With several states recently adopting marriage equality and demographic change inexorably producing a shift toward support of marriage equality, California voters will eventually show their support as well.

Seems to be a flawed ruling. Gays can't marry, except for these over here who already did. Now not all gays are equal?

So banning interracial or interfaith marriage should be just as constitutional. Someone should try that.

The ability to amend the Constitution is the absolute political trump card. The California Supreme Court can bemoan the will of the people but it can't ignore it.

I'm just glad that those already married can stay married. That the sky isn't falling with 18,000 wedded gays will most likely bring public opinion around on the question of same-sex marriage in California.

This ruling is destined to go down in flames.

You're going to grandfather certain human rights to only a portion of a given class of citizens?

I don't think so.

I think they counting on a federal solution at some point down the road.

To paraphrase the March oral arguments, a guarantee of equality subject to the whims of a (christian) mob is no guarantee at all. Nice work there, justices. You stay classy.

"Seems to be a flawed ruling. Gays can't marry, except for these over here who already did. Now not all gays are equal?"

Intentional? Maybe that's their way of leaving the door open. They had to tule of the issue put before them. If they had ruled in favor of the concept of same sex marriage before this could be their way of keeping prospects open. It creates a very unfair dynamic and there will surely be a flurry of lawsuits.

I don't see how this can fail to go to the SCOTUS now. I'm not a lawyer, but it seems to me that this violates Federal precepts laid out in Brown v. Board of Education (separate but equal is inherently unequal) and Loving v. Virginia (the miscegenation case which established that marriage is a basic human right). I don't see any but the most conservative activists on the SCOTUS rolling back Loving v. Virginia.

Sadly, I don't see how they could have ruled in any other way, given the referenda provisions in the California Constitution. However, there is another large swath of silver inside.

Had they made the decision about 'gay marriage' however it came down, the same fight as before would have gone on, with the sides pretty much as before -- okay with the gay rights side having picked up some support from people who didn.t bother to vote because they were 'sure' Prop Hate would lose.

But, because they made the decision turn on the Amendment process and because a lot of Californians are discovering how bad this has been in other contexts, they might just get a lot of support from people who otherwise wouldn't care one way or the other about gay marriage.

Now that it is settled law that any constitutional amendment that gets passed is ok, we can begin work on some even more meaningful amendments.

First, we will make it illegal to be brown and require the deportation of all brown skinned persons to Mexico.

Second, we will reinstitute slavery in California and require the involuntary servitude of all black persons in the state.

I'd like to make a plea for calm here. The existing gay marriages are still intact (yay!) and getting the rest of the battle won depends on a simple 50%+1 vote on an initiative. The progressive side will be putting it on the ballot till it wins, which shouldn't take that long, and once it does, demographic forces pretty much ensure there won't be any backsliding.

Eyes on the prize.

Interestingly, it was this Chief Justice who wrote the opinion which prevailed 4-3 in overturning the same-sex ban, last year. In that opinion George cited the 1948 decision which overturned the inter-racial ban on marraige.

The real problem lies in those damnable Initiatives. However, remember, folks, Senator Barbara Boxer suggested this Chief Justice, along with Justice Kathleen Wendegar be considered by the Democratic Party for sensible Republicans to be on the appointment list for the Supreme Court. Funny, how things work out - Jerry Brown elevated this Reagan Muni Court judge to the LA Superior Court. Now, he has lost to him at the Supreme level.

"The problem ... is not with the stars, but with ourselves."

Aside from the point that I think this is the moral equal of the Dred Scott decision, both decisions made it legal to deny rights to one segment of the population.

I think it represents the fact that to keep rights and to expand rights takes work and work and work.

And when we fall down in countering every argument that the republicans make we lose.

This is probably as good as I had a right to expect. California's ridiculously easy-to-amend Constitution may be obnoxious, but it's state law. If it's not abided by, then there's no value in legal marriage. I am relieved that marriages that were legal at the time will be respected.

Not that waiting for civil rights is ever an appropriate response, but this probably makes it easier to strike down Prop. 8 by Constitutional Amendement next year.

every progressive victory
is built upon a mountain of failure.
marriage equality is here and coming.

every progressive victory
is built upon a mountain of failure.
marriage equality is here and coming. - neill

AMEN to that.

If this goes federal, how do you distinguish Romer v. Evans?

I can't but think that the equal protection argument now, for those denied marriage today, will succeed. How can the State defend against that? Brought by gay couples, or on behalf of the children of gay couples. Now in California -- a two-tiered system -- those 18,000 gay couples (and their children) who enjoy the rights and protections of marriage -- and every other gay couple (and their children). There is something inherently inequitable in the status quo and an equal protection attack seems inevitable and strong.

[Please note I am speaking about law, not sentiment here. My own support of gay marriage is complete -- and I only regret my lesbian mothers are no longer alive to 'solemnize' a relationship that lasted at least 30 years, until Claire died.]

I don't see the equal protection argument in this case -- as expressed by NW-PDX 'flying.' Simple -- and, unfortunately persuasive -- response. "The right to marry who you please is not a fundamental right that all have. To make the simplest argument, a married Californian does not have the right to marry anyone he chooses unless he gets divorced first. So, unless you hold the laws against bigamy are inherently Unconstitutional -- rather than possibly being unwise -- you cannot argue that the difference in status between those who were married durin the time it was permitted and others."

