention to footnote # 52 in the majority’s decision (starting on pg. 79 of the PDF document) which underscores the problem. Ironically, the majority doesn’t seem to grasp the obvious contradictions and tensions in their reasoning that footnote 52 presents. Merely citing past court decisions is not a valid substitute for reasoning in this instance, nor is it adequate to explain the blatant double standards in social policy (beyond the personal whims and political preferences of the Justices). […]

    California mullahs judges, "The People's role in their own government?" [Darleen Click] (c1a2c4)

  74. More Democracy on Display in California: Traditional Marriage Ruled Unconstitutional…

    There’s an extensive discussion of the issue — much of it by Aphrael — on Patterico’s Pontifications; Patterico is probably the top law blog in the country.

    ……

    Common Sense Political Thought (a708bf)

  75. When the advocates of gay marriage are also the staunchest opponents of polygamy, you have to ask what the agenda is.

    And it isn’t about gays expressing their love through marriage. It is about getting the rest of us, by law, to validate their sick and dysfunctional lifestyle. That is why so many of the first gay marriage couples from Boston fanned out through the country trying to sue other states into supporting their marraiges.

    martin (cd5d90)

  76. “But the implications of a court finding rights where they didn’t seem to exist before is very troubling.. . .”

    You mean, like the judiciary giving its Seal of Approval to a 2nd Amendment Right to own a gun? Let’s say SCOTUS was insane enough to not only acknowledge your right to own a gun, but also was willing to apply the “strict scrutiny” test to any laws that would regulate that right. If I were in the LGBT community, I would come back to the Right and say “Excuse me, did you say something about courts improperly finding rights where they allegedly did not exist before? Looks like you got your freebie; why can’t we have ours?”

    Brad S (f4a3ad)

  77. “judicial destruction of our democracy.

    priceless. if our democracy could survive brown v. board of education, it can most assuredly survive this. the sun will continue to rise in the east, and hens will continue to lay. my democracy is intact.”

    That is, until the Right gets to have their own judge-decided right. Which could come no later than June 30, if the tea leaves are even somewhat correct on the Heller gun case. Note that no court has ever upheld an official Seal of Approval to a right to own a gun.

    Brad S (f4a3ad)

  78. Lest there be confusion, I have no serious objection to the number of people in a marriage being greater than two (although I think that they all have to agree to changing the number, and they are, each of them, responsible for any of children of any of them) and less than, say, two hundred and fifty six. More than that I don’t think is workable as a human proposition.

    htom (412a17)

  79. Just how much chaos will this decision create, if allowed to stand, in areas such as community property, and all of our tax laws dealing with aspects of marriage?
    If anyone can “marry” anyone else, can you restrict the number of people that they wish to marry, the familial relationship of those people, etc?
    This was a question that needed to be fleshed out in the public debate of our elected, and un-elected representatives, and subject to a referrendum of the People; not one imposed upon us by an Imperious Judiciary.
    Now, because of the imperiousnous of those robed-wonders, the body-politic will be rent-asunder, for better or worse, in a manner not seen for a decade, or more.

    …insert snark here…
    ***buy popcorn futures***

    Another Drew (a28ef4)

  80. And these are the same judicial idiots who say the pledge is unconstitutional becuase their all liberal stupid idiots

    krazy kagu (55691a)

  81. Just how much chaos will this decision create, if allowed to stand, in areas such as community property, and all of our tax laws dealing with aspects of marriage?

    None. California already had a domestic partnership system with identical community property and tax provisions to marriage.

    aphrael (db0b5a)

  82. Same sex marriage and hetrosexual marriage is not a constitutional right, Both are statutory rights

    Not under the California constitution, as it has been interpreted by the California courts for longer than I’ve been alive.

    You seem to be confusing federal constitutional rights with state constitutional rights.

    aphrael (db0b5a)

  83. Chairm: I’m not ignoring your comments, but don’t have time to respond right now; I’ll get back to them later in the day. :)

    aphrael (db0b5a)

  84. Brad #75…
    As an expansion of what Brad brings up, we have to consider also the “full faith and credit” clause in this matter.
    If the USConstitution will now compel all states to recognize all forms of marriage, will it not also, if SCOTUS affirms an individual right to “keep and bear arms”, be difficult for the CA SC to defend any restrictions of that right under CA law? And, won’t CA jurisdictions have to recognize CCW permits from other States without restriction?

    The Court has opened Pandora’s Box – Do they have any hope of closing it again?

    Another Drew (a28ef4)

  85. aphrael…
    Community Property…
    If you are in a bi-coastal relationship, where one person is the “resident” of a non-community property state, and the other is a “resident” of CA, which law applies? Which laws on spousal support apply? Why would CA’s laws be considered superior to the laws of any other state, to be applied to “residents” of that state?

