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Did the California Supreme Court Help or Hurt Gay Couples?
It seems safe to say that the gay marriage movement is worse off now than it would have been if California's Supreme Court had not ruled last spring that the state constitution requires equal treatment of same-sex couples. In response to that decision, voters have, by a 52-to-48-percent margin, enshrined unequal treatment in the constitution instead. This is just the sort of outcome that critics of the decision who oppose discrimination in this area (including reason online contributor Steve Chapman) were worried about.
The Los Angeles Times says the passage of Proposition 8 "throw[s] into doubt the unions of an estimated 18,000 same-sex couples who wed during the last 4 1/2 months." But according to Berkeley law professor Joan Hollinger, quoted last summer in The Advocate, "Constitutional scholars agree that the amendment cannot be effective retroactively," since that would violate the U.S. Constitution's prohibition of state laws "impairing the obligation of contracts."
In May I criticized the constitutional reasoning underlying the California Supreme Court's gay marriage ruling. Last month Terry Michael defended the legalization of gay marriage by the courts.
|11.5.08 @ 1:41PM|#
They've "enshrined" it until it's removed.
In doing so, they returned the legal status of gay marriage to
where it was before the court ruled.
In the meantime, 18,000 gay married couples are out there NOT
causing the downfall of western civilization, for everyone to
see.
I don't think it's safe to say that at all.
Abdul|11.5.08 @ 1:48PM|#
Trying to legislate through courts always runs a risk. Heller could have resulted in a ruling that gutted the 2nd amendment, one of the reasons the NRA never backed the case. In states with direct democracy, courts would be wise to avoid this type of backlash against legislating from the bench.
|11.5.08 @ 1:53PM|#
It's bad tactics to use the words "gay" or "same sex" or
"marriage" if what you want is the equal right of all consenting
adults to enter into a package of contracts regarding property,
hospital visitation rights, etc. It gets the fundies fired up. And
having judges making the change instead of the voters get people
fired up, too.
Make it as boring as possible -- simply make it about contractual
rights of unmarried adults, including hetero adults, and keep the
state out of arbitrating who is married and who is not, and you can
peel off enough voters so it doesn't get beat 52-48.
Nate|11.5.08 @ 1:53PM|#
FWIW, Prof. Volokh doesn't think the Contracts Clause would
apply in this case
http://www.volokh.com/posts/1225907782.shtml
|11.5.08 @ 2:04PM|#
Who the hell looked at the US Constitution and thought, "Well it takes a 2/3 majority to change that so we will do one better with a simple majority."? WTF?
Guy Montag|11.5.08 @ 2:05PM|#
So, the next step is to eliminate that other silly 'marriage'
scam?
I can always dream . . .
|11.5.08 @ 2:08PM|#
Does this mean that Shatner and Takei can get along
now?
No.
For fuck's sake, joe. Don't you get it? They touch their man
parts together.
Well, they probably more often put their man parts in each
other, but why nitpick? Jerk.
"A power bottom is a bottom that is capable of receiving an
enormous amount of power."
MAX HATS|11.5.08 @ 2:08PM|#
Either way, it's just a matter of time. It's amazing to see how sharply opinions have turned in just four years - we've gone from landslides against gay marriage to narrow defeats. Looking at the demographics, young people are overwhelmingly in favor of equal gay rights.
|11.5.08 @ 2:09PM|#
I had no idea their state constitution could be changed with a simple majority vote. Doesn't that kind of defeat the purpose of having it?
TallDave|11.5.08 @ 2:11PM|#
If they'd just kept this out of the courts for a few more years,
people would have accepted it democratically.
Instead, they tried to impose it via the courts, and Americans
didn't appreciate it having it forced on them.
It's a shame, but at least civil unions are widely accepted. In
another ten years, this could go the other way.
|11.5.08 @ 2:12PM|#
Well, they probably more often put their man parts in each
other, but why nitpick?
"The Double Dutch
Rudder isn't gay, 'cause you only touch your own dick."
SFW, Urban Dictionary link...
|11.5.08 @ 2:13PM|#
Why the hell didn't anyone tell me about this before
now?!?
And to think, all this time joe, you were confused at all the
uproar over letting happy couples get married...
|11.5.08 @ 2:16PM|#
This is the backlash that many were expecting after the CA Supreme Court ruling. You don't have to be against gay marriage to think that the ruling was a bad move. I'm sure CA will get this straightened out eventually, but legislating from the bench just made it take a lot longer.
TallDave|11.5.08 @ 2:17PM|#
"throw[s] into doubt the unions of an estimated 18,000
same-sex couples who wed during the last 4 1/2 months." But
according to Berkeley law professor Joan Hollinger, quoted last
summer in The Advocate, "Constitutional scholars agree that the
amendment cannot be effective retroactively,"
Ha, that's actually sort of funny. So there's 18,000 lucky married
gay couples out there regardless.
