[Posted by Karl]
Associated Press story breaking here. This is what many, including Patterico, predicted; you can follow Pat’s links to access the opinion and analysis as it comes in. The other obvious prediction is that the gay marriage fight will continue In California, as it will elsewhere around the country.
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Update: Ladies and gentlemen, penetrating analysis from Meghan McCain.
–Karl
Pronounced "Patter-EE-koh"
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Incoherence from the California Supreme Court is no surprise. This is a form of amnesty for the illegal “marriages” that Newsom presided over. The Court precipitated this crisis and cannot admit they were wrong, hence the amnesty.
Mike K (2cf494) — 5/26/2009 @ 10:15 amThe court website is still getting hammered. I got lucky and got through. Opinion hosted here for now if anyone has trouble getting it from the court web site.
Ken (c97a0c) — 5/26/2009 @ 10:29 amIt has nothing to do with the marriages Newsom presided over back in 2004, and you know it.
This is entirely about the marriages that took place when the Supreme Court ruled gay marriage legal last year.
What’s next. More initiatives. More upset. And at the end of the day gay mariage wins.
David Ehrenstein (598548) — 5/26/2009 @ 10:30 amThanks Ken, but it looks ike it’ll be awhile before most of us will be able to get through and read the actual rulings in their entirety.
David Ehrenstein (598548) — 5/26/2009 @ 10:32 amThe marriages were legal when they occurred, and were done in good faith. I’d have been aghast had they been revoked. The only way to have gotten Prop 8 overturned would have been to insist that it covered previously legal marriages.
Kevin Murphy (805c5b) — 5/26/2009 @ 10:35 amThe precedents favored upholding Prop. 8 (Peoplev. Frierson, In Re Lance W., Raven v. Deukmejian, Legislature v. Eu .
The upholding of existing “marriages” does follow prior precedent. After California abolished common-law marriage, existing common-law marriages were permitted to stand. (Wells v. Allen (1918) 38 Cal. App. 586 26. While the Court could have overruled this precedent as it was an appeals court decision, they chose not to.)
Michael Ejercito (365b6d) — 5/26/2009 @ 10:36 amthe solution to the whole issue is simple:
marriage is a religious institution, and the government should not be in the business of regulating it.
what the government should do is formalize legal contracts between any two or more consenting adults, with all issues covered in the contract, to include child custody, support agreements, and all other items normally covered in a divorce.
anyone who want’s to get married, otoh, simply needs to find a church, but it will have no legal meaning.
redc1c4 (fb8750) — 5/26/2009 @ 10:43 amI’m sorry, redc1c4, but marriage by definition is a governmental institution as it is a contract issued by the state. Marriages can be legally performed by priests, rabbis, Elvis impersonators or any other party legally endowed by the state to do so.
And while this may not have crossed you mind, athiests can legally marry.
David Ehrenstein (598548) — 5/26/2009 @ 11:07 amSo, there will simply have to be another California statewide vote, offering another constitutional amendment, to annull those 18,000 same-sex marriages. Remember, this is the same California Supreme Court which decreed the validity of gay marriage in the first place, contrary to the will of the people, so it’s not surprising they’d exempt the 18,000 couples already married. But they won’t be married for long.
Official Internet Data Office (f918cf) — 5/26/2009 @ 11:20 amI am surprised, and pleased. I really did expect that they were going to find some convoluted excuse to nullify it.
Myself, I believe in legal gay marriage. But I’ve always thought that trying to use the courts to create such a thing in opposition to the majority will of voters was a major blunder.
Steven Den Beste (99cfa1) — 5/26/2009 @ 11:23 amI opposed Prop 8, but I think the court’s analysis upholding it on these grounds was clearly correct.
For everyone who is outraged about the existing marriages, I wonder if you have actually read that part of the opinion, or if you were previously experts on the law of retroactivity. The law may be an ass, but if it is, it was an ass long before Prop 8 on the issue of retroactivity.
