Gaymarriage Doubleplusungood

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The latest scrap over California's Prop. 8—the "traditional marriage" amendment—is about the language that will greet voters when they go to the polls. Prop. 8 proponents wanted it to say this:

Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.

California Attorney General Jerry Brown changed it to say this:

Changes California Constitution to eliminate right of same-sex couples to marry. Provides that only a marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over the next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact to state and local governments.

Proponents see that, correctly, as a poison pill that will turn undecided voters against their measure. They're suing to change it back. Brown's having none of it.

"What has happened is the Supreme Court found that the right to marriage includes same-sex couples," the attorney general said in an interview. "This happened after the original title was approved. … Now same-sex couples have a right that's recognized and supporters of the proposition want to eliminate that right."

Prop. 8 supporters, Brown said, "can't say with a straight face that this isn't about eliminating the right to gay marriage, so what's their problem with this? This is a political lawsuit, not one about serious legal issues."

Boi From Troi comments here; California's businesses express their support for the "fiscal impact" argument here.

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  1. Tsk, tsk. It’s doubleplusungood.

  2. I really hate it when politicians want people to actually know what they’re voting for.

  3. As much as I disagree with this proposition, isn’t it disturbing that the AG thinks it’s perfectly OK for him to change the way it is worded to fit his political viewpoints? What if there was a proposition to end the income tax and he changed it to say “poor people will starve and old ladies will die in the streets”?

  4. Episiarch

    er… while the change may fit his viewpoint (or more accurately the wordiness may!), the change also represents a change in state-constitutional fact. You can argue the specific replacement language, but the original language was no longer accurate and needed changing.

    your tax/starvation comparison is not of this nature – it does not represent a change to reflect new legal standings…

  5. your tax/starvation comparison is not of this nature – it does not represent a change to reflect new legal standings…

    Well, then, how about a proposal amending the state Constitution to make a income tax illegal? That would change legal standings…

  6. Ep,

    I am not sure your analogy is apt. After all, it is conceded that the long term fiscal impact is likely to be minimal. And poor people starving and old ladies dying is a conjecture; the short-term revenue loss from disallowing gay marriage is not.

    Brown is right to unpack the proponents’ version so that people can see exactly what they are voting for.

  7. Personally, I think it should include, word-for-word, the language to be inserted, and let people decide on the merits that way rather than an elected official making some of those value judgments for them. So, in reality, neither have it right.

    Besides, if a Fiscal Impact statement has to be included with any of these plebiscites, who is to say what particular analysis of the situation is correct? We all know government types are SO good at estimating this stuff…

  8. Oh no! The gays! The gays!

    They’re destroying America!

    All our marriages will be worthless!

    OMG! OMG!

    The sky is falling!

    LOL. Why can’t people just leave each other the hell alone? Is it really that hard?

  9. It seems to me that many of you are OK with Brown doing this as long as it reflects what you want to happen.

    I want to see this proposition defeated. I do not think that giving shitheads like Brown the ability to modify the wording of propositions submitted by other people is the right way to do it.

  10. roger wellor

    the original language was no longer accurate and needed changing.

    This comment is actually pretty enlightening. The language is no longer accurate, meaning it was accurate at some time in the past. What happened in the interim? Why does the language need to be changed to say that the proposal “eliminate right of same-sex couples to marry” when before it didn’t? It is, of course because judges willed a “right of same-sex couples to marry” where none existed before.

  11. Isn’t anyone else horrified that Jerry Brown is the CA AG? Last I heard from him, he was the mayor of Oakland, and busy declaring that Oakland was an irretrieviable shithole because of the policies that he enacted during his turn as governor.

    Congrats on that well thought-out selection, California voter.

  12. Weasel words: “potential”, “likely”

    Redundant phrases: the first and second sentences

  13. It’s a big problem when the government changes the wording of amendments to suit their agenda. I wouldn’t be surprised if that’s what happened to the eminent domain amendment.

  14. While I’m essentially in agreement with Episiarch, I can also see a case for the AG to summarize the impact on existing law. Speculating about the fiscal impact is certainly exceeding the bounds of his office. Then again, I don’t know what his obligations on referenda are under California law.

  15. Just construct it using all valid (if redundant) information and spell it out even for the cheap seats.

    Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California and thereby to eliminate the right of same-sex couples to marry.

    If only all referendums spelled out exactly what right were being voted away.

  16. “It seems to me that many of you are OK with Brown doing this as long as it reflects what you want to happen.”

    Herein lies the problem with modern liberalism. Any means to push forward their transformative policies — policies they’ve determined among themselves are correct — is acceptable and lauded.

  17. Episiarch, You’re filled with contradictions. Are you sure of your position on prop 8? Do you know what a summary is for? If prop 8 passes, don’t you think gay marriage opponents would prefer it’s new summary over the former?