That almost starts to be a "facts on the ground" argument. If
Armageddon doesn't come, people will have to admit it isn't worth
restricting people's freedom on this.
tim|11.5.08 @ 2:18PM|#
but at least civil unions are widely accepted
People forget that when we tried for civil unions the fundies came
out vigorously against it saying it was "marriage in all but name".
Which is why Michigan's marriage law says "similar union for any
purpose" ....
Otherwise I agree with you. There is a lawsuit winding its way
through MN over marriage rights. Meanwhile there is another project
to deal with it legislative which has a higher chance of
succeeding.
tim|11.5.08 @ 2:19PM|#
They touch their man parts together
Why do people obsess about the guys? There are just as many gay
women around...
|11.5.08 @ 2:20PM|#
If they'd just kept this out of the courts for a few more
years, people would have accepted it democratically.
Instead, they tried to impose it via the courts, and Americans
didn't appreciate it having it forced on them.
...as demonstrated by how public support for gay marriage has risen
from fringe status to about even since courts began issuing
pro-gay-marriage rulings.
It's a shame, but at least civil unions are widely
accepted. Civil unions were created by the courts, or by state
legislatures in response to court rulings. And, as you say, there
is now widespread support for civil unions.
|11.5.08 @ 2:21PM|#
SugarFree,
But sometimes the gay married touch their female parts together,
which is a beautiful act that should be lauded, and sometimes
filmed, displayed, and distributed.
|11.5.08 @ 2:22PM|#
TallDave and Marcvs have it correctly. If the people advocating
for GLBT marriage had waited another 5-6 years, they probably would
have been able to avoid the court system altogether.
Now, though, we'll end up back in the courts again and I can assume
that if the California Supreme court shoots down Prop 8 that you
will see Christian people doing very un-Christianlike things.
It's all very unfortunate.
|11.5.08 @ 2:24PM|#
tim,
They like the notion of woman parts touching each other.
What is the men-watching-lesbian-porn /
women-watching-gay-male-porn ratio? 50,000 to 1? 100,000 to 1?
tim|11.5.08 @ 2:24PM|#
Now, though, we'll end up back in the courts again and I can
assume that if the California Supreme court shoots down Prop 8 that
you will see Christian people doing very un-Christianlike
things.
The state court can't do anything. This is an amendment to the CA
Constitution. The only way this gets repealed is for it to head
back to the people. You will see this again in two years.
jdd|11.5.08 @ 2:29PM|#
I agree with the author. It seems to me that the validity of
social change like this is much greater if it were to come from the
people or their representatives, instead of the collection of
douches on the Cal. Sup. Ct. I don't think the electorate is all
the way there, yet, unfortunately, and press-mongering Gavin
Newsome is not who you want as your point man.
If the Court shoots down Prop 8, reversing the last-in-time
Amendment theory, that will just push more people the other way -
I'd want the justices impeached for that.
Hopefully, a pro gay-marriage amendment shows up on the ballot in a
few years and people pass it. Either that or banning marriage
altogether, which I can definitely get behind!
Bob|11.5.08 @ 2:31PM|#
I'm all for freedom of choice, even for homosexuals. Let them do
what they please, that is their business.
However, I am also for religious freedom. And as far as I
understand, churches that preach the bible's writing were now in
danger of being sued because of their beliefs.
This is also about religious freedom, not just rights to
homosexuals.
In my opinion the definition of marriage should just be taken out
of the laws, it is a religious institution in the first place. And
people should do according to their belief, so Christians should
follow their Bible and other people their teachings.
Urkobold™|11.5.08 @ 2:34PM|#
THE GAY COMMUNITY HAS HANDLED THIS ISSUE AS INEPTLY AS THEY HANDLE SARTORIAL CRITICISM. WHAT THEY SHOULD HAVE DONE WAS TO LOBBY FOR THE LEGALIZATION OF LESBIAN MARRIAGES.
|11.5.08 @ 2:36PM|#
Maybe someone can explain me this.
If you grant that the state, via direct proposition, can define
marriage as a man or woman, then you grant the state can define
marriage as it pleases.
If, in a couple decades, the state of California moves to define
marriage as only between a man and a man, would the same folks
backing Prop 8 today view it as legitimate?
|11.5.08 @ 2:37PM|#
Makes you think about that episode of Sulu swordfighting in a whole new light, doesn't it?
|11.5.08 @ 2:44PM|#
I'm inclined to say that it doesn't matter all that much in this
case because the California constitution can apparently be amended
with a simple majority.
Now, if judges were to rule the same way on the federal level and a
US constitutional amendment was passed to define marriage as one
man and one woman, then I might say they did the wrong thing.
