Prof. Lederman:

"... indeed, long after same-sex marriage becomes the norm rather than the exception in the various states..."

I think you meant "long after legal recognition of same-sex marriage becomes the norm". But maybe you are right as it reads. Even if you are, that wouldn't prevent me from marrying my fiancée this June. ;-)

Cheers,
 

Well, Arne beat me to it.

This was a decision in the great tradition. The retrenchment Canutes cannot hold back the sea forever.
 

Wasn't it only about the name? It seems like they are simply saying that as long as the DP's gave all the rights of marriage, then they should be called marriages. They take pains to point out that they are not addressing the public policy issue of whether or not same-sex couples should be given the right to marry. They specifically leave open the possibility that perhaps they shouldn't!

The question we must address is whether, under these circumstances ["these circumstances" referring to "both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage"], the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution. We are aware, of course, that very strongly held differences of opinion exist on the matter of policy, with those persons who support the inclusion of same-sex unions within the definition of marriage maintaining that it is unfair to same-sex couples and potentially detrimental to the fiscal interests of the state and its economic institutions to reserve the designation of marriage solely for opposite-sex couples, and others asserting that it is vitally important to preserve the long-standing and traditional definition of marriage as a union between a man and a woman, even as the state extends comparable rights and responsibilities to committed same-sex couples. Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.

So, the question becomes, or rather remains, should same-sex couples be given the same rights as a married man and a woman? I think no, only a man and a woman should be allowed to conceive children together with their own gametes, and that being allowed to conceive children together should remain an inherent right of marriage. Same-sex couples should not be allowed to combine gametes, as a matter of public policy.
 

Marty,

Do you think that governments ought to deny tax-exempt status to institutions and organizations that refuse to treat equivalently same-sex unions and traditional marriages (say, in their benefits policies)? Should such institutions and organizations be ineligible for participation in public programs for which they are otherwise eligible? It strikes me that what you correctly identify as today's opinions most interesting aspects raise these and similar questions. What do you think?
 

Well, Rick, I'm not sure that question is raised here. Even under a strict scrutiny regime, a legislature is not generally required to enact laws prohibiting private discrimination -- Brown did not require Titles VI and VII of the Civil Rights Act of 1964. (Norwood admittedly complicates matters when it comes to government-subsidized discrimination; but I doubt it will prove to have much precedential effect here, and certainly not in the tax-benefit area.)

Do I think as a matter of legislative *policy* that "governments ought to deny tax-exempt status to institutions and organizations that refuse to treat equivalently same-sex unions and traditional marriages (say, in their benefits policies)"?

Well, yes, in general, I do. Of course, that merely raises interesting questions about permissible and/or required religious accommodations . . . .
 

Marty, maybe I should've bolded this part: only to determine whether the difference in the official names of the relationships violates the California Constitution.

Isn't that rather important to note?

and Rick, isn't the question whether "institutions and organizations" can treat married people different from unmarried people?
 

JH has something of a germane cause to bring up his hobbyhorse. Cheers!

His cause, as was noted in another thread, is specialized, but he raises a usual claim. The response is that "marriage" is not just about the married people having babies via sexual conception.

Loads of marriages will or simply cannot result in that end. Though various marriage laws provided a chance to nullify marriages in some fashion in cases of infertility, from biblical days, marriage had many interests.

JH also raises a definitional claim. Putting aside the fact many very well consider it "marriage," the bottom line is that we are talking about certain state benefits. Benefits selectively supplied to those who wish to marry a person of the opposite sex.

Unlike number (polygamy etc.), this sort of discrimination is fairly easily shown as unjust. The strict scrutiny approach was IIRC favored by the Chief Justice of the NY Court of Appeals in its marriage case. Unfortunately, she was in dissent.

BTW, as to state policy, reminds me of yesterday's Boston Legal, involving state tax breaks to the Catholic Church, even with its policy against female priests.
 

Gee, it seems like only yesterday that all right-thinking people assured us that there was no need for a constitutional amendment prohibiting same-sex marriage because there was no chance that the courts would find a constitutional right to such marriage. Now that this is obviously not the case, will the opponents of the amendment either acknowledge that it is needed, or admit that they are against it because they in fact favor same-sex marriage? Will Senator Obama, who claims to oppose same-sex marriage, but wants to repeal the Defense of Marriage Act as unnecessary, change his position? Or is he merely hoping to stall until that happy day when, through judicial fiat, “same-sex marriage becomes the norm rather than the exception”?
 

Four black robes rewriting the law again in California. What a surprise.

The errors in this opinion are fundamental.

1) Marriage is universally defined under US law as the union of one man and one woman. Anti-miscegenation laws do not change the definition of marriage, but rather make it a crime for a man and a woman of different races to marry. The decisions reversing anti-miscegenation laws did not change the definition of marriage. This decision rewrites the definition of marriage.

2) Marriage is a fundamental right well established in history and is due strict scrutiny. Homosexual unions have never been recognized as marriage apart from one other rewriting of the law by four black robes in the Bay State, is not fundamental and most certainly is not due strict scrutiny. The fact that 60% of Californian voters recently rejected homosexual marriage in 2000 only reinforced the obvious fact that homosexual marriage is not a well established right.

However, unlike the byzantine Bay State initiative process, California should have no problem offering an initiative to the People to reverse this legislation from the bench and the results should be similar to 2000.
 

Gee, it seems like only yesterday that all right-thinking people assured us that there was no need for a constitutional amendment prohibiting same-sex marriage because there was no chance that the courts would find a constitutional right to such marriage.

You mean other than MA and Hawaii? Or, possible NY at some point? Keep that straw away from open flames!

I was not aware btw the amendment would allow legislatures to allow same sex marriages. Hawaii btw amended its constitution to override the state court ruling.

Now that this is obviously not the case, will the opponents of the amendment either acknowledge that it is needed, or admit that they are against it because they in fact favor same-sex marriage?

I admit, you got me, I didn't want a barrier to same sex marriage cemented into the Constitution because it seemed discriminatory. Of course, your Bob Barr types might becry it on federalist grounds too. Maybe, that's why McCann voted against it?

