California Gay Marriage Question on its Way to the State's Supreme Court

….after a state Appeals Court ruled 2-1 yesterday that

Gays and lesbians have no constitutional right to marry in California, and any change giving them that right must come from state lawmakers or the voters rather than the legal system

That overturned an earlier lower court ruling that gays did indeed have a right to marry in the state.

The whole article, from the San Francisco Chronicle, details the back and forth between the winning side and the dissent in this case on whether anti-gay marriage laws ought to be considered the legal equivalent of long-overthrown anti-interracial marriage laws.

A sampling of Reason-related gay marriage talk:

Former Reason editor Virginia Postrel on what Hayek would have said.

Jonathan Rauch, author of Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, defends gay marriage in our pages.

David Weigel explains why the GOP can't count on citizen anger over things like liberalized gay marriage laws to save them.

Comments

[RexRhino]

Wouldn't gays have the right to marry under the 9th amendment to the U.S. constitution?

I suppose that gay rights groups haven't made that arguement, because they tend to be leftist, and if the 9th Amendment protected gay marrage, it probably protects eating trans-fats and advertising for political candidates before elections... It is hard to make an arguement for gay rights based on individual freedom, when most of your non-gay rights issue stances are against individual freedom.

Not allowing gay marrage is the price you pay for the nannie state.

[Rogus]

The judges here got it right. 61% of California voters supported Prop 22 in 2000 in defining marriage as between a Man and Woman.

I hate it when these politicans and special interest group think their voice is more important than 4.5 Million people who supported the Prop.

If they truly believed in Democracy, they would write a law repealing Prop 22 and bring it to the voters of California to vote on. Instead we are stuck with people who think their opinions matter more than a majority of the voters.

[Phileleutherus Lipsiensis]

Rogus,

The framers of the Constitution didn't believe in democracy (which is why they placed so many checks on majoritarian interests). Why should we?

[Rogus]

Phileleutherus Lipsiensis:

If they didn't believe in democracy, why even make having elections part of the process?

Would have been easy just to set up a new king if they didn't believe in Democracy.

[pigwiggle]

Rogus, what say you if 51% of Californians agree that the other 49% should be battered and deep-fried?

[Rogus]

Pigwiggle:

Do you honestly think that 51% of Californians would support half their population should be deep fried and battered?

[Pig Mannix]

Rogus, what say you if 51% of Californians agree that the other 49% should be battered and deep-fried?

Well, I can't speak for Rogus, but having lived in California, I'd have to say if anyone proposed battering and deep-frying 49% of Californians, I'd agree enthusiastically!

Hey, it's a start!

[thoreau]

The tension between representative government and minority rights is usually balanced in a constitution that says which things will be inalienable rights and which things will be subject to representative government (either by a majority or a supermajority or whatever).

What I simply don't know is what the California State Constitution says about ballot measures. If ballot measures have the status of constitutional law in CA (maybe, maybe not, I just don't know) then the theoretical arguments go out the window insofar as what the judges were supposed to do.

Does anybody know the legal status of ballot measures in CA?

[carrick]

Rogus --

From John Stuart Mill's On Liberty (via Wikipedia).

"This may seem axiomatic", he says, but "the people who exercise the power are not always the same people with those over whom it is exercised". Further, this can only be by the majority, and if the majority wish to criminalise a section of society that happens to be a minority -- whether a race, gender, faith, or the like -- this may easily be done despite any wishes of the minority to the contrary.

Democracy is great, except when it's not. The fact that the majority of a population may want to ban the lifestyles of a minority, does not make it moral, ethical, or just.

[carrick]

Rogus --

From John Stuart Mill's On Liberty (via Wikipedia).

"This may seem axiomatic", he says, but "the people who exercise the power are not always the same people with those over whom it is exercised". Further, this can only be by the majority, and if the majority wish to criminalise a section of society that happens to be a minority -- whether a race, gender, faith, or the like -- this may easily be done despite any wishes of the minority to the contrary.

Democracy is great, except when it's not. The fact that the majority of a population may want to ban the lifestyles of a minority, does not make it moral, ethical, or just.

[Rogus]

Carrick:

Yet it's moral, just, and ethical when the minority use special interests to get laws passed specially created to give them either an advantage or force indoctrination of their lifestyle onto the majority?

