By 4-3, Maryland's high court today rejected a claim for same-sex marriage under the state constitution. The opinion is more than 100 pages long and is studded with more citations to cases, law reviews and books (including, notably, William Eskridge's Gaylaw), and sociological and scientific studies, than any case yet on the issue.
The Maryland court rejected the argument that the ban on gay marriages is a form of sex discrimination, though it called that argument "beguiling." It rejected the argument that sexual orientation discrimination should be subjected to heightened scrutiny, citing gays' legislative success in the state as evidence the group is not "politically powerless" and thus needs no unusual judicial protection from the majority. It added that there is not yet a sufficient scientific consensus on whether sexual orientation is "immutable." The court also decided that there is no fundamental right to marry another person of the same sex. These conclusions all follow the majority trends in the state courts so far.
Finally, the court concluded that the limitation of marriage to opposite-sex couples is rational because it furthers (however imperfectly) the state's legitimate interest in encouraging procreation. If the correct level of scrutiny is the traditional rational-basis test, this conclusion is hard to dispute.
SSM has lost in every state high court to consider the issue since the stunning success in Goodridge in Massachusetts in 2003. SSM legal advocates lost outright in Washington state and New York in 2006. New Jersey's high court also rejected an SSM claim in 2006, though it did order the recognition of civil unions and left open the possibility of a future pro-SSM ruling. A case is still pending in California's supreme court.
When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future. Once California is decided, the initial phase of post-Goodridge litigation will have pretty much run its course. That was the phase that was supposed to start an avalanche of pro-SSM judicial rulings that would quickly lead to gay marriage around the country. It didn't happen. Other cases are pending in states like Iowa, and there's nothing to stop gay couples from filing anywhere else, but the odds are now longer. If SSM is to advance much in the near future, it will probably have to come legislatively.
Certainly some of these cases are organized by a national campaign with some concern for strategy but I was under the impression some where going ahead against the advice of the national organizations (maybe the national organizations start supporting it once it becomes clear it is going to court no matter what).
DC: The national gay groups were dragged kicking and screaming into this gay-marriage fight in Hawaii in the early 1990s by just the sort of indignant individual plaintiffs and lawyers you conjure. That's changing. While anybody can file anywhere, the national groups have actually been careful about strategy on this, and have discouraged lawsuits in states where the risk of loss seems large. The early post-Goodridge test states have been carefully picked.
By this logic shouldn't laws related to race/ethnicity/religion no longer be subject to strict scrutiny either?
Unfortunately (speaking as one in favor of legitimizing marriage between gays) the campaign has fueled its own opposition: how many states now "boast" anti-gay-marriage constitutional amendments? It will plainly be harder to overcome those than to simply get the legislature to pass a law endorsing gay marriage. I'm concerned that the premature effort to obtain victory in the courts, rather than taking a decade or two to win in the legislatures, will make marriage unavailable to gays for decades longer than would otherwise have been the case.
Last time I checked, sexual orientation was not listed as a protected class under the 14th Ammendment.
Last time I checked, the 14th Amendment didn't list any protected classes at all.
It was a reaction to the Mass. Supreme court ruling that ignited the wave of state constitutional amendments. I've got no problem with having gay marriage enacted legislatively, but I am dead set against legislating gay marrige from the bench. An indicator of just how arrogant the Mass. Supreme Court is can be found here.
You're entirely correct, because there are no protected classes listed in the Fourteenth Amendment. The Equal Protection Clause simply provides, in relevant portion that "[n]o state shall...deny to any person within its jurisdiction the equal protection of the laws." It has been up to the courts to decide how to give meaning to this provision, and one major approach has been to apply strict scrutiny to laws that are intended to disadvantage members of a "suspect class," which has mainly meant racial classifications. Religious minorities generally receive no Fourteenth Amendment protection as such, but rather press claims under the First Amendment (as applied to the states through the Fourteenth).
The point being, suspect classes are judicially determined. One criterion for determining whether a class of persons meets this requirement has been whether the class has been unable to seek recourse through the majoritarian political system due to special disabilities or historical disadvantages. That, presumably, was the Maryland court's point in adducing evidence of gay rights advocates' successes in influencing state policy in the legislative arena. I took JDB's point to be under this logic, the "traditional" suspect classes might no longer receive automatic strict scrutiny for laws affecting them because most of these classes have, in modern times, established a certain amount of political influence.