Will Senator Obama, who claims to oppose same-sex marriage, but wants to repeal the Defense of Marriage Act as unnecessary

since state and fed DOMAs have consistently been upheld, maybe he was right? If MA and CA voters wish to amend their constitutions, let them.

A federal law seems a bit of a blunderbuss, especially one that blocks fed marriage rights (marriage generally a state institution) even if a state legislature supplies them to same sex couples. Like let's say via civil union laws.

Or is he merely hoping to stall until that happy day when, through judicial fiat, “same-sex marriage becomes the norm rather than the exception”?

like homosexual relationships as a whole are in legitimized because of judicial fiat ... clearly all those religious bodies, e.g., were forced to marry those same sex couples and accept a few homosexuals as clergy

BTW, the CA legislature also supported same sex marriage, but the gov. blocked it, in part punting things to the courts. A move a fed. amendment would inhibit
 

Gee, it seems like only yesterday that all right-thinking people assured us that there was no need for a constitutional amendment prohibiting same-sex marriage because there was no chance that the courts would find a constitutional right to such marriage. Now that this is obviously not the case, will the opponents of the amendment either acknowledge that it is needed, or admit that they are against it because they in fact favor same-sex marriage?

I think you're mis-remembering. There are lots of proposed amendments; the one under serious discussion would not have banned same-sex marriages, it would have written DOMA into the US Constitution. Such an amendment would have had no impact on the CA decision today.

I assume good conservatives would oppose, on federalism grounds, a federal constitutional ban on same-sex marriage adopted by individual states.
 

"Bart" must have been napping. But he's ... uhh, kind of awake now ... and emits this:

Four black robes rewriting the law again in California. What a surprise.

The errors in this opinion are fundamental.

1) Marriage is universally defined under US law as the union of one man and one woman....

"U.S law" ain't got nuttin' to do with it. Glenn Greenwald (who had the good sense to ban "Bart") has the proper rejoinder to "Bart" here (and amasingly, managed to write it even before "Bart" opened his mouth).

... Anti-miscegenation laws do not change the definition of marriage, but rather make it a crime for a man and a woman of different races to marry....

Oh, BS. See: "Queen of Sheba", ferinstance. "Bart" ignores the pedigree of these laws. We don't, nor did the U.S. Supreme Court.

But I'd point out once again that the very same implicit argument made by "Bart", that there's no discrimination because no one is prevented from marrying, and all are treated "equally" (that is, everyone is prevented from marrying a person of the same sex) is just the argument that the U.S. Supreme Court struck down unanimously in the aptly named Loving v. Virginia

... The decisions reversing anti-miscegenation laws did not change the definition of marriage. This decision rewrites the definition of marriage.

Nonsense. Polygamy is old as the Bible (if you believe that kind of thing). And the CA law precludes polygamy as well.

2) Marriage is a fundamental right well established in history and is due strict scrutiny. Homosexual unions have never been recognized as marriage apart from one other rewriting of the law by four black robes in the Bay State, is not fundamental and most certainly is not due strict scrutiny....

Yes, nice sleight of hand here. The question is "can gays be prevented from marrying"? The argument is an equal protection one as well as a question of funddamental rights. "Bart" finesses this argument by saying that such equal protection doesn't applyin this case, and there is no fundamental right to marriage for gays because ... <*wait for it*> ... gays can't marry!

The fact that 60% of Californian voters recently rejected homosexual marriage in 2000 only reinforced the obvious fact that homosexual marriage is not a well established right.

Good thing fundamental rights aren't subject to public opinion polls du jour, eh?

Since then, Vermont, New Jersey, and Massachusetts have given legal status to gay unions, and the world hasn't collapsed. People have noted this.

However, unlike the byzantine Bay State initiative process, California should have no problem offering an initiative to the People to reverse this legislation from the bench and the results should be similar to 2000.

Or similar to the efforts of the foaming homophobes in Massachusetts, perhaps.

I note that Ahnold has already said he will not support a state amendment to discriminate against gays. California is not Colorado Springs (home of such defenders of he sanctity of marriage as Ted Haggard).

We will see.

Cheers,
 

mls:

Gee, it seems like only yesterday that all right-thinking people assured us that there was no need for a constitutional amendment prohibiting same-sex marriage because there was no chance that the courts would find a constitutional right to such marriage. Now that this is obviously not the case, will the opponents of the amendment either acknowledge that it is needed...

Simple answers to a stupid question: No.

You figure it out.

Cheers,
 

Gee, it seems like only yesterday that all right-thinking people assured us that there was no need for a constitutional amendment prohibiting same-sex marriage because there was no chance that the courts would find a constitutional right to such marriage. Now that this is obviously not the case, will the opponents of the amendment either acknowledge that it is needed, or admit that they are against it because they in fact favor same-sex marriage?

I think they meant the federal courts, not the state courts. In any event, would you support an amendment saying only that courts cannot find such a right, but a legislature or the people may? Is your issue really the process here, or do you just not like the result?

In the CA case, a right to gay marriage has twice passed the legislature in the last 2 years, only to be vetoed by the governor (Arnold) who claimed that the issue should be resolved by the courts. Now that it has been, Arnold says he respects and supports the decision and will fight not to have it overturned by initiative.

That is surely a curious position for Arnold to take, but if you ignore the logic and add the pieces together, what you get is that the legislature and the governor together support the result. Doesn't that get you to the same point as if the governor had just signed either law in the first place? Think of it as though he used the court as an advisory committee.

And for what it is worth, CA justices are subject to retention elections and have all been retained by 70+% of voters. That is also different than Massachusetts. Also, the decision can be overturned by initiative constitutional amendment, and a proposal to do just that will be on the ballot this November. If it fails, you will know that the people have signed off on gay marriage.

So why exactly do we need a federal constitutional amendment again?
 