But, like joe, I think that all the legit non-revokable gay
marriages will help convince the electorate that they were wrong,
and we may see this repealed in only a couple of years
Geotpf|11.5.08 @ 2:52PM|#
If the pro-gay marriage folks put on a proposition on the next ballot, with speicifc stiulations that nothing about gay marriage needs to be taught in schools (one of the retarded arguments for prop 8) or would cause a church to lose it's tax exempt status if they don't do them (another one), it should pass, especially with African American turn out back down to normal levels (lowering the anti-gay vote), and two year's worth of old people dying (who will have mostly been against gay marriage) being replaced by folks who are now 16 being able to vote (who will be mostly for gay marriage). This is a temporary, albeit disappointing, setback, that's all.
Hogan|11.5.08 @ 2:52PM|#
a) can anyone point me to any statistics about whether lesbians
are more likely than gay guys to be interested in marriage/civil
unions?
b) this isn't an issue i feel strongly about either way and haven't
thought seriously about, so i don't stake much on this, but: if
restricting marriage-related state benefits to man-woman
partnerships is a discriminatory violation of the rights of
individuals who prefer man-man or woman-woman partnerships, isn't
it equally discriminatory against those who prefer polygamous or
incestuous partnerships? unless you argue that the government
should get out of relationship-sanctioning altogether (which i
suspect is a majority attitude at h&r), i feel like for
consistency's sake, if it's an equal protection issue, the proper
course would be the sanctioning of all consensual relationships.
the fact that social acceptance of such things progresses
incrementally would seem like a recommendation for treating this as
a legislative, rather than judicial/constitutional, issue.
or not?
Mad Max|11.5.08 @ 2:54PM|#
"'Constitutional scholars agree that the amendment cannot be
effective retroactively,' since that would violate the U.S.
Constitution's prohibition of state laws 'impairing the obligation
of contracts.'"
Absolutely - which is why the courts refused to enforce the "no
fault" divorce laws which made it easier to break up marriages -
that would violate the legitimate expectations of the party who
didn't want to disslve the marriage, and who complied with their
marital duties as defined by the law at the time the marriage was
solemnized.
No, wait, the courts never let a little thing like the Contracts
Clause get in the way of no-fault divorce.
|11.5.08 @ 2:59PM|#
the fact that social acceptance of such things progresses
incrementally would seem like a recommendation for treating this as
a legislative, rather than judicial/constitutional,
issue
I don't believe so, no.
I think the point of treating it judicially is if you think that by
denying full marriage to homosexual couples that you are violating
the constitution, it is necessary to protect the minority from the
majority. If you believe the above, then allowing it to wait until
it is popular is surrendering to the tyrany of the majority.
|11.5.08 @ 3:01PM|#
isn't it equally discriminatory against those who prefer polygamous or incestuous partnerships?
Yes it is, provided that said relationships are
consensual.
I am not keen on brothers marrying sisters but it isn't really my
call, is it? Now them producing offspring that the state then has
to care for may be, but marriage isn't required to spawn so the
inbreeding factor isn't really relevant.
sociologist|11.5.08 @ 3:05PM|#
Why do people obsess about the guys?
Male homosexuality offends traditional populations more than does
female homosexuality because females are generally pictured as
softer, more adaptable, more accepting and inclusive; their
boundaries aren't as rigid, they are expected to be readier than
men to embrace and get along with anything and everything (e.g.,
one speaks of a repellent face that "only a mother could love"). In
conventional settings, women publicly embrace and kiss their women
relatives and friends much more commonly than do men.
Therefore the majority views it as a smaller departure from what is
considered natural - ie, heterosexual - for women to diversify (in
bisexuality) or divert (in homosexuality) their emotional and
physical inclinations toward their own gender than for men to do
so.
mnuez|11.5.08 @ 3:06PM|#
All I'm gonna say is... Hoooaaaa!!!! You pointy headed
intellectual types who enjoy pulling ideas out of your ass and then
pseudo-supporting them with non-facts that only your facility with
nonsense language can make appear intelligent or rational... keep
having your sore asses handed to you by the electorate in EVERY
SINGLE FUCKIN STATE that's voted on this subject.
I believe that would be THIRTY so far.
Oh, please don't misunderstand me, I'm all for allowing people to
do whatever the fuck they like with their genitalia. Stick it in a
girl, in a guy, in a tree, in a cow (provided the mare has signed a
consent form of course) but referring to this issue as one in any
way relevant to "equal treatment", "rights" or any other such sad
sad word is blatantly bullshit, and the people are calling you on
the carpet for it.
Again, blow your wad in another guy's rectum? Go for it! And anyone
who tries to stop you, legally or otherwise, is an enemy of mine.