  18. That fiscal impact bit is a little weird. It will cost tens of millions, but not really? And why would gay marriage affect sales tax revenues? Are they expecting that many toasters, waffle irons, and china sets to be purchased?

  19. Brown shouldn’t be the one determining the fiscal impact. It should be determined by some impartial means.

  20. I think I would agree with AG on this, as I feel it addresses an imbalance of information here. The proposition as it stands a strictly one sided obfuscated phrase.

    Maybe if they let each of the oposing groups write their own ‘blurb’ and then place it over the YES and NO boxes respectively. Atleast that way you know the vote is more or less informed.

  21. New World Dan, the fiscal estimate wasn’t written by the AG’s office. Fiscal impact statements are developed by the Department of Finance and the Joint Legislative Budget Committee. In addition, the fiscal impact statement was required to be updated, because the original petition’s fiscal impact statement claimed no impact because nothing would actually change should the amendment pass.

    The part the AG controls is the part that now mentions how the amendment eliminates the right of same-sex couples to marry.

  22. If prop 8 passes, don’t you think gay marriage opponents would prefer it’s new summary over the former?

    If it passes, what do they care what the summary is? They got their ban.

    Episiarch, You’re filled with contradictions.

    I am? Please explain. I thought I was filled with creamy nougat.

  23. I can’t seen one contradiction in what Epi wrote. Why would opponents prefer the new wording?

  24. What’s obfuscated in “Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.”?

    The way these things work is that every one in CA is sent a pamphlet. For each amendment, the two sides are equally represented. On one side of the page, the proponents give their argument; and on the opposite side, opponents get an equal opportunity to do the same. It couldn’t be fairer.

  25. Now it is 1984. Knock-knock at your front door. It’s the suede/denim secret police. They have come for your uncool niece!

  26. It is, of course because judges willed a “right of same-sex couples to marry” where none existed before.

    More accurately, they chose to order the other branches to defend a right they were not defending prior to the ruling. Y’know…kinda like Brown v. Board…, Roe v. Wade and Lawrence.

    What’s obfuscated in “Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.”?

    There’s nothing obfuscated, nor more than it is inaccurate to state that Prop 8 would eliminate the defense of a right. It’s a wash and only someone with a pre-determined mindset is going to get their hackles up (about that portion).

    That said, I’m with Episiarch on the second portion of the language.

  27. It is, of course because judges willed a “right of same-sex couples to marry” where none existed before.

    Yea, right.

    The system in place in the US and the various states allows unconstitutional laws to remain on the books until such time as someone sues to have them removed. In this specific case, the supreme court of CA ruled that the existing marriage laws violated the equal protection and/or due process clauses of the CA constitution (it’s monday morning and I’m too lazy to google for the exact ruling).

    The whole fucking point of judicial review is to thwart the will of the people when the majority decides to suppress the rights of the minority.

  28. Why would opponents prefer the new wording?

    Because they don’t care about affirming that marriage is only valid between a man and a woman, they care about making sure those “fags” don’t get “expanded” rights. It’s the same thing in the end, but the road there is vastly diffrent.

    Ultimately, the fight over language is not about the people who already know how they are going to vote, it’s about appealing to the undecided voter, that mythical and retarded apparition of both the left and the right.

    Also, kinnath = QFMFT

  29. A judge can overrule a guilty verdict by a jury, if the judge believes the jury convicted in spite of exonerating evidence.

    A judge can invalidate a law passed by the people’s duly elected representatives if the judge believes the law violates the constitution.

    A judge can order the executive branch to take action if the judge believes the executive branch is failing to protect the rights of the people.

    If judges don’t piss of the general population every now and then, then the judges aren’t doing their job.

  30. I’m somewhat with Episiarch here. I don’t think the AG should be able to include the “Fiscal Impact” section, at the very least without citing the source of the claim.

    I’m also with kinnath.

  31. Did he really say “Gay marriage”? Eeewww, thats like gross man.

    JT
    http://www.Ultimate-Anonymity.com

  32. From what I read of the initiative labels, this was one of four with a ominously nebulous Fiscal Impact statement, with the other three being one manifestly left-leaning proposal (an animal rights-based farm reform proposition), one manifestly right-leaning proposal (parental notification for abortion), and one of relatively ambiguous origins (a victim’s rights initiative). That makes me feel a bit better, but I can’t help but keep thinking that these Fiscal Impact statements are full of crap in the general sense.

  33. AG Brown* is clearly meddling in an attempt to reframe the proposition so that it is more likely to be defeated.

    The fundamental flaw here is the notion that human rights should be subject to vote. There is also a secondary problem in the notion that the state should have any say in marriage at all. [I know: Historically, the state has taken control of marriage for its own purposes and has sanctioned it with various economic and social privileges, but that does not make such control proper or right.]

    The fact that the AG is manipulating the language of the proposition to ensure its defeat is really a side issue – although it speaks to an arrogant contempt for the people of California. I don’t see why there should need to be a fiscal impact statement in any case; if it is a question of rights, the fiscal impact is irrelevant.