Zachary- I will admit I know nothing about the politics of same-sex marriage in California and, if the facts are as you describe them, it may be that the end result is consistent with the will of Californians. The logic of the decision, however, as summarized by ML, is not based on the will of the people, and would seem to apply equally to the federal constitution. So it is hard to imagine someone arguing that the decision is correct under the California Constitution, but would not be under the US Constitution. (Ok, I can imagine Mark Field or Arne making that argument, but only for the purpose of proving me wrong).

So, yes, I think a federal constitutional amendment is necessary in order to keep the federal courts from using this same reasoning, such as it is, to establish a federal right to SSM.
 

C'mon, Marty. Obviously, the questions I asked *are* "raised" by today's decision. (It should be just as "obvious[]" that I was not asking whether, as a matter of current law, legislatures are required to outlaw private discrimination.) So, what do you think? Your post suggests a view that there are no non-"invidious" reasons for an institution or association to refuse to treat same-sex unions as "marriages". Fair enough. But, if this is true -- i.e., if there are no non-invidious reasons for such a refusal -- why should a legislature accommodate religiously motivated invidiousness? I take it that a legislature should not? Or do you think a legislature should? Why?
 

MLS:

The logic of the decision, however, as summarized by ML, is not based on the will of the people, ...

Correct. Who has argued otherwise.?

... and would seem to apply equally to the federal constitution.

Why? California has its own set of "rights" (just as do many states; for instance, CT avoided the 'logic' of San Antonio ISD v. Rodriguez based on a state constitutionally guaranteed right to an education in the Sheff v. O'Neill case).

Although you're right, certain concepts translate, and CA precedent may be persuasive (and moral) authority, just as it was in being one of the first to strike down miscegenation laws.

In my mind, it was unnecessary to use "strict scrutiny" (and MA didn't, IIRC) in deciding that banning gay marriages had no "rational basis". That fact is pretty much obvious on its face. The real motivation of the anti-gay-marriage contingent needs no explication (just as was the motivation of the Alabama legislature in Wallace v. Jafree). Your side just doesn't know when to keep its mouth shut, perhaps something in the Babble about "shouting to the world" the "Good News". Righteous (and stuffed and hypocritical [see, e.g. "Haggard"]) prigs ... and no, that's not misspelt.

Cheers,
 

OT: On a side note, can anyone explain the rationale of requiring concurrence of majorities of both houses of the legislature, as well as the governor's signature, to pass state speeding laws, but allowing a simple majority of the people to change the fundamental law of the state?!?!?

Does this make sense to anyone? Did any Californians read the Federalist Papers or other founding documents? Or did they just not care?

Cheers,
 

Doofuses: the court did not say there was a constitutional right to same-sex marriage, not even by the California Constitution. All they said, literally the "only" question they said was before them to decide, was that having two different names was unconstitutional, as should have been obvious to everybody (how could Clinton and Obama have ever had such a stupid position? How could NH and NJ have such a stupid CU law?

The court did NOT say that same-sex couples merited equal rights, they didn't feel that question was before it, apparently.

People should not have the right to conceive with someone of their same sex, only with someone of the other sex. This is due to the public policy question regarding the ethics and costs and implications of allowing people to use modified gametes to create children. Modified gametes should be prohibited.
 

OT: On a side note, can anyone explain the rationale of requiring concurrence of majorities of both houses of the legislature, as well as the governor's signature, to pass state speeding laws, but allowing a simple majority of the people to change the fundamental law of the state?!?!?

The only reason the people don't vote on every law is because it would be too difficult, the people don't want to be bothered. So the people choose to pay a few hundred full-time elected legislators and governors to make speeding laws and stuff. But they aren't electing alien overlords, just public servants.
 

Arne- what I am saying is that there is no intellectually honest way to believe that what the California court said was right and not believe that the same conclusion should be reached under the federal constitution. You take this point a step further and say that there is no intellectually honest way to be against SSM at all, and that only bigots and Christians (like there is a difference) oppose SSM. I paraphrase, of course.

All I am asking is that supporters of SSM come out and make their argument in the same straightforward way that you have, and stop hiding behind obfuscations designed to keep the yahoos from figuring out, before it is too late, that SSM is about to become the norm and not the exception.
 

"OT: On a side note, can anyone explain the rationale of requiring concurrence of majorities of both houses of the legislature, as well as the governor's signature, to pass state speeding laws, but allowing a simple majority of the people to change the fundamental law of the state?!?!?"

Yup, John's right: The people themselves ARE the sovereign, the state government is just their agent. Naturally you need more safeguards on an agent using delegated power theoretically on your behalf, than you do on you acting directly.
 

So it is hard to imagine someone arguing that the decision is correct under the California Constitution, but would not be under the US Constitution. (Ok, I can imagine Mark Field or Arne making that argument, but only for the purpose of proving me wrong).

I'm not going to make any such argument, though I suspect it could be done based on differing precedents (e.g., compare Serrano v. Priest to San Antonio School District v. Rodriquez). Regardless, I think that the same rule should apply federally and that the SCOTUS should strike down all gay marriage bans. That clear enough?
 

The people themselves ARE the sovereign, the state government is just their agent.

Agreed.

Naturally you need more safeguards on an agent using delegated power theoretically on your behalf, than you do on you acting directly.

Madison drew exactly the opposite conclusion. "If every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob."
 

"I'm not going to make any such argument, though I suspect it could be done based on differing precedents (e.g., compare Serrano v. Priest to San Antonio School District v. Rodriquez). Regardless, I think that the same rule should apply federally and that the SCOTUS should strike down all gay marriage bans. That clear enough?"

Crystal. And therefore, one is either in favor of gay marriage or in favor of a constitutional banning same.
 

I was unaware that gametes had rights under the law. My legal education sure is proceeding apace.

In other words, some of the reaction to this decision has reached heights of absurdity and hypocrisy that are a virtual feast for fans of the art.

There's the spectacle of the folks who scream that the will of the people got overruled by activist judges being the same folks who never had that reaction to Gore v. Bush.

Then of course there are the sometime federalists, bemoaning what an individual state has seen fit to do. What, you'd override it with central control? Holy Jefferson, Batman!

Then there's the drumbeat of "the will of the people" not being respected by government. While their cheerleader in DC explains that if you have principles you should ignore the will of the people.