It's none of anybody's fuckin business what people do with their
bodies. But you wanna claim that you're an oppressed minority
group? A bunch of people who were inherently and irreversibly
"born" AS homosexuals? And that you therefore have DEMANDS that the
government grant you special "marriage" rights?
Shove that nonsense up your ass. All the double-talk in
quasi-scientific pop-articles don't add up to credibility for your
claims.
Thank, fuckin god, for Democracy.
mnuez
P.S. Yeah, I'm serious about all this but I won't deny that the
spirit of a long-dead commedian guided my hands.
|11.5.08 @ 3:11PM|#
This is the backlash that I predicted back when they did
this.
I continue to believe that the court legislated from the bench,
because they didn't strike the law as unconstitutional, they
rewrote it. If the law was unconstitutional as written, it should
have been stricken, and the legislature should have reconvened to
write one that met with the constitutional standard enunciated by
the courts. But the court just moved right into legislative
territory and amended the law.
I think there's a plausible equal protection argument here.
I also think there's a plausible argument marriage defined as being
between one man and one woman is constitutional - it really gets to
whether you think "marriage" necessarily encompasses any marriage
between consenting adults, or means marriage between a man and a
woman. The miscegenation laws ran afoul of even the tightest
definition of marriage, by banning some marriages between men and
women.
Gay marriage is a debate about what marriage means at a level that
very few people involved in the debate seem to recognize at any
conscious or rational level.
Clearly, the best way to do this, and the way it should have been
done from the get-go, is via legislation or constitutional
amendment. I agree that the court, by creating a backlash, set the
gay marriage back.
Hogan|11.5.08 @ 3:13PM|#
I think the point of treating it judicially is if you think
that by denying full marriage to homosexual couples that you are
violating the constitution, it is necessary to protect the minority
from the majority. If you believe the above, then allowing it to
wait until it is popular is surrendering to the tyrany of the
majority.
I agree, but then that would have to equally apply to all
relationships to be consistent.
Yes it is, provided that said relationships are
consensual.
Wouldn't this also require that group marriages (among, say, all
the members of a cult) be recognized? At some point doesn't this
defeat the purpose of having state benefits for marriages?
Which, as far as I'm concerned, is fine.
|11.5.08 @ 3:20PM|#
Looking at the demographics, young people are overwhelmingly
in favor of equal gay rights.
Bwahahahaha!
I hate to piss in your Cheerios, but the demographics said the same
thing 30 years ago.
One intractable problem with relying on the youth vote - it
eventually grows up. Either that, or it gets a job on the editorial
staff of Reason.
Elemenope|11.5.08 @ 3:26PM|#
Male homosexuality offends traditional populations more than
does female homosexuality because females are generally pictured as
softer, more adaptable, more accepting and inclusive; their
boundaries aren't as rigid, they are expected to be readier than
men to embrace and get along with anything and everything (e.g.,
one speaks of a repellent face that "only a mother could love"). In
conventional settings, women publicly embrace and kiss their women
relatives and friends much more commonly than do men.
Therefore the majority views it as a smaller departure from what is
considered natural - ie, heterosexual - for women to diversify (in
bisexuality) or divert (in homosexuality) their emotional and
physical inclinations toward their own gender than for men to do
so.
I would have gone with "four tits, two clits", but your thing too I
guess. ;)
P.S. Yeah, I'm serious about all this but I won't deny that the
spirit of a long-dead comedian guided my hands.
Well, that long-dead comedian sure went unfunny postmortem, whoever
he may be.
Bwahahahaha!
I hate to piss in your Cheerios, but the demographics said the same
thing 30 years ago.
That's a helluva claim. Got anything to back that up?
Hogan|11.5.08 @ 3:26PM|#
I guess my point is that it seems inconsistent for anyone (and outside of libertarians, I'd say this applies to most gay marriage proponents) to argue that its discriminatory to restrict marriage from homosexual relationships, but its no biggie to exclude polygamous or incestuous coupling. I think it's still a "tyranny of a majority" thing in that gay relationships, unlike the latter, have been normalized among a large and growing segment of the population and more and more people therefore call for expanding the definition of marriage to include them. It's not a question of fundamental equal rights, it's just that mores have changed and attitudes towards once disfavored relationships have relaxed. IMHO.
Urkobold™|11.5.08 @ 3:28PM|#
IT'S A MYTH THAT MEN APPROVE OF LESBIANS. WHAT MEN REALLY WANT IS FOR THOSE LESBIANS HE'S WATCHING TO BE DOING TO HIM WHAT THEY'RE DOING TO EACH OTHER. AT THE SAME TIME.
Mike Laursen|11.5.08 @ 3:31PM|#
They've "enshrined" it until it's removed.
