California Legislature About To Violate the California Constitution?

I tentatively support legislative enactment of same-sex marriage -- but only when the legislature is constitutionally authorized to do this. And the California bill that would legalize same-sex marriage seems to me to be a pretty clear violation of the California Constitution.

California Family Code sec. 308.5, enacted by the voters as Prop. 22 in 2000, provides that

Only marriage between a man and a woman is valid or recognized in California.This is an initiative statute, not a constitutional amendment; it therefore may be challenged as violating the state constitution (a matter that's now before the state courts), and may be overturned through something less than a constitutional amendment. But that something must be a vote of the people, not just a vote of the legislature; California Constitution article II, section 10(c) says that
The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
So while the legislature could put a new proposal on the ballot, it can't just overturn the old ballot measure on its own say-so (even if the Governor signs it).

As best I can tell, the legislature's argument is that Prop. 22 only banned California from recognizing out-of-state same-sex marriages; but nothing in the Proposition's text says anything about that -- the law applies to all marriages. Some materials in the ballot pamphlet stressed the risk that California courts would recognize out-of-state same-sex marriages, since that was the most pressing risk (from the perspective of foes of same-sex marriage) visible in 2000. But while ballot pamphlet materials may indeed be relevant when a court is interpreting an unclear statute, nothing in the materials says or in my view even suggests that the initiative is limited to out-of-state marriages.

Moreover, the initiative text is clear, and "ballot materials can help resolve ambiguities in an initiative measure . . ., but they cannot vary its plain import." People v. Wheeler, 4 Cal.4th 284, 294 (1992) (superseded by statute on an unrelated point). The legislature is trying to overturn the people's will without a vote of the people, a step that violates the California Constitution.

Anthony (mail) (www):
So what would happen if Schwarzenegger chose a more creative punt: sign the bill, and declare that as it partially or wholly repeals Prop 22, that it must be put to the voters at the next available election (March 2006)?
9.7.2005 8:44pm
David (not the registered one):
It seems to me that the new statute that's been described as authorizing same-sex marriage doesn't violate the California Constitution, and the question raised by the argument you make is more whether the new statute has much of any practical effect.

As I understand it, the statute just passed by the California legislature doesn't purport to amend section 308.5 of the Family Code. Rather, it amends a different section of the Family Code, section 300, that was initially amended in 1977 to define marriage as between a man and a woman.

It's in part the existence of Section 300, I think, that has led some people to suggest that 308.5 was meant to address recognition of out-of-state marriages. The portion of the Code in which section 308.5 is located deals with such recognition, while the basic definition of marriage is in Section 300. It seems to me that Proposition 22 could have amended Section 300 and/or "frozen it in stone" if its drafters had wanted it to; one would think the fact that they chose instead to amend the portion of the family code dealing with recognition of out-of-state marriages should be construed to mean _something_.

But whatever you think is the proper resolution of the tension that would result from the coexistence of section 308.5 and a newly amended section 300 that defined marriage as between two persons rather than between a man and a woman, the fact remains that the California legislature has not purported to amend or repeal section 308.5. It has instead amended an entirely different statutory provision in a manner arguably inconsistent with section 308.5, which the quoted provision of the California Constitution doesn't forbid as far as I can see.

When and if the courts find an actual inconsistency between the new section 300 and section 308.5, your argument may be a reason to have section 308.5 control over the amendment to section 300 despite the fact that the latter amendment was enacted later (contrary to the normal rules of temporal priority for inconsistent statutes). But it seems to me that whether the statute recently passed by the California legislature has actually made same-sex marriage legal in California is a slightly different question than whether the statute violates the California Constitution, and that your argument answers the first question more than the second.
9.7.2005 8:56pm
I thought regardless, as it was in opposition to prop 22, there would be a ballot measure placed on the march ballot, if the governor signs this?
9.7.2005 8:57pm
Robert West (mail) (www):
Flaime - that's not actually how it works. Statutes only appear on the ballot as a referendum if a certain number of signatures (defined as a percentage of the people who voted in the most recent gubernatorial election) are turned in on qualified petitions.

The legislature may choose to place a statute on the ballot as an initiative, but they have not done so in this case, and there is no automatic method which would cause the statute to be placed on the ballot absent signature-gathering.

