California legislature passes gay marriage bill for second time:
Story here. Voting for gay marriage in 2005 had no discernible effect on the careers of those voting for it. California's remains the only state legislature to vote for this.
The governor will veto the bill, as he did in 2005, citing a popular referendum vote in 2000 against gay marriage. However, unless the state constitution is amended in the interim, it seems just a matter of time before California gets a governor and legislature in agreement for same-sex marriage.
Hooray for ignoring the will of the people of the state of California, and having the gerrymandered districts sufficient to protect them from all repercussions!
Not exactly true, though you can split the hair if you must - the Massachusetts Legislature voted against amending the state constitution to ban gay marriage by a vote of 45 to 151.
DC: Significant as the Massachusetts vote against a constitutional amendment was – after the state had a couple of years of actual experience with gay marriage – it’s not the same as an affirmative legislative vote for marriage. Of course, one could say that the 2005 and 2007 votes came about only because California legislators were able to learn politically and substantively from the Massachusetts experience with gay marriage.
So what Professor Carpenter's post boils down to is a proclamation that the elites in two legislatures from the two left coasts have voted to ignore the will of the people they purport to represent.
More significant to me is that a large majority of State legislatures or constitutional referenda have addressed this issue and, following the wishes of the people, rejected the idea of promoting homosexual activists' agendas vis-a-vis marriage and family. Yet Professor Carpenter's post does suggest there is still an unfortunate need for an amendment to the US Constitution on this issue.
When a divorced California man was ordered to keep on paying alimony to his ex-wife, who was being supported by her lover in a long-term lesbian relationship, he understandably sought to have it cut off, since there was no longer any legitimate purpose for the alimony.
But the trial judge said it couldn't be cut off, and the ex-wife cited the gay marriage ban to keep the unnecessary alimony payments continuing, saying that gay marriages can't be recognized, so she shouldn't be treated as having functionally remarried.
And some dim-bulb who claims to be "pro-family" and files amicus briefs defending the state's gay marriage ban in court actually defended this result in the newspapers against charges it was unfair, saying that since the ex-wife wasn't in a real marriage, she should continue to collect alimony.
What economic sense does that make? Pro-family, yeah right. It encourages divorce, by giving the ex-wife who initiates a divorce the knowledge that she can double-dip, getting alimony checks from her ex-husband even while she gets support from her new partner. It's an incentive for divorce!
Denying the reality of a marital-like relationship sometimes injures people outside of that relationship -- like their exes -- and undermines those other people's inability to have families of their own.
I don't think the federal constitution mandates gay marriage (although a legislature is perfectly within its discretion to pass a law recognizing gay marriage, and the California state constitution may provide more protection for gay unions than the federal constitution).
But at some point, denying the real-world existence of relationships because just they don't resemble that of Ozzie and Harriett, or comport with certain religions' teachings, comes at a cost.
Hee hee! It's fun to see you accuse someone of being intentionally misleading when you, in fact, are the one who is wrong.
For an initiative amendment to go on the ballot, only one-fourth of the members of the legislature need to approve. This particular amendment couldn't even get that tiny fraction; 45 voted to put it on the ballot and 151 voted against.
Steve: It hurts to admit your right.
Oris: thank you for correcting me and providing the link.
I apologize for misremembering and misleading other readers.
However, while I'm eating crow (and it's not a tasty dish), I still hold to the rest of my post: The Massachusetts referendum would have gone to the people and probably have passed if several legislators had not voted contrary to the way they had promised voters that they would vote when they were running for election.
It is my impression that the vast majority of Americans are willing to tolerate homosexuality and be accepting of homosexuals. But I also think the vast majority believe that the movement for redefining marriage to include woman-woman and man-man marriages is the work of a radical fringe with a deeper, more or less hidden agenda. This is why I believe that ultimately the limitation of same-sex marriage to a very small number of states will put tremendous strains on the "full faith and credit" clause and will require resolution through an amendment to the federal Constitution.
