Constitutional Law

Gay Marriage Moves One Step Closer to the Supreme Court


The debate over the constitutionality of Proposition 8, the controversial voter initiative which added the phrase "only marriage between a man and a woman is valid or recognized in California" to the state constitution, just moved one step closer to the Supreme Court. In a unanimous ruling issued today, the California Supreme Court held that the ballot measure's official proponents possess the legal standing to defend the measure in court. This matters because state officials currently refuse to provide a legal defense of Prop. 8. Today's decision permits the law's defenders to seek a ruling from the federal 9th Circuit Court of Appeals, which in turn sets the stage for an appeal to the Supreme Court.


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  1. I like this going up as a state constitutional provision. I believe that will preclude SCOTUS from a lot of its usual maneuvers to avoid the issue,* and force a decision on the issue at hand: does the Equal Protection Clause preclude any limitation on gay marriage?

    *Well, except for its favorite: denying cert

    1. As a non-lawyer, I wonder:

      1) Isn’t it best – if this does make it to the SCOTUS – that they simply decide it’s not a Federal issue? Probably not, but I think for different reasons:

      2) Wouldn’t marriage be a “free association” issue?

      If decided on the basis of #2, makes some sense to me. Otherwise, I fear it becomes another “general welfare/commerce clause/usual and proper/everything is Federal” deal.

      And I don’t see marriage as a “federal” matter in any way, shape or form (except in terms of basic, negative rights). Nothing in the Const addresses something like “marriage” in terms of Federal powers.

      I dunno.

      PS Referring to the Constitution = “HAHAHAHAHAHAHAHAHA! GOOD one!” I know.

  2. Why does the Cali supreme court get to decide issues of standing for actions in federal court. RC? Anyone?

    1. Just guessing, but your standing depends on your relation to the issue at hand. That, in turn, can be a matter of state law. In this case, I think its a matter of state law whether an initiative sponsor has a sufficient interest to be a party to a lawsuit (state or federal).

  3. I eagerly await the arrival of the homophobes who will tell us that homos can already get married…to women (or lesbians to men). Because that ultra fucking lame argument never fails to amuse.


      1. Yes, that too. It’s stunning the contortions haters will go through to excuse away their hate.

        1. It’s stunning the contortions liberal homos will go through to insist that those who disagree with them about how to define marriage are motivated by fear, hatred and malice.

          1. Yes, I am both liberal and homosexual, and your arguments are compelling and not just flat out bullshit. You are the truth and the light, and not a complete asshole.

          2. I’d also like to note that your response to being called a hater is to call me a “liberal homo”, as if being called a homo was…supposed to be an insult.

            You are a stunningly un-self-aware hater. Enjoy.

            1. It wasn’t meant as an insult.

              You are a stunningly un-self-aware hater.

              As I said, the contortions you go through to insist I am motivated by hate are stunning.

              Now I am so much of a hater that I am not even aware of my hatred?

              I suppose this is my cue to try to prove that I am innocent, right?


              You funny!

              1. It wasn’t meant as insult? Sure, big guy. Sure it wasn’t. I’m going to go laugh my ass off now.

                1. Obviously you are a liberal. And being homosexual makes you a homo.

                  Put the two together and you get… wait for it… wait some more…


                  liberal homo!


                  1. Except that I’m neither liberal or homosexual, which makes you an idiot. Simple, really. But it shows your bigotry once again; if I defend homos, I must be one, and if I oppose your viewpoint on this, I must be a liberal.

                    You’re fucking stupid and a hater. Stop sniveling and squirming to try and deny the obvious.

            2. OK Epi, let’s see if I can sum up your argument.

              Anyone who disagrees with you about redefining marriage is motivated by hate, fear and malice.

              There is no other possible reason.

              The only possible way to prove that that is not their motivation, that they are not a bad person, is to change their stance on redefining marriage.

              Does that about sum it up?

              1. You’re a hater because everything you say radiates hate, you fucking cretin.

                It’s obvious to many more people than just me, bigot.

                1. Waaaaaaaaaaaaaaaaaaa!

              2. “Anyone who disagrees with you about redefining marriage is motivated by hate, fear and malice. There is no other possible reason.”

                I don’t see any compelling alternative possible reason. Either you want equal protections for all (either state marriage for all consenting adults, or no state marriage for anyone), or you want the law to treat people inequally based upon your personal biases and attachment to traditional discriminatory laws. The same exact logic could be used by a racist to argue for reinstating Jim Crow laws and anti-miscegenation laws.