Note that there are groups circulating an initiative statute which would ban both gay marriage and state recognition of civil unions or domestic partnerships; I suspect that the legislature authorizing gay marriage will increase the likelihood that said statute will qualify for the ballot and then pass at the polls.
9.7.2005 9:07pm
Anthony (mail) (www):
David, my personal view is that while the legislature says it's not amending 308.5, saying don't make it so - it's at the very least substantially redefining 308.5 in a way which a court could reasonably construe as amending 308.5. In which case, the rules of temporal precedence are trumped by the privileged status of initiative statutes.

I'd be interested in opinions on the ability of the governor to simply declare that AB 849 is an amendment to 308.5, and order it placed on the next available ballot.

As it is, there are three initiative constitutional amendments circulating which would make unconstitutional same-sex marriage, and restrict or eliminate domestic-partner benefits as well.
9.7.2005 9:13pm
Robert West (mail) (www):
Two of those are being circulated by the same people; it is likely that one of them is actually no longer being circulated and has been replaced by the other one.
9.7.2005 9:38pm
All of the foregoing assumes that a State's prohibition and/or non-recognition of same-sex marriage is not an unconstitutional violation of equal protection under the Fourteenth Amendment.

Why shouldn't one believe that laws prohibiting marriage based on race are as unconstitutional as laws prohibiting marriage based on sex? I know the history and tradition arguments, but they didn't succeed in justifiying racist laws, so why should they succeed in justifying sexist or (heterosexist) laws?
9.7.2005 10:07pm
Perseus (mail):
Der Governator has announced that he will veto the bill, though it would be helpful if he also stresses that the wacky California legislature is not only overturning the will of the people, but (following Volokh) also doing something unconstitutional.
9.7.2005 10:38pm
John Jenkins (mail):
The governor apparently agrees that the measure is inconsistent with the earlier one.

Equilitarian, no actually it doesn't. The law is presumed constitutional until invalidated. The above observations are based on the status quo, not whether the law is constitutional under the 14th Amendment. That's an entirely different question than the one being addressed here.

(Incidentally, if push came to shove, I'd be confident that the Supremes would uphold same-sex marriage prohibitions apply intermediate scrutiny).
9.7.2005 10:39pm
Please correct me if I'm wrong, but don't judges and Governors have a legal duty to oppose any law that they in good faith believe violates the U.S. Constitution?

I have absolutely no doubt that the current Supremes would uphold same-sex marriage prohibitions as constitutional---and they would be wrong.

By the way, I believe that Ginsberg writing for the majority in VMI advocates a "skeptical scrutiny" standard for discrimination based on sex--just short of strict scrutiny. But all these tiers of scrutiny are ultimately ad hoc b.s. rationalizations anyway---but that is the way the game is currently played.
9.7.2005 11:01pm
Russell Wardlow (mail) (www):
Sexual orientation isn't a protected class according to the Supreme Court, right?
9.7.2005 11:10pm
Sexual orientation isn't a protected class under the Supreme Court's current jurisprudence, but sex is.

Laws prohibit same-sex marriage on the basis of sex, not on the basis of sexual orientation.
9.7.2005 11:12pm
John Jenkins (mail):
The standard comes from Craig v. Boren, 429 U.S. 190 (1976) [yay Oklahoma!] "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives."

Reed v. Reed was the first such decision, I think, but don't recall (and don't feel like researching it right now, so sue me). This is a standard between the deferential rational basis review and the skeptical strict scruitiny review. Where exactly between it falls depends on the case.

Judges and governors might have a duty not to implement an unconstitutional law, but I don't know that they have the wherewithal to declare a law unconstitutional on their own (and in any event, a mandamus action would likely follow and a court would determine the constitutionality of the statute at issue).

Given that the reason the government is going to articulate is that the institution of marraige is for the purpose of having and raising children and that a restriction based on sex is substantially related to that, under the appropriate standard such laws would be constitutional. (before you say "but old people can marry and not be able to have kids together," remember that the law need not be perfect to be constitutional, and that's a different argument anyway because the strict scrutiny requirement of least restrictive means doesn't apply.