    *I have not paid close attention to California politics for many years. This is former Governor Moonbeam, isn’t it?

  34. In CO, the voting pamphlet gives a summary of how the referendum will alter existing law, followed by a written opinions both for and against the passage of the referendum. Things like financial impact and gaining or losing of rights are reserved for the latter portions.

    Also, is it time do disinter the question of whether access to state-sanctioned marriage is actually a right?

  35. I was wondering when someone would quote the DK’s.

    Warty wins the thread.

  36. Because they don’t care about affirming that marriage is only valid between a man and a woman, they care about making sure those “fags” don’t get “expanded” rights.

    It’s good you know exactly how they think. But if that’s true, then they’d certainly prefer their wording; which is, of course, far more beneficial toward achieving their goal.

    Let’s say the amendment passes. And let’s say a few years down the line gay rights groups introduce an amendment to override this one. And let’s say that the AG at that time is not pro gay marriage. Would it be okay if this AG changed the wording to make their amendment less appealing?

    I’d say no.

  37. The Angry Optimist | August 4, 2008, 11:01am | #

    It is, of course because judges willed a “right of same-sex couples to marry” where none existed before.

    More accurately, they chose to order the other branches to defend a right they were not defending prior to the ruling.

    In comics that’s called “retroactive continuity (retcon).”

  38. What a relief. I wanted to vote against the proposal in the interest of fairness and whatnot, but I was afraid of what other people would think. Now I can just say I voted “no” to save California money.

  39. In comics that’s called “retroactive continuity (retcon).”

    In real life, that’s called progress.

  40. Reinmoose, the AG doesn’t write the fiscal impact statement, it’s written by the Department of Finance and the Joint Legislative Budget Committee. Initiatives and amendments are sent to them to analyze the fiscal impact whenever a fiscal impact statement is required, and even the original amendment included a fiscal impact statement(though it stated no impact because there would be no change, thus necessitating a change).

    The proponents of the amendment are not challenging the fiscal impact statement, they’re challenging the wording that notes that it would remove the rights of same-sex couples to be married.

  41. From the last link in the article –

    Giving a financial and public relations boost to gay marriage proponents, PG&E announced today that it is giving $250,000 to the No on Proposition 8 campaign.

    I would like to hear from campaign finance law supporters on the horrible evilness of Satan spawned corporations attempting to sway the noble electorate with their ill-gotten gains, brainwashing the masses with their massive donations that the innocent citizens will be unable to see through.

    Surely this should be disallowed, right?

    I don’t really have a problem with the rewording of the ballot, though I don’t like the fiscal impact staterments guesses being included in either version. Does anyone know the Granola state’s ballots laws on this? Are fiscal impact statements a requirement and is it the AG’s responsibility to oversee/write them?

  42. And seconds before I ask my California ballot questions, thefncrow answers them. Fucking awesome!

  43. thefncrow –
    I don’t care who wrote the fiscal impact statement, and didn’t claim I thought the AG wrote it. I’m just saying that the source should be cited if it must be included. Also, I think it’s pretty irrelevant other than the fact that it probably increases the liklihood for fence-sitters to vote down the amendment on financial concerns.

  44. If anyone really cares instead of blowing smoke out of your asses – you can see all the initiatives and rules around them on the CA Secretary of State’s website.

    http://www.sos.ca.gov/elections/elections_j.htm#2008General

    But that would require actual work from many of you …

  45. Also, I think it’s pretty irrelevant other than the fact that it probably increases the liklihood for fence-sitters to vote down the amendment on financial concerns.

    I was living in Phoenix when Arizona voters squashed two separate ballot initiatives to create a state holiday hononr Martin Luther King.

    The rest of the country was horrified, but what they didn’t know was many (perhaps most) of the voters against the two initiates didn’t give a rat’s ass about MLK, they just didn’t want state employees getting another paid holiday.

  46. @colin

    Herein lies the problem with modern liberalism. Any means to push forward their transformative policies — policies they’ve determined among themselves are correct — is acceptable and lauded.

    Ah … wait … are you suggestion that “modern conservatism” doesn’t do this? Both sides have an agenda. Both sites manipulate the process to their advantage and to shove their policies down our throats. So suggest otherwise is downright naive.

  47. It’s good you know exactly how they think. But if that’s true, then they’d certainly prefer their wording; which is, of course, far more beneficial toward achieving their goal.

    A. Yes, it is good that I know what they think. Tell me one reason why to oppose gay-marriage not motivated by gay-hate or that wouldn’t also apply to straight marriage. It’s just hate.

    B. I don’t agree with the point that they would actually prefer it worded that way, only offering a explanation for the assertion.

  48. Speculating about the fiscal impact is certainly exceeding the bounds of his office.

    Probably not. Most state legislatures require a fiscal impact statement for every proposed law.