Yes. Justices Miller,Clifford, Strong, Hunt, and Davis, to the sorrow and regret of New Orleans' white butchers.
Is getting gay marriage through judicial fiat 10 years earlier than you could get it legislatively really worth it?
It's refreshing to read an anti-libertarian viewpoint on vc; someone who believes his rights are doled out to him by the state.
If you want to change the definition, do so in the legislatures.
Now, if we can only get a federal decision delegitimizing SSM nationwide, and then get Roe v. Wade overturned, we could actually return to some kind of constitutional order.
That has really made me wake up to my own homophobic bigotry.
In all serious, anazed, if you consider it bigotry for a person to be grateful that same-sex marriage was not imposed on an unwilling public through judicial fiat, I'm not so sure you know the meaning of the word.
don't have a discussion of relevant issues. don't offer intelligent (or even unintelligent) counterarguments. accuse somebody of BIGOTRY.
see: Affirmative Action, Hate Crime Laws, etc. etc. etc.
For this to be rational, one would have to believe that there are same-sex couples who, if they are prevented from marrying, will break up, marry members of the opposite sex, and have children. Or that there are unattached people who, if gay marriage were permitted, would date members of the same sex in search of a marriage partner, but, if gay marriage is not permitted, will date members of the opposite sex in search of a marriage partner. Or is there really a rational basis to believe that banning same-sex marriage furthers procreation? Can anybody think of one?
whit,
Rightist tactic #234. Act arrogant and claim the country is SAVED from the (insert anyone wanting equal rights).
oh no
What if the public was totally willing to allow same-sex marriage? Would you still complaing about the 'judicial fiat'?
That one is actually a distinct possibility. You may be forgetting this but there are plenty of people who fit into the bisexual category. I've known people who were attracted to both genders but ultimately decided once they were in their 20s that they would only date those of the opposite gender because they wanted a family and kids. If the actual birth is not at issue then they could easily date those of both genders.
This of course presumes that such people are a significant portion of the population, which is a questional supposition.
There are a number of benefits that the state confers onto married couples - tax benefits, death benefits, the right not to have to testify against your spouse, things of that nature.
It is not the banning of same-sex marriage that encourages procreation, it is the benefits confered on the status of "marriage". And because the state provides these benefits to encourage procreation, the state has no responsibility (rationally) to provide them to couples that are incapable of procreation.
That, I assume, is the basic argument. Remember, this isn't just Same-sex couples arguing that they want to say they're married - they want all the same rights, priviledges, and benefits of that legal status. (They admit this quite frankly)
Part of the opinion actually states something different:
The "state interest" is not to encourage procreation, but to provide benefits to relationships that will result in procreation, intended, or more importantly, not. When same-sex couples can have unwanted pregnancies, we can look at this issue again.
DC: Actually, the court describes the state’s interest in procreation with several different verbal formulations, all of which involve encouraging procreation. At one point, it is described as simply an interesting in “fostering procreation.” (p. 98) At another, it is an interest in “fostering a stable environment for procreation.” (p. 99) At another, it is “fostering optimal relationships for procreation.” (p. 100) All of these link to the undisputed idea that, as the court puts it, procreation is essential to the “continuance of the human race.” What’s contested is whether this restriction is rationally related to that interest. The court never quite gets around to responding to the gay couples’ argument that heterosexuals will continue to procreate after gay couples begin marrying – except to say that generally it must defer to the state’s judgment on rational basis review.
Um, isn't abortion the quintessential "controversial social issue"? Isn't the pro-choice position that of "the left"?
How much do you actually know about the California Supreme Court?
Tony, as someone who has debated for many years with a pro-choice view here is the rejoinder routinely thrown back at me.
The State has the right to take away your freedom to commit murder. (we Libertarians agree- a legitimate government function is to prevent force or fraud). Abortion is murder therefore your right to murder someone is indeed up to the State to dole out.
Although I personally don't agree with that logic many Libertarians do and it is my understanding that abortion is one of the few controversial subjects that even Cato won't issue a definitive viewpoint.
A federal decision delegitimizing same-sex marriage would represent naked judicial activism of the type that most judges inclined to delegimitize same-sex marriage have been griping about for some time.
That said, it is nice to see the Maryland court do their job and not let their preferences drive them. I'm strongly in favor of same-sex marriage, but it's difficult to straight-facedly read it into a state constitution and it's much better for the long-term legitimacy of both same-sex marriage and the judiciary, and for the health of the country, if such decisions are made through proper legislative means.