A proposition designed to specifically annul the 18,000 existing same-sex marriages would be a public relations bonanza for the pro-same-sex-marriage set.
Ken (c97a0c) — 5/26/2009 @ 11:38 amI love the values John McCain instilled in his daughter. Such respect for the democratic process, not to mention traditional marriage.
Almost as bad as http://www.2012draftsarahcommittee.com/.
jvarisco (be0edb) — 5/26/2009 @ 11:40 amOh, c’mon, Karl:
Cue the Beavis and Butthead laugh. Penetrating analysis indeed.
All my campus colleagues are screaming and yelling about how ashamed they are of California.
Eric Blair (57b266) — 5/26/2009 @ 11:43 amIt may be a bonanza for the pro homosexual marrages however if they are not annulled, those homosexuals living in an arrangement similar to marriage could ask for equal protection under the law. Since the number of homosexuals married is that large, they could have standing.
Zelsdorf Ragshaft III (57cae1) — 5/26/2009 @ 11:43 amAnd I bet her daddy is oh-so-proud of her language.
steve sturm (369bc6) — 5/26/2009 @ 11:47 amSince it will inevitably end up on a ballot again in the near future, what is required to reverse it? Just a simple majority again, or something more? I’m not familiar enough with how California’s constitutional changes happen.
Mike M (629332) — 5/26/2009 @ 11:50 amComment by Eric Blair — 5/26/2009 @ 11:43 am
I would suppose that they are saying such things as “I’ll never spend another day/dollar in CA again”?
AD - RtR/OS! (428ddf) — 5/26/2009 @ 12:05 pmHow fortunate we will be to count their absence!
This is hilarious.
The decision reads Prop 8 in the narrowest possible way (applying just to the name ‘marriage’), and then effectively reads domestic partnerships into the state constitution (“same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception”, from the concurrence by Justice Werdegar), before holding that Proposition 8 isn’t a revision.
The court is clearly right that it’s not a revision, but the outcome is funny nonetheless: gay couples now have a right under the state constitution to not-marriage, and conservatives will be cheering the decision while liberals deplore it.
aphrael (e0cdc9) — 5/26/2009 @ 12:07 pmhomosexuals living in an arrangement similar to marriage could ask for equal protection under the law
the decision explicitly requires that gay couples be provided with state recognition for their relationships, which embodies all of the rights and responsibilities of marriage; it basically says that Proposition 8 was about the word ‘marriage’, not the substantive legal rights associated with marriage.
aphrael (e0cdc9) — 5/26/2009 @ 12:12 pmI have no opposition to society creating a separate institution where same-sex couples have the same privileges enjoyed by married couples.
Michael Ejercito (365b6d) — 5/26/2009 @ 12:13 pmthere will simply have to be another California statewide vote, offering another constitutional amendment, to annull those 18,000 same-sex marriages
I cannot imagine that initiative passing.
aphrael (e0cdc9) — 5/26/2009 @ 12:15 pmWasn’t someone posting here recently, telling me to “listen to Republicans like Meghan McCain?” I guess I can continue to ignore that advice. Vapid.
aphrael, if you don’t like “domestic partnership,” would you compromise with, say affrèrement? It sounds sexy to me. Or maybe the Albanian – vellameria?
carlitos (a0089e) — 5/26/2009 @ 12:22 pmI saw that the Justices noted that they had put aside personal beliefs and preferences then rendered their decision based on the California Constitution.
SteveG (c99c5c) — 5/26/2009 @ 12:30 pmWhat is to screech about?
I would hope that if California had instead gone for a No on 8 vote, that any legal challenge to the result would have been dealt with in exactly the same vein.
When Meghan screeched “WTF?” she exposed her ignorance and immaturity. She misunderstands (and badly too) the role of a reponsible judicial branch.
I am in favor of the State encouraging, respecting and nuturing monogamous relationships.