                1. this has nothing to do with Jim Crow. Has it never occurred to you that some folks see marriage through a very specific prism, down to the whole till death us do part no matter how much we may grow to loath each other. Until recent times, marriage pretty has meant one man/one woman; the number of participants never changes and, till now, neither did the gender mix.

                  Frankly, I think NY handled it the right way, through the legislative process. But dismissing those with an opposing view as a bunch of cranks who don’t like a particular group is what I expect from the DNC.

                  1. Until 1967, marriage was not allowed between blacks and whites in some locations. If you defend limiting marriage to straights only based upon “tradition”, you share the same core logic as those who limited marriage to one race.

                2. This was exactly the finding of the Prop 8 trial in Federal District Court. That there are no legitimate reasons whatsoever to deny same-sex couples full access to civil marriage beyond personal biases and historic prejudices. When all of the alleged reasons to “protect” marriage were brought into the cold light of a courtroom, they were exposed for the shallow fear-mongering that the were.

                  While these sorts of arguments were used to win over the easily convinced idiots who make up the CA electorate, it doesn’t make them constitutionally valid.

                  Which is why the haters are also hell bent on keeping the video record of the trial locked away since it exposes the total invalidation of all of their arguments.

          3. sar babiee, i can feel ur christian luv coursing thru my lower GI tract !

    2. I look at marriage two ways: as a social concept and a legal concept. Socially people can define it however they want, including as between one man and woman, provided it doesn’t interfere with a person’s right to free association, which is how I view marriage the legal concept.

      Personally I think both sides would be much happier if the state just stopped regulating and defining marriage altogether. All couples that want to sign the contract have the same legal rights, what they and their friends call it is their business.

      1. I agree with you. But we also live in a world where the government is extremely powerful and defines marriage and is not going to be giving up that power. So at least let’s have equality under the law.

        1. The State wouldn’t be giving up any power. They’d just be changing the name of the thing they exert authority over.

          The principle would be like: “You can get MARRIED anywhere you want, under whatever rules you want… but that’s a religious thing and the State doesn’t recognize it. If you want State recognition, you go fill out this form, yeah, the one that used to say ‘marriage license’ but now says ‘civil union agreement'”

          And you grandfather it. If you are legally married as of {date}, you are considered to have a civil union as well as of the date of your marriage. After {date}, you need to get a CU Certificate.

          And the law just amended so that any reference to “spouse” is “civil union partner”, and any reference to “married” is “united in civil union”.

          Done. Easy peasy.

          1. Except it will never happen, so it’s neither done nor easy.

            1. Details, details. 😛

            2. Except it will never happen

              Same thing was said ten years ago about redefining marriage to include same sex couples.

          2. Perfectly logical, I like it.

            Sadly, there are far too many people on both sides of the argument that would pitch a fit.

    3. this has nothing to do with homophobia; it has plenty to do with what words mean. I don’t much care who marries whom but this society has historically defined marriage by three things: it involves two people of opposite sex who are unrelated. If one of those three is no longer applicable, then you must move to dismiss the other two barriers.

      1. And it used to define marriage by FOUR things: it involves two people of opposite sex and the same race who are unrelated not immediate family members. Society and its institutions change.

        1. just saying if you accept one aspect of the change, gotta accept them all.

          1. I do move to dismiss the other two barriers, because how other consenting adults relate to one another is none of my business, and I don’t support using the government to enforce “traditional” mainstream social norms. If a Muslim or Mormon wants twenty wives or a brother and sister want to marry, I don’t have to like it or agree with it to believe its not the law’s place to discriminate as long as special government privileges are granted to that relationship status. I’d prefer no state marriages, which eliminates the confusion altogether and lets everyone define it how they wish.

      2. this has nothing to do with homophobia

        And segregation had nothing to do with racism.

      3. Marriage also has traditionally meant ‘forever’ – you know, ’til death do us part’. What happened to that definition? Oh, yeah, people changed it to ‘until we get tired of each other’.

    4. OK, if you want someone to state irrefutable facts, I’ll do it, even though I don’t have any particular irrational fears of things that are the same.

      An unmarried man, regardless of sexual orientation (they don’t even ask you if you are gay on the application because they don’t care) can already get married?to a women who consents to the arrangement, who is not close relative, and is not married to anyone else.


    5. OK, if you want someone to state irrefutable facts, I’ll do it, even though I don’t have any particular irrational fears of things that are the same.

