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Tilting at Windmills

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May 15, 2008
By: Kevin Drum

GAY MARRIAGE UPHELD IN CALIFORNIA....As expected, the California Supreme Court, in a 4-3 decision, ruled today that state laws banning same-sex marriage are discriminatory:

The long-awaited court decision stemmed from San Francisco's highly publicized same-sex weddings, which in 2004 helped spur a conservative backlash in a presidential election year and a national dialogue over gay rights.

....Today's ruling by the Republican-dominated court affects more than 100,000 same-sex couples in the state, about a quarter of whom have children, according to U.S. census figures.

Here's the conclusion of the majority decision affirming the right of gay couples to marry:

[T]he exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term "marriage" and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.

Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term "marriage" is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship.

Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.

And now it goes to the voters. In November we'll see how far we've come in the past eight years.

Kevin Drum 1:53 PM Permalink | Trackbacks | Comments (50)

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Comments

Grats!

Posted by: k on May 15, 2008 at 1:58 PM | PERMALINK

The library system here has a poor selection of books on CD to listen to while driving / cooking, etc. So I’m listening to Grisham’s “The Appeal.” The bad guys are trying to buy a seat on the MS Supreme Court, and they hire two guys to move to MS and then apply to get married / sue the state, as a means of working the state into a frenzy to vote for their homophobe candidate.

Posted by: John McCain: More of the Same on May 15, 2008 at 1:59 PM | PERMALINK

Good to get news like this. Makes one feel there's a light at the end of the tunnel (which is not the train coming my way).

Posted by: Everyman on May 15, 2008 at 2:02 PM | PERMALINK

Hooray! My nephew and his partner were married that first day. I'm so happy for them and their beautiful daughter that the State Supreme Court has found their nuclear family no less worthy than mine.

I was actually surprised that a Republican-dominated court would rule this way. I guess I equated all Republican judges with the ideologues of the SCOTUS.

Posted by: Cal Gal on May 15, 2008 at 2:03 PM | PERMALINK

A momentous decision, congrats to all Californians!

There's another piece of big news in this opinion, and that's the court's holding that sexual orientation is a suspect class (the same as race and sex) so that laws drawing a distinction based on sexual orientation must be subject to strict scrutiny. This is now the first high court to so hold, I think. That will have as great a long-term impact on LGBT rights as will extension of full marriage equality, if not more.

Posted by: Glenn on May 15, 2008 at 2:03 PM | PERMALINK

The dissents are interesting. The principle arguments are that separation of powers/courts are unworthy to decide something that the people feel so strongly about.

The main dissent seems to imply that if the People want to distinguish same-gender marriage from marriage, it can't be irrational by definition. They also come up with a new "rational" reason for the distinction between civil unions and marriage: it makes it easier for the federal government to discriminate under DOMA

Judge Corrigan in his {?} implies he would vote for marriage equality on a ballot.

Posted by: glenn on May 15, 2008 at 2:08 PM | PERMALINK

Is 8 years long enough to have grown a spine and some compassion? I guess we will see. Last time we went down this road the couple who lived in the apartment opposite me were big "Save Marriage" supporters, I was never able to look at them with anything other than disdain after the sign went up on their balcony.

The time has come to just do this and treat everyone with the same respect for dignity and love.

Posted by: arteclectic on May 15, 2008 at 2:14 PM | PERMALINK

Hard to say if the the constitutional amendment will pass this year. The earlier proposition (2000) passed with 63%, but things are slowly changing. I would guess that the amendment will pass with about 50-55% this time, but we will see.

It is high time for the state to get out of the marriage business altogether. Free adults can consent to enter the contracts of their own choosing- that is the marriage amendment that should be on the ballot, but, alas, most people don't agree.

Posted by: Yancey Ward on May 15, 2008 at 2:16 PM | PERMALINK

Great decision!

But opponents are gearing up for a ballot measure to overturn this in November. How will that affect the Presidential race?

Reminder: when Tom Bradley ran for Governor in 1982, there was a gun control initiative on the ballot at the same time. I shudder that history might somehow find a way to repeat itself.....could California go for McCain?????

Posted by: pobre basura blanca on May 15, 2008 at 2:18 PM | PERMALINK

there's going to be a hot time in the old town tonight!

yaaaaaaaaay!