    As to whether the AG can/should change the wording: Read what the California initiative and referendum law says. It could require rewording of a misleading description.

    No, I’m not interested enough to look it up. California law is weird. (Addendum: Tim did the lifting above.)

    That fiscal impact bit is a little weird. It will cost tens of millions, but not really? And why would gay marriage affect sales tax revenues? Are they expecting that many toasters, waffle irons, and china sets to be purchased?

    In the short run lots of couples will travel to California to get married, and maybe stay for a honeymoon. Tourism = sales tax.

    In the long run more states will pass gay marriage and the traveling will tail off.

    The way these things work is that every one in CA is sent a pamphlet. For each amendment, the two sides are equally represented. On one side of the page, the proponents give their argument; and on the opposite side, opponents get an equal opportunity to do the same. It couldn’t be fairer.

    True, if California schools taught people to read. I suspect most such pamphlets are immediately recycled.

  49. I honestly don’t care if humans want to marry other humans whose appendages don’t fit precisely with their own, but how many civil liberties are really thwarted by bans on this sort of behavior?

    Can homosexuals co-habitate? Yes.

    Can one designate the other as his/her/its legal beneficiary? Yes.

    Does one get Social Security survivor’s benefits? No, but childless, spouseless straight people are similarly penalized. Their accounts, upon their deaths, evaporate as well.

    Do gay-marriage bans prevent homosexuals from getting their own shows on the Bravo network? Hell no.

    Do gay-marriage bans really prevent homosexuual couples from referring to each other in the same cutesy ways as straight couples? Please.

    What about health-plan benefits? Many private employers already extend benefits to couples in a “commited” relationship.

    So what is the compelling legal reason? What wrong will gay marriage right? Is it the need for a social sanction? No law can do that.

  50. Libertarian Contrarian, your comments and questions have been addressed at length in past threads. Read the archives.

  51. So what is the compelling legal reason? What wrong will gay marriage right?

    Equal. Protection. Under. The. Law.

    If I have a girlfriend, we can always get married and take advantage of SS benefits, etc., or we can choose not to. Gay couples have no such choice.

    It’s really that simple.

  52. Libertarian Contrarian:

    One example, then you’re on your own to read the archives.

    Spouses cannot be compelled to testify against each other. No private contract can offer that protection.

  53. Episarch,

    Gay people can marry someone of the opposite sex for the same reason.

  54. Hugh, you make no sense. A gay person marrying someone of the opposite sex will do nothing to grant his non-spouse SS benefits when he dies.

  55. I’m in agreement with Episarch. If Brown wants to warn people of the possible side effects he can write an Op-Ed or take out some commercials.

  56. Spouses cannot be compelled to testify against each other

    I’d guess that’s pretty low on list. “Honey, let’s get hitched so you can’t testify against me!”

    What crimes are gays trying to hide, hmmmm?

  57. Libertarian Contrarian is SO not invited when Epi and I tie the knot at our Star Wars themed wedding at the Unitarian church.

  58. What we can do is repeal the right of opposite-sex couples to marry and only allow same-sex couples to marry. Then we can ask Hugh Akston and Libertarian Contrarian what rights are being withheld from straight couples.

    I do not expect the answer to be “none,” “Straight people can marry someone of the same sex for the same reason”

  59. I was paraphrasing a taunt from the original “Clerks” movie.

    FTR, I don’t know Epi, nor am I planning to marry him (her?).

  60. So now the wedding’s off? You two-timing bastard.

  61. FTR, I don’t know Epi, nor am I planning to marry him (her?).

    My impression is that Episiarch is a lesbian trapped in a man’s body. Don’t know for sure, it’s just a feeling I get.

  62. What we can do is repeal the right of opposite-sex couples to marry

    Having been subjected to it for nearly a decade, I’m simply against marriage.

  63. I’m somewhat with Episiarch here.
    I’m also with kinnath.

    You are a HARLOT!

  64. Elemenope –
    I didn’t realize that Episiarch was already betrothed to Tonio, I promise.

  65. My impression is that Episiarch is a lesbian trapped in a man’s body. Don’t know for sure, it’s just a feeling I get.

    Almost. I’m a lesbian trapped in a gay man’s body. It’s very confusing.

    I didn’t realize that Episiarch was already betrothed to Tonio, I promise.

    And I’m a dirty, dirty whore.

  66. But seriously. A near monopoly on programming on Bravo.
    Their own theme night at Applebee’s.
    What do gays waaaant?

  67. A gay person marrying someone of the opposite sex will do nothing to grant his non-spouse SS benefits when he dies.

    And if I marry someone of the opposite sex, my SS benefits will not go to Dave Johnson of Peoria, IL. What’s your point?

    What we can do is repeal the right of opposite-sex couples to marry and only allow same-sex couples to marry.

    I agree with half of that statement.