      An unmarried man, regardless of sexual orientation (they don’t even ask you if you are gay on the application because they don’t care) can already get married?to a women who consents to the arrangement, who is not close relative, and is not married to anyone else.


  4. Isn’t it already a moot point since when the last court ruled Prop 8 unconstitutional it declined to grant a stay, meaning that already thousands of gay couples have gotten married. What would happen to them if SCOTUS rules it a constitutional or at least something permissible per the state’s 10th amendment rights?

    1. If Perry V. Brown makes it all the way to SCOTUS and is overturned, all that would mean is that Prop8 would remain in force.

      Prop8 did not include language that would nullify those 18K marriages which were performed before its passage and the CA Supreme Court has already ruled that those marriages are indeed still valid and not impacted in any way by Prop8.

      So now we’re left with a clusterfuck of individual rights:

      1. Heteros can and always have had the ability to marry, divorce, and remarry as often as they wish. (and more than a few seem to wish a lot).

      2. Teh Gheys who did not marry during the brief window of opportunity and now have no access to civil marriage.

      3. Teh Gheys who did marry, are still legally married, and will remain so so long as they do not divorce.

      4. Teh Gheys who did marry, divorced, and not cannot remarry.

      1. 1. Heteros can and always have had the ability to marry, divorce, and remarry as often as they wish. (and more than a few seem to wish a lot).

        Wrong! Guys cannot marry guys regardless of whether they are hetro or not.

  5. Can someone please explain to me what is libertarian about the government imposing any definition of marriage upon society?

    I would think the libertarian position would be to get the government out of the marriage business and simply enforce contracts.

    1. First off, are you able to think for yourself or do you preface every thought with “as a libertarian…”?

      Secondly, if the libertarian position is that drugs should be legal, should libertarians be against improvements to unfair sentencing laws?

    2. That is the libertarian position, at least for the long term. However, recognizing that currently government is involved in marriage such as it is, it is also a libertarian position to be against letting the government discriminate against homosexual marriage (plural marriage too).

    3. There is nothing remotely libertarian about state-mandated bigotry.

      PropH8 was a manifestation of the right-wing xian culture war. No logic was involved, nor any concern for individual liberties, only pure divide-and-conquer politics. The people behind (and supporting) this are no less expansionist than, say, the OWS crowd.

      And it worked exceedingly well.

  6. As a gay male (and probably one of the 10 or so in existence that would rather see the government just get its fingers out of the marriage game entirely), there’s a lot going through my mind in regards to Prop 8:

    1) I would much rather see this repealed in another ballot initiative rather than being decided through a court. Kind of a shame that it seemingly has to be.

    2) Assuming that The Other Wiki is to be trusted, the courts can’t seem to agree on which Equal Protection Clause test to use on orientation. If Prop 8 is subject to strict or intermediate scrutiny, I can see it being struck down. It could potentially go either way if given the rational-basis test, IMO, but I’m not a lawyer.

    3) Regardless of the SCOTUS decision, it’s a lose-lose. If upheld, simple majoritarianism can be used as justification to define the personal lives of others. If struck down, it chips away at the 9th Amendment a bit more.

    1. As a gay male (and probably one of the 10 or so in existence that would rather see the government just get its fingers out of the marriage game entirely)

      You’d be pleasantly surprised by how many gay men agree with you.

    2. what is wrong with how NY did it? The people’s duly-elected reps made a decision. Those who agree with how their guy/gal voted will work for re-election; those opposed will vote to unseat. I don’t like the courts getting involved and despite govt by referendum on almost any issue.

      1. Liberal version of wareagle:
        “What’s wrong with Obamacare? Duly elected representatives did it. Courts shouldn’t get involved. Democracy means majority will gets imposed on the minority, until that minority becomes a majority.”

  7. But which gay marriage is going before the supreme court? And will Roberts be doing the, “With the powers vested in me…” or will he have a clerk do it?

  8. As a Christian, what makes your faith different than that of a Muslim, a Hindu, or even the “non-faith” of an atheist? Are we able to properly explain our faith to each other, let alone someone who is desperately in need of the healing power of the forgiveness of Jesus Christ? The Four Pillars of the Kingdom is an attempt to help us do just that by laying the groundwork, in an accessible manner, of what it means to be a Christian. The pillar of belief: why do we believe as we do? The pillar of knowledge: how we obtain our knowledge through scripture, prayer and even praise. The pillar of life: what is the proper Christian life and how our actions represent Christ to the rest of the world. And the pillar of love: how all love comes from God and should flow from us to those around us. The Four Pillars of the Kingdom will challenge your relationship with Jesus but, in doing so; make it stronger and closer than you ever thought possible
    Available now on Amazon in Kindle and paperback formats.

