California Supreme Court hears gay marriage case:
Today the California Supreme Court heard oral argument in In re Marriage Cases, involving a challenge under the state constitution to the state's exclusion of same-sex couples from marriage. A video of the three-hour oral argument can be found here. The briefs in the cases, including the numerous amici, can be found here. A decision is expected within three months.
I have not yet had a chance to watch the oral argument, but I'd be interested in the impressions of those who have watched it.
UPDATE: I've closed comments so that the discussion can move to the new post on the subject.
Related Posts (on one page):
- Observations on oral argument in the California marriage case:
- California Supreme Court hears gay marriage case:
(For example, it it's rational basis review, as under federal constitutional precedent, then the State presumably wins. But if it's strict scrutiny, then the challengers presumably win).
Do prior California state constitutional decisions address that?
In cases like the 1979 Gay Law Students case, the California courts interpreted the state constitution as providing more protection from sexual-orientation discrimination than the federal constitution.
But I don't know if they said anything about levels of scrutiny.
Actually, even that isn't clear. The only evidence they submit is that he refrains from any gay sex -- doesn't say that he is a happy hetero.
The good news is that all amicus briefs I read refrain from any anti-gay statements. (The closest I saw came from the African-American Pastors Brief, where they argued that if the court grants SSM, the pastors will be prevented from discussing the morality of Bible-based sexuality.) I think that because Plaintiff's raise the issue that people who are against SSM exhibit an animus towards gay people prevents anyone from bashing gays and thereby proving their point.
Other than that, all the same arguements that have been hashed and thrashed about on the VC are there.
Much like the Catholic Church is prevented from discussing the morality of divorce.
If it's not genetic, than perhaps the analogy is to religion. We choose our religions, and yet any discrimination based upon religion is subject to strict scrutiny.
"Statutes that only allow heterosexual couples to marry discriminate against homosexuals, sure, but only because homosexuals, by definition, are people who desire to break those laws."
Or, to put it another way, statutes that only allow people of the same race to marry discriminate against interracial couples, but only because interracial couples, are by definiation, people who desire to break those laws.
Yet, in the US, we already have one state, Massachusetts, that has allowed SSM for several years. If there were any evidence of SSM having destroyed traditional marriage, one would think that they would discuss it in their briefs. But they offered up none. I guess that so far, at least, traditional marriage is still practiced and legal, even in Boston.
The problem for an empirically minded SSM opponent is that comparing Massachusetts to any "traditional values" state will show Massachusetts doing better on virtually any scale of marriage measurement, whether divorce rate, births out of wedlock or something else. But then, "empirically minded SSM opponent" is so rare as to be virtually non-existent.
That alleged nexus has always puzzled me. Let's assume arguendo that a hypothetical marriage between persons of the same sex does indeed weaken a corresponding marriage between persons of opposite sex. If so, is it really a bad thing for those heterosexuals, whose commitment to the institution of marriage is so tenuous that it cannot withstand the onslaught posed by same sex couples' unions, to simply remain single? It seems to me that culling the potentially marriageable population in that manner would strengthen the institution of marriage rather than weaken it, in much the same manner that natural selection culls the weak and infirm from the herd.
If I may be indulged a personal take on this, since I became widowed at the age of 50 year before last, I have given considerable thought to what characteristics to look for in a prospective spouse. If a woman is so impressionable, meddlesome or emotionally feeble that another couple's genital structures or proclivities matter that much to her, she damn sure doesn't strike me as being wife and/or mother material.
There just aren't that many couples who will ever take advantage of it, even in jurisdictions where it is legal, given the small fraction of the public who are gay or lesbian.
What I never understand is the unstated assumption that that isn't a desirable state of affairs. Or rather, the non-response to the implicit claim that razing and reconstituting marriage and changing the bedrock of society and society itself in this manner will be an improvement to society.
Basically, Massachusetts is full of Catholics and highly-educated people, both of whom have lower than average divorce rates.
The Massachusetts Supreme Court has done everything it can to promote divorce, by encouraging the dependent spouse (who usually is the one filing for divorce; for interrelated reasons, it's usually also the wife, not the husband, who files for divorce, typically a no-fault divorce) to do so by making life miserable for breadwinner spouses.
But largely to no avail. The state's pro-divorce judiciary's efforts to foment divorce have been swamped by the state's demographics, which powerfully militate against a high divorce rate, no matter how hard the state supreme court tries to encourage it.
The state judiciary's hostile attitude towards marriage probably discourages wealthy spouses (especially husbands) from entering to marriages in the first place, but it hasn't done much to increase divorce rates (as opposed to pushing down the marriage rate) among those who are already married.
The only voice speaking for the citizens who enacted Proposition 22 is the Proposition 22 Defense Fund, and they spend most of their brief arguing that they have standing.
"I divorce you, I divorce you, I divorce you" is pretty close to no-fault. I would say that adding a group of couples who are infertile despite being young, healthy, and sexually active represents a bigger change in the institution of marriage.
Homosexuality is an orientation that has as much to do with pair-bonding, as it does with sex. With whom one settles (i.e., your husband or wife) is so important to most folks that it is the opposite of "trivial." And it's not exactly "behavioral" unless a husband and wife would view their relationship as "behavioral."
"It's not analogous to race or gender or age at all."