Right, because that's the right response. Otherwise the court is essentially monitoring the legislature's behavior on a continuing or roving basis rather than adjudicating the legitimacy of the legislative act at the first instance. It seems the gay couples' argument violates separation of powers principles. I do not mean this facetiously.
DC: That’s not quite right, either. Rational basis review does not simply ask about “the legitimacy of the legislative act” in some procedural sense. It has a substantive dimension, asking whether the end sought by the legislature is legitimate and whether the means used are rationally related to that end. It is deferential, to be sure, but not complete abdication of substantive review.
How would that look, exactly, marrying 'who you like' when you're not allowed to marry who you like?
Indeed, putting aside all the legal hairsplitting, what are gays and lesbians supposed to do? If you had a gay or lesbian friend, still prohibited in this day and age from living a full and complete life with the person that he or she loves, what would you propose for them? What would your advice to them look like, exactly?
Uh, wouldn't the point be that if the public was willing to allow it, the legislatures would pass laws. No judicial fiat would be needed. Hey, that sounds a lot like democracy.
Valuabe time and resources have been wasted trying to get SSM approved through the courts rather than through hearts and minds. Do we really need decades of fights like the abortion nonsense?
I always comment to you that I believe legislative recognition will come one day. I always get the retort that it won't be fast enough, etc, and so on. And that is likely true. However, at least it'll be legitimate. Problem is that many older people still have the wrong image of homosexuals, and they are still a huge voting bloc. My parents are in their 50's and I don't recall them ever knowing anyone who was a homosexual. However, my life experience has been much different than their, and thus my views are too.
And remember this Professor, it isn't the publicity hogs who get divorced as soon as the reporters go home who will convince people. It'll be the quite couples, like my law school classmate and her partner, who will change heats and minds.
Uh, not really. The California legislature has passed -- twice -- legislation that would allow SSM. The first time it was vetoed by the Governator. We are still waiting this second time around.
Yet, that didn't satisfy the anti-gay crowd. They are complaining because democracy was followed, and that only a direct vote of the people via a referendum would be valid on this issue. Of course, if such a referendum actually passed in favor of SSM, they would still find something to complain about.
It isnt' about democracy -- it's about stopping gays from getting married. Why, I don't know. They never explain it. Except for some silly nonsense that if gays get married, heteros will stop having children.
They waited a long time to issue the decision. I guess after the Larry Craig incident, they figured they better put a stop to all that gay sex in the bathrooms, and what better way to do that then halt SSM?
(If you sense the illogic in that last sentence, then you probably sense it in the majority opinion).
Last I heard, the Governor is elected. His veto is part of the democratic process. That veto can be overridden. It has not been. Again, part of the democratic process.
It's called civics, Randy. Google is always out there if you need help with basic civics.
As to a referendum, we've had it already in California. Shockingly enough, SSM lost that vote. The only talk I've heard relating to another ballot initiative/referendum is if the California Supreme Court overturns that previous proposition.
Frankly, in California enough straights live among or work with gay couples it would just take a little gay BLT outreach to make the case that the state should recognize their relationship. It's easy to vote against gay marriage in the abstract; harder to vote to keep your neighbors Bill and Phil from tying the knot.
How would that look, exactly, that "little gay BLT outreach"?
My advice would be "Live a full and complete life with the person you love." Hell I'd suggest they get married if they want to and if they can find a religious official to perform the ceremony. Society at large won't accept the relationship as legitimate, but that shouldn't be anything new.
What's your advice when one partner is a U.S. citizen, and the other isn't?
"Live a full and complete life on the opposite side of the ocean from the person you love, knowing the whole time that if you had been an opposite-sex couple in the same situation, your partner could marry you and you could live together instead"?
Doesn't have the same ring to it.
That doesn't have the same ring to it either.
It only prohibits recognition of SSM's from other states, it doesn't prohibit California from enacting its own SSM.
SECTION 2. Section 308.5 is added to the Family Code, to read:
308.5. Only marriage between a man and a woman is valid or recognized in California."
That's the ballot initiative that was voted on as far as I can tell. (Proposition 22, right?) I think you're going to have to back up the claim that that only prohibits recognition of out-of-state SSMs. It seems pretty clear to me. Got a citation to any drafting history or the like? Maybe even an editorial or opinion piece from around that time that implies the initiative only applied to other states? This is the first time I've heard that argument.