    Another Drew (a28ef4)

  86. “When the advocates of gay marriage are also the staunchest opponents of polygamy, you have to ask what the agenda is.”

    Well, I’m an advocate of gay marriage, and I’m in favor of polygamy, too. My agenda? Letting adult human being make decisions about their own lives.

    Joel Rosenberg (677e59)

  87. Another Drew: I’m not familiar enough with California family law to know which state’s rules apply in the case of a marriage involving residents of two different states, only one of which has community property rules.

    I presume however that this is a matter of long-settled law; community property is hardly a new invention. The addition of gay marriage may add a complication having to do with gay couples whose marriage isn’t recognized in the other state … but in that case ISTM that there’s a pretty strong argument that California law should apply to dissolving a marriage which (a) was entered into in California and (b) isn’t recognized in the state where one of the members of the marital community lives.

    aphrael (db0b5a)

  88. […] president gets to name 3 new SCOTUS judges – for life. Patterico also expresses some displeasure at the judicial activism superseding the will of the […]

    Gay marriage and the churches - UPDATED | The Anchoress (fd6805)

  89. love2008, is there a point somewhere in that huge stream-of-consciousness paragraph of yours?

    L.N. Smithee (d1de1b)

  90. My greatest concern is the implications that this decision — and one assumes future actions like it — will have on churches. It is the stated theological position of the Roman Catholic Church that marriage may only exist between heterosexual couples. Sooner or later, a same-sex couple will wish to challenge the Church, go to a priest, and request a nuptial Mass. The priest will have to refuse, and then the couple will sue the Church for pain and suffering caused by the Church’s discrimination against them.

    Dana R Pico (3e4784)

  91. Dana: at which point they should win under the free exercise clause: government may not tell a religious functionary how to do his religious job.

    aphrael (e0cdc9)

  92. Dana: yeah. Same thing if, for example, my wife and I wanted a nuptial Mass. (We don’t; we’re both Jewish.) In the Catholic Church, their marriages are their sacrament, and they don’t have to perform their sacraments if they don’t want to.

    Where a church might run into trouble discriminating against married gays is in areas around employment.

    Similarly, there are many rabbis who won’t officiate at marriages between Jews and gentiles; the state doesn’t get to tell them that they have to.

    Joel Rosenberg (677e59)

  93. ADA-
    I was wondering how long it would take you to give up on even trying to argue and just call names.

    Once again, you have no argument, so you just throw garbage; at least the attempt at an insult about incestuous adultery with my brother could be construed as an argument point, now you’re just busy dumping feces on your strawman.

    Foxfier (74f1c8)

  94. The word “marriage” appears in two places in the California Constitution.

    Article 1, Section 21 says property owned before marriage or acquired during marriage by gift, will, or inheritance is separate property.

    Article 13A, Section 2(g) says transfers in connection with a property settlement agreement or decree of dissolution of a marriage do not trigger a reappraisal of the value of real property for purposes of taxation.

    The words “gay,” “lesbian” and “sexual orientation” are not mentioned.

    No wonder it took the Chief Justice 121 pages to explain his decision.

    Troopship Berlin (56a0a8)

  95. Granted that I haven’t finished reading the opinion (at 172 pages it’s a time consuming monster which is unwelcome at the moment). But from what I’ve read, one of the key arguments seems to be: the California constitution prohibits discriminating on the basis of sexual orientation.

    Sez the court. The written California constitution, not so much.

    If that’s so, that’s in the constitution as a result of a constitutional amendment approved by the voters.

    Assuming that the court was right to imply it, yes, but that’s no small assumption.

    So the voters have said two contradictory things: “don’t discriminate based on sexual orientation” and “recognize straight marriages but not gay marriages.”

    Again, yes, but only if you assume that voters meant what the court has decided they meant, as opposed to what they actually, um, said.

    Deciding what to do when the voters (or the legislature) issue contradictory commands is entirely the job of the courts, and “constitution trumps statute” is one of the normal rules for such decision-making.

    “One of” does not equal “the.” Another is a presumption of constitutionality. I haven’t read enough of the case to know which part of the CA constitution supposedly prohibits discrimination by sexual orientation, but regardless of when it was enacted, there can be little doubt that the drafters contemplated traditional marriage, and did not intend to overturn that result. Ditto for your hyper-literal reading of Perez. Sure, that court may have said everyone has a right to marry “the person” of one’s choice, but they clearly didn’t mean that in literal tersm. There’s just no succint way of saying everyone has a right to marry that “unmarried, competent, willing adult ” of one’s choice, nor was there any reason for the court to seek one since all those qualifiers were self-understood. Otherwise, there’s a right to incest, too, along with everyone’s right to marry someone who doesn’t even want to marry them. If everyone really had an unqualified “right to join in marriage with the person of one’s choice,” half of the blogosphere’s straight male population would be married to Kirsten Powers.