  68. What do gays waaaant?

    Better stereotypes, I imagine.

  69. But to go all hetero for a moment: Upon learning that Christina Applegate has been diagnosed with breast cancer, was I the only one who thought, “Why couldn’t it have been her brain? She wasn’t using that!”

  70. “Ah … wait … are you suggestion that “modern conservatism” doesn’t do this?”

    I never made any such suggestion. The suggestion was all yours.

  71. A. Yes, it is good that I know what they think. Tell me one reason why to oppose gay-marriage not motivated by gay-hate or that wouldn’t also apply to straight marriage. It’s just hate.

    I won’t speak for them, especially as I don’t particularly agree with them. But my conjecture is that their reasons are based on religious and moral grounds. You can call that hate if you’d like.

  72. And stating that the state would lose sales tax revenue is pure speculation, based on no facts whatsoever. The ruling has been in affect for such a short period of time that no proper study could’ve possibly been conducted.

  73. What do gays waaaant?

    Christian Bale naked on a bed waiting for them? I’m just spitballing here.

  74. You can call that hate if you’d like.

    I do and will continue to do so.

    Morals are just the rules you think other people should live by. I don’t care where authoritarians get their ideas, no justification will make them right.

  75. Christian Bale naked on a bed waiting for them?

    Really? Is that why the line I waited in to go see The Dark Knight a couple of weeks ago was so full of sausage? I just assumed it was because it was an action movie.

  76. Reinmoose,

    They weren’t there for Maggie Gyllenhaal.

    She’s who should have played The Joker. No facial prosthetics required.

  77. I find it disgusting that the AG is allowed to rewrite a description to suit his political beliefs. Those who are defending it haven’t thought it through, it’s not the “gay marraige” issue, it’s the fact that the AG can change the wording to make it fit their political views. On this one you may agree with him, what happens if you don’t?

    What we can do is repeal the right of opposite-sex couples to marry and only allow same-sex couples to marry.

    I agree with half of that statement.

    I’d agree with the first half myself, primarily due to viewpoints like:
    If I have a girlfriend, we can always get married and take advantage of SS benefits, etc., or we can choose not to. Gay couples have no such choice.

    It’s really that simple.

    The problem isn’t marraige. The problem is that we use that as a vehicle for SS benefits and other issues. Either (a) make them so they don’t go to others, at all, unless they’re minor children I guess, or (b) make it so you can designate someone, your spouse if you like, but someone, emphasis on the one. That solves it.

  78. [no handle],

    For me, at least, your link doesn’t go anywhere.

  79. I don’t really care about the issue one way or another. But when I read the entry I thought, “Jerry Brown’s the AG now? Will somebody please for dog’s sake drive a stake through that guy’s heart? He never, ever goes away!”

  80. It seems to me that gays (and everyone else) should be able to direct their SS benefits to whomever they’d like, regardless of marital status.

    After all, they paid into it.

  81. They weren’t there for Maggie Gyllenhaal.

    That’s for sure

    She’s who should have played The Joker. No facial prosthetics required.

    While maybe a little harsh, at least we didn’t have to pretend that she was as cute as pre-off-the-deep-end-crazy Katie Holmes. This was not a movie to see if you were only going for the women (either in the film or in the audience)

  82. I don’t really care about the issue one way or another. But when I read the entry I thought, “Jerry Brown’s the AG now? Will somebody please for dog’s sake drive a stake through that guy’s heart? He never, ever goes away

    Well, there is that too.

  83. Freedom of contract is a right. It should be (and largely is) enforced regardless of the gender or sexual preferences of the contracting parties. If I want to name beneficiaries, custodians or power-of-attorney-holders I can do so by drawing up a document naming them and having it notarized and witnessed.

    Marriage is not a right. To the church it is an obligation. To the state it is an entitlement.

  84. I hope I can be forgiven for declining to wail and gnash my teeth when benefits and entitlements are handed out disproportionately in favor of those in political power.

  85. Marriage is not a right.

    As far as it holds to California, yes, it is.

    That was part of the decision back in May. The Justices held that the California constitution provides for a fundamental right to marry.

    Although our state Constitution does not contain any explicit reference to a
    “right to marry,” past California cases establish beyond question that the right to
    marry is a fundamental right whose protection is guaranteed to all persons by the
    California Constitution. (See, e.g., Conservatorship of Valerie N. (1985) 40
    Cal.3d 143, 161 (Valerie N.) [“The right to marriage and procreation are now
    recognized as fundamental, constitutionally protected interests. [Citations.] . . .
    These rights are aspects of the right of privacy which . . . is express in section 1 of
    article I of the California Constitution which includes among the inalienable rights
    possessed by all persons in this state, that of ‘privacy’ “]; Williams v. Garcetti
    (1993) 5 Cal.4th 561, 577 [“we have . . . recognized that ‘[t]he concept of
    personal liberties and fundamental human rights entitled to protection against
    overbroad intrusion or regulation by government . . . extends to . . . such basic
    civil liberties and rights not explicitly listed in the Constitution [as] the right “to
    marry, establish a home and bring up children” ‘ “]; Ortiz v. Los Angeles Police
    Relief Assn. (2002) 98 Cal.App.4th 1288, 1303 [“under the state Constitution, the
    right to marry and the right of intimate association are virtually synonymous. . . .
    [W]e will refer to the privacy right in this case as the right to marry”]; In re
    Carrafa (1978) 77 Cal.App.3d 788, 791 [“[t]he right to marry is a fundamental
    constitutional right”].)