Finally, original intent jurists would rightly recognize that the 14th Am was adopted to redress specific wrongs and should probably not hold it applicable to sex discrimination (original meaning jurists ought to probably go with the same thing, considering the state of the law regarding women in 1865).

Moreover, one could argue that such laws are not unequal. They apply equally to men and women telling them that they cannot marry members of their own sex thus any discrimination is in fact based on sexual orientation, not sex as such and that is not a protected class at all; sliding us down into rational basis review under which just about everything gets upheld (or possibly the heightened rational basis that some find in Cleburne and Romer).
9.7.2005 11:53pm
Student (mail):
Although it's moot now (that gov's said will veto)...

Textually, I'm not sure how David's argument is refutable. The act does not state that it amends 308.5; but rather 300, 301, 302, and adds 403 (capacity). A court can't ignore this text in order to look for intent. (e.g. intent to amend 308.5.) If it can find a rational basis to amend 301 but not 308, then it can't infer intent to contradict this.

I'm not sure the extent to which a court can allow an inconsistent statute, but to the extent that it cannot (i.e. in the rational basis test) isn't it enough to say that California has a strong enough interest in the definition of marriage that it will not be forced into it by other states, but that it will allow itself to make the decision?

(But I actually don't know California law. Do they use rational basis? And, I'm assuming that no stricter scrutiny would be applied in this case - since the act erases any sex distinction, not makes it... is this right?)
9.8.2005 12:05am
Student (mail):
Also, responding to John Jenkins - What about Fundamental Rights Equal Protection? I'm thinking of Zablocki v. Redhail, where Wisconsin didn't allow people people behind on their child support to get married. There wasn't any suspect class, but because it was marriage (a fundamental right), Justice Marshall said "...every state regulation which regulates in any way to the incidents of or prerequirtes for marriage must be subjected to rigorous scrutiny. Reasonable marital relations that do not significantly interfere with decisions to enter into the marital relationship may be legitimately imposed." He accepted that the state interests were "legitimate and substantial" (safeguarding the welfare of out-of-custody children), but that that less intrusive means must be used, and so struck down the statute.

Thus, regardless of how a person might be classified for other reasons (e.g. state benefits), when their right to marriage is affected, "rigorous scrutiny" is applied, whereby the ends must not only be "legitimate and substantial", but that the court will look at the intrusiveness of the means used. It seems an easy argument to make that less restrictive devices, not impinging upon sex, can encourage the procreation and raising of children, e.g. tax incentives.
9.8.2005 12:20am
Anon. Law Student:
AP reports of the promised veto:

"Clearly he's pandering to an extreme right wing, which was not how he got elected," said Geoff Kors, executive director of Equality California, one of the bill's sponsors. "He got elected with record numbers of lesbian and gay voters who had not previously voted for a Republican, and he sold us out."

Yep. Clearly. That must be it! :)
9.8.2005 12:22am
Paul Sherman (mail):
John Jenkins,

Doesn't Loving v. VA somewhat undermine the argument in your last paragraph. If I'm recalling correctly, that law applied equally to whites and blacks; neither could marry the other. By the same logic you use, that law wasn't based on race itself, but rather on a predispostion to marry someone of another race.

9.8.2005 12:30am
I don't have a clue whether the law is constitutional, but I agree that executives, or anyone else who takes an oath to uphold the Constitution, have a duty not to sign a bill that violates the Constitution. Arnold may not have the final word on what's constitutional and what isn't, but that doesn't absolve his responsibility to go with his good-faith belief. Of course, no one but him knows what is in his head.