    Xrlq (8374fb)

  96. government may not tell a religious functionary how to do his religious job.

    You assume, of cource, the court would care about the rights of the Church…

    Scott Jacobs (fa5e57)

  97. #70 “so goes California, so goes the nation” ????

    Duh, something like 62% of Californian’s are against gay marriage. Most American’s are opposed. I guess you mean that Ca. judicial activism should be norm for the whole country? Who died and made judges into de facto creators of the law? I thought that was the purpose of the legislative branch. Where’s the democratic process in judicial fiat? I know Schwarzenegger backs the judges while praising democracy of the process. What hogwash. He wants to kiss liberal butt and McCain doesn’t want to upset Arnold. I’d love to see the people of Collyfourneeya recall the Austrian Oak except he has compromised with the tax and deficit spenders so much that recall won’t happen. There is such a thing as tyranny of the majority. You bleeding hearts are clueless. The radio just played Lennon’s Imagine and I think of clowns like Carter and Obama when I hear the words. I have a 1000 pound pot-bellied pig whom I adore (not a BBW, but a real oinker). Why can’t I marry her? Doesn’t our happiness count for something. Pigs have great orgasms and need loving too, just like dirty old men.

    madmax333 (402fc8)

  98. foxfier, you didn’t answer my question. how does gay marriage hurt you? i couldn’t figure out any way that it could hurt me, so i accord to others the same rights i have. it was you who brought up loving and marrying your brother, you’re a little confused now to be saying that it disgusts you.

    assistant devil's advocate (2fc3db)

  99. something like 62% of Californian’s are against gay marriage

    That was true in 2000. It’s an open question if that’s true now. Last year’s Field Poll showed that number dropping to 57%.

    aphrael (e0cdc9)

  100. #97 I suppose the liberal spin on that number is that 57% of Californians are homophobes? Funny how whenever someone disagrees with the radical left, they must be homophobes, racists, misogynists or just plain misanthropes. Our own troops undergo waterboarding, but if three terrorists should be subjected to it, it is the cruelest form of torture, even worse than sawing off infidels heads.
    Just how many minority agendas are there in this country? Gays, terrorists, pedophiles supported by ACLU, illegal criminal aliens, black criminals should not be incarcerated and so on? If you merely repeat the words of a Wright or Obama, that makes it racist? Bwwahhhh. PC will destroy this country.

    madmax333 (402fc8)

  101. This is excellent news from my state’s Supreme Court!!!!!!

    I can’t say that I’m too surprised, however, since I knew that one day this would happen here. After all, this is California…a place that I consider to be this country’s most tolerant and diverse state.

    Thus far, 27 states have passed constitutional amendments banning gay marriage in the United States. Hopefully as time goes on and we become more open-minded, there will one day be 50.

    If I live to be 100 I will never comprehend why Ron Prentice or any other individual would even feel the NEED to stand between two mature human beings who have the desire to legalize their love.

    Marilyn’s Non-Violent Planet
    http://www.non-violent.com

    badthing (6f7733)

  102. Madmax: I don’t know why you assume i would know what the spin being put on the number by activist groups is. I imagine the spin is that the number opposed to gay marriage is decreasing over time and that eventually it will be only a small minority.

    Gays, terrorists, pedophiles supported by ACLU, illegal criminal aliens, black criminals should not be incarcerated and so on?

    Are you intending to imply that gays should be incarcerated for being gay?

    aphrael (e0cdc9)

  103. Madmax, precisely my point. That I feel right about it doesnt make it right. Marriage is defined as legal union between a man and a woman. By that definition, it is clear that same sex relationships cannot fall into this category. A man cannot marry a man. A woman cannot marry a woman. God who ordained and instituted marriage intended it to be a union between the two sexes. Male and female. One of the purposes for marriage is procreation. That was the only way mankind was to spread and populate the earth. Gays should find a word to describe their dysfunctional lifestyle and leave marriage out of it. (I agree with Tyree in comment number 7.) Unless of course you want to take away the meaning of the word. Iron and clay cannot mix. Oil and water cannot mix. Man and man cannot mix. It’s just not the way it is supposed to be. I am sorry if that offends anyone. Physical attraction between people of the same sex is not natural. It’s wrong. It is natural for a man to be sexually attracted to a person of the opposite sex. To prove that this is the way it is meant to be, the male organ is like a rod (shape) and the woman’s organ is like a hole. It shows that the rod shape was intended to penetrate the female hole (pardon my crude anology) and deposit seeds for procreation. Out of such union a child is conceived in the womb of the female. Same sex union achieves nothing. It is an abuse of purpose. It should not be legalised. The people involved need help, counseling and love. It is not just the way it should be. No court can change that. No civil union can change that and the people of America will resist it every attempt to change it.

    love2008 (d2a57f)

  104. ada…

    How does gay marriage hurt me?

