Important Prop. 8 Ruling Today

[LA Ute]

Yikes. He sounds like Glenn Beck.

Help me out here, LA Ute. From the interview:

How does this constitute "changing the constitution"?

And what does he mean by "people are the final arbiter of the law"?

It almost sounds as if he believes that the judiciary should never rule on constitutionality of a law passed by a majority. In spite of his rhetoric, I can't help but wonder who is really on the side of the constitution here.

Those are very standard conservative/strict constructionist/originalist views. There's nothing extreme about them. If Glenn Beck shares those views that doesn't make them extreme. As for the people's role as final arbiter, remember that the Constitution begins with the words "We the people." That was quite intentional. Some of the Framers wanted it to say "We the sovereign states," etc., but that was rejected. The notion that the government derives its powers from the people and that the people can amend the Constitution at any time (provided they meet the requirements for doing so) is as old as the Constitution. So you may disagree with what Romney says here but it's a stretch to characterize it as extreme in any way.

[Uncle Ted]

Does the constitution require any kind of marriage? Gay, interracial, interfaith?

Bingo!

Somehow marriage has become a government issue like it is clearly spelled out in the constitution somewhere. Thanks to the government there are tax, employment, medical, inheritance, welfare and many other benefits attached to being married. The problem is government has worked its way into everyone's personal relationships. If the government insists on creating benefits for personal relationships then someday they are going to have to make these benefits available for any type of relationship one can think of (which goes well beyond just same sex marriages, IMHO). Maybe the government should just get the hell out of everyone's personal relationships instead. If these benefits didn't exist for any type of personal union then there would not be any reason to be arguing for recognition by the government of one's favorite type and all types would be treated equal.

[All-American]

I'm going back over the ruling now and finding some interesting features.

One thing the ruling does NOT do, curiously enough, is recognize the right of homosexuals to marry. The ruling is not an affirmative recognition of the right, but a negative rebuttal of the proposition itself as it removed that right. It's a nifty little sleight of hand, and it lets the majority get away with saying that they aren't ruling on the issue of gay marriage at all. In theory, "traditional" marriage amendments in any other state, even within the 9th Circuit, are still valid. The distinction focuses all attention on THIS particular piece of legislation, letting in all sorts of evidence that animus was the motivating factor of the motivation itself, and neatly avoiding the issue of whether there can be any legitimate reason to define marriage as being between a man and a woman (and the Supreme Court's 1972 decision in Baker v. Nelson which summarily dismissed the question in favor of heterosexual marriage).

The ruling makes a lot out of that distinction, but I'm still not sure that it's one that carries a lot of water. If you accept as true the idea that to allow for heterosexual marriage and not homosexual marriage denies homosexuals their rights under the equal protection and due process clauses, then the question of whether they had the right ab initio and it was taken away, or whether they never had the right to begin with strikes me as unimportant. The way the majority has framed its argument leaves open the awkward possibility that the Constitution of the United States could require California to allow gay marriage, but at the same time, allow Utah to define marriage as being between a man and a woman only.

More importantly, though, the way they have written the decision very closely parallels another important decision: Romer v. Evans, which held unconstitutional an amendment to the Colorado State Constitution banning the recognition of gays as a protected class. The decision is important not only because of the similar legal issues involved, but because the author of the majority opinion in Romer, Justice Kennedy, may well cast the deciding vote in the eventual appeal in this case. The decision was effectively a letter to Justice Kennedy, using his own language and his own logic, and written to ensure that the fifth vote would fall to them.

Proponents of the proposition will say that it's shoddy legal reasoning, and opponents will say that the court should be commended for taking the smallest steps necessary to reach its conclusion. There will probably be plenty for Scalia et al. to object to once they get their hands on it, but my guess is we'll be looking at a 5-4 ruling affirming the 9th Circuit's decision.

[SoCalCoug]

I think people are a little confused about what has happened in California re gay marriage.

The original statutory language (created in 1971, when the California statutes were changed to include gender-neutral language) defined marriage as "a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary." In 1977, the language was changed to refer to a contract between a man and a woman.

Prop 22 passed in 2000, which created a statutory definition of marriage as between only a man and a woman. This was through the initiative process (which is much more liberal in California than in any other state - more than 400 of them have made it to ballots since 1911).

In 2004, Mayor Gavin Newsome (San Francisco, obviously) instructed his clerks to issue marriage licenses to same-sex couples. This occurred from February to March 2004. Later, in August 2004, the California Supreme Court ruled that those marriages were invalid.

In February 2004, several lawsuits were filed. Some challenged the San Francisco marriages, and others sought to overturn Prop 22.

On March 14, 2005, a San Francisco Superior Court judge ruled that Prop 22 was unconstitutional under the California constitution. The same-sex marriage opponents appealed.

Meanwhile, in 2005, the California Senate passed a bill approving of same-sex marriage. The Governator vetoed it, citing Prop 22 (the new bill would have done away with the statutory language (Family code section 300), but it could not have invalidated Prop. 22.

The bill was resubmitted in 2006, and re-passed in 2007. The Governator again vetoed it. However, in his veto statement, he said the California Supreme Court needed to finish its rule on the challenge to Prop. 22, which had become the In re Marriage cases.

The superior court ruling on the marriage cases was reversed in 2006 by a California appellate court. The California Supreme Court then agreed to take it.