Posted by: Trypticon on May 15, 2008 at 2:25 PM | PERMALINK

by coincidence, i was in Hotlanta for gay pride day the morning after anti-buggery law was overturned in Texas. It was a sight to behold, I'll tell ya.

the Dykes on Bikes really rumbled, and throngs of gay southern boys, glistened shirtless in the liberating glow of the sun. at a drunken cocktail party that morning, the host's mama asked me, "when did you come out?" I said, "well, actually, I'm not gay." she said, "awwwwww. I'm so sorry dear. You've never lived until you've known the love of a good man."

ahhhh. good times.

have fun everybody!

Posted by: Trypticon on May 15, 2008 at 2:39 PM | PERMALINK

FYI & FWIW: Judge Corrigan is a she and, if I'm not mistaken, she and her partner might avail themselves of this ruling.

Posted by: joe blow on May 15, 2008 at 2:41 PM | PERMALINK

It looks as if we've almost gone full circle with the government/religion thing. Church of England splits with Catholic Church over a marriage issue, Church of England becomes state religion, people flee to the New World to freely practice their religions without government interference, and now with California's proposed constitutional amendment, churches ask government to interfere in religion by defining marriage.

In a similar vein, the press, rightfully proud of its independence and freedom in the United States, has been pushing for a "shield law" to protect reporters, editors and publishers who refuse to reveal their sources. Of course for such a law to work, the government must define who is and who is not a legitimate reporter. Goodbye independence.

Ignorance of history and lack of reason may be two of the most destructive forces known to humankind.

Posted by: Dave Brown on May 15, 2008 at 2:41 PM | PERMALINK

Was this a straightforward rational-relationship (minority) v. strict-scrutiny (majority) fight?

It's just about impossible to not find a rational reason for a legislative enactment. You've got to show a pretty stunning level of stupidity-and-arbitrariness before you claim no rational basis.

Posted by: Davis X. Machina on May 15, 2008 at 2:43 PM | PERMALINK

Could it be that some of the justices were making a political calculation that this ruling would help the GOP and drive turnout?

I think it's going to be close wheter this ruling survives November. Is there a 13% swing in sentiment? It's doubtful, and there's some polling bias as some are unwilling to admit thay're against gay marriage to a pollster.

Posted by: mikeel on May 15, 2008 at 2:48 PM | PERMALINK

I think it is significant that Schwarzenegger says he will oppose the referendum to amend the Constitution to ban same-sex marriage. He is extremely popular and a Republican at that. It may depend on how actively he opposes it. I wonder whether Democrat Gray Davis would have been as comfortable opposing it as Arnold is.

Posted by: bobbo on May 15, 2008 at 2:51 PM | PERMALINK

Writing as a straight male husband of an awesome woman and father of a wonderful 3-year-old girl, I'm so proud to be a Californian today!

The true test of us as a society is not how it treats those in the majority, but how it treats those in the minority. Today, with this ruling, California passes just such a test. Today California acknowledges that homosexual people are, well, people, and that they deserve the same rights and privileges as anyone else. And one of the most important and sacred of human rights is the right to join in monogamous union with the person that you love, and who loves you.

My marriage to my wife is in no way weakened or assaulted by marriage equality for all Californians. If anything, it's strengthened by the greater and wider shared appreciation in this state for the importance of a loving bond between two human beings.

My family is in no way attacked or lessened by the thought that there are families in California which are different from my own. If anything, my family is encouraged by the wider understanding that the things that ultimately constitute a true family are affection and commitment, not the mere possession of compatible genitals.

I trying to raise my daughter to respect and honor all her fellow citizens, even the ones who are different from her. Thank you, California, for providing a kind example of that respect and honor for others for my daughter (and all of us) to witness and learn from.

Now all we gotta do is make this stand up, politically, in November here in California. As I posted yesterday, I think we can do it, and here's why:

a) Prop 22 passed in 2000 during a springtime primary election in which Democrats were underrepresented at the polls (only about 3 million votes were cast that day in the presidential primary on the Democratic side, versus 4 million votes cast in the Republican presidential primary that same day... compare that ratio to the one we saw in the November election of that same year, when the Democratic and Green nominees tallied a combined 6.2M votes in California, and the Republican nominee tallied 4.5M California votes). Contra 2000, this coming piece of gay-bashing ballot bait will hit the polls in the November general election. And unlike the 3/'00 election, there is absolutely no way that California Republicans will outnumber California Democrats at the polls in 11/'08. Plus...

b) since 2000, the California assembly and senate have twice passed legislation legalizing gay marriage, giving the institution the additional patina of statewide, government-approved legitimacy that it didn't have in the year 2000. And though the governor did twice veto the legislation, he did so on (ostensibly) democratic grounds, declaring the bill to be a legislative end-run around the express will of the California voter. But at the same time, the governor has repeatedly expressed opposition to the pending constitutional amendment, which means that...

c) the "Yes" side of this measure won't have a high-profile champion in its corner. And besides...

d) my straight, white, hetero, nuclear family is gonna work its butt off going door-to-door urging fellow California voters to vote "No" on this piece of discriminatory garbage.