"308. A marriage contracted outside this state that would be valid
by the laws of the jurisdiction in which the marriage was contracted
is valid in this state."
The referendum didn't change section 300, which states:
"300. Marriage is a personal relation arising out of a civil
contract between a man and a woman, to which the consent of the
parties capable of making that contract is necessary."
In other words, the argument runs that 308.5 qualified 308 by providing that out of state SSM's were not valid in California but the legislature is still free to amend section 300 from "between a man and a woman" to "two people" and thereby provide for SSM in California.
The ballot initiative was also sold on the basis that it was necessary to prevent SSM's from getting into California from Massachusetts via the full faith and credit clause. That's always been a bogus argument but that's how it was sold.
it's really nice to know what you "sense", anazed.
but provide facts, evidence, etc.
what was said that was "bigoted?"
or is name calling your sole schtick?
Nope. The public supports by huge margins protecting gay people from discrimination in employment but Congress still hasn't added it to Title VII.
Conversely, hardly anyone supported enacting the Terry Schiavo law, but Congress still did it.
Getting laws passed (or stopping them from getting passed) is not just a matter of how that issue is polling on any given day.
Thank you for displaying your ignorance here. I ate a sandwich while reading you, and had a good laugh.
If queer couples in America could live a "full and complete life" without the benefit of any legal protections, then you're arguing the value of marriage is zip. Lots of heterosexual couples even would disagree with that -- are you a law student still to get out in the world and establish relationships and legal documents to protect your property? I suspect you'll get it then.
But thanks again for sharing your thoughts.
Enjoy your special protections as a heterosexual.
I'm certain the relief some of you display in this thread is akin to the whites who breathed a sigh of relief that their special protections were still intact, and they were arbitrarily awarded a higher place in society based on personal characteristics.
Just don't get too soft in life because of your special rights. We've seen that happen too when there's special treatment for some segments of the population, no?
A federal decision delegitimizing same-sex marriage would represent naked judicial activism of the type that most judges inclined to delegimitize same-sex marriage have been griping about for some time.
I know. I was kidding. Would it would a nice payback, don't you think? I was less offended by the subject of same-sex marriage as the attempt to (1) claim the mantle of civil rights, which is/was deeply offensive to me and to anyone who's suffered genuine civil rights abuses, and (2) the use of the courts to impose a radical departure from the very nature of marriage somehow "the right answer." But no, I wouldn't be in favor of the U.S. Supreme Court deciding the issue in my favor.
As they say, if you want something, just ask. We can hash it out in the legislatures. If 2.5% of our population wants some social space to create a new kind of contract (e.g., civil unions), perhaps we can figure out a way to do that, and address the other objections (e.g., non-homosexuals using civil unions, etc).
But screaming bigotry and saying that somehow natural law (the source of all our rights) supports same-sex marriage is silly and ridiculous. However, the idea that a minority of our population wants some kind of exception so they can order their affairs a little better -- that's a reasonable request, and something we as adults can work on together. I wouldn't necessarily be in favor of civil unions, but I won't necessarily be against them. It would depend on the legislation.
MME said:
If you had a gay or lesbian friend, still prohibited in this day and age from living a full and complete life with the person that he or she loves, what would you propose for them? What would your advice to them look like, exactly?
First of all, I have homosexual friends. They have a diversity of opinions. One is an older gentleman who thinks the same-sex marriage debate is ridiculous, and thinks the younger generation is quite foolish for making demands about changing the definition of marriage. But he's old enough to know what marriage is, and isn't.
As far as a "full and complete life," that's a philosophical question, and a pretty big one. While marriage can be part of a full and complete life, it's not necessary. Many of the saints had full and complete lives, and weren't married. If someone really wants a full and complete life, I'd suggest the only true satisfaction they'd find is in God. Because of the universal trait of concupiscence, approaching God requires repentance. So I'd suggest that a full and complete life requires homosexuals and heterosexuals alike to repent of their sins, including sexual lust in all its forms. But hey, I'm Catholic, and if you really look into the sexual moral teaching of the Church, you'll find that virtually everyone has a lot of work to do. And that our culture, heterosexual and homosexual, is seriously out of balance.
In other words, MME, you're coming at the very question of the nature of man, the purpose of life, and the good life from a very different angle. The question itself has assumptions that I don't remotely agree with. So it's probably too big a question for this thread.