I tend to side with the tradionalists on marriage being between a man and a woman because for me all other competing arguments wash out, leaving this: traditionalists have operated for centuries on marriage between humans defined as being between a man and a woman.
I’m not rabid about it, and if the majority votes to decide to share, so be it.
Californians can and will get another chance to vote on this, and I fully expect the majority to eventually agree that the culture has changed and that traditionalists will need to release their claim on marriage. The only large scale negative I can see about a new Prop 8 going for gay marriage would be if it made Gavin Newsom’s political star rise to a larger stage… now that’d be a disaster.
Mike K, with all due respect, the decision was 185 pages long. It was handed down at 10 AM. You posted at 10:15 AM calling it ‘incoherent’.
I don’t think it’s possible for you to have read the decision in that time frame, let alone determined whether it was coherent or not based upon having read it.
aphrael (e0cdc9) — 5/26/2009 @ 12:37 pmSince she has her entries locked, would you mind cutting and pasting Ms McCain’s insight?
I could use the laugh.
Scott Jacobs (90ff96) — 5/26/2009 @ 12:40 pm“I have no opposition to society creating a separate institution where same-sex couples have the same privileges enjoyed by married couples.”
How about separate bathrooms and separate water fountains?
David Ehrenstein (598548) — 5/26/2009 @ 12:47 pmMs. McCain is good for a brief laugh and nothing more. There are substantive issues to discuss here. We should be a lot more serious-minded.
David Ehrenstein (598548) — 5/26/2009 @ 12:48 pmMore Republicans should be like Meghan – after all, she’s the future of the party. Just ask her father how that turned out.
Dmac (1ddf7e) — 5/26/2009 @ 12:51 pmHaving not read the decision (just got home), I’ll take your word on this, and laugh along with you.
I don’t personally like Pro 8 (despite what the retard and I argued over Twitter at oh-dark-thirty this morning, I’m not a supporter), but I think that the CA SC tossing Prop 8 out a window would have been vastly more damaging than to allow it to stand.
Throwing it out would have, in essence, said that the Court will do as it pleases, fuck you CA people. That every step was properly followed, and yet Prop 8 was tossed out would have utterly destroyed any future attempts at similar changes.
The people who think the CA SC should have thrown it out anyways refuse to see that. They refuse to admit that such an action would effectively invalidate the entirety of the rest of the CA Constitution.
I don’t like Prop 8, but the system that saw it enacted remains in place, and with a mere 4% difference between the winners and the losers, it is entirely possible that withing the next two or three years a similar proposition over-riding the changes made by prop 8 could be passed.
That’s the other part of this the “No to Prop 8” people miss. It isn’t final. This isn’t the end all, be all. They can change the constitution the same way the other side did.
The reason that little fact is ignored is because, whether it is consciously acknowledged or not, it is incredibly hard to change someone’s mind when you spend all your time insulting them. If Perez Hilton et al would shut up and try to speak in a civil manner for a moment (I’m not convinced Perez is actually capable of that, btw), they would find it far easier to win.
Attacking the other side with insults rarely wins you many converts.
Scott Jacobs (90ff96) — 5/26/2009 @ 1:00 pmSteveG: it is *quite* clear from the opinion that the justices didn’t like Proposition 8 at all, but that they were upholding it because their reading of the law required them to.
aphrael (e0cdc9) — 5/26/2009 @ 1:09 pmDoes anyone else find this Meghan to be vaguely obnoxious?
happyfeet (71f55e) — 5/26/2009 @ 1:09 pmFor Scott Jacobs:
Ms. McCain’s entry was not censored, and it appears on that repeating-caricature of her background wallpaper. Cute.
carlitos (a0089e) — 5/26/2009 @ 1:19 pmHere are my first thoughts on the ruling.
I shall have more to say in future.
David Ehrenstein (598548) — 5/26/2009 @ 2:00 pm#24
I gathered that the justices did not like Prop 8 at all. I’m fine with that. Call me happy that they put aside as much of their dislike as was possible and then came down on the side of the California Constitution instead of relying on fuzzy empathy.