    It opens a concept in society that can allow for other forms of diversity that are not acceptable, such as polygamy, child pedophilia, incestual marriage, and the like, to be ruled acceptable by the courts.

    I read over the court’s rulings, and where I say gay marriage, I replaced that with those terms I’ve listed above.

    Now, explain to me how those other forms of marriage will be stopped. Explain to me how when my 7 year old is abused, and some court somewhere says that it is acceptable in society, that I can stop it other than by murder, which is not acceptable by society. Explain how my tax dollars will not be used in polygamist marriages to support children, second, third and tenth wives, and the like.

    Does it hurt me?

    Yes, it does.

    reff (bff229)

  105. badthing…

    Explain to me how a practicing Muslim, who believes that he can marry girls of 10, is mature?

    Explain to me how a “mature” girl of 14 can decide to marry a man of 50???

    These are the next steps in the law you seem to love…..

    reff (bff229)

  106. Reff, I’m missing something. As I understand it, your tax dollars — and mine — are used to support indigent children, regardless of whether or not their parents are legally married. Assuming that that hurts you, how does would it hurt you more if some of the mothers of said children were married to a man who had more than one wife?

    At least possibly, the husband would have some additional incentive to support his kids; sounds like, in terms of your tax dollars, breakeven or win.

    Joel Rosenberg (5ec843)

  107. Reff: surely there is a compelling state interest in protecting children who are presumed to be incapable of consenting to enter into a contract from being entered into marriages without their consent?

    aphrael (e0cdc9)

  108. reff (#102), you’re exhibiting irrational hysteria. you say gay marriage “opens a concept in society” to a host of sexual bogeymen which remain illegal today in the wake of the court’s ruling. what’s hurting you isn’t gay marriage, but your own cognitive dysfunctions and predisposition to fearful timor. in many contexts throughout history, some members of a privileged class felt the same way you did when the class distinction eroded, but they either died or got over it. imagine how the klansman felt when he finally digested the proposition that a black man could date his daughter without fear of being strung up?

    reff, move toward the light. you don’t have to be afraid of this. look at all the people around you who go about their business without fear of people who aren’t exactly like them. a majority of the court, the governor, and commenters like me. don’t you want to be in the bolder, fearless group of people with sufficient personal gravity and well-adjustment that they can continue to function unperturbed by this? you can do it.

    assistant devil's advocate (2fc3db)

  109. Joel…

    For the same reason that those indigent children are hurt, and society itself, is hurt by their existance: a lack of responsibility created by those who leave them indigent, and by those who create them in the illegal polygamist marriages. As for your example of the husband being more inclined to support the family, I’ll counter with the husband who walks away, leaving society to handle his problem.

    You will counter with the examples of polygamist marriages which are strong, and you have a point.

    I will counter with the examples that are not. I will also counter with the idea that society in general cannot continue to pay for more an more indigent children, regardless of where they come from, so, society is asking for laws to prevent that from happening, and is getting no response from the “few” who believe that their right to procreate trumps all else.

    aphrael…consent is an “opinion” in the law, is it not??? Yes, the law says “children” cannot give consent for many things, including marriage and sex, but, if society has decided when the age of consent is, as society is asking not to allow gay marriage, can’t the courts just “wipe it away?” Can’t society just lower the age, until it reaches a ridiculous (TO YOU AND ME) point that we can no longer stop???

    The “state interest” is decided upon by society. What happens when society (Islamic law, for example) is trumped by…say…Islamic law? Aren’t there points in this same string about how religion trumps choice under our laws? So, when religion trumps the existing laws, what then??? Those that are worried about “Christian” values making too much inroad into society need to read this ruling carefully, because I can see where a judge can take words out, put other words in, and we end up with child marriages, because society (an Islamic religious sect is a society within itself) could get that in, and nothing could be done to protect the children….

    Finally, aphrael…

    Are there not marriages arranged in this country daily under existing “societal” guidelines by people of age, who don’t have the “right” not to consent??? What do those people do???

    reff (bff229)

  110. ada…

    Again, you didn’t answer my post…did you???