Cheers.
(1) claim the mantle of civil rights, which is/was deeply offensive to me and to anyone who's suffered genuine civil rights abuses
</blockquote>
those damn jews thinking they are so special and so mistreated through out the bowels of history. Native Americans had it easy compared to them, at least the Native Americans weren't rounded up in camps and killed. Same thing for the Japs, the Blacks, the Chinese, the Irish, the Pols, the Russians, the Catholics, the Wiccans, the Gays, the Palenstians...
(sarcasm off)
Almost every group has suffered hardship through out history. Every group thinks there violations are "unique." Yes they are unique in the fact they all face hardship in completely different circumstances. <b>Comparing one group to another is not saying the pain inflicted in the past is somehow <i>equal</i> it is saying the pain is somehow <i>similar.</i></b>
These groups also seem to possess the living generational memory of suffering which helps them to empathize with people who also have suffered even if they have suffered in a completely different way under different circumstances. These groups and far more (note the elippses) have in more common than they realize. All humans have more in common than they realize
IB Bill I recommend you read The Church and the Homosexual (Paperback) by John J. McNeill. A roman catholic priest. Only god can now god, all men don't understand god, To know god you don't understand him, no to know god you have to know yourself, and that includes looking at yourself harshly with a naked eye and challenging your beliefs. Catholics understand that doubt is not something to be feared but instead embraced. We celebrate it in the mysteries.
those damn jews thinking they are so special and so mistreated through out the bowels of history. Native Americans had it easy compared to them, at least the Native Americans weren't rounded up in camps and killed. Same thing for the Japs, the Blacks, the Chinese, the Irish, the Pols, the Russians, the Catholics, the Wiccans, the Gays, the Palenstians...
(sarcasm off)
Almost every group has suffered hardship through out history. Every group thinks there violations are "unique." Yes they are unique in the fact they all face hardship in completely different circumstances. Comparing one group to another is not saying the pain inflicted in the past is somehow equal it is saying the pain is somehow similar.
These groups also seem to possess the living generational memory of suffering which helps them to empathize with people who also have suffered even if they have suffered in a completely different way under different circumstances. These groups and far more (note the elippses) have in more common than they realize. All humans have more in common than they realize
IB Bill I recommend you read The Church and the Homosexual (Paperback) by John J. McNeill. A roman catholic priest. Only god can now god, all men don't understand god, To know god you don't understand him, no to know god you have to know yourself, and that includes looking at yourself harshly with a naked eye and challenging your beliefs. Catholics understand that doubt is not something to be feared but instead embraced. We celebrate it in the mysteries.
I never argued that the Governor isn't elected. You had said that gay rights should come from the legislature, not the judges. My example was to show that we have an instance in CA of gay rights coming from the legislature, but the anti-gay people aren't happy with that -- they demand that a referundum be taken, because the legislature isn't, to them, really democracy on this issue.
in other words, no matter how gay rights are enacted, there are people who hate the fact that gays can get married and will find an excuse to find them invalid.
Fact is: about two-thirds of Americans believe that gays should either have the right to marriage or civil union. And that number is growing all the time. But some people find that quite threatening, as we often see here.
In any case, one of the real issues here is that of children, or, in particular, what happens to them in the case of a divorce. Right now, pretty much every birth certificate I have ever seen has a space for the father and one for the mother. Most often, the listed parents are the biological parents, and courts use such a listing of parents on a birth certificate as strong indicia of parenthood when assessing child support.
Problems arise though when you talk SSM since it is biologically impossible for the two partners to both be the biological parents of any kids they have together. Rather, one or the other, or in many of the cases I know, neither, are biological parents. So, what happens when a gay couple breaks up who were raising kids together? Who do the courts go to for child support? Right now, it is easy - whether genetic or not, chidren only really belong to one member of a gay relationship, and so the other member is free and clear of child support obligations (but not visitation rights). Would SSM require that both gay partners be subject to child support? Even if the nonbiological parent didn't formally adopt the children?
This reminds me of a series of Day by Day comic strips where Sam (short for Samantha) was served in a paternity suit. She was able to get the case dismissed by flashing her breasts to the judge, thus (supposedly) proving that she could not be the father of the kid in whose name the suit had been brought. Now, it would be obvious, as she is visibly pregnant, with her new husband Zed having been called up and sent to Iraq.