But the topping on the dessert has to be the gametes. I can hear their cries, can't you? Perhaps we can set up a dating service for the ones that come from married opposite-sex couples, so that God's work can be advanced on earth.

If I may indulge in an actual legal observation: I agree that the most important aspect was the clear message in the basis for decision: equal protection, fundamental rights. I take it this creates a precedent against discrimination that goes well beyond the right to marry. How broad is this precedent?
 

Can someone who opposes this decision please explain why the "will of the people" should be considered when analyzing an equal protection claim? Assuming arguendo an equal protection violation exists and that said violation receives popular support, would the "will of the people" dictate that the court ignore the violation?
 

"Madison drew exactly the opposite conclusion. "If every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob.""

Just explaining the reasoning, Mark; I agree that ballot initiatives are in as much need of procedural safeguards against momentary passions as any legislative action. But that's a counter-majoritarian view.
 

Mike

I was not claiming the will of the people should have anything to do with an equal protection claim. My claim is that the people should be told honestly what is going on, so that they can decide whether to use the political process to preempt or reverse judicial decisions that would impose SSM. As opposed to the current strategy of SSM supporters, which is to keep people in the dark until SSM becomes a fait accompli, at which point it will be too difficult to achieve the necessary political consensus to reverse it (see Roe v. Wade).
 

Just explaining the reasoning, Mark; I agree that ballot initiatives are in as much need of procedural safeguards against momentary passions as any legislative action. But that's a counter-majoritarian view.

Got it. Agreed.

My claim is that the people should be told honestly what is going on, so that they can decide whether to use the political process to preempt or reverse judicial decisions that would impose SSM.

Then I assume we can expect the Republican party to state forthrightly that they have no intention of stopping with reversing Roe (that is, leaving each state to decide for itself), but to institute a nationwide ban on abortion by Supreme Court decision. At least one activist has admitted to me that this is, in fact, the goal.
 

I have an question. Is there any way that the legislature and the Governor can stop the fall ballot initiative?

Either directly or by de-funding it's presentation, effectively putting it off from this election cycle to the next?

Basically, how/where is the process of offering a constitutional (or statutory) referendum?
 

The next question is if the recognition that gays and lesbians have an equal right to the civil institution of marriage, can the right to marry be taken from them by constitional amendment and survive under federal equal protection?


As a matter of California law now, sexual orientation is a suspect class with strict scrutiny. It is a right that exists on April 14 to be exercised and enjoyed by gays and lesbians.

Assuming that the ballot initiative to amend the state constitution passes and reverses the court. It is no longer the will of the people merely being expressed on a theoretical right.

It is now the will of the majority being exercised to deny a fundamental right to a minority that was guaranteed by law.

It is the same situation as occurred in Colorado in the Romer v. Evans case. Colorado voters in 1992 voted to amend the state constitution to remove the power from local and state governments to provide any legal protections specifically to gays and lesbians.

Even using the rational basis standard, the U.S. Supreme Court overturned the constitutional amendment under federal equal protection.

Can a vote to purposefully remove a fundamental right against a suspect class (as defined by California law) be anything but bald discrimination on its face?

I don't think that any of the arguments proposed will pass muster under rational basis. Once the right is established, you can't remove it against a particular class of persons just because you don't like them.

I think the California Supreme Court has changed the entire question now. Kudos to them for such a well thought out decision on so many levels. They knew what they were doing.
 

This comment has been removed by the author.
 

And a BTW (and John Howard, like a clock that's stuck at one time is right a couple times a day, is right):

"Bart": The California Supreme Court expressly did not redefine "marriage". All they said was that if California wanted to define marriage, they had to do so in a non-discriminatory way. They left open the prospect of the state getting out of the "marriage" business entirely, and just worrying about legal civil unions (as long as such were not discriminatory).

Cheers,
 

Miche:

As a matter of California law now, sexual orientation is a suspect class with strict scrutiny. It is a right that exists on April 14 to be exercised and enjoyed by gays and lesbians.

Assuming that the ballot initiative to amend the state constitution passes and reverses the court. It is no longer the will of the people merely being expressed on a theoretical right.

It is now the will of the majority being exercised to deny a fundamental right to a minority that was guaranteed by law.

If the marriage amendment initiative passes as worded, it does not strike down the "strict scrutiny" standard and equal protection for gays (that would require specific language to that intent to remove gays from equal protection across the board).

What the court may then do is to say that, because of the two conflicting imperatives, it is simply impossible for the state to give any legal sanction to the (now discriminatory) institution of marriage, and thus that this status of "married" cannot be recognised by California henceforth.

Cheers,
 

Is there any way that the legislature and the Governor can stop the fall ballot initiative?

Short answer, no. The initiative process in CA is designed to bypass the legislature and the governor in some cases. The essential requirement is a set number of valid voter signatures.

There are some grounds for the courts to strike them from the ballot, but I doubt they apply here.
 

miche said...

The next question is if the recognition that gays and lesbians have an equal right to the civil institution of marriage, can the right to marry be taken from them by constitional amendment and survive under federal equal protection?

Homosexual "marriage" is not a fundamental right under the US Constitution. Indeed, it was not a fundamental right in CA until four justices created it out of whole cloth.

The CA constitution guarantees what its text says it guarantees. When the constitution is changed to reverse this opinion, then the text is controlling.
 

The post infoms us that "there is no non-invidious, legitimate reason for the state to restrict the institution of "marriage" to single-sex couples." Rubbish. Surely not even its author believes it.

Dear proponents of changing the definition of marriage from "the union of one man and one woman for life to the exclusion of all others" to something else:

How is it non-invidious to say that
a) one man and one man,
b) one woman and one woman, or
c) one man and one woman

CAN have a marriage license, but some other variety, e.g.
d) three men,
e) a man and two women, or
f) cousins of either sex within some proscribed degree of consanguinity

CANNOT have a marriage license? I am waiting. The burden is on YOU because YOU want to forever abolish the traditional definition of marriage. Yes, you do. We cannot in an intellectually honest way disallow polygamy or cousin marriage any more because you have won the black robe battle in Cali forever altered the traditional definition of marriage, which again, is "the union of one man and one woman for life to the exclusion of all others." This Cali holding is just raw judicial fiat and you know it and no amount of arm waiving or case-citing can change that fact.
 