Age is not analogous to race or gender. (Think about it; it's not immutable but in a constant state of flux). And Race and gender themselves aren't perfect analogies either. Randy is right; whatever the chosen elements of "sexual orientation," religion is far more of a mutable choice. And we protect religion precisely because such is so important to folks. Likewise, your soul mate ranks up there in importance with your religious faith.
If you look at what's currently on the list (race, color, ethnic origin, religion, gender, pregnancy, age, &disability) there is no logical reason for keeping "sexual orientation" off the list. There is nothing meaningful that connect each of those currently on the list that distinguishes from "sexual orientation."
Who represents the will of the people? Or do special interests rule everything in today's government?
"The Massachusetts Supreme Court has done everything it can to promote divorce, by encouraging the dependent spouse (who usually is the one filing for divorce; for interrelated reasons, it's usually also the wife, not the husband, who files for divorce, typically a no-fault divorce) to do so by making life miserable for breadwinner spouses."
No.
Last time I looked, most domestic relations law in Massachusetts, as in most other states, was a creature of statute. Those naughty elected legislators, not those evil activist judges, instituted no-fault, and wrote the current MA domestic relations statute which permits alimony; a comparison with the state of alimony law in Texas, until recently, for instance, is instructive.
The evoked visual image, however, is too good to pass up; a bunch of old guys in black robes deciding, instead of spending the day hearing criminal appeals and boring old contract cases, to hike up their hems and break up some homes. . .
r gould-saltman
I believe in the ling run your position will be better served if the Court rules against the proponents and waits for the day it is approved by the voters. A day that will come sooner or later, as it should.
And that is true of lower state courts as well: there is an enormous gender bias in how alimony is awarded in Massachusetts courts, despite the gender-blind language of the state's alimony laws.
True, there are some pro-divorce provisions of Massachusetts law that are expressly written into law, not judge-made.
(That may be be true of the statutory provisions for attorneys fees, for example, which the SJC has stretched even further to benefit dependent spouses over breadwinner spouses by awarding fees to the dependent spouse even when that spouse loses a motion, rewarding dependent spouses for bringing unnecessary litigation).
But others are directly attributable to the SJC itself, or the product of its urgings (it pushed the ridiculously excessive child support guidelines, which make a middle-class father pay one-fourth of his gross income -- and more than one-third of his after-tax income -- for just one child in child support).
Sorry plaintiffs, I know you have an argument you want to make about how it really is a constitutional issue, but there's no need to make it, we've already pre-decided that it's not a constitutional issue, no need for argument, let alone evidence.
Yours truly,
Cal Supreme Court
So nothing the court does affects the stability of marriage, but a court decision in favor of SSM will nevertheless affect the stability of marriage?
indeed, none of the briefs that I read express any underlying reason for this assumption, that marriage is critical to the survival of our culture. They just take it as so obvious that it needs no explanation.
Regarding The People's Will: Prop. 22 merely barred California from recognizing SSM's from another state. It didn't prohibit it within CA. Additionally, the state legislature (you know, that body that *represents* the People) twice voted to recognize SSM. It was twice vetoed by the governor, who said it is up to the courts to decide.
So what is The People's Will again? Are they in favor of SSM? Or are they in favor of the court's deciding the matter? The People haven't suggested any other options.
Two things wrong with that view. First, Prop. 22 does not distinguish between in-state marriages and out-of-state marriages. Only marriage between a man and a woman is valid or recognized in California. Second, the Prop. 22 opponents, including Sen. Feinstein, argued that Prop. 22 was unnecessary, because same-sex marriage was already prohibited in California. In fact, the Legislature had passed such a provision as recently as 1977. Enacting statutes that merely add, "And we mean it!" being disfavored in America, Prop. 22 thus was enacted to eliminate any possibility of same-sex marriage being valid or recognized in California.
the state legislature (you know, that body that *represents* the People) twice voted to recognize SSM.
Any student of the Progressive movement in American politics would recognize that citizens amended their constitutions to include the Initiative, the Referendum, and the Recall because their state Legislatures were in thrall to the special interests. Formerly, special interests were the railroads, the banks, and the Oil Trust; now they are chiefly public employee unions.
It was twice vetoed by the governor, who said it is up to the courts to decide.
The Governator said Prop. 22 was up to the courts to decide. Apparently the Cal. Supreme Ct., is not going to rule on the constitutionality of Prop. 22.
How can anyone amend a statute so that it remains unchanged? Go ahead. Draft an amendment to section 300 saying that it means what it says. The will of the voter is clear: no same-sex marriages will be valid or recognized in California. No one can make a straight-faced argument that voters believed marriages contracted in Massachusetts are taboo while marriages contracted in Marin County are just hunky-dandy.
That's certainly one theory. Another would be that the wording of Prop 22 created a restriction on 300, whether it was "sold" that way or not. Now that it is in there, changing 300 in this way would create a situation where it may conflict with 308.5 (the text Prop 22 created). In that case, my understanding is that the direct will of the people (Prop 22) would be controlling. This is not to say that the legislature could not change 300, nor that a governor could not sign it into law. It's simply to say that were that to happen, I would expect that someone would immediately file suit, and that a court would find for the plaintiff.
Of course, I am not the CA supreme court, and they have disagreed with me as much as they have agreed with me over the years. So in reality, if that chain of events did occur, I don't know what the actual outcome would be. But I think the governator did the right thing to veto it, pointing in his veto statement to this concern as well as the pending cases.