My point though is that the legally implied paternity and other safeguards for the beneifit of children have to be rethought and reengineered if SSM is going to work. Right now, it is fairly easy - courts can get away with conveniently assuming that both paries to marriage are the real parents of a kid. It is not so simple when that is a physical impossibility.
I do wonder though whether this is a real reason for courts to oppose SSM, or whether they are running out of reasons.
4-3 is a close vote period. Brian might want to read a book about Brown vs. Board of Education, a noted case where a court did give new rights. The Supreme Court saw the necessity in such cases of having a clear majority.
On the practical side, given that Erhlich, the previous MD governor was a Republican, opposed to gay marriage, and the current governor, O'Malley is a Democrat and in favor, the probability of the vote changing some time in the near future is not low.
Sorry Brian, you are not entitled to your own facts.
What facts have I "made up?"
Also, a 7-0 majority either way would not have made the Maryland decision any more legitimate. The people through the legislature, not the judiciary, need to approve SSM, and they will someday, I am sure of it.
This morning, the Maryland Supreme Court upheld the state statute which defines marriage as a union between a man and a woman in a 4-3 decision.
The court found that 1) the statue does not discriminate on the basis of gender 2) that sexual orientation is neither a suspect or quasi-suspect class, whereby discriminatory laws require a higher scrutiny 3) that there is no fundamental right to marry a person of the same sex and 4) that the statute in question is related to a legitimate state objective, that is, upholding traditional marriage.
I’m not familiar with the intricacies of the Maryland constitution, but I’m going to offer some thoughts on point 3 it relates to the United States constitution (and maybe some of the others in future posts, time permitting).
The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.
Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.
The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.
Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.
Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.
The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.
Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.
All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.
In no way was I describing rational-basis review as a simple procedural evaluation of "the legitimacy of a legislative act" -- thereby excluding the fit of means to ends. But the substantive evaluation of means to ends places the burden on the challenger to a law precisely because the legislature is deemed competent and to act in good faith and because the court is in the posture of reviewing retrospectively in the context of an adjudication a specific fault by the legislature -- namely, that there could not have been a conceivable or hypothetical rationale for the law at the time it was passed. The court is not stepping in to answer abstract, advisory questions, or to pass general and prospective rules, as a legislature promulgating new laws would, or to assume bad faith and dictate to the legislature what to do. Indeed, Goodridge, the only authentic victory for gay marriage advocates, occurred in a state whose constitution does not bar advisory questions. Your characterization of the court's behavior is that of indifference to the substance of the litigants' claims, but the real issue is the litigants are asking for the courts to violate their own state constitutions by encroaching on the core powers of the state legislature. That is not only a defensible justification of the court's opinion; it is the primary purpose of rational-basis review, which places the burden on the challenger precisely for seperation of powers and popular sovereignty reasons.
Unless Maryland prohibits post-menopausal women from marrying, then in fact the legislature has granted recognition to relationships not capable of bearing children. So, how does this inequal treatment of heterosexual couples biologically incapable of bearing children vs. same-sex couples survive even a rational-basis review?
When I read what Brian wrote I thought back to the 5-4 Affirmative Action votes under O'Connor and my personal dismay. The response I received in discussions was my least favorite phrase in the world "And its the law!!". The closeness of the final vote didn't matter, only the majority did.
As someone else wrote I too read of that case. If my memory is correct the judge ruled that it was too late for the "husband/non paternal father" to stop paying support. Even though he didn't know the facts at birth.
Rational-basis review permits under and overinclusiveness. The more interesting question would be if the legislature chose to prohibit the infertile and elderly from marrying, would that too be constitutional?
If two-thirds of the population support same-sex marriage or civil unions, by all means put an initiative on the California ballot. The same legislature that tried the end-run can put it on the ballot; no petitions need to be circulated. I will proudly vote in favor of SSM.
I'd suggest anyone who really wants to advance the SSM cause campaign for legislatively enacted civil unions.
An initiative can't be overturned by the legislature, but the legislature could still revise section 300 to define a marriage however it wants without overturning the initiative, couldn't it?
This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution.
This initiative measure adds a section to the Family Code; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.
PROPOSED LAW
SECTION 1. This act may be cited as the "California Defense of Marriage Act."
SECTION 2. Section 308.5 is added to the Family Code, to read:
308.5. Only marriage between a man and a woman is valid or recognized in California.
Rebuttal to Argument in Favor of Proposition 22
Arguments on this page are the opinions of the authors and have not been checked for accuracy by any official agency.