Legalization of same-sex marriage is the probable effect of this decision, not the decision itself. The decision hinges, if I read it correctly, on the majority accepting homosexuals as a 'suspect' group, creating a high standard for the state to pass if it wants to violate their equal protection rights. Further it finds the name of the institution of marriage to be a substantive part of the institution (indeed one of the dissenters, I think, agreed with the 'suspect' qualification of sexual orientation but not that there was a substantive difference between domsetic partnership and marriage).

Question, now. I'm trying to figure out whether there is anything to claims of judicial activism in this decision. I didn't see much in terms of evidence that homosexuals should be a protected group beyond the majority saying it was obvious they'd been discriminated against and that they could pass the bar of being an 'immutable' for the same reason that religions get equal protection - sidestepping the question of whether or not homosexuality is innate.

I'm not a lawyer, and this is my first time trying to read a legal opinion. can anyone shed some light on how much substance is behind this 'suspect' classification?
 

Abu Hamza:

Dear proponents of changing the definition of marriage from "the union of one man and one woman for life to the exclusion of all others" to something else:...

You know, they wouldn't need all these new laws across the country saying just that if the old laws had said such a thng to begin with....

... How is it non-invidious to say that
a) one man and one man,
b) one woman and one woman, or
c) one man and one woman

CAN have a marriage license, but some other variety, e.g.
d) three men,
e) a man and two women, or
f) cousins of either sex within some proscribed degree of consanguinity

CANNOT have a marriage license? I am waiting. The burden is on YOU because YOU want to forever abolish the traditional definition of marriage.

Ummm, polygamy is quite traditional. It's even in the Bible, if you place any credence in such scribbling as an accurate representation of history.

Cheers,
 

abu hamza:

Cousin marriage and similar incest has a health safety justification for such prohibitions that I believe would satisfy strict scrutiny, to say nothing of the fact that a ban on incest would truly be facially neutral as no one, regardless of sex or sexual orientation would be allowed to participate.

With regards to polygamy, for me, the difference is one of choice. I could not choose to be legitimately homosexual if I wanted--I don't have the capability to be attracted to or love another man in the marital sense of the word. I don't see a genetic imperative for polygamy. I believe it is much easier to justify, legally speaking, the regulation of something that is behavioral--i.e. a choice--than something that is genetically based.

Moreover, the ban on same sex marriage is inherently based on moral or religious concerns, which, in our country, is not the appropriate basis for legislation.

Taking those two factors together, there is a rational basis--a secular justification for anti-polygamy laws, namely, it would wreak havoc on community property, divorce, intestacy and probate laws across the country. I believe that is sufficient to satisfy rational basis.

Now, with that said, if someone wants to try the polygamy rout, I wouldn't have a particular problem with it. There are, however, very different analyses that take place with regards to polygamy and same sex marriages.
 

Abu Hamza says:

"'there is no non-invidious, legitimate reason for the state to restrict the institution of "marriage" to single-sex couples.'" Rubbish. Surely not even its author believes it."

So what is that basis? And, personally, I don't think potential outcomes way down the road constitute a legitimate reason...
 

It was, of course, unsurprising to see Bart De Palma pontificating on the subject of marriage. It seems to me that in common with many others, Bart is confusing the ecclesiastical with the civil.

US law has its origins in English law and Anglo Norman jurisprudence regarded marriage as a matter for Holy Mother Church rather than the state and for ecclesiastical rather than civil courts. Henry VIII’s “divorce” from Catherine of Aragon was not in fact a divorce at all, but an annulment of marriage in the consistorial court of the Archdiocese of Canterbury.

English law on the whole shied away from having anything to do with marriages, divorces, testamentary dispositions and the like – all matters for the ecclesiastical courts.

Indeed, until 1845 the only possibility of civil dissolution of marriage in the UK was by a private Act of Parliament.

By the time of Blackstone, the law regarded marriage as nothing more or less than a civil contract leaving the “holiness” of the matrimonial state to the ecclesiastical courts. Blackstone – Commentaries Book 1 Chap 15.

The process of separating out the ecclesiastical considerations from the civil considerations has been evolutionary in both the UK and the USA.

Given the ecclesiastical overtones of the word “marriage”, and the apoplectic reactions of the different sects to the use of the religious word for a civil purpose inconsistent with their religious idea of "marriage", there might be a great deal of virtue in legislatures withdrawing from the use of the word at all in relation to the civil contract and adopting a phrase such as “domestic partnerships” for all forms of domestic union which legislatures wish to recognise as equivalent and to which they wish to provide fiscal and other legal advantages.

On this basis, a marriage contracted as a sacrament in, say, the Roman Catholic rite of Christianity, or under Jewish law, or under Muslim law, or in any other form of religious ceremony would be recognised in the civil courts only to the extent it were registered as a “domestic partnership” on a footing of total equality with other forms of domestic partnership.
 

If polygamy were legalized, how long would it take for the the Ghost of Henny Youngman to utter:

"Take my wives, ---- PLEASE!"

(I'm thinking of Mark Twain's posthumously published "Letters from the Earth" and his focus on the vibrancy of the candle as compared to the candlestick. Also, there is the adage (joke!) that married men live longer, to which the married man responds: "It only seems that way." Multiple "yes, dear" -ing can take its toll.)

Yes, there are the slippery slopes to consider with now a foothold on the West Coast in addition to the first on the East Coast, perhaps serving as bookends for states in between, sort of a Wo-Manifest Destiny followed by infill. Maybe an amendment to the Mann Act is forthcoming, including renaming it as the "Same (or Regardless of) Sex Act."
 

Bart De Palma asserts:-

"Homosexual "marriage" is not a fundamental right under the US Constitution. Indeed, it was not a fundamental right in CA until four justices created it out of whole cloth."