It's a two edge sword that has been used to cut both ways.

[Isaac Bartram]

Yet it's moral, just, and ethical when the minority use special interests to get laws passed specially created to give them either an advantage or force indoctrination of their lifestyle onto the majority?

Ah, no it's not. I don't think you'll find anyone here saying it is.

You seem to be unaware that the founders tried to establish a republic. That is why they didn't want another king. Democracy is not the opposite of monarchy.

Do you honestly think that 51% of Californians would support half their population should be deep fried and battered?

Majorities have imposed all kinds of things that to sensible people seem absurd.

[Rogus]

Isaac Bartram:

I'm very aware we have a Republic. But the framers were more worried about politicians becoming new kings not about the common man. The check and balances they put in place was put there to limit the power of the people in government, not to limit the power of the voters.

And you did not answer the question. Can you sit there and honestly say with a straight face that you believe that Californians today would support half their population battered and deep fried?

[carrick]

Rogus --

Yet it's moral, just, and ethical when the minority use special interests to get laws passed specially created to give them either an advantage or force indoctrination of their lifestyle onto the majority?

You miss the point entirely. Are you really that dim?

The world is not binary, where things must be either/or. Removing legal prohibitions against private behavior is not the same thing as giving that behavior preferred status -- it is giving it neutral status.

If you so fear that "gay married couples" will get "marriage benefits" via force of law, then may be you need to question why any marriage gets any benefits through force of law. For example, why do married heterosexual couples get a tax break when unmarried heterosexual couples don't?

Marriage is an overloaded term in our society. It reflects a religous union between two people and an civil contract to merge two peoples finances.

The government should get out of the marriage business and allow contract law to cover civil unions.

[R C Dean]

Wouldn't gays have the right to marry under the 9th amendment to the U.S. constitution?

How so?

I think the 9th could be read to say that the feds don't have any power to do anything, pro or con, about gay marriage.

But I don't think it could be read to require that a state recognize gay marriages if it doesn't want to.

[thoreau]

Can you sit there and honestly say with a straight face that you believe that Californians today would support half their population battered and deep fried?

I don't know about CA, but in Chicago I'm pretty sure that the City Council would never stand for deep frying.

[Isaac Bartram]

thoreau

I think it would be OK as long as you didn't use transfat.

[Isaac Bartram]

Can you sit there and honestly say with a straight face that you believe that Californians today would support half their population battered and deep fried?

Actually, no, I'm sure they'd prefer them lightly sauteed and served with some fava beans and a nice Napa Valley Chardonnay.

[Isaac Bartram]

The check and balances they put in place was put there to limit the power of the people in government, not to limit the power of the voters.

Uhhm, what about the Electoral College?

[Rogus]

Carrick:

You are fool. You are too focused on gay marriage and defining marriage that you miss the point entirely and cant see the bigger picture.

You want to muddy the waters and talk about marriage, I certainly will. But for me, what is far more important than defining marriage is when a couple of special interest groups think their morality and their political view is more important than the majority of people who voted on the issue. That they shop cases to judges that will rule in their direction and overturn the will of millions of voters. That's what I care about.

Whether it's Left trying to overturn Prop 22 and the Definition of Marriage or the Right looking at overturning Prop 215 and Medical Marijuana, the fact that this is happening way to often is extremely disturbing to me.

But heck, if you think defining marriage is more important than special interest groups looking to overturn Propositions passed by the majority of the voters making voting for laws practically useless, then fine by me.

[dhex]

"Yet it's moral, just, and ethical when the minority use special interests to get laws passed specially created to give them either an advantage or force indoctrination of their lifestyle onto the majority?"

WE WILL MAKE YOU GAY BY HELL OR HIGH WATER.

Yours Truly,
The Gay Agenda

the bar for indoctrination is criminally low these days.

[Rogus]

>> Actually, no, I'm sure they'd prefer them lightly sauteed and served with some fava beans and a nice Napa Valley Chardonnay. >Uhhm, what about the Electoral College?

[Rogus]

>> Actually, no, I'm sure they'd prefer them lightly sauteed and served with some fava beans and a nice Napa Valley Chardonnay. >Uhhm, what about the Electoral College?