Some make a related argument that President Bush signed the McCain-Feingold campaign finance bill, even though he (supposedly) personally disagreed with it, because he thought the Supreme Court would declare it unconstitutional anyway. If this were true, it seems to me it would pretty clearly violate the presidential oath of office to sign a law one believed to be unconstitutional.
9.8.2005 12:38am
Student (mail):
whoops... I meant to say "impinging on marriage", not "impinging on sex." it's a late night...
9.8.2005 12:53am
Andy Morriss (mail):
An even more dramatic example of an executive signing a bill of questionable constitutionality was Reagan Administration's position on the Sentencing Reform Act of 1984. The Reagan DOJ filed briefs in various challenges saying it was unconstitutional as written and asking the court to shift the Sentencing Commission to the executive branch from the judicial branch. (If you want to read lots on this, see my piece, coauthored with Greg Sisk and Michael Heise, at 73 NYU L Rev 1377 (1998). The article isn't directly on this point but we discuss it in some detail in passing.) Given the Administration's position, it seemed odd that the president signed it in the first place.
9.8.2005 12:55am
Bruce Hayden (mail) (www):
I do like that California provision that basically prevents the legislature from legislatively overturning ballot issues. This has been quite a problem in Colorado. For example, the lottery was implemented by initiative with the avowed intent that (most?) money go to parks and open space. A year or so later, the legislature started redirecting a lot of that money into other things, such as prisons. So, it goes back on the ballot, this time as an amendment to the state constitution. And, so, the Colorado constitution now mandates where lottery money goes. I would think that it would be much cleaner to do like California does and just not allow the legislature to overrule inititiatives through legislation.
9.8.2005 12:57am
unhyphenatedconservative (mail):
Steve, your McCain-Feingold point is spot on. And it illustrates the corrupting effect of treating the courts as the sole and final arbiters of the Constitution. It allows politicians to duck their Constitutional duties when the issues are hard. Then they get to run on platforms of reining in activist courts, though that;s the last thing they want to do.
9.8.2005 12:57am
What I find amusing about the situation is when taken at a very high level (in other words, ignoring the complexities that really drive it), you have Republicans in states saying gay marriage should be an act of the legislature and not the courts. With lots of harumphing afterward for effect. The courts, they say are "activist". Then you have California, now the only state in the union to legislatively grant marriage to same-gender couples. There they say the decision should be made by the courts and it's the legislature that's "wacky".

You gotta love it.
9.8.2005 9:42am
AppSocRes (mail):
This just in from Massachusetts: The AG of the Commonwealth, Bill Reilley, has just approved an initiative petion, for the 2008 state ballot, that would, via constitutional amendment, outlaw future same-sex marriages in the Commonwealth, while recognizing the legitimacy of same-sex marriages performed in Massachusetts under current state rules. (I won't use the term laws, to describe unconstitutionally imposed judicial fiats.)

The interesting point is that Reilley is an utterly unscrupulous politician with an almost uncanny ability to recognize and adopt policies that maximize his vote-getting potential. In the next state election in this very blue state, he will be running for Governor. He had a perfectly reasonable excuse to dump this initiative on constitutional grounds. (The principles governing initiatives in Massachusetts are arcane and readily manipulated to prevent or enable outcomes in which the political power-elite have an interest.) Clearly Reilley has decided that public opposition to same-sex marriage is so great in the Commonwealth, that the initiative will pass and that opposition to it is political suicide.

I think it fitting, that the state where judicial arrogance raised this specter (coincidentally helping to ensure Bush a second term) may also be the one where a stake is finally driven through the beast's heart.

The citizens of Massachusetts would probably have rebuked Margaret Marshall, the chief justice of Massachusetts's supreme court, a long time ago and passed a constitutional amendment banning same-sex marriage, were it not for the difficulty of amending the Commonwealth's constitution.

By the way, scholars of the US Constitution, really ought to pay more attention to the Commonwealth's constitution and its history. Massachusetts's constitution is, I believe, the first written constitution. It served as one of the inspirations for the later US Constitution. It was largely written by John Adams who had a deep distrust of pure democracy or pure representative democracy. This helps account for the difficulties in amending the Commonwealth's constitution and, indeed, in making the various branches of state government acknowledge the will of the people under any circumstances.
9.8.2005 9:43am
Clayton E. Cramer (mail) (www):
Doesn't Loving v. VA somewhat undermine the argument in your last paragraph. If I'm recalling correctly, that law applied equally to whites and blacks; neither could marry the other. By the same logic you use, that law wasn't based on race itself, but rather on a predispostion to marry someone of another race.
Loving is a poor analogy, because it did not simply refuse to recognize interracial marriages, but punished interracial marriages that took place elsewhere. The Loving couple was threatened with prison if they didn't leave Virginia for at least twenty-five years.