The conventional wisdom is that neither the Supreme Court of the State of California, nor the Supreme Court of the United States "create" rights. Those rights are set out in the respective constitutions.

What courts do is to examine legislation for compatibility with constitutional rights. And that is what the California Supreme Court has just done.

Who knows, a wise US Supreme Court may yet come to the conclusion that evolving standards of decency mean that discrimination on grounds of sexual orientation is just as suspect as discrimination on grounds of sex or race.

That's what constitutional rights are all about - protecting minorities from that which is temporarily politically expedient - such as the rights even for terrorists of due process - the rights of blacks to participate fully in the electoral process etc.

The California Judges undoubtedly did their best to be true to their Oaths of office. Bart happens to disagree with their conclusions.

However, nowhere does Bart set out what he considers to be the flaws in the reasoning process. It is always easier to resort to vulgar abuse than reasoned argument - and in Bart's case, a properly reasoned
argument is probably outwith his abilities.
 

Cousin marriage is actually allowed in many states, and not just West Virginia. Many more than allow same sex unions.

Michael's point still stands as to state interest, but let's not forget that.

As to multiple marriage, why allow different races, religions, those who are infertile, can't have sex (in prison or whatever), those who don't love each other, who married on the spur of the moment, etc. but not of the same sex?

IOW, as compared to age or consent (complicated in incest), same sex marriage has all the basic qualities of marriage we deem essential. We find discrimination by sexual orientation troubling in many ways. CA surely does. Discrimination by number, less so. Any other aspects of modern marriage changed it much more than same sex marriage would.

I take Michael's immutable characteristic point, though I think religious based polygamy could be compared to it in some respects. Or, some might view religion in that fashion, especially if one is born into a religious culture that allows it already.
 

The conventional wisdom is that neither the Supreme Court of the State of California, nor the Supreme Court of the United States "create" rights. Those rights are set out in the respective constitutions.

What courts do is to examine legislation for compatibility with constitutional rights. And that is what the California Supreme Court has just done.

Who knows, a wise US Supreme Court may yet come to the conclusion that evolving standards of decency mean that discrimination on grounds of sexual orientation is just as suspect as discrimination on grounds of sex or race.

There is much of interest in what Mourad has to say. He notes the “conventional wisdom” is that the courts do not create rights. I am not sure that this is the conventional wisdom. In both ordinary discourse and legal briefs and judicial opinions, it is common to talk about courts creating or establishing rights. Of course, lawyers at least understand that the courts are theoretically purporting to find rights that already exist, but we all get the joke, don’t we? Indeed, there are tells, I suspect, in the way we talk about rights that are in the Constitution as opposed to those that are not. It is more likely that one would refer to a court creating the right to abortion or gay marriage than to the right to pornography or burn flags because the latter are understood to be applications, however controversial, of rights actually in the Constitution.

Sure, we explain to our grade school children that the role of the courts is to interpret and apply the law, not to make it, but we do so with a vaguely guilty feeling, kind of like when we explain how Santa Claus is able to deliver all the toys in one night.

Mourad is hopeful that SCOTUS will find that “evolving standards of decency” prohibit discrimination on the grounds of sexual orientation. Our non-lawyer visitors, like jimdarling, may start thumbing through their Constitutions to find where the courts are authorized to strike down laws incompatible with “evolving standards of decency,” but they will search in vain.

Of course, it is entirely natural that those who are confident that the “evolving standards of decency” will be in line with their own values would embrace such a standard. If “evolving standards of decency” were used to, say, require modest dress and conduct in public schools, I have no doubt many political conservatives would become enthusiastic as well. But one should keep in mind that standards don’t necessarily evolve in a direction one finds acceptable. Think about how standards have evolved in countries where Islamic fundamentalists have become influential.

If one wants a living Constitution, don’t be surprised if it starts behaving badly. Maybe it will rebel against its parents, move away from home, and start hanging out with a bad crowd. Maybe it will decide that John Yoo is right, that a little pain inflicted on a couple of terrorists doesn’t amount to a hill of beans in a world where the lives of thousands could be saved. Evolving standards of decency, you know.

Finally, I appreciate Mourad’s post on the history of marriage. His suggestion that we separate the religious institution of marriage from a civil institution that we call something else is an interesting one. Under the circumstances, maybe that is the best we can do. We may find ourselves retreating into a series of separate cultures, one for secular progressives, another for conservative evangelicals, another for traditional Catholics, another for Muslims, etc. I don’t think this is a good thing, but it may be where we are headed.
 

Thank you MLS for your thoughtful response. A few points to consider:-

You wrote:-

“We may find ourselves retreating into a series of separate cultures, one for secular progressives, another for conservative evangelicals, another for traditional Catholics, another for Muslims, etc. I don’t think this is a good thing, but it may be where we are headed.”

Don’t you think we have already arrived there ?

For the Roman Catholic, marriage is a sacrament and a union for for life. “Till death do us part” means what it says and only canonical annullment or judicial separation (a mensa et thoro) without remarriage is acceptable during the lifetime of the other spouse.

For many Hindus and Muslims from more tribal and family oriented societies, marriage is still more an institution allying two families with strong economic implications than any expression of personal love.

For Anglicans and many other Christian sects the traditional Anglican form marriage vow:

“Will you love her, comfort her, honour and protect her, and, forsaking all others, be faithful to her as long as you both shall live?”

has really become, has it not, a sort of “best endeavours” clause. Indeed, at a recent interfaith debate at my local Jewish/Muslim/Christian forum it was suggested by one speaker that the marriage/divorce/remarriage scene in the West is a form of polygamy - only sequential rather than simultaneous.

For the state, issues such as real property rights, tax privileges, support obligations are what matter, not whether the parties have love and affection for each other and wish to merge their economic interests as a token of that.

Take out of the equation all the sectarian considerations and matters will be less complicated although, I accept, not completely so.

For example, in the UK we now have married couples and civil partners (same sex unions) who both benefit from a survivor exemption in relation to inheritance taxes on the joint home. But what about two elderly sisters who have shared the same joint home for 40 years? At present, the survivor will have to pay inheritance tax – it hardly seems fair.