What joe said. The court is likely to remove this amendment to the
California constitution based on its violation of its overriding
equal protection clause. It was the correct ruling for the court to
make the first time, and it will be correct if they do it
again.
|11.5.08 @ 3:33PM|#
Good point, Urkobold. I don't really know *a lot* of lesbians, but I don't know any at all that like to invite strange men to watch their freaky sex.
|11.5.08 @ 3:35PM|#
Mike,
I can't speak authoritatively for California, but if the court
allowed it to stay on the ballot, I think they'll have a big
problem trying to declare a part of the constitution
unconstitutional. Whether it creates a federal equal
protection issue is another question.
Urkobold™|11.5.08 @ 3:37PM|#
Art-P.O.G.,
WATCH? NO. PARTICIPATE? WELL, PERHAPS YOU NEED TO UPGRADE YOUR
CLASS OF LESBIAN, MY FRIEND.
|11.5.08 @ 3:43PM|#
you know, it's funny that we think of lesbians as kind of the
reserved, acceptable, non-freaky gays in this country, but you
would be shocked at some of the bizarre and terrifying noises that
come out of lesbians during sex.
Just sayin'.
|11.5.08 @ 3:43PM|#
I personally think that two consenting adults should be able to
do whatever they want in the privacy of their ownhome. Its their
lives and if that makes them happy then who am I or you to
judge?
Jiff
http://www.Privacy-Center.net
Guy Montag|11.5.08 @ 3:45PM|#
As long as they are hottie pr0n lesbians, or even television
lesbians, it is fine with me. Those real-life scary looking ones
don't rev my motor a bit.
BTW, when can we abolish all of these special considerations that
'married' people get now?
|11.5.08 @ 3:47PM|#
but you would be shocked at some of the bizarre and terrifying noises that come out of lesbians during sex.
The word "terrifying" makes this phrase funny, but I'm guessing lesbians don't "fake" orgasms around one another (because women can tell dammit!).
|11.5.08 @ 3:54PM|#
Art-P.O.G.,
You don't have to fake orgasms when you aren't having sex in the
first place.
Lesbian
Bed Death
Brian Sorgatz|11.5.08 @ 3:55PM|#
I've given up trying to find logic in the complaints about
"legislation from the bench" or "judicial activism." If supreme
courts are never allowed to overrule legislatures or voters at
large, what is their purpose at all?
Socrates could have used some "judicial activism" in defense
against the tyrannical majority of free men of Athens who
disrespected his freedom of speech and freedom of religion. A free
society is not, strictly speaking, a majority-rule society in all
things.
dhex|11.5.08 @ 3:55PM|#
dan savage, among others, has put forth the idea that the social
reaction to male homosexuality is a kind of hidden misogyny,
because traditional male roles are subordinated and "female" roles
taken on. which would fit with a misogynistic mentality where women
are portrayed as being primarily useful only for sex.
it's not as crazy as it seems at first blush; steven pinker's new
book goes into all the generally derogatory slang terms for
penetrative sex, and how they're skewed against the receiving
partner - i.e. the female or "female" partner. (ye olden greeks and
romans had similar hang ups)
also, some people are total douches.
|11.5.08 @ 3:56PM|#
Thanks for the link, SugarFree. And a term I had heard a while ago has now been revived: U-Haul Lesbians.
|11.5.08 @ 4:02PM|#
Sugarfree,
Is Lesbian Bed Death the point at which lesbians have David Crosby
sire a child for them?
|11.5.08 @ 4:02PM|#
AO,
The two concepts are linked in the U-Haul wiki
article.
One of the negative consequences of quickly moving in together is that the short dating span virtually eliminates serious discussion on many relationship issues, including sexual compatibility, prior to moving in which can make itself manifest in various problems down the road.
And LDB phenomenon is a major plot point of the film Kissing Jessica
Stein.
anarch|11.5.08 @ 4:04PM|#
Mike Laursen|11.5.08 @ 4:06PM|#
I can't speak authoritatively for California, but if the
court allowed it to stay on the ballot, I think they'll have a big
problem trying to declare a part of the constitution
unconstitutional.
Unless there's a law saying that the California Supreme Court can't
strike down any constitutional amendment that made it onto a
ballot, and I don't know of any such law, then they can indeed
still remove this amendment from the California constitution.
|11.5.08 @ 4:07PM|#
I'm pretty sure Dav Savage is his straight brother. You can spot him by his goatee and Puritanical sex advice column Get Married First, You Sluts.
dhex|11.5.08 @ 4:12PM|#
pinker's argument does lend some credence to the dworkinite
point of view on the subject, as does the whole "virgin/whore"
dichotomy. "easy" girls and all that. etc.
if nothing else, it is a little weird that an expression of total
hopelessness is "we're fucked."
|11.5.08 @ 4:20PM|#
anarch,
To suggest that Andrea Dworkin has some sexual issues would, of
course, not be out of line. I assume most heterosexual women do not
think of being "penetrated" in such political terms. Unfortunately,
since there are only about 8 women that come to this site ever we
might have to wait for an opposing feminist critique.
|11.5.08 @ 4:22PM|#
If the law was unconstitutional as written, it should have
been stricken, and the legislature should have reconvened to write
one that met with the constitutional standard enunciated by the
courts. But the court just moved right into legislative territory
and amended the law.