Nick
So are you part of this "vast majority" that believes in the man-on-dog conspiracy theory, or do you toss it out with other conspiracy theories like the government covering up UFOs, the JFK assassination, etc. that are also believed by vast majorities?
Is it accurate to still call a vote from seven years ago "the vote of the people"? What if it fails this time and the legislature tries again in, say, 2010? That'd be the legislature passing a law to change what was passed by referendum a decade before.
It's been seven years. Seven years of people moving to and from California, seven years of people who voted in 2000 dieing and people who were ineligible to vote in 2000 becoming eligible to vote, and seven years in which people who voted may have changed their minds. And as time continues to pass, each of those things will continue to happen.
Now, maybe seven years isn't long enough, but for every referendum (indeed, every legislative act) there comes a time when it no longer represents the will of the people, because it was the will of only those people around at one specific moment in time. So as I see it, for every referendum-passed law, there comes a time when it's perfectly fine for the legislature to change, repeal, or replace it (assuming the legislature's new law would be otherwise acceptable, and not mandating the execution of every first-born son or something).
Since we've now reached the point that the legislators in California are picking their constituents, can it be said that democracy even exists?
Article 2, Section 10 c) The Legislature may amend or repeal referendum statutes. It 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 I don't know what Mark Leno and the legislature are doing.
I, like another commentor, cannot figure out how this is not a material change of circumstance.
I seem to recall the theory they're going with is that the referendum statute only bars recognition of same-sex marriages performed outside California and does not prohibit California from enacting same-sex marriage itself. It's analagous to the federal DOMA which provides that states are not required to recognize a same-sex marriage from another state, but does not prohibit a state from enacting SSM.
Honestly, though, I can't get my mind around why anyone could, in good conscience, oppose this legislation's outcome or how they could justify voting for the initial law. Seems prima facie evidence of... well, not being anyone I can think well of.
There are two ways California recognizes marriage in its states. Way 1 is how they verify there own marriages, in the 70s a DOMA law (but not referendum) was passed making marriage 1 man 1 woman. Way 2 is how California recognizes other states marriages. The 2000 referendumonly modify this law. The laws are in different parts of the legal code. The 2000 referendum can only be overturned by another referendum, the 2000 referendum though didn't touch or modify how the Way 1 acts, thus the legislature can change it for they were the ones who enacted the DOMA law in the 70s. The California appeals courts have even spoken on this matter and said prop22 does not affect how California does it owns marriages just how it recognizes other marriages.
Note that California started their domestic partnership legislation in 1999. Prop 22 didn't touch the DP legislation and each legislative session California expanded the rights of the DP until 2005 session when it tried the first marriage equality bill. Starting in 2007 though the last parts of the DP laws kicked into effect and now the benefits granted to DP are equal to marriage though there are some procedural differences in how you obtain a DP vs civil marriage.
Currently there is a Supreme Court case about whether it is legal under California's Constitution to ban same sex marriage. Main briefs were due in March, after they were due the court asked additional questions on how the benefits DP and Marriage differ on state level. That additional questions were due last week. The govenor and AG in their briefs said there was identical benefits and if the state wanted to they could abolish marriage and make all marriages domestic partnerships with no ill effect, there is no state interest in the differences of the names (of course some right wing trash papers spin these court briefs saying the AG and Governor wanted the downfall of marriage.) Friend of the Court briefs are due in a few weeks and oral arguments will probably occur in 2008. The Supreme Court is expected to give a quick response instead of waiting years for their ruling.
Plus the Democrats just got done complaining that the supermajority required to pass a budget in California is anti-democratic, that it should be simple majority rule so they don't need to persuade any Republicans. I'm afraid the Democrats want California government to be more like the Politburo, ignoring everything but their own desires.
The holy trinity of the initiative, the referendum, and the recall were instituted in California to prevent rule by the special interests. Bob LaFollette should be spinning in his grave.