THE HIDDEN AGENDA
The proponents of Proposition 22 want you to think that it is simple. That there is no "hidden agenda".
But if it's so simple, why are they spending millions of dollars to put this measure on the ballot and convince you to vote for something they say is "common sense"? Why are they spending millions of dollars to convince you to vote for something that is already law in California?
...
A SOLUTION IN SEARCH OF A PROBLEM
You don't need to support marriage for lesbian and gay couples to oppose Proposition 22. As the proponents of Prop 22 admit, "California law already says only a man and a woman may marry." That won't change if Proposition 22 passes. Proposition 22 is just another needless law that allows government to interfere with our personal lives.
MARRIAGE MATTERS
Of course marriage matters. But so do fairness and tolerance. Proposition 22 will do nothing to strengthen our families, our communities, or to strengthen the commitment of couples involved in marriage. It will only divide California.
GIL GARCETTI
District Attorney, County of Los Angeles
DELAINE EASTIN
California State Superintendent of Public Instruction
Argument Against Proposition 22
THE RIGHT REVEREND WILLIAM E. SWING
Bishop of the Episcopal Diocese of California
The California Interfaith Alliance
The League of Women Voters of California
The California Teachers Association
Senator Dianne Feinstein
Senator Barbara Boxer
Congressman Tom Campbell
Vice President Al Gore
Senator Bill Bradley
The California Republican League
And thousands of husbands, wives, mothers and fathers from across California oppose Proposition 22.
THE PURPOSE OF PROPOSITION 22 IS NOT TO BAN MARRIAGE FOR SAME-SEX COUPLES IN CALIFORNIA. IT IS ALREADY BANNED.
You don't need to support marriage for gay and lesbian couples to oppose Proposition 22, the "Knight Initiative". You just have to believe in a few basic values--keeping government out of our personal lives, respecting each other's privacy, and not singling out one group for discrimination or for special rights.
VOTING NO ON 22 WILL NOT LEGALIZE SAME-SEX MARRIAGE, NO MATTER WHAT THE SUPPORTERS OF PROPOSITION 22 SAY.
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PROPOSITION 22 DIVIDES US. Californians have seen too many efforts in recent years to pick on specific groups of people and single them out for discrimination. Supporters of Proposition 22 are spending millions of dollars to convince you that basic rights should be denied to a group of Californians. They want us to believe that attacking same-gender couples will solve problems instead of causing them. But we've seen what spreading fear and hatred has already done. According to the Attorney General, more than 2,000 Californians were victimized by hate crimes last year alone. California has had enough of the politics of fear and hate. Voting "No" on 22 will send that message.
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Proposition 22 doesn't solve any problems . . .
It adds more government interference to our lives . . .
It singles out one group for attack . . .
It tears us apart instead of bringing us together.
VOTE NO ON 22.
Antonio R. Villaraigosa
Assembly Speaker, California State Legislature
The Right Reverend William E. Swing
Bishop of the Episcopal Diocese of California
Krys Wulff
President, American Association of University Women, California
It seems as if Cornellian is absolutely right that Prop 22 did not alter Section 300 at all. Therefore, the legislature could actually revise section 300 WITHOUT overturning the ballot measure. Marriage in CA could be defined however the legislature wants, but only marriages between a man and a woman from other states are entitled to recognition. The law might not seem like it makes much sense, but that doesn't mean it would be unconstitutional.
Of course, an activist CA SupCt would have to throw out 308.5, to uphold a legislative change to 300, on the theory that if the Leg, Exec, and Jud all agree, in our representative democracy it over-rides the people.
It's been done before, the Courts tossing an initiative. This time, it would be a stretch, since 308.5 has already survived challenges. The CA SupCt may be so emboldened, since if they do uphold a Legis SSM change to 300, and invalidate 308.5, what can the people do about it? Nothing. The traditional marriage types would have to start the initiative process all over again. This time locking down both 300 and 308, a harder sell.
Pretty darn sneaky of those majority nuclear family heteros. Voting to limit the securing of a right, so that it won't be expanded until after the cultural change has occurred. Effectively preventing the government from attempting to mandate and force a cultural change on a public that doesn't yet accept it.