You also wrote:-

If one wants a living Constitution, don’t be surprised if it starts behaving badly. Maybe it will rebel against its parents, move away from home, and start hanging out with a bad crowd. Maybe it will decide that John Yoo is right, that a little pain inflicted on a couple of terrorists doesn’t amount to a hill of beans in a world where the lives of thousands could be saved. Evolving standards of decency, you know.

As a UK citizen I am very happy that my country’s human rights guarantees gradually evolve in accordance with accepted standards of decency. I am pleased that the freedom from “cruel and unusual punishment” guaranteed by the Bill of Rights 1689 would now be held to prohibit the branding of thieves (a common punishment in 1689). During a millennium lecture at the Inner Temple, even the honorary bencher, Master Scalia, (the US Supreme Court Justice) admitted that he also would find it hard to hold that branding was not cruel and unusual today, though not unusual at the time of the (later) adoption of the US Bill of Rights. I am entirely happy that we have abolished the barbarism of capital punishment. I am pleased that sexual orientation is no longer a disqualification for service in the armed forces of the Crown. I rejoice that the broader guarantees of the Human Rights Act have been enacted into our domestic law.

The tradition of evolution of the law which English gentlemen and lawyers took with them when they left home for our North American colonies were, of course, affected by rebellion, and lately by hanging out with a bad crowd, namely the Scaife/Mellon/Robert Borke yobs, and while our human rights guarantees continue to evolve, those of the USA appear now to have become (hopefully temporarily) trapped in the originalist time warp.

Still, the USA has only been doing its own thing for a short space of time in terms of the evolution of constitutional systems and I am sure that its common law traditions will ensure that all comes right in the end. After all, the loyal subjects of the Crown in British North America (aka Canadians) who followed the path of evolution rather than revolution seem to have managed to keep their human rights guarantees up to date without too much upheaval.
 

It's nice to have a international perspective. I'll briefly add to the response.

Suffice to say, many think that "cruel and unusual" and other privisions warrant an "evolving standard of decency" rule.

This might be deemed patently silly to some, but even if one disagrees with it, that does seem a bit harsh.

As to "finding" vs "creating," the Constitution and laws overall really give the courts some degree of flexibility.

When it decides, lets say you can hand out leaflets at point "x," they are applying constitutional norms AND doing some degree of 'creating' esp. when spelling out doctrines and other things. Surely in some practical sense.

They very well might go too far, but that is more a matter of degree. As for courts doing bad things, that works for your favored view too. Fire burns both logs and fingers. C'est la vie.
 

Joe:

On "going too far" - obviously on any appellate bench one is, hopefully, going to have a range of approaches - be they left to right - activist or strict constructionist.

What I have noticed over the last 40 years in the UK is a sort of pendulum effect - especially in the field of judicial review of executive action. There are periods where the Courts are quietist and deferential to the executive followed by periods of relatively activist intervention. To me the pendulum seems to swing on about a 10 year arc.

I'm sure all practitioners have come away from hearings from time to time saying "they ducked that one" or "that was bold, I wonder it it will survive the government's appeal".
 

In both ordinary discourse and legal briefs and judicial opinions, it is common to talk about courts creating or establishing rights. Of course, lawyers at least understand that the courts are theoretically purporting to find rights that already exist, but we all get the joke, don’t we?

Sure this is a legal fiction. But it's the same legal fiction the common law has operated under for hundreds of years. It's no less true in torts or contracts than it is in Constitutional law.

Indeed, there are tells, I suspect, in the way we talk about rights that are in the Constitution as opposed to those that are not. It is more likely that one would refer to a court creating the right to abortion or gay marriage than to the right to pornography or burn flags because the latter are understood to be applications, however controversial, of rights actually in the Constitution.

It's more accurate, I think, to say that proponents of the right see it there while its opponents don't. For example, I see no individual right to bear arms in the 2A, but Brett does. If the SCOTUS decides Heller the way we all expect, I'll be saying the Court "created" a right, while he'll be saying the Court "recognized" an existing right.

Our non-lawyer visitors, like jimdarling, may start thumbing through their Constitutions to find where the courts are authorized to strike down laws incompatible with “evolving standards of decency,” but they will search in vain.

They might search in vain for lots of things: the right of Presidents to fire cabinet officials, for example, or the word "individual" in the 2A. We can't expect the Constitution to supply the detail of a statute, and those that do so (like CA) end up with a mess.
 

"As a UK citizen I am very happy that my country’s human rights guarantees gradually evolve in accordance with accepted standards of decency."

How nice for you. Our's, by contrast, 'evolves' in fits and starts in accordance with the whims of our black robed masters, and what the rest of us may accept has very little to do with it.
 

Four black robes rewriting the law again in California. What a surprise.

Bart DePalma doesn't live here and has no idea what our equal protection clause means.

I would tell ALL out-of-state religious conservatives to stay out of this one. It's none of your business how the California Constitution is interpreted with respect to California same-sex couples.

See this for more:

http://dilan.blogspot.com/2008/05/gay-marriage-ruling-probably-not-ideal.html
 

Dilan:-

I saw your post and I read your linked piece. You will forgive me if I have one or two observations.

You must expect the California decision to be looked at closely by people around the world – not just in the other US states. Because of the size of California in population and economic terms that is more than a just a decision of one of the 50 state supreme courts. A decision of the California Supreme Court will carry much persuasive weight in all other common law jurisdictions not just inside the USA, but also in the 50 or so Commonwealth (i.e. British and ex British) jurisdictions.

I happen to agree with the “what’s in a name” argument: what is needed is the reality of equality not the façade of equality given by a word. My personal preference would be for all unions of couples to be considered for legal purposes simply as contracts and for civil legislation to be written in non gender specific terms – just to emphasise that for the state one is concerned with the legal effects of the contract, not how parties wish to define the union in accordance with their religious preference. It was interesting to note that your the Supreme Court left that option open to the legislature.