[carrick]

Rogus

You are fool. You are too focused on gay marriage and defining marriage that you miss the point entirely and cant see the bigger picture.

Well duh, that's what this thread is about. If you were shifting gears, you did a really bad job of explaining what you were trying to do.

Voter propositions can be dangerous things. The general population can be even less concerned about the constitutionaliay of laws than elected officials.

Courts over turning unconstitutional law is a good thing regardless of whether the people or their elected officials passed the law.

[Rogus]

>> the bar for indoctrination is criminally low these days.

[carrick]

But for me, what is far more important than defining marriage is when a couple of special interest groups think their morality and their political view is more important than the majority of people who voted on the issue.

I definitely believe that my point of view is more important than the majority of voters who base their decisions on political advertising that is less honest that the typical dog food commercial.

I don't want those people defining what my rights are regarding how I live my life.

[carrick]

I guess you're right, it's a matter of how you look at it. Because having a day/month dedicated to certain people, passing laws if a victim happens to be of a special class that criminals should be more harshly punished than if the victim was not, writing laws that give certain people preferential treatment for such things as education and jobs, or changing school books that they have a whole section dedicated to a special class of people and that they can only be show in a positive light is not indoctrination, that's umm... oh yeah "leveling the playing field". Right?

What the fuck does any of this have to do with the topic at hand?

[Rogus]

>> Well duh, that's what this thread is about. If you were shifting gears, you did a really bad job of explaining what you were trying to do.> I don't want those people defining what my rights are regarding how I live my life.

[Rogus]

>>> What the fuck does any of this have to do with the topic at hand?

[carrick]

How dare you overturn the will of the people.

Which people rogus?

The popular people that wish to marginalize the unpoplar?

The moral people who condemn the amoral?

The rich people how dispise the poor?

The bolsheviks that wish to build a classless society?

You can fool all the people some of the time. And some of the people all of the time. And that's sufficient for most purposes.

[Aresen]

A lynch mob is a form of democracy in which the majority has decided that the minority is expendable.

My view of the gay marriage issue is that marriage is a religious sacrament. From that point of view, separation of church and state means that the state should not have any laws relating to marriage or laws wherein marital status is used to determine anything. It shouldn't matter to the state whether someone's [voluntary] partner is the same sex, different sex, single or multiple, or even their rubber ducky. (The Society for Prevention of Cruelty to Rubber Duckies might have something to say about the last.)

[Chris S.]

Rogus,

I don't think you'll find any dogmatic majoritarians here, so save your "will of the people" indignation. Honestly, I doubt you're a dogmatic majoritarian either. Otherwise, you wouldn't have started with gay rights activism -- it's a side issue. You'd start by attacking the constitution (amendments require a supermajority of congress and the states), the senate (states get two senators regardless of population), and the entire judiciary (why have due process when we can vote for guilt ala Nancy Grace?). After that, you might offer a defense of moral relativism, as your view of majoritarian ethics is entirely relativistic: whatever the masses vote for is right -- individual rights be damned!

However, as I said before, I doubt you're the majoritarian dogmatist. It's probably just gay marriage, no?

[Akira MacKenzie]

Yet it's moral, just, and ethical when the minority use special interests to get laws passed specially created to give them either an advantage or force indoctrination of their lifestyle onto the majority?

. Because having a day/month dedicated to certain people, passing laws if a victim happens to be of a special class that criminals should be more harshly punished than if the victim was not, writing laws that give certain people preferential treatment for such things as education and jobs, or changing school books that they have a whole section dedicated to a special class of people and that they can only be show in a positive light is not indoctrination, that's umm... oh yeah "leveling the playing field". Right?

Hmmmmm... I think Rogus has more or less revealed his true colors here: Those of a pig-shit bigot.

[Robert]

So many people are looking at this the wrong way. The question of whether 2 particular individuals are married should not be thought of as a civil liberties matter. Rather, it's a question of CAN they be married, not MAY they be married. It's not about permission, which it was in the case of interracial marriage, but of possibility. And that rests on the meaning of marriage, which has been established by long custom.

Allowing gov't to re-define marriage is akin to allowing it to redefine weights and measures established customarily. They did it with the dollar (thaler) and similar weights of precious metal, but that doesn't mean they should be allowed to do it again with marriage. Was allowing a privileged banker to call hir issue a "pound sterling" when it manifestly was not one a matter of the civil liberty of bankers?