The other area where the analogy falls down is that bans on interracial marriage are actually a pretty recent innovation, dating from the late 17th century in the U.S.--and definitely not part of English law. (It would appear to have been an attempt to reduce competition for the relatively small number of white women in colonies such as Virginia and Maryland.) The limitation of marriage to heterosexuality seems to be universal, across all centuries and all cultures.
9.8.2005 12:31pm
Anderson (mail) (www):
Arguments from the 14th Amendment on gay marriage have never interested me much due to their utter irrelevance. The U.S. Supreme Court IS NOT going to hold that banning gay marriage is unconstitutional. The Lawrence Court wouldn't have so held, and we are in for 30 or 40 years of a more conservative court.

I suppose I'm just not intellectual enough, but when a dog just won't hunt, I lose interest.
9.8.2005 12:42pm
WHerndon (mail):
I am amused to see equalitarian basically invoke a modern version of "nullification." I seem to recall that the states, especially in the antebellum South, were proponents of such an action in matters regarding slavery and taxes (tariff). Of course, Thomas Jefferson was the first important American leader to espouse that approach in the Kentucky resolutions of 1798-1799.

I think it would be absurb, in almost all cases, for governors to unilaterally decide whether state or federal legislation is constitutional. He can veto or approve bills in most cases, but the constitutionality of those decisions is generally out of his hands.

By equalitarian's reasoning, it would be okay and appropriate for a state governor to ignore Roe v Wade on the grounds that he views it as unconstitutional. Similarly, a governor could reject a domestic-partnership law if one were actually to pass at the federal level in the future. So long as you think it's unconstitutional.

This sounds like a recipe for havoc, equalitarian.

As for gay marriage, the court has no business getting involved. This is an issue for the people to decide. In time, I suspect gay marriage or something like it might become law, but it will take time. Forcing the issue now via the courts will merely invite a backlash, as we have already seen.

In any case, I dont view the right to marriage as fundamental. From the standpoint of law, I am not sure what couples actually gain. With the marriage tax, you dont even always get a tax break. What I see is mostly added legal obligations.

Granted, marriage allows for clear visitation rights, inheritance rights, and so forth. And those things should be made available to gays. I think that's what they should fight for, at least for now. But of course that's up to them. They can advocate anything they want.

While I am intellectually sympathetic to the argument for gay marriage, I am reluctant to go along with it just yet. I see no problem with the law as it now is. The govt has a legitimate right to promote marriage as the best available means of procreation -- got to create new taxpayers after all -- and give special status to heterosexuals as a class.

To my mind, though, that status is mostly symbolic, and far less material (lower taxes) than I would like.
9.8.2005 1:08pm
WHerndon (mail):
Shawn, I havent heard many Republicans, aside from the suspect Governor Arnold, suggest that it's up to the courts to decide whether gay marriage is okay. Every Republican or conservative I know says it's up the people. I'd hardly characterize Arnold's comments as reflective of anything but his own views. He clearly doesnt want to veto the bill, and he just as clearly doesnt want to approve it. Hence his talk of courts being the final arbiter.

What else would you expect of an actor?
9.8.2005 1:13pm
Clayton E. Cramer (mail) (www):
AppSocRes writes:

By the way, scholars of the US Constitution, really ought to pay more attention to the Commonwealth's constitution and its history. Massachusetts's constitution is, I believe, the first written constitution.
Nope. It isn't even the first written constitution in the Revolutionary period. The Pennsylvania Constitution of 1776 predates it by four years; ditto for the Maryland Constitution of 1776; and Delaware wrote a Constitution in 1776. (By the way: delegates to the Delaware constitutional convention had to swear an oath "I do acknowledge the Holy Scriptures of the Old and New Testament to be given by divine Inspiration.")
9.8.2005 1:15pm
Cramer misses the important point about the inaptness of Loving to the current struggle. Equal protection certainly touches issues that implicate racial discrimination, while the standard which should be applied to sexuality is questionable.

Further, because race is treated with elevated protection, suggestions of a slippery slope toward polygamy, et al were without merit with respect to Loving.

Yet the current struggle, which attempts to elevate sexuality--specifically homosexuality--to some higher level of constitutional protection, does portend increased protection for polygamy and polyamory.