All that said, this bit from the decision that I lifted from over at Legal Insurrection makes me wonder about the intellectual heft of the AG of our good state..
“no authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years….”
I know we used to call the guy Governor Moonbeam back before he made a comeback as AG but it still hurts to watch someone get slapped upside the head like that
SteveG (c99c5c) — 5/26/2009 @ 2:02 pmdoes anyone else find this Meghan to be vaguely obnoxious?
I take issue with your wording of vaguely.
Dmac (1ddf7e) — 5/26/2009 @ 2:16 pmSteveG, the attorney the AG’s office sent to argue in front of the Supreme Court was *terrible*. It was so bad that I half thought he was deliberately throwing the case.
aphrael (e0cdc9) — 5/26/2009 @ 2:57 pmWhich isn’t to say that Moonbeam is any great sort of lawyer… I actually wouldn’t be shocked if the guy DID throw it, knowing that the AG’s case was, frankly, retarded.
Scott Jacobs (90ff96) — 5/26/2009 @ 3:01 pmOh thank God…
I’d hate to think the resident moron-cum-paid-columnist would deprive us his pearls of wisdom…
Scott Jacobs (90ff96) — 5/26/2009 @ 3:03 pmThrowing it out would have, in essence, said that the Court will do as it pleases, fuck you CA people.
Yep–and California voters have been known to make their displeasure known to state Supreme Court Justices who have that attitude, as Rose Bird and two of her cronies discovered in 1986.
M. Scott Eiland (5ccff0) — 5/26/2009 @ 3:06 pmAnd anyways, when did Patrick un-moderate The Shrill One?
Scott Jacobs (90ff96) — 5/26/2009 @ 3:12 pmThey keep calling supporters bigoted, while ignoring the implication that if it is bigoted to define marriage as between a man and a woman, almost all humans in human history were bigoted.
Michael Ejercito (365b6d) — 5/26/2009 @ 3:14 pmI would like to point out that Mr “I am enraged that my state did something that mirrors the position of my most favroite President EVAR” Ehrenstein likens Prop 8 to lynching them thar gheys.
And he wonders why we don’t take his idiocy seriously?
Scott Jacobs (90ff96) — 5/26/2009 @ 3:25 pmScott 3:25 – Ehrenstein likens Prop 8 to lynching them thar gheys.
Good point about our current Presidential position on gay marriage. Nothing in the printed material about that today, it seems.
It’s not about gay rights with DE. It’s about pumping up emotion and using that emotion to extract more attention and treasure from this gay goldmine. The activists are not looking at your ass, they’re checking out your wallet.
Aphrael, DE complains that there are huge costs associated with bringing gay couples’ contractual protections up to the standard of married heterosexuals, and also hints that these contracts are more prone to interference in their intended operation by family members and outsiders.
Is this true? If so, why was that not addressed?
This seems to me, again, to be a fight over the use of government as a cudgel to ‘grant’ a ‘recognized’ status and benefits to a group of people. When one looks to government to grant them rights, they implicitly grant the government the ability to remove those rights, and should not be surprised or upset when that happens.
Apogee (e2dc9b) — 5/26/2009 @ 4:06 pmApogee: I don’t know if it’s true. If it’s just contract based and not operated under the state’s DP law, I suspect that contractual equality is complicated and cumbersome; if it’s under the DP law, I think it’s possible that third parties (including family members) don’t extend the same level of recognition that they would to marriages.
As to why that wasn’t addressed: the court addressed the questions put to it. The operation of this new not-marriage scheme is outside the scope of the decision.
aphrael (e0cdc9) — 5/26/2009 @ 4:19 pmAs if the state saying “You will call it marriage” would change that.
Trust me, I know I, for one< would put air quotes around ANY term the Govt told me I must use.