I wish more libertarians would understand this.

[pigwiggle]

"Because having a day/month dedicated to certain people, passing laws if a victim happens to be of a special class that criminals should be more harshly punished than if the victim was not, writing laws that give certain people preferential treatment ..."

Hmmm, sounds like the squealing of that meager 49% as they are dipped in the fryer.

Isn't all that tired shit legislated by folks elected through the will of the people? Well?

Suck it up Rumsfeld.

[carrick]

So many people are looking at this the wrong way. The question of whether 2 particular individuals are married should not be thought of as a civil liberties matter. Rather, it's a question of CAN they be married, not MAY they be married.

Robert, marriage is a civil/religious institution that has changed meaning many, many times in course of human existence. Current Islamic law allows a man to have up to four wives providing he loves them all equally. Does that jive with your sense of what a man CAN do verus MAY do?

The only legimate question for libertarian is whether the marriage of any two individuals some how causes harm to another individual. Other than the self-imposed mental anguish of social conservatives, the answer is a resounding no.

So the remaining pratical questions revolve around the appropriate civil contracts to establish rights and responsibilites of the married couple between each other and between the social institutions they must interact with.

[Chris S.]

Robert:

The definition of "marriage" was never written in stone. It's been redefined throughout history, which is why your wife isn't your property and why she's able to own her own property, make contracts, etc.

If you're arguing that government shouldn't be in the marriage business at all (tax benefits, etc.), then I agree. Churches and communities should be able to establish their own marriage rites and definitions, including gay marriage (for some). The state, for its part, should recognize these unions as something akin to private contracts. This is exactly what many gay marriage proponent want.

If you're arguing that the definition of "marriage" is immutable, and that state governments should continue their current course of rewarding male-female couples but not male-male or female-female couples, then you're using semantics to justify needless regulation of marriage and discrimination.

Finally, if the government regulates marriage (as it does), why is it so bad for the government to change the definition of "marriage"? You've offered that argument as if it's self-evident.

[Akira MacKenzie]

Allowing gov't to re-define marriage is akin to allowing it to redefine weights and measures established customarily.

Excuse me, but when did government ever define marriage in the first place?

[pigwiggle]

"Allowing gov't to re-define marriage is akin to allowing it to redefine weights and measures established customarily. They did it with the dollar (thaler) and similar weights of precious metal, but that doesn't mean they should be allowed to do it again with marriage."

Your list is a bit short.

http://ts.nist.gov/ts/htdocs/230/235/owm_about.htm

[MJ]

The instution of marriage exists between heterosexual couples because society has a demonstrable interest in encouraging stable long term relationships between such couples. For what reason does society have an interest in encouraging such relationships between homsexual couples?

[AriZonan]

MJ,

Well, society can encourage or discourage anything it wants. The purpose of the government *should* be to keep people from harming each other while society toodles merrily along. What two (or six) consenting adults do in their own homes and with their own finances in relation to each other is not the government's concern. As such, the gub-a-ment taking a neutral approach to defining marriage - i.e. NOT defining it at all - is the only appropriate response.

[Greg]

How dare you overturn the will of the people.

This is a joke, right? I think they need you back at Free Republic.

[Robert Goodman]

"Excuse me, but when did government ever define marriage in the first place?"

Never, and that's the point. The terms "married", "spouse", etc. have customary meanings, like most of language, being a spontaneous order. The question of whether 2 individuals are married to each other should be resolved by the facts of the case and by reference to the dictionary. And no court, legislature, or decree should be allowed to re-write the dictionary.

"Robert, marriage is a civil/religious institution that has changed meaning many, many times in course of human existence. Current Islamic law allows a man to have up to four wives providing he loves them all equally. Does that jive with your sense of what a man CAN do verus MAY do?"

Sort of. A limitation on the number of marriages an individual may have at once is a regulation on marriage, and that's the sort of thing I oppose. However, a decree that person A and person B are "spouses" according to some new meaning, and that all legal documents pertaining to spouses, married persons, etc. now pertain to them, is also the sort of thing I oppose.

"The only legimate question for libertarian is whether the marriage of any two individuals some how causes harm to another individual. Other than the self-imposed mental anguish of social conservatives, the answer is a resounding no."