    This was part of the basis of the court’s decision, that a fundamental right to marry existed, and that any discrimination against the fundamental right to marry had to meet a strict scrutiny standard in order to be upheld, which the current prohibition failed to meet.

    The current legal state of marriage in California is that it is a fundamental right. Maybe you think it should not be that way, but that’s where we’re at right now.

  86. Oh, I forgot to include the link there. The quoted text is from In re Marriage Cases, the decision which recognized the right of same-sex couples to marry.

  87. thefncrow,

    Good to know that the CA Supreme Court can fabricate rights out of whole cloth. I’ll just add that to the list of reasons not to move there.

  88. I’d guess that’s pretty low on list. “Honey, let’s get hitched so you can’t testify against me!”

    Hey, it happens!

    Er, or so I’m told.

  89. Then you’d also be entirely disappointed that this isn’t simply an invention of California’s.

    Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

    US Supreme Court, Majority Opinion in Loving v. Virginia, 1967.

  90. I’ll just add that to the list of reasons not to move there.

    You won’t be missed.

    I find it disgusting that the AG is allowed to rewrite a description to suit his political beliefs.

    Yeah, his political beliefs, or, ya know, the actual current state of the law.

    What people seem to forget is the proposition was written by people who are similarly compromised by their beliefs. Now, if people want to argue that an impartial or bi-partisan body write the text of the introductions to initiatives, that’s fine. But if you don’t think the homophobes that wrote the initiative in the first place didn’t try to get as close to the line as they possibly could with their own language, well, you’re kind of an idiot. In fact, I’d be shocked if they didn’t at least try to write the prop such that a “no” vote would outlaw gay marriage, since “no” is the default for most of these things.

    The facts are these: when the prop was written, California did not recognize a legal write for couples of the same sex to marry. Now it does. The language of the prop recognizes that right, and the effect the prop would have on that right. It’s really pretty simple.

    And finally, this is a good example of why the initiative process totally and completely sucks balls.

  91. I’ll go out on a limb and posit the theory that what many or most homosexual couples really want is the societal sanction of their sexual orientation from an overwhelmingly straight and conservative public. They think a marriage license will accomplish that. And maybe it will, over time.

  92. To me, the interesting observation is that gays really aren’t that interested in getting married.

    There is some pent up demand, and there will be a flurry of weddings this year. Next year, not so much.

    I base this on Canada’s experience.

  93. In my opinion the initiative process is one of the great things about living in California. The people have the power to affect great change — change that would often otherwise be impossible.

    That doesn’t mean I always agree with outcomes (more often than not I don’t.)

    And Hugh, you might not feel that way if you visited one of our beaches. 🙂

  94. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

    But this clearly refers to procreative marriage between a man and a woman. Let’s consider the opposite situation: Had there never been any marriage before the gay subculture came along to invent it at some point, I find it hard to imagine that, generations afterward, with the institution having been restricted primarily to same-sex unions, anyone would view it as being “fundamental to our very existence and survival.” It would just be “a thing those gays do.” A right? Perhaps, but not so straightforwardly as the “marriage as a right” crowd would have it.

  95. Let us not forget that marriage evolved as a property right when women were chattel property. Marriage was the mechanism for transfering property interests in a women from a father to a groom.

    Telling me that traditional marriage is intended to protect procreative relationships doesn’t carry much weight.

  96. Why the hell shouldn’t state-enforced sex incorporation contracts be a right?

  97. Can anyone explain how these things are named and worded in the first place. Who decides? It is obvious that the wording can sway an opinion one way or another, just like you can sway poll results by asking the questions differently. How is it determined what the wording will be?

  98. Warty,

    Why the hell shouldn’t state-enforced sex incorporation contracts be a right?

    Because gay people are icky.

    Of course, someone else could probably explain that in more florid prose.

  99. “””I’ll go out on a limb and posit the theory that what many or most homosexual couples really want is the societal sanction of their sexual orientation from an overwhelmingly straight and conservative public.”””

    I don’t think so, no one should really have to care what other people think.

    What they want is…

    “””Equal. Protection. Under. The. Law.””””

    They just want the same benefits.