I always find curious the behavior of the equality-by-any-means types. Polygamy is viewed as a slur, a ridiculous scare-mongering scenario. But they attempt to use Loving to bolster their moral and legal arguments, and I am pretty sure just about EVERY supporter of Loving when it was decided thought application to gay marriage would be patently absurd. If supporters of judicially imposed gay marriage do not care about the limits of precedent, why should polygamists?
9.8.2005 1:20pm
On Lawn (mail) (www):

The courts have ruled that the impact of 308.5 is to both in state and out of state marriages. To pretend that AB 849 does not amend 308.5 because it does not state it specifically invites this question,

Is same-sex marriage legalized by AB 849?

If it is, then it is clear that 308.5 has either been repealed or amended by the court established interpretation of 308.5. Either that or we are to pretend that inconsistency in laws is the new consistency.

Also I should note that Gov Arnold didn't advocate leaving it up to the courts alone. He has repeatedly indicated that this is between the people and the courts, as if (in action movie fashion) the people have stepped in front of the legislature to do battle without the go-between. Deference to the populace (who are floating CA constitutional amendment initiatives) is something we should expect from elected officials.

We also go into depth on this at Opine Editorials.
9.8.2005 3:11pm
Kent (mail):
Historically, majority rule is an uncertain method for protecting minority rights. Waiting until a majority is willing to proactively step forward on behalf of the minority can be a long wait, indeed.

Thus, telling the minority that you, personally, support equality but merely dislike court declarations to that effect is a bit dodgy.

To put it somewhat cynically, until there is no longer any need, it would be "improper" for the courts to act. Thus, decades go by while the minority must wait for a magnanimous majority to wake from its slumber.

Admittedly, we are society in transition. The proud and public bigotry of the past has evolved into a series of "rational" arguments. Perhaps a constitutional amendment asserting that gay relationships are to be counted as three-fifths of a white -- oops! I mean straight -- relationship can delay the inevitable. Yet gay marriage is too reasonable, too modest, and, yes, too conservative a proposition to be denied forever.

It is unfortunate that, in the meantime, many of us must suffer recurrent reminders that we are second-class citizens.
9.8.2005 3:45pm
JAB (mail):
This point needs to be emphasized:

Section 300 deals with how CA defines marriage internally.
Section 308 deals ONLY with recognition of marriages performed outside CA. Prop. 22 amended Section 308 to read that only opposite-sex marriages would be recognized. Prop. 22 was sold to the public on the basis that it was only preventing CA from recognizing gay marriages performed in other states.

If the authors wanted to define marriage as being between a man and woman only, period, no ambiguities, then why didn't they insert the amendment in section 300 instead of 308?

Go back and look at the whole section of statutes on CA law, and you will see that Prop. 22 inserted language ONLY, ONLY, ONLY in the section dealing with how CA recognizes marriages performed in OTHER states. It did not make any changes to how CA internally defines marriage.

The CA Assembly &House did NOT overturn Prop. 22...
It certainly isn't as clear-cut as Prof. Volokh makes it seem.
9.8.2005 4:42pm
On Lawn (mail) (www):
I think that when reviewing history one will find that those not beholden to the public, especially when power is concentrated to the few, endangered minority rights far worse than the majority you speak of.

Truely there may be no perfect system in ensuring minority rights, but I would wager that the majority is the best way we know of yet. Madison in Federalist #51 argues that the majority makes a very good protector of minority rights, as long as the diversity of the majority is encouraged. Many years before Orwell's 1984, we see arguments that diversity is a public treasure. Which is why the homogenization (conflation) of different groups under the same name, to me, is dangerous to minority rights.

Of course, some minority rights were absolutely guaranteed by the more tyrannical (less beholden to the people) leaders of society. Those pampered classes, however, are not what we considered minorities that really needed protection.
9.8.2005 4:46pm
Kent (mail):
Prof. Volokh says "As best I can tell, the legislature's argument is that Prop. 22 only banned California from recognizing out-of-state same-sex marriages; but nothing in the Proposition's text says anything about that -- the law applies to all marriages."

I agree with JAB. 308.5 is the only subparagraph in the "Validity of Marriage" division of the California Family Code. It is clearly intended, by the choice of making it a subsection, to refer to 308's recognition of foreign marriages. There is no need to consider the ballot pamphlet because on its face the language is a sub-part of 308. Thus, the lack of ambiguity cuts the other way and People v. Wheeler supports the legislature's position, rather than the Governor's.