    You project to me the irrational fears you have that you “can’t do what YOU want” because of some law.

    My fear is that the law will erode to a point that my world will not be protected.

    If marriage can be between any two people, what stops any three?

    What stops 10???

    Why is age important?

    Why does the law here trump a religious belief?

    By the way…I was there when my lesbian sister and her partner celebrated their union together, and again, 20 years later, when they celebrated their renewal of their vows….and, I wore my Dress Blues for the first one….

    Why is that important? Because for me this is not about beliefs, but about the law….

    reff (bff229)

  111. are there not marriages arranged in this country daily under existing “societal” guidelines by people of age, who don’t have the “right” not to consent???

    not here in southwest oregon. not a single one. the people you see in the wedding pictures in the paper are all beaming like they just won the lottery.

    assistant devil's advocate (2fc3db)

  112. if your lesbian sister opts for a gala california wedding in 30 days when the ruling becomes effective, will you attend in your dress blues for that, and if you did, wouldn’t that make you a hypocrite in light of your statements on this thread?

    assistant devil's advocate (2fc3db)

  113. ada — I think it would be out of respect for her and her feelings, not respect for the decision of the Calif. Sup. Ct.

    WLS (68fd1f)

  114. The majority decision goes well beyond the narrow question of gay marriage. It also holds for the first time that sexual orientation is a “suspect classification” under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to “strict scrutiny” by the court – essentially treating it the same way as laws that discriminate against racial minorities. [This part of the ruling can be found in Section V-B of the decision PDF, starting on pg. 95.]
    Putting discrimination against gays in the same classification with discrimination against racial minorities is an insult to say the least. It further denigrates and insults the dignity of human diversity. It puts racial differences as a dysfunctional human condition. Worthy of pity and empathy. This is an insult. It classifies race as a moral deficiency that needs to be protected. That classification is wrong and deeply flawed. A gay person is not in the same class as a minority. It is an attempt to join issues between a legitimate cause for freedom and equality with a dysfunctional way of life. Granted, gays are humans deserving respect and compassion. But we must not forget the difference between a spade and a shovel.

    love2008 (d2a57f)

  115. aphrael wrote: Given a fairly old precedent which says that you have the right to marry the person of your choice, how do you construct an argument which denies gay people the individual right to marry the person of their choice and is consistent with that precedent?

    When California became a state, marriage only meant one man and one woman. The Perez decision that established the “person of their choice” precedent was against the backdrop of laws regarding marriage meaning one thing only: One man, one woman.

    As I explained in my earlier post, one of the arguments of the pro-SSM lawyers was that it was always “unequal and unfair,” but that everyone was “blind to it,” and now the concept of equality has “evolved” to the point that we can see it. In other words, everything is fluid when it comes to matters of constitutionality; if the Constitution is not seen as being a “living document,” no problem; the changing winds of society can alter the meaning of words like “equality,” which in turn alters the meaning of such concepts within the language of the Constitution.

    On a related note: I haven’t listened to Michael Savage’s radio show in months, and if he is ranting against this ruling, he should be ignored because he is at least partly to blame. It was he who financially supported the campaign of CA Attorney General Jerry Brown to the tune of over $5000, refusing to even acknowledge the existence of conservative GOP candidate Chuck Poochigian. If Poochigian had taken over Democrat AG Bill Lockyer’s half-hearted prosecution of Gavin Newsom’s folly rather than Brown, this entire case may have dissolved in a manner similar to the way then-newly-elected Lockyer rendered Proposition 209 toothless in the nineties. The big difference would have been that the people’s voice would have ruled rather than being overruled.

    L.N. Smithee (ecc5a5)

  116. #113
    The big difference would have been that the people’s voice would have ruled rather than being overruled.
    What does it say about our democracy? Is the court not supposed to enforce the will of the majority and not some misguided minorities? With 62% of californians against it one would have thought the law should have known which side to tilt. I dont think we have heard the last of this. It’s not over yet!

    love2008 (d2a57f)