How about the federalism argument, California law is decided by Californians not other states. They don't want other states deciding it thus the supermajority, but since they don't know how the future is going to be this issue they are not going to craft something forever in legal stone. Its called being conservative and being precise and responsible.
If the people who proposed prop 22 wanted it to apply to both parts of the marriage code then they should have crafted a referendum that dealt with both parts of the marriage law. Don't tell me with a straight face that they were ignorant and didn't know how the law works? Maybe the normal voter, but not the lawyers who wrote prop22, not William "Pete" Knight.
You changed the subject, you asked what is legitimate argument you can make with a straight face why one person may approve of one but disapprove of another. I gave you one.
That is a completely different subject on why people voted for the referendum.
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Silly me though expecting a legislature to be smart enough to actually craft laws that reflect the collective intent they want. If they wanted X then they should make a law that achieved X. I guess textualism and formalism are so passee. Judges should say the law is Y when in reality it is X, after all the legislatures are too stupid to craft laws that reflect their intent.
We need those philosopher kings to correct our collective short comings.
Your failure to understand why anyone would vote for such a referendum, like the 61% who did last time, is exactly what sets back the gay rights lobby in the US and forces a backlash. In that thinking, everyone who opposes it is a bigot, homophobe, etc.
That is the surest way to make it so the way you would like the vote to turn out will fail every time.
Engage your opponents in the arena of ideas. Debate them and persuade them. If the referendum passes again, figure out why and work harder. But when people dismiss their opponents as "narrow-minded," they push people to a side they might otherwise not go.
Wow. It takes quite a bit of chutzpah to equate simple-majority democratic rule to Politburo-style totalitarianism, don't you think?
And I don't recall seeing many folks on VC complaining when Tom DeLay was promulgating his "majority of the majority" rule in the House. I mean, if you want to talk about Politburo, and all...
I normally agree with you (going back to the mercury and autism debate) but I think you’re off base here.
You seem to suggest that the outcome of the case you cite weighs in favor of supporting same sex marriage. But a critical issue is whether alimony is subject to court review when circumstances change materially. Is it your belief that alimony (in this and other cases) is not subject to review?
“It encourages divorce, by giving the ex-wife who initiates a divorce the knowledge that she can double-dip, getting alimony checks from her ex-husband even while she gets support from her new partner. It's an incentive for divorce!”
Such reasoning would also apply to traditional marriage and would seem to support review of alimony for any divorcee when circumstances change (if your goal is to reduce divorce).
I might be missing something …
California has a statutory presumption of reduced need for spousal support arising from supported ex-spouse's cohabitation with a member of the opposite sex. Frankly, since that statutory wording pre-dates the ability of California courts under the "new" domestic partnership scheme to award "spousal" support to former domestic partners, the limitation to "opposite sex" seems unlikely to survive a further challenge.
BUT the balance of the California statutory scheme for spousal support includes a "catch-all" "any other facts which justice requires the court to consider" factor. Since the cohabitation provision doesn't require a particular sexual component, and the balance of factors considered in spousal support determination are overwhelmingly financial, if the trial judge claimed that she found facts which, but for the gender of the cohabitor, would have mandated reducing support, but because of that single fact, she was barred from reducing support, IMHO, she was simply wrong on the law.
Actually, a majority of the people of California support either gay marriage or civil unions. Only about a third want to ban any recognition of gay relationships.
Everyone is talking about how they are so 'tolerant' of 'homosexuals' and that they would support us, but when we fight for our rights, then we risk this big backlash.
Perhaps it is the other way around. Perhaps the more you people fight against gay marriage or civil unions, the more you risk a backlash from people who think it reasonable to recognize our relationships?
This is certainly true for the younger generation, which approves of gay marriage in far wider margins than most other age groups. The more hysteria about how gay marriage is some part of a vague vast conspiracy, or that it will 'destroy' marriage, the more people realize you are just fear mongering.
Of course it didn't, any more that marriage got destroyed in Canada or Spain. And so the more you raise the hysteria issue, the less credible you become. And the reasonable middle understands that.