Further argument: "I am 63 years old, and thus have the 'right' to ride public transportation at half-fare. My wife, who is 45, does not. But even though there is -- afaik -- a Constitutional provision against 'age discrimination' in the NYConstitution -- my wife can't sue to get the right I have and she does not."

A putative right to cheap OAP subway fares is not a right ‘of the very essence of a scheme of ordered liberty.'

Really, they made the best ruling that I think they could. They weren't really asked to rule on whether or not same-sex marriage was necessary on the basis of equal protection. The crux of the case, as I understand it, was that Prop 8 was too easily put to voters. Based on that argument, I think they made a good choice. Blame the plaintiffs' legal team, not the court. This was the wrong legal, and moral, argument to make. However, given that it is the argument that was made, that's what the court had to rule on. That's what people don't get about judges. They shouldn't rule on based on their opinions, but based on the legal arguments presented to them.

Too much heat to ignore the people.

Gay marriage is based on redefining marriage, not on equal rights. Were it an equal rights issue, plural marriages could not be left out of rulings. Or aren't polygamists and polyandrists people deserving of equal rights? Maybe polygamy is a "perversion" and practitioners should find Jesus and pray to be made normal?

To: Prup

I'd suggest a read of Moreno's dissent regarding equal protection before you dismiss such arguments as just "simple and unfortunately pervasive."

The amusing part of this is that the court *first* narrowed prop 8 to being just about the word 'marriage', saying that it does nothing to undo the state constitution's requirement that the rights and responsibilities of marriage be granted to gay couples:

Equal protection’s continuing vitality in the present context is shown by this court’s unanimous reaffirmation of its conclusions in the Marriage Cases, supra, 43 Cal.4th 757, that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that — excepting the name — same-sex couples are entitled to enjoy all of the rights of marriage.

(from the concurrence by Justice Werdegar, not disputed by the majority).

Luther,

Read the Iowa decision. Marriage equality is based on the "similarly situated" standard required for equal rights, and the fact that there is no compelling state interest in forbidding them.

Plural marriages are not similarly situated, and thus the amount of new legislation required by the state to recognize and protect such unions would require EVERY. SINGLE. STATUTE. which included the words "marriage" or "spouse" to be re-written. Maybe you've never worked in government, but most officials would call that a compelling interest against.

Christian hate groups can scream as loud as they like about the slippery slope argument, but they conveniently ignore the fact that plural marriages were a big thing in the bible. And for mormons to try to wave the "one man one woman" banner now...well, the jokes just write themselves some days.

You going to equate two legal, consenting gay adult people with rapists and pedophiles next? Because that shit is really old, and we've heard it all before.

If this goes federal, how do you distinguish Romer v. Evans?

The law at issue in Romer prevented gay people from getting local governments to pass localized non-discrimination ordinances; it basically deprived gay people as a class of the use of the normal political system.

I don't think this case is equivalent; gay people can still use the initiative process to get the amendment overturned.

A *harder* question is how you support this given that Zablocki v. Redhail says there is a fundamental right to marry.

Damn do we need a state Constitutional Convention.

The old progressive reforms have come to bite us in the ass and relieve legislators from having to make the hard decisions.

I STILL wonder how a 2/3 majority meets the US Constitutional standards of one man/one vote. It is completely undemocratic.

Here's an idea: Let's start an initiative to invalidate all marriages after three years if no children are produced. That's what marriage is about, isn't it, raising children?

If the right to play the political game under the same rules as straights (Romer) is a right essential to the enterprise of living in a scheme of ordered liberty, is the right of marriage in (Zablocki) somehow a posterior or inferior right?

A lot to me seems to depend on who's ordering the liberty. Would you swap your vote, or petition for the redress of grievances for the putative right to marry? Your putative right to marry for the right to vote, or petition for the redress of grievances.

That's really tough to answer, actually.

(a) Zablocki used compelling state interest / strict scrutiny review.

(b) Romer claimed to use rational basis review but clearly wasn't.

This would suggest that the right to marry is a superior right.

But even if that's true the question then becomes, is there a compelling state interest in the denial of the right? And it seems pretty clear that the current Supreme Court would say that there is.

And it seems pretty clear that the current Supreme Court would say that there is.

I would like to see the majority identify the compelling state interest. It'll be the biggest breakthrough in draw-your-curves, then-plot-your-data, results-oriented jurisprudence since Bush v. Gore

Damn do we need a state Constitutional Convention.

Unfortunately, it's unlikely that you would get a majority to overrule this in a Constitutional Convention. Worse, if they do this properly, such that amending the Constitution has an appropriate higher bar in the future, it would make it far more difficult to overturn Proposition 8.

I would like to see the majority identify the compelling state interest."

I'm fairly certain that this has been addressed in the federal courts, if not at the level of the Supreme Court. Should be an easy matter to look up the ruling(s).

Shorter Court opinion: "Yes, the railroad cars are separate but they are essentially equal, so what's the big deal?"

Is "marriage equality" coming to polygamous couples as well?

The problem with the case for same-sex marriage is that its defenders are hold logical contraditions. They defend same-sex marriage on the grounds that it is a civil right for consenting adults, while at the same time denying to polygamous triads.