I'm a big supporter of gay marriage, and I don't buy the whining
about a backlash. All progress creates backlashes, and the trend
for gay rights is inarguable.
But I think the Vermont Supreme Court decision got it right,
tossing it back to the legislature to crafte a solution while
laying down some criteria.
|11.5.08 @ 4:23PM|#
Also, I first heard about "pegging" from Savage's column. What are some of the political implications of this (ever-growing?) sex act.
Brian Sorgatz|11.5.08 @ 4:24PM|#
pinker's argument does lend some credence to the dworkinite
point of view on the subject, as does the whole "virgin/whore"
dichotomy. "easy" girls and all that. etc.
We are all prudes. Let's face it. Seriously, I'm convinced it's
part of the human condition to be hypocritical about sex.
|11.5.08 @ 4:28PM|#
Mike,
I think there's a problem striking down a part of the state
constitution as unconstitutional. Laws can be unconstitutional, as
can proposed amendments. Enacted amendments are part of the
constitution and can't be declared unconstitutional. Unless you go
up the ladder to the federal constitution, which is the supreme law
of the land. Or so they say.
|11.5.08 @ 4:30PM|#
it's as many as 8?
Okay, I added a couple, assuming there were 1 or 2 lurkers that happen to be female. Also, I counted Kerry Howley even though she's in college and probably doesn't come here anymore.
|11.5.08 @ 4:30PM|#
I'm not even sure about the court's ability to strike down proposed amendments. They can on procedural grounds, of course, but can they do so on substantive grounds? I don't think that's the case at the federal level, at least not in theory.
TallDave|11.5.08 @ 4:37PM|#
This is the backlash that I predicted back when they did
this.
Yep, a lot of us did.
If you can get people to vote for it, great. If you can get a
legislature to pass it, fine. If you force it down their throats
with the courts, even if you're right you often end up setting back
the cause because of the resentment it breeds.
Progress on this is inevitable, it's been happening for
decades.
|11.5.08 @ 4:41PM|#
So, these 18,000 lucky bastards who are married and can stay
married, when the rest of the population is prohibited from
participating in the same benefits... this is the Proposition
13 of personal relationships!
"I got mine, and you newcomers can't" is becomming an
institutionalized mentality in California.
dhex|11.5.08 @ 4:42PM|#
"We're made loved to" doesn't pack much of a
punch."
absolutely. one is an expression of tenderness with no explicit
penetrator/penetratee, as it were...cooperative, even; the other of
mechanics solely from the point of view of (unwanted) penetration.
it seems as though there's something fundamental being expressed,
since the sentiment appears to be (i'm told) cross cultural, with
varying degrees of intensity.
pinker's whole chapter on curses, slurs and insults is worth the
price of admission for the rest of the book, which may or may not
be interesting depending on how interesting you find
language.
We are all prudes. Let's face it. Seriously, I'm convinced it's
part of the human condition to be hypocritical about
sex.
to be sure; perhaps not exactly prudes, then mightily conflicted,
to say the least. but i think savage is onto something - not the
whole thing, but something - when he says that male homosexuality
pushes a button that pushes an even older button; to be penetrated
is to be weak, to be used, and so forth.
now...at the end of the day that makes no damn sense if one expects
humans to line up like math equations, since most straight males
spend their lives in pursuit of opportunities to penetrate women,
but on the other hand people are weirdos.
this same population will spend money (or time using bittorrent)
getting pornography (watching other people have sex) or even going
to strip clubs (paying a continual fee for arousal without -
generally - the actual release of sexual intercourse or
activity.
Mike Laursen|11.5.08 @ 4:43PM|#
Pro Libertate, I was just reading an article on this topic this morning. The California Supreme Court can strike the amendment down on the basis that it violates the California constitution's equal protection clause.
|11.5.08 @ 4:52PM|#
Mike,
Well, it could be that the California constitution provides that
sort of check to the amendment process. I have no idea. Normally,
an amendment that doesn't read consistently with an existing
provision is read as trumping the earlier provision. However, I
think I prefer the approach that basic constitutional rights can't
be easily overridden by the amendment process.
Mike Laursen|11.5.08 @ 4:52PM|#
Darn, have to take back what I said. A challenge will be filed along those lines, but most legal experts are of the opinion that the amendment cannot simply be struck down. It sounds like it is ultimately an unsettled question.
|11.5.08 @ 5:04PM|#
A proposed amendment can't be unconstitutional because nothing
is unconstitutional until its enacted.