The California Supreme Court issued its ruling in May 2008, striking down all of the state statutes prohibiting same-sex marriage (including what had been Prop. 22) as unconstitutional. Notably, the opinion was authored by the conservative chief justice George. Incidentally, the Supreme Court that issued the ruling had all been appointed by Republican governors. When the decision became final on June 16, 2008, the law of the state commenced to allow same-sex marriages.

Prop 8 was approved for the fall 2008 ballot even before the In re Marriage decision was issued. I think we're all clear on what happened then.

So, as of June 16, 2008, same-sex couples in California had the right under California law and under the California constitution to marry. That right was taken away by Prop. 8.

All the talk about Prop 8 not taking away rights that already existed is baloney. And for those who whine about a panel of three individuals taking away "the will of the people," I raise you with a single individual twice vetoing legislation passed through the appropriate procedure by legislators elected by the people of California.

I think the appellate court's decision is sound. Prop. 8 did, indeed, take away a right of a targeted group, despite the propaganda to the contrary by the critics of the decision. You can't get around that particular reality. The fact that critics of the decision seem to be working so hard to dispute that reality speaks to its importance to the analysis.

I think this will come down to what Justice Kennedy does, which I think may not give Prop. 8 supporters warm fuzzies.

[Clark Addison]

I hear quite a few people pointing to the wording in today's ruling as proof that the slippery slope argument was valid all along. Extending a few rights and protections leads eventually to civil unions at which point it is difficult to make a case why they should not get full access to marriage. Yet (for me anyway) that only seems to reinforce the notion that the anti-gay marriage forces are in an untenable position. One cannot possibly make a convincing argument that we should not extend basic civil rights to GLBT folks protecting them from discrimination in the workplace, housing, medical care, etc. Even the Church has conceded that argument. But once you go down that road, there just doesn't seem to be a logical breaking point or dividing line where those rights and protections should end. As noted in today's ruling, to extend everything else but withhold that final privilege is not defensible. I don't think there any way the momentum will be turned back now. And rightly so.

Good post. I agree with this.

[DrumNFeather]

From facebook: "If you are for prop 8 you are against love."

[LA Ute]

I don't think there any way the momentum will be turned back now. And rightly so.

You may well be right, but I'll note that you are characterizing a totally predictable decision by the most liberal judge on the most liberal federal appellate court in the USA (and the most-reversed) as a sign of momentum for the cause of same-sex marriage. I'm not persuaded. But you knew I wouldn't be.

[Jeff Lebowski]

You may well be right, but I'll note that you are characterizing a totally predictable decision by the most liberal judge on the most liberal federal appellate court in the USA (and the most-reversed) as a sign of momentum for the cause of same-sex marriage. I'm not persuaded. But you knew I wouldn't be.

lol. I was basing my observation on far more than yesterday's ruling.

[Jeff Lebowski]

Those are very standard conservative/strict constructionist/originalist views. There's nothing extreme about them. If Glenn Beck shares those views that doesn't make them extreme. As for the people's role as final arbiter, remember that the Constitution begins with the words "We the people." That was quite intentional. Some of the Framers wanted it to say "We the sovereign states," etc., but that was rejected. The notion that the government derives its powers from the people and that the people can amend the Constitution at any time (provided they meet the requirements for doing so) is as old as the Constitution. So you may disagree with what Romney says here but it's a stretch to characterize it as extreme in any way.

Let's go back and look at what he said:

But the idea of men and women, unelected, sitting on the bench and changing the Constitution, legislating from the bench is something which we simply cannot endure as a true constitutional democracy.

Please explain to me how this ruling yesterday "changed the Constitution".

And that, of course, is antithetical to the idea of a true constitutional democracy, where the people are the final arbiter of law.

This and the prior quote seem to strongly imply that courts have no right to review and potentially overturn any law passed by a simple majority; that this notion somehow violates the constitution. Do you agree?

[Jeff Lebowski]

Speaking of trends, there is huge difference of opinion regarding same-sex marriage when broken down by age group. And keep in mind that this chart is over three years old now. All indications are that there has been a substantial shift over the last three years.

[CardiacCoug]

From facebook: "If you are for prop 8 you are against love."

Funny.

But I would say that people for Prop 8 are against reason and common sense.

I'm still trying to figure out what motivates anti gay marriage people other than "gay sex is gross and I want to pretend it doesn't happen" type of thinking.

[creekster]

Let's go back and look at what he said:



Please explain to me how this ruling yesterday "changed the Constitution".



This and the prior quote seem to strongly imply that courts have no right to review and potentially overturn any law passed by a simple majority; that this notion somehow violates the constitution. Do you agree?

His words were ambiguous. An equally reasonable interpretation is that finding protection for same sex marriage in the constitution when no such right is addressed is tantamount to changing the constitution and when this overturns a popular election that amended a state constitution it amounts to legislation from the bench. I am not saying I agree with this interpretation but it is as plausible as yours.

[RobinFinderson]

Funny.

But I would say that people for Prop 8 are against reason and common sense.

I'm still trying to figure out what motivates anti gay marriage people other than "gay sex is gross and I want to pretend it doesn't happen" type of thinking.

They just want to defend the sanctimony of marriage.

[wuapinmon]

"gay sex is gross and I want to pretend it doesn't happen"

In their defense, anything that produces santorum is kind of gross.

[Flystripper]

In their defense, anything that produces santorum is kind of gross.

why ya gotta be so frothy?