Scott Jacobs (90ff96) — 5/26/2009 @ 4:30 pmSorry Aphrael, I wasn’t clear – I understand that the court addressed the issues put to it, but that if true, the inability for same sex couples to effectively structure legal contractual arrangements is more troublesome than whether government can compel recognition of a relationship definition.
That state of affairs would affect every same sex couple because there is an actual financial component, and would, IMO, result in greater attention and advocacy by the homosexual community.
Apogee (e2dc9b) — 5/26/2009 @ 4:32 pm#6
As the California Supreme Court noted, there is a serious California due process and even 14th Amendment problem with voting away vested rights.
Eliminating the existing marriages was not even a close call.
What is interesting is the vitriol by the anti-Prop. 8 forces launched towards the Supreme Court. You would think they would show some gratitude towards George and his colleagues for ruling in their favor in the first place.
Cyrus Sanai (ada6da) — 5/26/2009 @ 4:34 pmActually, as I understand it, Power of Attorney and Medical Proxies are fairly cheap to get.
Probably way cheaper than the cost of a wedding, at any rate…
Scott Jacobs (90ff96) — 5/26/2009 @ 4:34 pmCyrus, I’m finding the politics of this decision to be highly amusing.
The California Supreme Court just ruled, inter alia, that Proposition 8 applies only to the use of the word ‘marriage’ and that the state Constitution requires gay not-marriages which are equivalent to marriages except in name.
Conservatives cheer. Liberals jeer.
What?
aphrael (e0cdc9) — 5/26/2009 @ 4:37 pmAgain, concurring with Scott Jacobs – the government has no right whatsoever to compel me to believe something, just as I have no right to regulate the private behavior of others, as long as that behavior doesn’t inhibit my rights. (No building of nukes in your garage)
Apogee (e2dc9b) — 5/26/2009 @ 4:39 pmScott, right, but there’s all sorts of property law which applies directly to married/DPd couples and not to unmarried ones.
If a married man dies intestate, his wife inherits is property automatically, and the property is not reassessed for property tax purposes. If an unmarried gay man dies intestate, his lifelong partner probably won’t automatically inherit; and even if there’s a will specifying that he should inherit, (a) the family of the decedent can challenge the will and win, and (b) the property is reassessed for property tax purposes.
You *can* get around that by structuring the property as a living trust, etc … but that requires time and money in addition to requiring the knowledge that those steps are necessary in the first place.
aphrael (e0cdc9) — 5/26/2009 @ 4:45 pmLord, help us all.
Barcky Teh One’s position was held up by the California Supreme Court. Our President, the homophobic bigot, remains steadfast in his position that his religion informs his politics, and that marriage is between a man and a woman.
JD (fdabd3) — 5/26/2009 @ 4:47 pmAphrael 4:45pm – applies directly to married/DPd couples and not to unmarried ones.
…and in that, I am completely with you, although I will note that again, the problems stem from a kleptocratic government hell bent on ignoring contractual law because it can be profitable.
Why is ‘the government is not your friend’ so hard for some people to learn?
Apogee (e2dc9b) — 5/26/2009 @ 4:52 pmI did not compare it to lynching. I was merely pointing out that in the middle east — including thst Font of Freedom Iraq — gays get lynched.
Being African-Americna as well as gay, I don’t take lynching lightly. So Politically Correct of me.
And where did you get the idea that Barry is my favorite President?
He’s Bush Lite.
David Ehrenstein (598548) — 5/26/2009 @ 4:53 pmAnd by some people, I don’t mean you.
Apogee (e2dc9b) — 5/26/2009 @ 4:54 pmI have no right to regulate the private behavior of others, as long as that behavior doesn’t inhibit my rights
Sure you have a right–you just don’t want to exercise it.
And speaking of rights, how can California’s constitution say “Only marriage between a man and a woman is valid or recognized in California,” except that rule somehow doesn’t apply to 18,000 gay couples? When the mayor of San Francisco, Gavin Newsom, declared gay marriage legal by executive fiat and saw that overturned, all the gay couples who got “married” in San Francisco were suddenly single again, despite official-looking marriage licenses and the contorted explanations of newspaper editorial boards.