As for On Lawn's suggestion that minorities can be tyrannical and/or pampered; agreed. Beyond that, I'm not sure what point he is trying to make.
9.8.2005 6:02pm
On Lawn (mail) (www):
JAB and Kent,

On the matter of "Section 308 deals ONLY with recognition of marriages performed outside CA." From Knight v. Superior Court, 128 Cal. App. 4th 14, 23-24 (2005) :

The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state.

Kent, you can find further reading on the "minority" matter here as it was an orthogonal matter brought by yourself in the first place.
9.8.2005 8:01pm
Student (mail):
Responding to OnLawn: (cross-posting)

The basis of the full faith and credit provisions of the federal DOMA, I believe, is that no state should have another state's definition of marriage forced upon them, but should be allowed to make decision regarding the definition of marriage itself. One manifestly efficient way to accomplish this, I think, is to amend the sorts of out-of-state marriages recognized, while leaving the in-state portion unamended.

I'm not sure how much quoting a sentence of dicta adds. The court resolved the question of whether the recognition of domestic partnership (including out-of-state domestic partnerships) violated 308.5. The straight-up question of whether in-state same-sex marriages violated 308.5 was not before the court, and was not decided, although the court assumed its answer.
9.8.2005 9:18pm
Kent (mail):
On Lawn: I disagree with your convoluted argument that gay marriage is gender discrimination and suspect that we will never agree on this general topic. As I indicated earlier, I believe that history is moving away from your assertion that:

... the real crime behind the "Marriage Equality Now!" debate is that marriage is already equal [...] And what is painted as disadvantage is a barricade built into our anatomies to protect children from those who wish the government to privilege gender discrimination.

As for Knight v. Superior Court (a case that unsuccessfully used Prop 22 to challenge California's domestic partnership law) I agree that the Court could have difficulty overcoming its expansive discussion of pre-existing marriage law and how Prop 22 amended it. But courts have overcome far taller hurdles before. And the Court in Knight does state (after claiming there is no need to look at the ballot materials, it does precisely that):

These ballot materials directly support the interpretation that Proposition 22 was intended solely to preserve the status of marriage in California for persons of the opposite sex by preventing the recognition of marriages from other jurisdictions if those marriages are between homosexuals.

Given the deference the Court shows to the legislature on matters of public policy, and leaving open the possibility that the Court will recognize a fundamental right to gay marriage, perhaps the debate is not yet settled.

We cannot say, as petitioners would like us to do, that this public policy decision by the Legislature to grant to registered domestic partners some of the benefits, and to impose upon them the responsibilities, associated with spouses is an absurd violation of public policy. Indeed, it is the role of the Legislature, not the courts, to make public policy.
9.9.2005 8:59am
On Lawn (mail) (www):
history is moving away from your assertion

I may be one of the few people remaining that thinks history is not some mailable or movable object? Our understanding of it perhaps, but our understanding of it does not change it. The future is yet to be determined, but very strange things happen when history is considered yet to be determined.

Never the less, I would rather discuss what brings you to that conclusion than be left to assume why you came to that conclusion.

As far as Knight, the point is remarkably similar. The courts ability to define its own laws to play by is not a feature it is a flaw (though you will find no argument from me that it exists). Such gerrymandering of political physics creates very strange results, and ponderous propositions. To rely on such is not much of a reliance at all.

Its deference, therefore to the legislature is laudable, as is its deference to the people in direct initiative.

But honestly, though interesting I offer that these pondering get us neither here nor there.
9.9.2005 1:45pm
On Lawn (mail) (www):
And as my monitoring of this thread will be sporadic, I would prefer that you present your arguments as to why my position is "convoluted" to the article in question. Thank you.
9.9.2005 1:52pm
Pietro Armando (mail):
Same sex "marriage" is a purely legal constuct that has no cultural, religious, or historical basis, despite a few isolated examples of celebrated male same sex unions. It certainly conflicts with not only our collective practice of marriage, but our common concept of it as well, that marriage is a relationship where by a man and woman publicly take each other as husband and wife. Although there are no legal requirements as such, each party to the marriage has the expectation the relationship be consumated, barring physical obstacles to the contrary, and any children born of such consumation, and/or practice of continuing "marital relations" (sexual intercourse), will belong to, and be supported by both mother and father, absent any abuse. Clearly then a same sex couple cannot "marry", nor is the right to marry extended to them as a couple. By the same token if the state can legally construct same sex "marriage", it can, which it has in many states, create a legal frame work for same sex relationships.
9.9.2005 5:36pm
Xrlq (mail) (www):
I'm not sure how much quoting a sentence of dicta adds. The court resolved the question of whether the recognition of domestic partnership (including out-of-state domestic partnerships) violated 308.5. The straight-up question of whether in-state same-sex marriages violated 308.5 was not before the court, and was not decided, although the court assumed its answer.

