Family Issues

Did the California Supreme Court Help or Hurt Gay Couples?

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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.

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  1. 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.

  2. For fuck’s sake, joe. Don’t you get it? They touch their man parts together.

  3. 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.

  4. Does this mean that Shatner and Takei can get along now?

  5. 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.

  6. FWIW, Prof. Volokh doesn’t think the Contracts Clause would apply in this case

    http://www.volokh.com/posts/1225907782.shtml

  7. 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?

  8. So, the next step is to eliminate that other silly ‘marriage’ scam?

    I can always dream . . .

  9. 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.”

  10. 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. 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?

  12. What?!?

    Why the hell didn’t anyone tell me about this before now?!?

  13. 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.

  14. 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…

  15. 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…

  16. 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.

  17. “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.

  18. 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.

  19. They touch their man parts together

    Why do people obsess about the guys? There are just as many gay women around…

  20. 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.

  21. 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.

  22. 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.

  23. 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?

  24. 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.

  25. 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!

  26. 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.

  27. Does this mean that Sulu is now back on the market? RRRRAAAAAOOOW!!

  28. 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.

  29. 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?

  30. Makes you think about that episode of Sulu swordfighting in a whole new light, doesn’t it?

  31. Takei may not be entirely gay, anyway.

  32. 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

  33. Those queers should have thought about this before they chose to be gay.

  34. 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.

  35. 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?

  36. “‘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.

  37. 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.

  38. 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.

  39. 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.

  40. 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.

  41. 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.

  42. 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.

  43. More on the conventional view here.

  44. 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.

  45. 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?

  46. 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.

  47. 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.

  48. 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.

  49. 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.

  50. 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.

  51. Art-P.O.G.,

    WATCH? NO. PARTICIPATE? WELL, PERHAPS YOU NEED TO UPGRADE YOUR CLASS OF LESBIAN, MY FRIEND.

  52. Urkobold,

    Perhaps, indeed.

  53. 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’.

  54. 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

  55. 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?

  56. 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!).

  57. Art-P.O.G.,

    You don’t have to fake orgasms when you aren’t having sex in the first place.

    Lesbian Bed Death

  58. 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.

  59. 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.

  60. Thanks for the link, SugarFree. And a term I had heard a while ago has now been revived: U-Haul Lesbians.

  61. Sugarfree,

    Is Lesbian Bed Death the point at which lesbians have David Crosby sire a child for them?

  62. 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.

  63. Art-P.O.G.,

    That’s Lesbian Brain Death. Big difference.

  64. Dan, not Dav.

  65. 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.

  66. 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.

  67. 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.”

  68. “We’re made loved to” doesn’t pack much of a punch.

  69. 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.

  70. 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.

  71. Also, I first heard about “pegging” from Savage’s column. What are some of the political implications of this (ever-growing?) sex act.

  72. it’s as many as 8?

  73. 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.

  74. 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.

  75. 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.

  76. 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.

  77. 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.

  78. 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.

  79. “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.

  80. 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.

  81. 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.

  82. 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.

  83. 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.

  84. 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.

  85. 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.

  86. 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?

  87. 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.

  88. “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?

  89. 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.

  90. MNG,

    If an amendment to the US constitution conflicts with a pre-existing part of the federal constitution, what happens? Hmmm…..

  91. 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.

  92. 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.

  93. 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…

  94. 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.

  95. 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).

  96. “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.

  97. “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.

  98. 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.

  99. 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.

  100. “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.

  101. 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.

  102. 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.

  103. 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.

  104. mnuez…I really hope reincarnation exists, and that you come back as a gay man. But in Alabama, or someplace crappy like that.

  105. 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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