Official Internet Data Office (f918cf) — 5/26/2009 @ 5:11 pmOIDO – I would need to employ some ‘contorted explanations’ to justify regulating the private behavior of others. Not saying it doesn’t happen, but that is what is required.
Apogee (e2dc9b) — 5/26/2009 @ 5:16 pmMike K, with all due respect, the decision was 185 pages long. It was handed down at 10 AM. You posted at 10:15 AM calling it ‘incoherent’.
I don’t think it’s possible for you to have read the decision in that time frame, let alone determined whether it was coherent or not based upon having read it.
Comment by aphrael
The California Supreme Court ruled that gay marriage was legal. It was not the result of a vote by either the left wing legislature or the voters.
Then they chose not to suspend the enforcement of their decision while the certain appeal was decided.
Then they upheld the constitutional amendment that nullified their decision.
I don’t argue that the “marriages” should have been invalidated because of legal complications from such events as death and wills, etc. Gavin Newsom held an orgy of “marriages” in San Francisco attempting to create facts on the ground that would be considered in any appeal, say to the USSC.
The “marriages” are legal but it is an amnesty to avoid the complications of their rash decision.
I say it’s incoherent but, of course, I don’t speak leftist.
Mike K (2cf494) — 5/26/2009 @ 5:16 pm“And speaking of rights, how can California’s constitution say “Only marriage between a man and a woman is valid or recognized in California,” except that rule somehow doesn’t apply to 18,000 gay couples?”
The difference is that the Supreme Court ruling in 2008 ALLEGEDLY simply interpreted the constitution as it actually existed. It was not changed until Prop 8 passed in November. Therefore all marriages that performed between the time the Court recognized the fundamental right (it hadn’t noticed in the last 160 years) and the time the voters overturned are valid.
Sean P (e57269) — 5/26/2009 @ 5:32 pm“And speaking of rights, how can California’s constitution say “Only marriage between a man and a woman is valid or recognized in California,” except that rule somehow doesn’t apply to 18,000 gay couples?”
The difference is that the Supreme Court ruling in 2008 ALLEGEDLY simply interpreted the constitution as it actually existed. It was not changed until Prop 8 passed in November. Therefore all marriages that performed between the time the Court recognized the fundamental right (it hadn’t noticed in the last 160 years) and the time the voters overturned are valid.
Sean P (e57269) — 5/26/2009 @ 5:32 pmRe: the criticisms of the ruling that the 18,000 marriages will stand:
OIDO and Mike K, have you read the section of the decision dealing with retroactive application of Proposition 8?
I’ll make it easy: it starts at page 128.
What part did they get wrong? Did they misstate existing California law on when new law is applied retroactively? Did they missapply that law to these facts? How?
Ken (c97a0c) — 5/26/2009 @ 5:46 pmaphrael, I don’t think your #44 5/26/2009 @ 4:45 pm correctly describes the situation. “Automatically” is a bit of exaggeration absent a joint tenancy, and gay couples can create joint tenancies with little effort.
SPQR (26be8b) — 5/26/2009 @ 6:05 pmNo, aphrael is right about intestacy. It’s wife, children, parents, brothers, collateral relatives. All take all.
nk (e71733) — 5/26/2009 @ 6:10 pm*wife* = *spouse* *All take all in order of precedence.*
nk (e71733) — 5/26/2009 @ 6:11 pmnk, I don’t dispute intestacy ( although you oversimplify there ). Nonetheless my point is that inheritance of real property is not “automatic” in California in so far as a probate can still be required absent a joint tenancy. And as I said, gay couples can create a joint tenancy with little effort.