Join me, fellow Californians!

Peace to all,

Patrick Meighan
Culver City, CA

Posted by: Patrick Meighan on May 15, 2008 at 2:51 PM | PERMALINK

Wouldn't Romer v. Colorado strictly limit how far a CA state constitution can go?

Scalia, Alito, Roberts and Thomas would overturn Romer in a hearbeat. They need one more vote.

Posted by: Davis X. Machina on May 15, 2008 at 2:59 PM | PERMALINK

When it comes to constitutional rights issues, referendum initiatives were designed to permit the continuance of majority prejudices as lawful. Sorry.

Posted by: Brojo on May 15, 2008 at 3:14 PM | PERMALINK

hooray

http://queersunited.blogspot.com/

Posted by: queerunity on May 15, 2008 at 3:15 PM | PERMALINK

Wouldn't Romer v. Colorado strictly limit how far a CA state constitution can go?

Is this it? Romer v. Evans

Posted by: rusrus on May 15, 2008 at 3:17 PM | PERMALINK

oops. It's so weird having Romer as named plaintiff, since he was against the bloody referendum in the first place.

Posted by: Davis X. Machina on May 15, 2008 at 3:28 PM | PERMALINK

>>It's so weird having Romer as named plaintiff, since he was against the bloody referendum in the first place.

I NOT understand, who that word is annonsuated this dream.

Posted by: Gersdf on May 15, 2008 at 3:40 PM | PERMALINK

I think that a Constitutional Amendment needs 66% super-majority of the vote, not just 50%. So they actually have to find more voters...

With Obama on the ballot, we might get more democratic voters, and thus they will have a harder time getting that super-majority.

Posted by: kis on May 15, 2008 at 3:42 PM | PERMALINK

Davis,

Yes, the primary legal doctrine split was on rational relationship vs strict scrutiny (fundamental right branch).

However, the majority side did imply they might have a problem finding a rational relationship.

And I think this is one of the few instances of a law that is not "rational" except as a rational implementation of a forbidden purpose, animus against gays and lesbians. I know full well that lawyers tend to define the "rational" of the rational relationship case to mean "whatever the legislature wants".

However to the extent that a proferred reason still has to obey minimal rules of reason and logic, the arguments for keeping the word "marriage" away from couples in civil unions seems to me to fail.

Posted by: Glenn on May 15, 2008 at 3:52 PM | PERMALINK

Sorry, the above post was by glenn, not Glenn. Sorry Glenn!

Posted by: glenn on May 15, 2008 at 3:53 PM | PERMALINK

The court also struck down Prop. 22's attempt to derail the U.S. Constitution's "full faith and credit" clause, more important since it was passed in 2000, with Massachusetts' OK of gay marriage.

Here’s my take, including notes on that and questions about how this ruling, and the court’s language, will play out among blacks, since a fair portion of black civil rights leaders have opposed “linkage” between gay rights and African-American rights.

And, yes, would someone weigh in on the percentage requirements for voters to pass a constitutional amendment in Cali?

Posted by: SocraticGadfly on May 15, 2008 at 3:57 PM | PERMALINK

could California go for McCain?????

No. 2006 showed that people are plenty capable of voting against gay marriage and voting for Democrats up and down the ballot if they wish. I remember plenty of naive Republicans thinking George Allen was safe because Virginia's DOMA passed easily on election day 2006... ha.

It's not the end of the world.

Posted by: Brittain33 on May 15, 2008 at 4:00 PM | PERMALINK

What happens when our constitution enshrines recognized violation of civil rights?

Posted by: Crissa on May 15, 2008 at 4:03 PM | PERMALINK

Although I think same sex marriage is a good idea, I hate the fact that it was instituted by justices improperly legislating from the bench. In the long run, this decision may be bad for gays.