  117. #114 no doubt there are things that the majority public opinion favored, which were really not in the best public interest. Slavery comes to mind.
    Now it seems the minority left can force its will on everyone else through judges that make law. An Obama presidency would only further judicial activism and the idea what the US should take foreign laws into consideration in interpreting our own constitution.
    No, I am not for jailing homosexuals. I am for keeping people who were duly convicted and not releasing them because some asshat lib thinks laws are not fair to black men. I don’t think higher rates of crime by blacks are indicative of race but rather the black culture and effects of generational welfare instigated by LBJ’s so-called war on poverty.
    AS far as I see gays are free to sodomize and fellate whatever consenting adults they wish. Why should their sexuality have any bearing on horing practices or acceptance to colleges. I recall one Mass. University was considering afirmative action in horing of gays. No idea what the outcome was, but say I wanted a job there. Could I claim that I was gay and get the job or would I have to service someone in the school administration? That would unacceptable in a man-woman or boss-subordinate role so why would it be acceptable for gays? I mean what does your sexuality have to do with your job or school performance? Whoever is best fit should get the position. Straights or gays should not be discrimated against nor should Asians be shut off because so many Asians are very bright students. I never see quotas sought for whites who are way underrepresented in football and basketball as a percentage of the population. Perhaps a basketball team should be allowed only two black players per team or one homosexual each? Why can’t we just ignore race and sexual stuff?

    madmax333 (efdd75)

  118. love2008 wrote: What does it say about our democracy? Is the court not supposed to enforce the will of the majority and not some misguided minorities? With 62% of californians against it one would have thought the law should have known which side to tilt. I dont think we have heard the last of this. It’s not over yet!

    Are you being deliberately obtuse in an attempt to be sarcastic? For your sake, I hope so.

    L.N. Smithee (ecc5a5)

  119. #115
    Whoever is best fit should get the position. Straights or gays should not be discrimated against nor should Asians be shut off because so many Asians are very bright students. I never see quotas sought for whites who are way underrepresented in football and basketball as a percentage of the population. Perhaps a basketball team should be allowed only two black players per team or one homosexual each? Why can’t we just ignore race and sexual stuff?
    I agree with you. Discrimination against people because of race or sexual orientation is unacceptable. That is not in contention. The issue is attempting to legalise a statutory matter and transforming it into a constitutional argument.
    And #116, maybe you would also find your comments rather dense and confusing. If my comments are obtuse then maybe yours also, because they are in agreement. Maybe you should read your comments again.

    love2008 (d2a57f)

  120. love2008 wrote: If my comments are obtuse then maybe yours also, because they are in agreement.

    Then perhaps I haven’t been as clear as I should have been. I am not suggesting the court should “tilt” in favor of majorities simply because they are majorities. I am suggesting that courts should resist tilting in favor of minorities (of all sorts, not just racial or sexual).

    L.N. Smithee (ecc5a5)

  121. Aphrael wrote:

    Dana: at which point they should win under the free exercise clause: government may not tell a religious functionary how to do his religious job.

    Should win does not always mean will win, especially in a civil trial.. By any reasonable judgement, the state of California should have won the case under discussion, but it didn’t. Courts have created a “right” to same-sex marriage out of whole cloth.

    I was never worried that the government would somehow order a priest to perform a same-sex marriage, but that the Church would be challenged in a civil suit, one which would have the effect of putting American civil law in a superior position over Church theology, and penalizing the Church if it doesn’t comply.

    I’ve heard many people — especially on liberal sites — say, when they addressed my concern, “don’t worry, the First Amendment protects the Church, yada, yada, yada.” Yet, when asked, OK, if that’s what you believe, wouldn’t you agree that any statutory provision for same-sex marriage ought to carry a specific protection for churches in this regard, and it get’s pooh-poohed; no one is interested in that kind of compromise, and I have to wonder why.

    When Senator Rick Santorum (R-PA) expressed the opinion that Lawrence v Texas would lead to same-sex marriage, our friends on the left said that such a concern was ridiculous — yet only a couple of years later, the Massachusetts Supreme Court cited Lawrence v Texas in their ruling which required the commonwealth to recognize same-sex marriages. Why should I have any confidence that, absent specified protections for the Church, that the type of lawsuit I suggested wouldn’t occur, and wind up with the Church losing?

    Dana R Pico (556f76)

  122. I’d add that the law can tell a religious functionary how to do his job, and has done so many times. A religious leader who supports polygamy cannot violate the law and attempt to legally marry a person he knows to already be married to another person. Catholic Charities in Boston was forced to terminate it’s century-old adoption service, because it could not obey the commonwealth’s law that they could not discriminate against same-sex couples in placing children for adoption. In California, Catholic service organizations have been required to provide medical insurance that covers artificial contraception, even though artificial contraception is contrary to Church theology.

    Ask yourself: what if an interracial couple went to a minister who opposed interracial marriage, and requested a wedding in his church; what makes anyone think that such minister and church couldn’t or wouldn’t be sued?

    Dana R Pico (556f76)

  123. Dana: at which point they should win under the free exercise clause: government may not tell a religious functionary how to do his religious job.