SPQR (26be8b) — 5/26/2009 @ 6:19 pmAlso, Illinois, which is pretty much down the middle, automatically vests title in real estate in the intestate heirs. No need to do nothing more than file a death certificate and an affidavit of heirship, at the time of reconveyance or reencumbrance of the property.
nk (e71733) — 5/26/2009 @ 6:20 pmin California in so far as a probate can still be required absent a joint tenancy
I knew that California did not recognize tenancy by the entirety (“husband and wife”) but I did not know that it was also as tough on joint tenancy. In Illinois, all we need is an existing recorded joint tenancy deed, a joint tenancy affidavit, and a death certificate, at the time of closing.
nk (e71733) — 5/26/2009 @ 6:23 pmOops, sorry, SPQR. I misread your answer. Ignore my #59.
nk (e71733) — 5/26/2009 @ 6:25 pmNo prob, nk.
SPQR (26be8b) — 5/26/2009 @ 6:27 pmWell, to continue the discussion, you can avoid probate on the cheap when it comes to property. From joint bank accounts to joint ownership of real estate. But I remember my friend whose worthless siblings, who had cast him out and left him alone to care for his mother with Alzheimer’s, did not allow his partner to come to his funeral.
nk (e71733) — 5/26/2009 @ 6:33 pmAnd, oh yeah, I owed him $380.00, and I gave the check to his brother.
nk (e71733) — 5/26/2009 @ 6:35 pmSPQR: that’s fair; my point was more about the intestacy rules in general – eg, that the ‘default’ is for more spouses to inherit while unrecognized gay partners don’t inherit, and that the prop 13 rules don’t require re-appraisal for inheritance as between spouses (or registered DP) but would for unmarried partners.
aphrael (9e8ccd) — 5/26/2009 @ 7:28 pmMike K, my point is that you seemed to be denouncing as ‘incoherent’ something you could not possibly have read, based simply on someone else’s summary of the *result*.
That doesn’t seem to me to be acting in good faith; certainly it’s impossible to accurately measure the coherence of an argument without reading or listening to it.
aphrael (9e8ccd) — 5/26/2009 @ 7:29 pmEliminating the existing marriages was not even a close call.
On what basis would an appeal to federal courts be heard?
Do 36,000 Californians now comprise a privileged class or is this all really about one word?
And when the last one kicks it in 50 or 60 years, will the term “historically targeted minority” cause laughter?
steve (1254cc) — 5/26/2009 @ 7:50 pmGetting beyond the legal or political implications, I think from a purely symbolic and social standpoint the so-called institution of marriage has become so battered and bruised over the past few decades — thanks in part to the revolving-door marriages of Hollywood celebrities and folks like Bill and Hillary, not to mention depictions of dumbed-down human behavior on TV and in movies, etc — that the ongoing insistence of parts of the populace to extend marriage to two guys or two women merely represents another nail in the coffin.
People in modern culture have grown so jaded and shock proof towards behavior that otherwise might have annoyed or outraged them, that it’s not a stretch to theorize the practice of polygamy — particularly within the context of pity-the-Third-World-underdog Islamism — and greater casualness about a semi-open marriage or relationship (ie, where cheating occurs with little guilt or shame) looms very much in the not-too-distant future.
Mark (411533) — 5/26/2009 @ 8:18 pmApparently Ted Olson and David Boies have teamed up to bring a federal EPC claim.
aphrael (9e8ccd) — 5/26/2009 @ 8:22 pmaphrael, in case you missed, it I was only half-joking. Why not have the state explicitly give another name to civil unions, and pass legislation that they get the same rights as marriage. It would work around prop 8, and you would get the benefits you want. No?
carlitos (a0089e) — 5/26/2009 @ 8:30 pmThat the existing marriages continue to be recognized is hardly surprising. If a state which had previously allowed first cousins to marry changed its laws to restrict marriage to second-cousins or greater distance, there could be no new first cousin marriages, but the existing ones would still be legal and recognized.
Further, if first cousins are legally married in a state which allows it, and they move to a state which prohibits that degree of consanguinity, that new state will still recognize their marriage as being legal, having been performed where such was legal. Right now, New York state seems to recognized same-sex marriages performed in jurisdictions which allow them, but New York does not allow such marriages under existing state law.