A part of the constitution cannot, by definition, be
unconstitutional.
However, I think I prefer the approach that basic
constitutional rights can't be easily overridden by the amendment
process.
Then what you want is an amendment process that makes it hard to
amend the constitution.
The Supreme Court is not above the Constitution. If the California
Supreme Court takes it on themselves to rewrite their own
Constitution, then California will have itself a bona fide
constitutional crisis.
|11.5.08 @ 5:11PM|#
R C Dean,
In essence, yes. I don't like constitutions like Texas' (how many
pages is it up to today?) or, these days, Florida's, that morph
from foundational documents into super-legislation. While some may
like the idea of class sizes or pregnant pigs being part of their
constitutions, I think that's craziness. The federal process is
better in this regard. I suppose what I'd like to have is some way
of shielding the limited government/civil liberties parts of any
constitution from being easily changed.
Not that I oppose referenda and other popular political tools; I
just want to make sure that the various constitutions don't get
more diluted than they already are.
Warmongering Lunatic|11.5.08 @ 5:16PM|#
Nothing unsettled about it as a legal question. Two standard
rules of construction are newer overrides older, specific overrides
general. Under both, the ban on gay marriage overrides the older,
not-specific-to-marriage equal protection clause. If the court
rules otherwise, it is overthrowing the rule of law.
Similarly, the Contracts Clause doesn't cover marriage. Never has.
Marriage is not a private contract, it's a public institution.
Otherwise, for example, modifications to divorce laws could not
affect existing marriages; arguably even marital exceptions to rape
laws could not have been repealed for existing marriages.
|11.5.08 @ 5:20PM|#
I've given up trying to find logic in the complaints about "legislation from the bench" or "judicial activism." If supreme courts are never allowed to overrule legislatures or voters at large, what is their purpose at all?
I think you've given up logic completely. Is it so hard to
understand the difference between striking down a law and creating
a new one?
|11.5.08 @ 5:56PM|#
As a California lawyer, I've been following this issue.
First, although the press keeps stating that the ballot measure was
in response to the Supreme Court decision, in fact the measure had
already qualified for the ballot before the Supreme Court decided
the case. I do not think that the decision made the ballot measure
more likely to pass; I think it made it less likely to pass because
it meant breaking up marriages that were already in existence at
the time of the election.
Second, there is another part of the opinion that is very good for
gay rights. The court held that discrimination on the basis of
sexual preference is to be tested by strict scrutiny, which is the
test applied to discrimination on the basis of race or religion.
This is a difficult test to pass.
Other laws that discriminate between two groups of people are
subject to the "rational basis test," which upholds the law if it
is rationally related to a legitimate state objective. This test is
easy to pass.
I believe California is the first state to apply strict scrutiny to
laws that discriminate on the basis of sexual orientation.
|11.5.08 @ 5:57PM|#
"Is it so hard to understand the difference between striking
down a law and creating a new one?"
It is hard because no justice says or probably even thinks they are
"making a new one." For instance in the present case they felt they
were enforcing the equal protection clause which was enacted by a
democratic majority.
"A part of the constitution cannot, by definition, be
unconstitutional."
Even if it is in conflict with another part of the Constitution?
Then what do you do?
|11.5.08 @ 6:18PM|#
MNG,
As mentioned above, the general rule is that the later provision
trumps the earlier (when in direct conflict), and the more specific
beats the general. Without considering the merits or the specifics
here, a ratified amendment that states that gays can't marry would
trump a general equal protection clause. This could be challenged
in federal court as a violation of the 14th Amendment, but it would
be kosher, constitutionally speaking, in California.
For those of you who think that democracy is all-important,
consider how easily fundamental rights could be eliminated entirely
if enough of us were stupid enough to vote for the wrong
amendments.
cunnivore|11.5.08 @ 6:19PM|#
MNG,
If an amendment to the US constitution conflicts with a
pre-existing part of the federal constitution, what happens?
Hmmm.....
|11.5.08 @ 6:22PM|#
Actually, that's right. Look at the Civil War amendments, which, ahem, illegally impinged on the property rights of slaveowners. . .if you wanted to read it that way.
cunnivore|11.5.08 @ 6:22PM|#
The problem is, gay marriage advocates are trying to follow the school desegregation model with this. The difference is, that most of the country was fine with desegregation at the time of Brown v Board, whereas most of the country is not fine with gay marriage now.
cunnivore|11.5.08 @ 6:24PM|#
I don't know what would happen if an amendment was ratified that removed the equal representation of states in the Senate. According to Article V, that's not allowed, but if an amendment trumps anything in the original document...
cunnivore|11.5.08 @ 6:31PM|#
While I'm not a fan of majority vote adding amendments to the constitution, the massively high barrier to amending the federal constitution spawned the "living constitution" philosophy as an easier way to change the constitution. If all it took to amend was, say, a 2/3 vote in Congress, a lot of the popular but obviously unconstitutional stuff the federal govt does now could have been authorized legitimately, rather than establishing the principle that the text of the Constitution can be ignored whenever convenient.
|11.5.08 @ 7:48PM|#
Pro Liberate
Hmm, that makes perfect sense to me. Thanks.
cunny
According to Pro's point above the Amendment would trump as it came
later (unless it were somehow less specific, then it may be a
problem).