  100. I’ll go out on a limb and posit the theory that what many or most homosexual couples really want is the societal sanction of their sexual orientation from an overwhelmingly straight and conservative public. They think a marriage license will accomplish that. And maybe it will, over time.

    Yep, out on a limb, alright. I can’t speak for couples, since I’m single, but what this individual wants is equal protection under the law.

    All the positive statements about the right to marry which I’ve heard from members of gay couples have been of the “I just want to be able to marry, just like everyone else can” variety. Never heard anyone express the desire to force society to like us.

    Although it would be nice (ie, easier) for gays if there was more acceptance of us, I’d rather be hated and have rights, than not have rights.

  101. “Isn’t anyone else horrified that Jerry Brown is the CA AG? Last I heard from him, he was the mayor of Oakland, and busy declaring that Oakland was an irretrieviable shithole because of the policies that he enacted during his turn as governor.”

    Yes, I am.

    BTW, the shit has really hit the fan in Oakland since HRC’s former urban affairs adviser Ron Dellums became mayor. At least I can say for Brown that he actually lived in the shithole of which he was mayor.

  102. But this clearly refers to procreative marriage between a man and a woman.

    And maybe that’s what the author of the Loving opinion had in mind, but society’s understanding of gay people has since evolved from the view that homosexuality is a mentally illness, or somehow a “choice.”

    Society does, and always has, allowed non-procreative marriages (elderly people, first cousins, the sterile…).

    Procreation is not dependent upon marriage. Quite possibly more humans have been conceived outside of monogamous marriages than within them.

  103. Ed,

    Rewrote your post substituting blacks and voting rights for gays and marriage. Try reading it again:

    “I’ll go out on a limb and posit the theory that what many or most blacks really want is the societal sanction of their blacness from an overwhelmingly white and conservative public. They think the right to vote will accomplish that. And maybe it will, over time.”

  104. The AG’s wording states EXACTLY what this proposition is trying to do. Silly conservative nuts. The California voters have a right to know exactly what they’re voting on so they can be more informed voters; misleading them through vague language is not very democratic.

    Truth is – the vast majority of the educated community (from legal scholars to social scientists–AKA those who can think LOGICALLY) support gay marriage. Survey after survey has shown the higher the educational level, the more supportive they are of gay rights (in other words, the dumber you are, the more anti-gay you’ll likely be).

    The American Psychological Association, the American Psychoanalytical Association, the American Psychiatric Association, and the American Anthropological Association ALL support gay marriage and submitted amicus briefs to the CA Sup Ct in support of gay marriage.

    If conservative/religious/homophobic nuts would spend a little more time in school (and learn some SCIENCE and LOGIC) and less time sticking their noses into other people’s personal lives (which don’t affect them one bit), then they might earn some respect from those of us who are educated and civilized.

    Stopping gay marriage isn’t going to make gays go extinct, and it certainly isn’t going stop them from having gay relationships and adopting/raising children. Get over it and start worrying about more important things in life (such as getting a college education). Yikes!

    NEXT!

  105. # Tonio | August 4, 2008, 4:27pm | #
    ## But this clearly refers to procreative
    ## marriage between a man and a woman.

    # And maybe that’s what the author of the Loving
    # opinion had in mind, but society’s
    # understanding of gay people has since evolved
    # from the view that homosexuality is a mental
    # illness, or somehow a “choice.”

    But you are missing the point. Supporters of (governmentally-approved and promoted) gay marriage today maintain that marriage is a fundamental right, and they cite the rhetoric of such things as the Loving opinion to illustrate society’s acceptance of this right. The reason the right is held as “fundamental,” however, as well as necessary for our survival, is its direct relationship to procreation and the establishment of families that produce and/or raise children. Notwithstanding Kinnath’s scoffing, the history of women as chattel property, or the fact that many marriages throughout history have been motivated or maintained by purposes other than procreation and child-rearing, the thing that leads people to view the institution as fundamental and necessary for survival is the issue of procreation. Absent that, marriage might not have developed at all. Women could simply have been kept as slaves, for instance, as has also been the case throughout history. In that, they would have had “equal protection under law” alongside men, who could also be enslaved.

  106. I’ll give the reason some have been asking for:

    When people execute a legally enforceable document, they don’t want the imputed meaning of common words (such as “spouse”) in it to be changed afterward. It’s as if the dog show had to admit cats into the competition because a judge, legislature, minister, or popular vote deemed cats to be dogs.

    And it sets a precedent thereon.

  107. So what is the compelling legal reason? What wrong will gay marriage right?

    Equal. Protection. Under. The. Law.

    I don’t understand this at all.

    The way I see it is are you willing to have the state grant some of the legal protections/priviledges marriage provides to same-sex couples such as joint tax return filing, a share of inheritance at death, split of resources at divorce, etc.

    Gay people can get married and form whatever bonds they want already, its just a matter if the state will uphold that contract. I don’t see any compelling reason why they should not.