BTW, is that an enumerated government power, picking winner and loser cultural changes? You know, powers like DMV, parks, police, etc. I reckon that most politicians, their lobbyists, and the various special interest groups that orbit, are all particularly unsuited for determining in advance what is and is not a desirable cultural change: since their interests are parochial and narrow.
300: Marriage is a personal relation arising out of a civil
contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary
308.5: Only marriage between a man and a woman is valid or recognized in California.
paraphrasing, I believe correctly,
300: marriage is x
308.5: only x is valid in CA
Change one for ssm and not the other, and it creates a plain language inconsistency. When 308.5 was added, it was consistent with 300, so it withstood legal challenges.
Laws that overlap and are inconsistent create legal confusion (note: inconsistent, not contradict). Appeal Courts attempt to resolve the inconsistency, by either providing interpretation guidance, or invalidating one of the laws.
As for why they have to be the same, an example. A State could recognize immigrant polyamory marriages, but refuse to issue marriage contracts for in-state polyamorous weddings. I doubt that would last very long after the Courts got a hold of it.
The two laws would not contradict eachother directly if section 300 was changed by the legislature. Each could be enforced without affecting the other.
I think I've repeated this in about 3 posts now asking someone to respond to it... this is the last time. Promise. If I'm wrong, please explain why it would be UNCONSTIUTIONAL.
I'd agree it's not the most coherent law on its face but it's not completely absurd that a state might want to avoid recognizing same sex marriages created elsewhere until it is ready to create them itself.
If 300 was amended to recognize SSM, but out-of-state SSM was left unrecognized, then SSM immigrants to CA would have to first have a CA marriage license before their rights would be secured. A trivial matter for immigrants, but it creates legal uncertainty for visitors, and it would allow out-of-state, non-CA-licensed SSM spouses to be discrimminated against without legal recourse while they are in CA.
Whereas, under current law, in-state/out-of-state mono-hetero marriage is always recognized; and for all other betrothal arrangements, the law doesn't secure any marriage rights.
So mono-heteros are a protected class. I may be out of my depth here, but I do believe protected classes are constitutional. They seem to be subject to various legal analysis, e.g. "rational basis", "strict scrutiny". People who benefit from affirmative action are another example of a protected class.
It would seem that a change to 300 only would allow discrimmination that runs afoul of the 14th Amdt. And at this point I defer to practitioners of 14 Amdt ConLaw for the specifics of why this may be so.
Analysis by the Legislative Analyst
Background
Under current California law, "marriage" is based on a civil contract between a man and a woman. Current law also provides that a legal marriage that took place outside of California is generally considered valid in California. No state in the nation currently recognizes a civil contract or any other relationship between two people of the same sex as a marriage.
Proposal
This measure provides that only marriage between a man and a woman is valid or recognized in California.
So, until this initiative is overturned, no same sex marriages, even if authorized by the legislature, will be valid or recognized in California.
As I understand it, the traditional method for the Courts to reconcile the conflict is to find an interpretation based on existing law, precedence, and precedents, that allows the two to coexist, at least in some circumstances, and enumerate those circumstances. Failing that, one of the laws get rejected. That's sort of a last resort, Courts don't like over-ruling the Legis.
Of course, that could be one of the loophole methods the Legis uses to overturn an initiative provision. As they are trying to do in CA right now. Create a statutory conflict, and hope the Courts rule their way.
The content of the Massachusetts high court's pro-SSM opinions (both the Goodridge case itself and the advisory opinion) are farcical.
The Maryland high court's decision is the latest to demonstrate Justice Marshall et al to have been reckless and deserving of impeachment.
Her opinion studiously disregarded the 800 lb Gorilla in the courtroom.
Responsible Procreation
Gay marriage litigation -- even where it's lost -- has helped lead to LEGISLATIVE increased partnership rights in other states, like Connecticut, New Hampshire, Washington State, Oregon, California, Hawaii .... This is cuz litigation forces the topic into the public debate in a huge way (which legislative efforts have totally failed to do). It puts the issue on center stage, which in the long term will only benefit gay rights. Plus, thanks to the marriage litigation, civil unions are now a "moderate" position. Before the litigation, those unions were considered just as radical.
The litigation has been hugely succesful in transforming the public debate and bringing us close to a day of full equality.
(And yeah, sure, most days now have DOMAs, so litigation has its backlash too, but those DOMA states were going to take years and years to recognize equal marriage rights anyway...and some day, in the distant future, they will. The litigation won't be to blame for the delay.).