Before the decision, the California legislature could have legalized some version of same-sex marriage. However, if the Constitutional ban on SSM qualifies for the ballot in November, I expect it to be easily approved by the voters. Then, SSM will be banned forever in CA, with no possible legislative remedy.

(BTW, I have decided to post under my own name, and no longer use "ex-liberal.")

Posted by: David on May 15, 2008 at 4:04 PM | PERMALINK

It appears that the supermajority applies to legislative attempts, which must then be approved by a majority of voters.
Remember Obama opposes gay marriage so he might be able to finesse the issue

Posted by: on May 15, 2008 at 4:05 PM | PERMALINK

David, the legislature has tried to pass it, and even if they had gotten the governor's signature, guess what? The voters could still amend the constitution to make it unconstitutional, forever, with no possible legislative remedy.

Posted by: Brittain33 on May 15, 2008 at 4:12 PM | PERMALINK

50%+1 is all that is required to pass an initiative constitutional amendment.

The signature requirements to get an initiative constitutional amendment on the ballot are higher than to get an intiative statute on the ballot.

Posted by: on May 15, 2008 at 4:31 PM | PERMALINK

I would be way more excited about this if I didn't know that my fellow Californians are perfectly capable of voting for a Democrat and against gay marriage on the same ballot.

And, yes, David, as Brittain33 pointed out, the California legislature did pass a law legalizing gay marriage and the governor vetoed it, saying that it had to be decided by the courts, not the legislature. So now the ball is in the Republicans' court: they've rejected the will of the Legislature and they're rejecting the will of the courts. They've only got one avenue left.

I know one way to defeat an anti-gay-marriage amendment for sure: include a tax increase for enforcement. That would get us a 70% "no."

Posted by: Mnemosyne on May 15, 2008 at 5:32 PM | PERMALINK

I'd bet anything that it's not going to destroy society, God isn't going to be mad at us, and it's not going to effect much of anybody besides the gay people who get married.

Posted by: Swan on May 15, 2008 at 5:38 PM | PERMALINK

Geez, Texas is more enlightened than California on state constitution amendments, and that's scary.

Here, a constitutional amendment must clear both houses of the Lege by 2/3 THEN ALSO get 50 percent plus 1 from voters. There is no initiative process.

And, they can only go on the November ballot, though they can go on the ballot in off years.

Posted by: SocraticGadfly on May 15, 2008 at 6:26 PM | PERMALINK

...So I’m listening to Grisham’s “The Appeal.” The bad guys are trying to buy a seat on the MS Supreme Court, and they hire two guys to move to MS and then apply to get married / sue the state, as a means of working the state into a frenzy to vote for their homophobe candidate.

You do know The Appeal is based in true events, right? The law firm was from a state next door to Mississippi, but the events are basically the same.

I know the litigator for the "big chemical" suit. The Supreme Court stuffing really happened, and cost the litigants the appeal.

Posted by: F'in Librul on May 15, 2008 at 6:57 PM | PERMALINK

good for the court. Finally. I hope and pray that californians are not, en masse, bigoted enough to pass this amendment. This ruling will now invariably lead to a DOMA challenge, right? None of the wishy-washyness inevitable in Mass? I could fly to LA tomorrow and get married to either a man or a woman, of I wanted to, right? (for the record, I am a male who's girlfriend would probably not appreciate such an action)

Posted by: northzax on May 15, 2008 at 6:58 PM | PERMALINK

Does this mean I can marry my goat now?
Thank you, California jurisprudence!

Posted by: Rod France on May 15, 2008 at 7:59 PM | PERMALINK

Two Thoughts:

1) I (sincerely) completely support gay marriage.

2) Gee whiz, just in time for the 2008 election! And we're still not done thanking Massachusetts for their indispensable work in losing the last one!

Posted by: Amur on May 15, 2008 at 8:39 PM | PERMALINK
Although I think same sex marriage is a good idea, I hate the fact that it was instituted by justices improperly legislating from the bench. In the long run, this decision may be bad for gays.

Enforcing the equal protection clause and other provisions of the State Constitution is not "improperly legislating from the bench", anymore than the U.S. Supreme Court was "improperly legislating from the bench" with Brown v. Board of Education or Loving v. Virginia.

And I don't expect this to be "bad for the gays" any more than Brown was bad for blacks, Loving was bad for interracial couples, of Goodridge was bad for gays in Massachussetts. Californians may have been unwilling to vote to give same-sex couples the right to marry, but I don't think that they are that likely to vote to deny them that right once they have it, either. There's a difference between denying someone that people don't have and taking it away, and much of the support for provisions against gay marriage centered around preserving the status quo.