They only "assumed" the territorial scope because there was no legitimate issue there. If there had been, the case would have been decided on that basis instead, and there would have been no need for the court to tackle the thornier, substantive question of what is or isn't a "marriage."
9.10.2005 12:38am
How about BAKER V NELSON. (This is the Case that Should be Cited in reference to this issue, Not Loving, Not Zablocki.

Why don't most people even know of this case????


In 1971 two Male Subjects, Richard John Baker and James Michael McConnell, applied for a Minnesota Marriage license and were denied. The two filed litigation that made it's way before the Minnesota Supreme Court, citing violations of various Federal Constitutional Provisions. The Minnesota Supreme Court ruled that Marriage in the State of Minnesota was limited to One man and One Woman. Upon Baker and McConnell losing their case they appealed to the United States Supreme Court Invoking the Supreme Court's then-mandatory appellate jurisdiction, in 28 United States Code ' 1257(2) (repealed in 1980).

Upon review, the United States Supreme Court dismissed the appeal "for want of [a] substantial federal question." 409 U.S. 810 (1972).

Examining Precedent of the United States Supreme Court shows the clear and explicit directive that dismissals "for want of a substantial federal question" are binding precedents on all lower Federal Courts.

"[U]ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial". Hicks v. Miranda, 422 U.S. 332, 344 (1975) "[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 176 (1977). Lower Federal Courts are expressely prohibited from ruling in a way inconsistant with binding precedent. "[Summary Decisions] prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977)

This is explicit not only in the holdings of the United States Supreme Court, but also the holdings of other Circuit Courts. [L]ower courts are bound by summary decision by this Court 'until such time as the Court informs [them] that [they] are not. Doe v. Hodgson, 478 F.2d 537, 539 (2nd Cir. 1973)

Baker is binding precedent and until overruled by the United States Supreme Court, it remains that way.

Baker explicitly and with clarity addressed the 14th Amendment's Due Process and Equal protection claims in regards to Same-Sex Marriage. These are the same claims being brought up by Homosexual Activists today. The High Court specifically affirmed that The due process clause of the Fourteenth Amendment is not a charter for restructuring [Marriage] by judicial legislation. Baker V Nelson (Citation Omitted).

With regards to Equal Protection the court stated: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination... Baker V Nelson (Citation Omitted). They also noted that "abstract symmetry " is not demanded by the Fourteenth Amendment. Baker V Nelson (Citation Omitted).

Baker is not alone in this regard, indeed A long line of Court decisions make clear that: "[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Patsone v. Pennsylvania, 232 U.S. 138 (1914). Tigner v. Texas, 310 U.S. 141 (1940), and Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)

Baker also expressly distinguishes Loving V Virginia 388 U.S. 1 (1967), upon which homosexual activists rely, as not being applicable to the same-sex marriage debate.

Loving V Virginia was decided on the grounds that it unconstitutionally prohibited marriages by invoking invidious racial discriminations.

At issue in Loving was the Marriage between one Man and One Woman, who happened to be of a different race.

As the Minnesota Supreme Court stated, which was affirmed by the United States Supreme Court: "Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." Baker V Nelson (Citation Omitted).

Without Doubt, Baker V Nelson expressely establishes that a State's decision to limit marriage to One man and One Woman does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. The same applies to the Federal Government's decision to codify the traditional marriage relationship soley for the purposes of Federal law and Federal benefits.
9.10.2005 10:32am
Student (mail):
Well, for one thing, Zablocki postdates Baker.
9.10.2005 11:11pm