The adjective-laden Dana (474dfc) — 5/26/2009 @ 8:30 pmcarlitos, this is not about rights, and never was. If this were solely about rights, civil unions statures would suffice.
Rather, it is about the word marriage, because to use the word marriage, and have that recognized by the state, is to make the claim, backed by the state, that same-sex relationships are just as good as heterosexual marriage. It really is a self-esteem issue, much more than anything else.
Marriage is an institution which our society says is the preferred living arrangement. We do not criminalize any other living arrangements between adults, but we do not accord them preferred status. By accepting homosexual relationships as marriages, we would be saying, through the auspices of the state, that such relationships are preferable.
The Dana who sees the real world (474dfc) — 5/26/2009 @ 8:35 pmUpdate: Ladies and gentlemen, penetrating analysis from Meghan McCain.
Seriously California, what the fuck? I can’t believe the ban was upheld…we have to keep fighting!!! Gay marriage will be passed!!!
Yea, I know that just because a person fervently believes in some social issue doesn’t neccesarily mean that issue directly affects him or her. IOW, he (or she) won’t become noticeably indignant or irate about the disallowal of same-sex marriage, or respond in a way where he seems to take that controversy personally, because he himself is homosexual or bisexual.
Nonetheless, and assuming Meghan McCain considers herself straight, I do have to wonder what make her tick so passionately about imposing same-sex marriage on society. However, if she has mainly very liberal socio-politial biases, that would explain a lot.
But, in turn, a high percentage of homosexuals are known to be politically very liberal. And so it ends up being sort of like the question of what came first: the chicken or the egg?
Mark (411533) — 5/26/2009 @ 8:37 pmTed Olsen (Bush’s Solicitor General and Bush’s lawyer in Bush v Gore) and David Boies (Gore’s lawyer in Bush v Gore and the guy who beat Microsoft) have filed a federal suit to overturn Prop 8 and all other laws preventing same-sex marriage.
Kevin Murphy (0b2493) — 5/26/2009 @ 8:45 pmAphrael:
That’s a fair point, but I can’t for the life of me recall the last time any court handed down a decision longer than 50 pages that was coherent. It’s one thing if they’re addressing an unusually complex issue, but in this case the core question was laughably simple: “Is the Constitution unconstitutional?”
Xrlq (62cad4) — 5/27/2009 @ 3:51 amToday’s NYT editorial notes:
So what happened to Justice George between last year and this one?
One religion does he belong to?
One religion are the other members of the court?
Are any of them Mormon?
What pressure was put on them bye manifestly well-funded religious bodied to get them to vote this way?
David Ehrenstein (598548) — 5/27/2009 @ 5:44 amAn attack based on the 9th and 14th amendments failed. (Baker v. Nelson)
Maybe they will have better luck citing the 1st…
Michael Ejercito (365b6d) — 5/27/2009 @ 8:38 amXrlq – Is it safe to assume, especially with the Court in question, that incoherent should be the baseline of what we should expect?
JD (fdabd3) — 5/27/2009 @ 8:45 amMichael: an attack on sodomy laws based on the 9th and 14th amendments failed, too, and then it succeeded two decades later.
I suspect the operating assumption behind the lawsuit is that Baker v Nelson is no longer good law, just like Bowers v Hardwick.
aphrael (9e8ccd) — 5/27/2009 @ 8:56 amThat surely is the calculus, yes, but they’re playing high stakes poker. If the Supreme Court rules that the Equal Protection Clause of the 14th Amendment does not protect a right to same-sex marriage, it’s going to be that much tougher to argue that substantially identical state constitutional provisions do.
Xrlq (62cad4) — 5/27/2009 @ 3:59 pmWhy would Baker no longer be good law?
Michael Ejercito (833607) — 6/5/2009 @ 10:08 pm