Unfortunately that's wrong. When someone goes to a government court to claim rights under a legal agreement with third parties that applies to a "spouse", it is not possible for the court to duck the issue of determining whether the persons in question are married, and to do that the question of whether it is possible for that couple to be "married", within the meaning of the word in the contract in question, is material.

"So the remaining pratical questions revolve around the appropriate civil contracts to establish rights and responsibilites of the married couple between each other and between the social institutions they must interact with."

The remaining question is the only significant question, and to that end it does not serve the law to determine that the customary meaning of "married" is not its legal meaning in legal documents.

"The definition of `marriage' was never written in stone. It's been redefined throughout history, which is why your wife isn't your property and why she's able to own her own property, make contracts, etc."

Those determinations do not touch the question of whether 2 individuals are married to each other. Like most people, your thinking on this issue is confused. Those issues of property concern the legal rights of persons who happen to be married. Granting civil rights to persons of various skin colors did not change the color of their skin.

"If you're arguing that government shouldn't be in the marriage business at all (tax benefits, etc.), then I agree."

That would be nice, but not feasible. Courts may need to resolve disputes over whether person X is married and to whom. Forcing everyone to file income and property taxes as individuals would make things inconvenient for families.

"If you're arguing that the definition of `marriage' is immutable,"

Not immutable, but customary. Courts should turn to an authority on language (usually a dictionary) to determine what instances of the words "married", "spouse", etc. meant at the times the documents in question were drawn up. People who write legal documents are free to use terms of art if they don't want to use words according to their customary meanings, but the meaning must be accessible somehow. If some time from now the meaning of those terms has changed, that's what the newmeaning will be. However, courts should not decree a meaning of "spouse" etc. based on the notion that the possibility of marriage between two particular individuals is a civil right, any more than someone has aright to enter a cat into a dog show, so as not to discriminate against cat owners.

"Finally, if the government regulates marriage (as it does), why is it so bad for the government to change the definition of `marriage'?"

Two bad things don't make a good thing.

[Chris S.]

"Finally, if the government regulates marriage (as it does), why is it so bad for the government to change the definition of `marriage'?"

"Two bad things don't make a good thing.

That's not an answer; it's a slogan. It makes no sense to argue that the government must regulate marriage (you say it's not feasible otherwise), but then to say that the state can't define it. Again, why would we allow the government to regulate but not define marriage? Besides, by regulating it, they already define it -- you can't "be married" without a license from the state.

"The definition of `marriage' was never written in stone. It's been redefined throughout history, which is why your wife isn't your property and why she's able to own her own property, make contracts, etc."

Those determinations do not touch the question of whether 2 individuals are married to each other. Like most people, your thinking on this issue is confused. Those issues of property concern the legal rights of persons who happen to be married. Granting civil rights to persons of various skin colors did not change the color of their skin.

Yes, the definition of whether people "are married" and "can marry" has also changed. Currently, people who are already married cannot "be married" to someone else by virtue of anti-polygamy laws -- this wasn't always the case. Moreover, some putative marriages between man and wife are void or impossible by virtue of non-consent and age limitations (e.g., a 13 yr. old and a 20 yr. old can no longer be "married" in most states) -- this too has changed, and with it the definition of "marriage" has changed.

Sorry, my friend, courts already decree the meaning of "spouse," and the substance of that decree has changed with time. If I read you correctly, you seem to be saying that courts can determine who can marry with respect to age, number of spouses, and race (remember "miscegenation? laws?) but not gender, because that's defined by "custom." I detect conclusion driven thought...

[Robert Goodman]

"It makes no sense to argue that the government must regulate marriage (you say it's not feasible otherwise),"

No, I'm not saying it's at all desirable or necessary for gov't to regulate marriage, only that this entire issue makes sense only in the context of a court's determining in a given case (pursuant to somebody's suit) whether persons A & B are married to each other, or married at all.

I don't believe gov't should regulate land ownership either, but I recognize that courts may be called on at times to resolve land disputes.

"Yes, the definition of whether people `are married' and `can marry' has also changed. Currently, people who are already married cannot `be married' to someone else by virtue of anti-polygamy laws -- this wasn't always the case."