    Yet another wake-up call for you, aphrael: In S.F., when they instituted domestic partners legislation in the nineties, the city said every business with a contract with it had to offer unmarried couples the same benefits as married couples. When the Salvation Army and Catholic Charities reflexively resisted with the expectation they would be exempt, City Hall said “Oh, no you’re not.” Long story short: Catholic Charities caved. The Salvation Army, to its credit, told the City to pound sand, and in effect tore up its city contracts.

    Being a San Francisco resident and native, take it from me: Gay activists never, ever mean it when they say they only want an inch. They don’t want a yard. They want a mile. And they’ll do anything to get it.

    L.N. Smithee (ecc5a5)

  124. LN Smithee: city contracts are a different issue. The city has the right to decide who it will do business with, just as you or I have the right to choose who to do business with.

    aphrael (e0cdc9)

  125. Gay activists never, ever mean it when they say they only want an inch. They don’t want a yard. They want a mile. And they’ll do anything to get it.

    I’m not really an activist, so I suppose you aren’t mischaracterizing me in this statement, but it comes fairly close.

    aphrael (e0cdc9)

  126. Note that in my proposal above (#47), the churches decide who they want to create marriages for (or not); the state is not involved at all, as it is only creating civil unions, and only recognizing civil unions.

    htom (412a17)

  127. #118
    Thats what I thought you meant. maybe you didnt understand my comment. The job of the court is not to be controlled by the majority or minority but to understand and interprete and enforce the law. Of course these laws are made by the legislative branch which is where the majority should be able to influence whatever law that needs to be made. The question is, is this recent CA ruling on gay marriage a reflection of the law of the land? Is it constitutional? If so, who made it so? The majority or the minority? Or is this a sitting Judge exercising his judicial prerogative?

    love2008 (d2a57f)

  128. ada…

    Noticed you didn’t respond factually or logically to anything I wrote…

    And, YES, if my sister and her partner wanted the Cali special, I’d be there….

    No, no Dress Blue, because they don’t fit anymore…but, I still wear my tags, and still carry my rating, and it is out of respect for her, and the law, that I do….

    As I said before, it is not about beliefs, but about the law….and the law in California is simply wrong, and will bring much havoc and kaos in the near future….

    But, you of course, have nothing to say but…

    what???….

    What do you have to say???? Nothing to add, do you..???

    reff (59b2ad)

  129. and the law in california is simply wrong, and will bring much havoc and kaos in the near future…

    kaos. don’t you trust control to keep kaos in check?

    assistant devil's advocate (de29c0)

  130. No, Maxwell, I don’t…

    Plus, I know, just from reading your posts, that there is no Barbara Feldon in your world….

    Finally, you really don’t have anything to add, so, your wisecracks leave even less to be desired….

    reff (59b2ad)

  131. Another Drew:

    Chief Justice Kennard has just ensured that CA will be in-play November; and, that he will be the 2nd CJ re-called by the voters.

    That’s a pretty bold prediction. Do you really think Joyce Kennard will have a sex change operation and be promoted to Chief Justice between now and November, get recalled then, and still leave time for the first Chief Justice (presumably the current one, Ronald George) to also get recalled in a special election and become the first?

    Xrlq (8374fb)

  132. Leviticus:

    It’s fairly safe to assume that the people of California (or any other state, for that matter) don’t know shit about the Constitution. Thus, they don’t get to dictate its interpretation. That’s the whole point of an independent judiciary.

    If so, it’s a pretty pointless point, as California voters reserve (and, I suspect, will soon be exercising) the right to amend the Constitution by a simple majority.

    Xrlq (c32098)

  133. Xlrq…
    Sorry, was reading a previous comment when I typed that, and didn’t realize my confusion on Kennard (just illustrates how unknown most Justices are, when even those who think they’re politically involved can’t keep them straight).
    However, I do believe that these four will be running-scared when they have to stand for affirmation by the voters, or face re-call – whichever comes first.

    Another Drew (8018ee)

  134. Xrlq,

    More power to ’em. My only point is that the Judiciciary is designed to operate independent of the electorate and its uneducated whims. To claim that judges shouldn’t rule one way or another based on public opinion contradicts one of the fundamental tenets of balance of power politics.

    Leviticus (d9535a)

  135. My only point is that the Judiciciary is designed to operate independent of the electorate and its uneducated whims.