Robert Goodman|11.5.08 @ 9:46PM|#
"Specific trumps general" is just the common sense way any of us would read a rule book for anything, although it would be nice if they put in "notwithstanding" clauses to make the exceptions explicit in those cases (as with the US Constitution) where they don't strike previous language and consolidate.
Mad Max|11.5.08 @ 10:24PM|#
"If all it took to amend was, say, a 2/3 vote in Congress, a lot
of the popular but obviously unconstitutional stuff the federal
govt does now could have been authorized legitimately, rather than
establishing the principle that the text of the Constitution can be
ignored whenever convenient."
Most of the proposed constitutional amendments which made it
through 2/3 of Congress were ratified by 3/4 of the states.
The exceptions, the amdendments which were proposed by 2/3 of the
Congress but not accepted by the states, are:
(a) A proposed redictricting amendment from 1789 whose present-day
effect would been to add many other members to the House of
Representatives.
(b) An amendment proposed circa 1810 to strip people who accepted
foreign titles and titles of nobility of their U.S. citizenship. No
mention of a fair trial, or even of any trial, before imposing this
penalty.
(c) An amendment proposed in 1861 to prohibit future anti-slavery
amendments. Thus, states would have been allowed to keep slavery as
long as they wanted.
(d) An amendment proposed in 1926 to allow Congress to ban child
labor.
(e) The Equal Rights Amendment.
(f) A proposed amendment in the late 1970s to give the District of
Columbia some Senators and Representatives.
Kaiser|11.5.08 @ 10:59PM|#
I had this exact some conversation with a friend of mine that lives in San Francisco just last night. I was saying that Prop 8 would probably pass because of how gay marriage was implemented. The citizens of California had already voted once against it, and a lot of them probably voted out of spite or contempt. Of course that does not make it right, I was hoping the citizens could look past their anger for the courts and use this opportunity to rectify an injustice.
Kaiser|11.5.08 @ 11:00PM|#
Also, just to add this again, if the state of California can't get gay marriage passed, I don't feel there is much hope for the rest of the country anytime soon.
Pepe|11.6.08 @ 12:41AM|#
"Also, just to add this again, if the state of California can't
get gay marriage passed, I don't feel there is much hope for the
rest of the country anytime soon."
Maybe. But California isn't as socially liberal as it is perceived
by the rest of the country (how many times have people given me the
"filled with fruits and nuts" line when I've traveled around the
country}. If you spend a vacation in San Francisco or Santa Monica
you get one perception of the Golden State. Spend a weekend in
Fresno or Redding, or even the middle class suburbs of LA and
you'll get a very different one.
Not to mention the fact that a majority of the Latino and Black
voters that came out to support Obama also voted yes on 8. Liberal
attitudes about homosexuality are still mostly the domain of
educated, upper-income, urban white people here.
Pepe|11.6.08 @ 12:54AM|#
As to the argument behind the challenge to prop 8's
constitutionality:
Apparently the CA constitution allows an
"amendment" to be passed through a ballot initiative by a simple
majority but a "revision" must be approved 2/3s of the legislature
first before appearing on the ballot. As to what constitutes and
amendment versus a revision, I have no idea but it would appear
there is some basis for the challenge.
rhywun|11.6.08 @ 1:16AM|#
Not to mention the fact that a majority of the Latino and Black voters that came out to support Obama also voted yes on 8.
Latinos were 50-50. I still think the sole predictor is religion.
Asians rejected it. Blacks overwhelmingly supported it. It seems
pretty obvious to me that voters based their decision on what their
religious leader (or lack thereof) told them to.
Pepe|11.6.08 @ 1:21AM|#
SF Chronicle reports that more than half of latinos voted for 8 according to exit polls. But maybe there are other exit polls showing it evenly divided.
|11.8.08 @ 12:44PM|#
mnuez...I really hope reincarnation exists, and that you come back as a gay man. But in Alabama, or someplace crappy like that.
|11.8.08 @ 1:09PM|#
Hogan...I think the idea is that sexual orientation is an inborn trait...like left-handedness or counter-clockwise hair whorls. You can't really make the same claim for bigamy or incest. See Steve Premo's post above.
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