Those are laws regulating or restricting marriage. They have nothing to do with the meaning of "spouse".

It's like ordinances restricting what animals you can keep. Those are of a regulatory or restrictive nature, and don't change the animals themselves. A dog is still a dog, a cat is still a cat, etc. If the jurisdiction says you can't keep ferrets, that doesn't change ferrets into cats. You can't enter a ferret into a dog show, saying your state forbids the keeping of ferrets, therefore this must be a dog.

"Moreover, some putative marriages between man and wife are void or impossible by virtue of non-consent and age limitations (e.g., a 13 yr. old and a 20 yr. old can no longer be `married' in most states) -- this too has changed, and with it the definition of `marriage' has changed."

Ridiculous. The question there is who is permitted to be married, where the meaning of "married" is already known. If it were not known, then the prohibition in question would be meaningless. If the legislature says 13 YOs can't stubulate, what effect would such a law have? Nobody knows what stubulation is anyway. Laws saying who's allowed to get married don't change the meaning of "married", any more than a law forbidding you to carry a gun would change the meaning of "gun".

A marriage may be void in the sense of invalid or non-permitted, but that doesn't change the meaning of marriage, any more than the voiding of a gun license would change the meaning of gun. It's the same as annulling a marriage. Null & void is not the same as impossible or nonsensical.

I know of a couple of women who putatively got married in New York City. After a few years, they decided to divorce. The judge said that because they were of the same sex, they were never actually married anyway, so that was easy! In other words, it was impossible for them to be married to each other, because of the meaning of the word, so any question of whether they actually were married didn't have to be explored any further.

[Chris S.]

Null & void is not the same as impossible or nonsensical.

Null and void "marriages" between underage persons are impossible and nonsensical -- there is no such thing as a "marriage" between an 13yr. old and a 20yr. old in most states. Please learn something about family law -- most courts and state laws treat putative marriages between adolescents in the EXACT SAME WAY that they treat putative marriages between same sex couples. See, e.g., Va 20-45.1 (voiding and prohibiting nonconsensual marriages and marriages between minors) and Va 20-45.2 (voiding and prohibiting same sex marriages). According to most states, such people were never married. That's what "null and void" means. The same could be said about the modern requirement that both parties consent, and yes, this is clearly part of the definition of marriage; many states include this concept in the "definition" section of their family/domestic laws.

Please stop harping on this definition nonsense. Even if you had a point, which you don't, semantics have no place in rational policy making. Your awkward notion of which qualifiers and characteristics fit into the "definition" of a word also has no place in semantics.

Ridiculous

Exactly. If you have a realy argument against gay marriage, please make it.

[Robert]

"Null and void `marriages' between underage persons are impossible and nonsensical"

No, they're simply illegal. Two minors could be married according to the dictionary definition of the word "married", so it's not nonsensical.

"there is no such thing as a `marriage' between an 13yr. old and a 20yr. old in most states."

That's just becaues it's illegal in those states. It's like saying there's "no such thing as a dog" in Iceland or Singapore, or wherever it is that dogs are prohibited. It's not that there's actually no concept of "dog" in those jurisdictions, only that dogs are permitted there.

"Please learn something about family law -- most courts and state laws treat putative marriages between adolescents in the EXACT SAME WAY that they treat putative marriages between same sex couples. See, e.g., Va 20-45.1 (voiding and prohibiting nonconsensual marriages and marriages between minors) and Va 20-45.2 (voiding and prohibiting same sex marriages)."

Of course. The result is the same. But the reason is different.

Ask why same sex "marriages" are ever voided in jurisdictions that never had any statute saying so. It's because the word has a certain meaning, and it simply couldn't exist between persons of the same sex. Other cases of marriage may have been prohibited by statute, but in this case no statute was needed. Why do you think there's perceived to be a need for legal action to validate same sex marriages now, if there was never a law against it? It's because the dictionary "prohibits" it!

"Please stop harping on this definition nonsense. Even if you had a point, which you don't, semantics have no place in rational policy making."

What is the "policy" in question? It's the question, "are person A and person B married to each other"? When someone sues for health benefits under a policty that covers a "spouse", semantics, the meaning of the words, is precisely what is at issue. Can you give an example of anything in this same-sex-marriage issue which is anything other than a matter of semantics?