Posted by: cmdicely on May 15, 2008 at 10:49 PM | PERMALINK

Rod France, this is your Preznit speaking:

I can marry My Pet Goat.

Posted by: PreznitBush on May 16, 2008 at 12:02 AM | PERMALINK

Oh, "David," then why didn't you call for a "Gray Davis" move on recalling Der Governator after he vetoed the bill twice?

Putz.

Posted by: SocraticGadfly on May 16, 2008 at 12:11 AM | PERMALINK

I can't wait to see how the candidates deal with this historic decision. Maybe they'll begin to acknowledge that marriage is a basic civil right that should be attainable by all Americans if they choose. It's time that this country addresses their growing pangs & realize that we're here to help walk them through this civil rights evolution. To start with they should check OUT our short on gay marriage. Produced to educate & defuse the controversy it has a way of opening closed minds & provides some sanity on the issue:) www.OUTTAKEonline.com

Posted by: Charlotte on May 16, 2008 at 7:50 AM | PERMALINK

All Homosexuals and sodomites will have their place in the lake of fire!

Posted by: C on May 16, 2008 at 2:20 PM | PERMALINK

Go ahead heathens God loves you, and have your fun, someday you will see, all will see the Truth! You will not be able to say you didn't hear that being gay was wrong. The bible says during the times of israels falling away from God that "each man did what was right in their own eyes." That's old testament, son! New Testament says, "there is a way that seems right to a man, but the end is death." THat's Jesus talking, son! Return to the God of your fathers and the God of your youth! He still loves you, even in your sin! Return to God and repent! Repent, turn away from your sin! He loves you, He wants you to come home!

Posted by: C on May 16, 2008 at 2:29 PM | PERMALINK

"50%+1 is all that is required to pass an initiative constitutional amendment.

The signature requirements to get an initiative constitutional amendment on the ballot are higher than to get an intiative statute on the ballot."

Which is just plain sad. As though getting people to sign something as they walk into WalMart is difficult. It's amazing how little discussion is made before someone just signs the roster in front of them so they can go forward unmolested. Sometimes I wonder if anyone's tried going out there with title papers to see how many people willingly sign over the rights to their houses and vehicles.

In any case, the sad fact is that there is absolutely no barrier in California to modifying the state constitution on a whim. The constitution is therefore no more stable a platform for the legal system than any other ordinary statute. Once this is understood, the initiative hell California has put itself through in recent years is immediately clear. The fact that it's easier to disenfranchise a small minority of the populace than to raise property taxes by a penny an acre is telling.

Posted by: Tom Dibble on May 16, 2008 at 3:05 PM | PERMALINK

A special tribute to C.

Go ahead heathens God loves you, and have your fun, someday you will see, all will see the Truth! You will not be able to say you didn't hear that eating meat on Friday, or pork any time, women owning property, or charging interest on a loan were all wrong. The bible says during the times of israels falling away from God that "each man did what was right in their own eyes." That's old testament, son! New Testament says, "there is a way that seems right to a man, but the end is death." THat's Jesus talking, son! Return to the God of your fathers and the God of your youth! He still loves you, even in your sin! Return to God and repent! Repent, turn away from your sin! He loves you, He wants you to come home!

Jesus loves you, C. And so does your banker.

Posted by: Tom Dibble on May 16, 2008 at 3:22 PM | PERMALINK

Add divorce to the list of things prohibitted by the Bible which will cost us all our everlasting souls for not forbidding, and add slavery to the list of things for which we are not sufficiently supportive according to Leviticus (OT) and Ephesians (NT).

Have we as a nation condemned ourselves in the eyes of God for outlawing slavery? Have we as individuals condemned ourselves for not passing the "True Defense of Marriage Act" which reads "Any marriage between a man and a woman is immutable in the eyes of God and any attempt to cleave what God has drawn together shall be met with stoning"? Have all of us who have supported usury by taking out loans and paying interest damned ourselves for supporting sin?

I think not.

Posted by: Tom Dibble on May 16, 2008 at 3:30 PM | PERMALINK

23/6 has created a HILARIOUS wedding planning guide for anyone who might want to get gay married ASAP: http://www.236.com/news/2008/05/16/plan_your_gay_wedding_6597.php

Posted by: eliana on May 17, 2008 at 11:40 AM | PERMALINK




 

 

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