    And marriage is clearly not a “right”, its a series of privileges and legal obligations that the state enforces between two partners. If it were a right than every unmarried person would be having their rights trampled by members of the dating pool for refusing to marry them.

    You may argue gay couples have the right to enter into this aforementioned arrangement which is only given to straight couples, but that’s different.

  108. ignore the italics in my previous statement, I misread the statement to say whats wrong with gay marriage, which explains my confusion.

  109. I wanted to add that I think that I think Jerry Brown is overstepping his authority to change the description of the measure. The originally proposed ballot summary — “Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California” — is a statement of literal truth about the measure. While the courts may have found a right to same sex marriage in the State Constitution, it was not through the discovery of any directly purposed language, but rather through the indirect implications of case law precedent after successive attempts to interpret various portions of the Constitution. The measure in question doesn’t strike out those various parts of the Constitution; its “active ingredient” is a single, short sentence. The full text (found at the AG’s own website) is as follows:

    ===
    SECTION I. Title

    This measure shall be known and may be cited as the “California Marriage Protection Act.”

    SECTION 2. Article I. Section 7.5 is added to the California Constitution. to read:

    Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

    ===

    Indeed, the entire text of the measure could be printed on the ballot, instead of an interpreted summary. If a summary is necessary, however, nobody expects such a thing to cover all of a measure’s possible implications and ramifications. That task is traditionally and more properly handled in the legislative analyst’s summary and the pro/con main and rebuttal arguments, all of which are made available to voters in the official ballot pamphlet.

    The so-called “summary” that AG Brown approved is not the more concise restatement of the measure itself in simpler words, which such summaries should ideally be, but rather a biased and somewhat disingenuous description of the measure, in the sense that voters are assumed to be naturally pre-disposed not to eliminate existing rights, and tend to interpret words such as “changes the constitution to eliminate {a} right” as meaning that the words which already clearly establish said right in the constitution would be altered or stricken. That’s not the case here at all.

    While I think that government should be out of the marriage business altogether, and that it is a BIG MISTAKE to enshrine a particular definition of marriage (even the traditional one) in the State Constitution, I nevertheless think that Brown and the gay marriage boosters are actually using the slimier tactics in this case. The measure is remarkably short and written in unequivocally clear, simple language. Let it speak for itself; let the people read it and make up their own minds. Anything else is trying to influence the outcome of the election under color of authority; the people attempting to do so have no room to complain about “unfairness” toward their side.

  110. Robert wrote, “It’s as if the dog show had to admit cats into the competition because a judge, legislature, minister, or popular vote deemed cats to be dogs.”

    But isn’t “Cats and Dogs living together” the basic idea of living arrangements that go against tradition and majority practice? 😀

    The point about the need for stable imputed meaning of common words in contracts is well taken, however.

  111. Some of us are not that patient when it comes to justice and morality. The National Gay Tax Protest is growing; the LGBT community WILL NOT WAIT for the country to decide upon our civil rights.

    THREE WORDS – GAY TAX PROTEST
    http://gaytaxprotest.blogspot.com/

    Not ONE PENNY until FULL EQUALITY.

  112. Actually, Jerry is wrong. The California Constitution does NOT explicitly recognize gay marriage. What happened in the interim was a court decision, not an addition to the constitution. He is indeed playing with the language to suit his own ideology.

  113. “It seems to me that many of you are OK with Brown doing this as long as it reflects what you want to happen.”-Episiarch

    I hope that does not mean that you just noticed that around here that the ends justifies the means with regards to gay marrige?

  114. “Marriage is one of the “basic civil rights of man”,fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the RACIAL classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious RACIAL discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another RACE resides with the individual and cannot be infringed by the State.”

    Making distinctions based on gender is NOT equivalent to making distinctions based on race.

    “…fundamental to our very existence and survival.”

    That marriage is seen as important to our “existance and survival” points to an important reason why it has been relegated to couples of opposite genders. Now, I wonder, what can a couple composed of people of different genders possibly do that a couple composed of the same gender can never do?

    “…the fundamental right to marry had to meet a strict scrutiny standard in order to be upheld, which the current prohibition failed to meet.”

    A quick scan of the CA court’s decision was strict but had almost no scrutiny. They rather breezily equated sexual orientation to race and devoted no thought as to what compelling interest was served by limiting marriage to opposite gender couples. They got around the elephant in the room by telling themselves it was a mouse. Reading the decision only makes clearer that the justices in the majority had a conclusion in mind and only tried to find a reason for it afterwards. Truly, a travesty of judicial logic.

  115. “And maybe that’s what the author of the Loving opinion had in mind, but society’s understanding of gay people has since evolved from the view that homosexuality is a mentally illness, or somehow a “choice.”-Tonio

    So, gay advocates and their allies who have been using Loving as a justification for homosexual marriage really have been ignoring the subtle assumptions in the language of the decision that make it apparent the author would been surprised to see it used that way?

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