    1. Oh, man, have you targeted the wrong site! You must have taken a wrong turn at Albuquerque.

      1. What happened? I commented on a spam post and my comment is attached to something unrelated. Serves me right, I guess.

  9. Apparently the United Colors of Benetton caved into the mayor of Vatican City and removed a poster of him smooching an Imam.…..=arts-post

    1. Oh, Benetton is so oppressed! They are simply appalled at all the publicity they’re getting!

      Yes, they are horrified that they have to cave in and get free publicity in the Washington Post and other news outlets!

      Mix it up with a public figure and hope some of the celebrity attaches to you.

      But give them credit for courage in targeting Islamic leaders, who are not always as easygoing as the Pope when it comes to being mocked as gay.

  10. Sad that the entire world – including the pagan Spartans and Athenians – was a boiling cauldron of hatred for as long as humanity has existed!

  11. This is a good decision. The supporters of the law ought to be able to defend it. Liberals want to conclusion that only the state attorney general can defend the law, and if he/she refuses to do so, no-one can defend it. With this precedent, tomorrow the voters might pass a republican issue (like defined contributions plans for all new government employees, repealing SB400, or repealing the laws which allow state employees to collectively bargain). Then what if the attorney general at the time refuses to defend it? OK, my examples above are fantastic, and will only happen in my dreams. So it’s fair to let the backers of a law defend it.

    1. Despite your unfortunate name, you have a good point. As the Calif. Supremes point out, the whole point of the initiative process is to pass laws which the political class doesn’t want enacted. If that same political class can basically veto initiative measures by going MIA when it’s time to defend them in court, then you’ve put the fate of these initiatives in the hands of the very political class you’re trying to bypass.

      1. How come you don’t like my name?

        1. It’s the income-tax amendment – a standard libertarian disclaimer is to denounce the 16th Am.

          1. You’re assuming that one likes one’s screen name. I despise the 16th amendment. The substance of my postings goes against the screen name; it’s my symbolic way of escaping being burdened. The 13th amendment should be enhanced to repeal the 16th. But an article at from 1999 says that repealing the 16th would not eliminate the income tax…..challenge. I also use this screen name on

            1. Well, I’m sorry I insulted you 🙁

  12. Question to libertarians/Reason: why do so many libertarians realize that the state shouldn’t grant marriage licenses or preferable legal treatment to certain contractual marital relationships, yet they defend state-granted incorporation, which grants special legal privileges and protections to a class of business contracts?

    1. Perhaps because marriage is a personal relationship, perhaps intermingled with religion, and government shouldn’t have a role in that area. What you might call the personal sphere, where government should be entirely excluded.

      Whereas incorporation deals with contracts, enforcement, liability, stuff where government, even in a minarchy, does have a role. You might call this the private sphere, where government does have a limited role.

      1. They’re both contractual relationships that can be completely privatized without granting a privileged state status. How parties to a business relationship organize and contract between themselves is not significantly different than how partners in a domestic relationship organize and contract between themselves. I can’t see how either is the government’s business, or why either should have separate classes of contracts with special legal privileges.

    2. The libertarians I know oppose state-granted corporate charters.

    3. I think many libertarians still accept the need for the government to recognize the portion of marriage relevant to government — power of attorney, default inheritance, shared property, guardianship of children, etc. But it doesn’t need to second guess why people are forming those legal bonds or whether sex of any sort is involved.

      Also, corporate charter law doesn’t treat two gay men who want form a corporation differently from a man and a woman who want to form a corporation.

      1. Those can all be designated by private contract, although there may need to be a legal backup plan to structure those things in absence of contract.

        “Also, corporate charter law doesn’t treat two gay men who want form a corporation differently from a man and a woman who want to form a corporation.”

        Yeah access to the corporate legal structure is not discriminatory currently, but the central point on both still is that the State shouldn’t be involved in private, consensual contracts, and that it causes harm when it establishes state institutions for private arrangements (in the case of marriage, rampant legal discrimination against divorced fathers; in the case of the corporate entity, socializing risk, privatizing profit, increased fraud, increased need for regulation.) The core arguments are the same in both cases.

  13. AIDS was created when two guys mixing their sperm together.

    It’s a fact.

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