I posted above on the similarity of the UK position with that which pertained in California before the recent decision – but there is this important difference: because we are not a federal country in the same way as the USA, same sex partners get the same tax advantages, the same rights to bring their partner or intended partner to live with them in the UK, the same employment rights, etc, etc as others get from unions defined as “marriage”.

I understand that to achieve that equality there will be a need to amend Federal law (which I hope the Democrats will do) and that US gays and those who have a commitment to equal rights are working to that end.

In reality, common parlance eventually takes over from legislative provision. Government forms over here are increasingly being written in a non-gender specific way. When a gay couple go off to have the ceremony of their choice and their partnership registered at the local registry office, the press doesn’t go into the technicalities: cf: “Elton John and Partner tie the knot” – CNN – 21 Dec 2005 - “Sir Elton gets married” – ABC News 21 Dec 2005 - “Elton John to marry Canadian Partner – CBC News 21 Dec 2005.

Even the Times and Guardian used the word ‘married’ in their headlines albeit with the quote marks.

In 5-10 years, the quote marks will disappear – purely because “registered their civil partnership” is too much of a mouthful for headline writers.

Where I disagree with you is the invitation to conservatives and the religious to stay away and not to comment: we have to hear them, explain our reasoning, debate the issues and, where necessary confront their prejudices. That’s how progress is made.

By the way, I do not think Bart is particularly religious or conservative - a masochist perhaps since he appears to post mainly to provoke. I know one should not feed trolls, but it seems a little cruel not to give him some food for thought.
 

Where I disagree with you is the invitation to conservatives and the religious to stay away and not to comment: we have to hear them, explain our reasoning, debate the issues and, where necessary confront their prejudices. That’s how progress is made.

I have no problem with the following:

1. In state religious conservatives making reasoned criticisms of the decision based on an understanding of the constitutional provisions at issue.

2. Out of state religious conservatives debating the underlying issue of gay marriage.

What I object to is out of state religious conservatives telling California how to interpret its own constitution or how a decision is "activist" when they have no idea what the provisions at issue say, what their history is, or what the Court's precedents provide.

And I further object to religious conservatives in other states telling Californians that we can't have gay marriage. Our decision to extend additional rights to gays and lesbians is our business.
 

"For example, I see no individual right to bear arms in the 2A, but Brett does. If the SCOTUS decides Heller the way we all expect, I'll be saying the Court "created" a right, while he'll be saying the Court "recognized" an existing right."

The difference being that an individual right has a pretty good anchor in "right of the people to keep and bear arms", to the degree that it requires a fair determination to deny it to find it dubious, while same sex marriage has no such explicit basis.
 

I don't know that everyone agrees that the individual right to bear arms is to what that passage refers.

The whole clause is, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

In context of the day, the purpose was for the individual states to have militias, not necessarily the individual citizen.

The "people" in this sense in the collective people of a state (as in, "We the People"), not individual people.

The right for individuals to bear any arms, without limits of scope is far from explicit.

In fact, it is only in today's context that we read it as an individual right and argue about the scope of what an individual can or cannot possess.

The subject of marriage was firmly a state issue in the Framer's time. Where was the constitutional power for Congress to pass DOMA?

If the government doesn't have the power to expand its constitution to meet the needs of the time, Congress doesn't have the power to register trademarks and enforce them. It doesn't have the power to regulate the airwaves and the technology that uses the airwaves. It doesn't even have the power to regulate air travel.

If we have to amend a constitution to grant new subject matter power to the government every year, we'd have chaos.

Then we'd have no way to create the consistency of standards that allowed this nation to become the home of industry and technology.

For that matter, if we talk about judges who interpret the constitution to include something previously not considered, isn't it just as accurate to say that they are activist for refusing to interpret the law to include previously unconsidered rights?

I think the Framers weren't God. They couldn't see every eventuality or every liberty that would come into contention between the people and their government.

They would probably be horrified to see how much liberty we have given up to conservative activist judges as happy for the majority of rights we've gained under liberal activist judges.

Both conservatism and liberalism requires activist judges to get its way.

If the day comes when the SCOTUS finds the individual right to own a tank and use it hunting grouse, then it will be because of conservative activist justices. Nowhere does the U.S. Constitution or any state constitutions give the explicit right to bear a tank, nor to hunt grouse. While grouse existed in the Framers' time, a tank did not. They had no inkling that someone might legitimately want to hunt grouse with a tank.

In this example, the courts would be interpreting the constitution in the same way that the justices in California did, just in a different context.

Judicial activism cuts both ways. But I'd rather err on the side of more freedom than less in just about any constitutional argument.

If it means I have to endure tanks hunting grouse, then I'm willing to put in earplugs and grit my teeth during grouse hunting season.
 

"I don't know that everyone agrees that the individual right to bear arms is to what that passage refers."

"Everyone" doesn't agree that the Sun rises in the East, and sets in the West. It's remarkable the propositions that can generate controversy, when people strongly enough dislike the obvious.

None the less, my point wasn't that the individual rights position is right. (It is, but that's not my point.) It's that if the Supreme court rules in it's favor, they're not pulling that decision out of their collective asses. It's an interpretation of the amendment which is glaringly obvious from the text, and which has been widely believed right from the start.

That the California constitution mandates the legality of same sex marriage, on the other hand, has neither blatant textual hook nor historical basis. It might be the normatively right decision, but I hope they used KY jelly before extracting it, because we all know where they pulled it out of.

"If the government doesn't have the power to expand its constitution to meet the needs of the time, Congress doesn't have the power to register trademarks and enforce them."

I wouldn't mourn if the Supreme court issued that ruling.
 

Brett wrote: "It might be the normatively right decision, but I hope they used KY jelly before extracting it, because we all know where they pulled it out of."

Brett, I think it bears saying to avoid causing future embarrassment to you.

KY is just the worst lubricant for that sort of thing. Only doctors and uninformed straight people use it. I'm pretty sure even all but the most conservative judges know it.

Gay science has provided us with so many better choices and has shared them with gays and straights without discrimination. They have even done so without activist judges.

For the sake of your wife or partner, please do some research for the future.

:-)

Miche