    Which unfortunately for the masses makes them victim to uneducated whims of the electorate…and allegedly educated whims of activist jurists. Double whammy for pappy and mammy.

    allan (ee52db)

  136. Except, here in CA we have the luxury of citizen review of the actions of Judges/Justices. These Justices have to stand for affirmation every so often (what is it: 6 or 12?). Plus, they are subject to recall. It must be something in our genes left over from that brief period of true independance: The California Republic.
    But, I think Mr. Jefferson spoke about it earlier when he wrote something about the sovereignty of the governed.
    And, of course, in Mr. Madison’s famous words: We, the People of the United States, in order to form a more Perfect Union…

    Another Drew (8018ee)

  137. In the Third Book of Moses it is written:

    More power to ‘em. My only point is that the Judiciciary is designed to operate independent of the electorate and its uneducated whims. To claim that judges shouldn’t rule one way or another based on public opinion contradicts one of the fundamental tenets of balance of power politics.

    What a wonderful exposition of Plato’s notion of the philosopher-kings. ‘Tisn’t democracy and the will of the people which ought to prevail, but the judgement of those we hold most wise. It’s for our own good, don’t you know?

    Plato’s notion of oligarchies of philosopher-kings has had more modern permutations; one such group called itself the Politburo.

    Dana R Pico (556f76)

  138. aphrael wrote: I’m not really an activist, so I suppose you aren’t mischaracterizing me in this statement, but it comes fairly close.

    If you aren’t an activist, than I am not characterizing you in any way.

    You posted to tell me that?

    Do some research about the tactics of scumbags like John Aravosis and get back to me.

    L.N. Smithee (700c1f)

  139. “What a wonderful exposition of Plato’s notion of the philosopher-kings. ‘Tisn’t democracy and the will of the people which ought to prevail, but the judgement of those we hold most wise. It’s for our own good, don’t you know?”

    – Dana R Pico

    Yeah… you don’t really have to go back to Plato to find a justification for an independent judiciary. You just have to go back to the Federalist papers.

    And besides, doesn’t the ability of the People to amend their constitution poke a gaping hole in your philospoher-king analogy?

    Leviticus (2446e6)

  140. Leviticus wrote: And besides, doesn’t the ability of the People to amend their constitution poke a gaping hole in your philospoher-king analogy?

    You mean the people who, in your words, “don’t know sh*t about the Constitution”?

    L.N. Smithee (700c1f)

  141. Exactly. People who actually vote on the constitution don’t know shit about what it means, or about what they themselves meant when they voted on it. That’s why we need an “independent judiciary” independent of the law itself to interpret everything. Who knows, if/when the amendment passes, maybe they’ll find a way to interpret the new language as still allowing the gay marriage that the rest of the constitution supposedly requires.

    Xrlq (8374fb)

  142. “You mean the people who, in your words, “don’t know sh*t about the Constitution”?”

    – L.N. Smithee

    Yes. Those people. Whether or not they know anything about the Constitution, it’s theirs to amend. But they’d better be careful with their wording.

    Leviticus (653427)

  143. Leviticus: yup. It’s up to the people of CA whether or not they choose to amend their state constitution to prevent formalized SSM partnerships from, technically, being “marriages.” I think it would be foolish for them to do so, but it’s probably something like 60-40 that they will.

    What I find fascinating, in all of this, is that not even the most virulent anti-gay posters here are arguing against the law allowing same-sex couples to share their lives in almost all ways. If gay marriage is really such a threat to our society, wouldn’t it make sense to actually criminalize it, rather than amending constitution after constitution to prevent what are, on balance, largely peripheral issues around it?

    While I know it’s unsatisfactory to many (most?) gay couples, even without state-recognized SSM, they can get almost all of the characteristics of marriage — they can live together in owned or rented housing; they can care for each other, as they say, “in sickness and in health.” Lesbian spouses can give birth to children and raise them with each other; gay male couples can, in most places, adopt. They can show up at block parties or shop in supermarkets as couples, and put their spouses’ pictures on their desks at work, and hold themselves up to the world as married couples, and even if the government refuses to tax them more heavily as though they were married, they can (if they choose to) calculate out how much of a “marriage tax” they would pay and tell the Feds, “hey, you just hang on to the extra; not to worry.”

    And, yet, the sky refuses to fall.

    Joel Rosenberg (677e59)

  144. To add on: I’m not addressing the very real issue of whether and how courts should “discover” rights. I think that if courts can discover new rights it can — and has; see the RKBA — whittle them away.

    But the reality is that SSM does exist, and even if this isn’t the way that the law should catch up to it, society is.

    Joel Rosenberg (677e59)

  145. If gay marriage is really such a threat to our society, wouldn’t it make sense to actually criminalize it, rather than amending constitution after constitution to prevent what are, on balance, largely peripheral issues around it?

    there are practical reasons for not criminalizing it.

    For one thing, it would take away resources from catching thieves and murderers.

    Footnote 52 of the decision has been criticized by people sympathetic to same-sex marriage.

    Link

    Link

    Michael Ejercito (49cf93)


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