California Supreme Court Holds That There Is A State Constitutional Right to Same-Sex Marriage in California:
The opinion is here, via Howard. The holding:
We . . . conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.Applying strict scrutiny to the California marriage statute, the court concludes that:
[T]he purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. . . . Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
Before everyone starts screaming about judicial activism, recall that 6 of the 7 Justices are Republican appointees. And the gay marriage statute was passed twice in California, but vetoed by Arnold, because (bizarrely) he said he wanted to "defer" to the Court. Still, I wish this had been done the right way, by getting Arnold to sign the legislation.
I find that the opinion actually holds that a law banning same-sex marriage, but allowing opposite-sex marriage, is unconstitutional. A law banning both opposite-sex and same-sex marriage could be constitutional under the opinion's rationale, which does not rely on a "right to marriage" as you claim in your title, but rather on disparate treatment.
The practical effect? The evangelicals who were luke warm on voting Republican this fall, will be red hot this fall. Activist judges will be a huge issue. This court overturned a ballot initiative voted on just eight years ago.
Exactly. The majority's reliance on legislative action to promiscuously mint this new right is really quite breathtaking given the state constitution's priority for the people's will over the will of their representatives (however good or bad that may be).
Page 53
Than you, your Honor, for your contribution to this discussion.
Dream on. The Republicans winning California is about as likely as the Democrats winning Alabama.
Just like the U.S. Supreme Court did in Griswold v. Connecticut...
I don't think this will turn California 'red' in November, but it will have a huge impact in the swing states of Missouri, Ohio, Pennsylvania and Iowa.
50% + 1
It will be anti-Gay marriage proponents who will have to argue that the civil right to marry someone of the same gender/sex should be taken away. The people will not do it. Support for Gay marriage has been increasing and only a pre-existing ban would have stopped it.
Now watch the left argue for the sanctity of marriage and go out of the way to deny such a civil right to polygamous and incestuous couples/groups using all the arguments that the right used against gay marriage (and the left argued against).
The people who wrote the Knight initiative as a statute instead of a constitutional amendment were fools.
Second, it's true as others have said here that if limiting marriage to opposite-sex unions is not a "compelling state interest", then it's impossible to argue that limiting marriage to, say, "mere couples (two persons)" can be, either. Who's up for bi-sexual marriage?
A popular referendum that was passed eight years ago. Eight years ago the voters of California hadn't had four years to evaluate the effects of gay marriage in another state. They hadn't seen a movie about gay cowboys achieve wide success at the box office. The sentiment that referendum captured has depreciated more like a car than like a house, I would wager. We'll find out in November.
The law, in its majesty, equally forbids the straight and the gay to marry members of the same sex.
"Couples" are not protected. Gender of individuals - EVEN if only with respect to the gender of another individual - is protected.
Take a divorcing couple where the gender of the child determines the gender of the parent custody is awarded to - the two girls will go with their mom BECAUSE she is female and so are they. The mom is being judged solely by her gender. This is not a valid decision based on equal protection.
Similarly, if I cannot marry an individual BECAUSE I am female - even if it's just because she's female too - I am being judged SOLELY by my gender and without any good reason. Ergo, equal protection kicks in.
Given that Ohio already has a state constitutional amendment banning gay marriage, how is this decision going to affect Ohio in November? We Buckeyes don't get to vote for or against California Supreme Court judges or for laws on gay marriage in California, and we've already saved ourselves from the Sure Road To [insert horribles here] that gay marriage in this state would obviously lead to. . . .
Of note, the Court's opinion distinguishing polygamy at footnote 52 is not only thin, but also seems to equate polygamy with incest. Not that either are particularly praiseworthy/reprehensible, but from a legal perspective, the court's reasoning is pretty light.
Finally, the Court takes pains to point out two cultural trends. First, it notes that its one-vote decision striking down an interracial marriage ban is now "universally approved," and that society has matured in understanding about race-based (e.g., an interracial marriage ban) and sex-based (e.g., a ban on women as bartenders) classifications. Also, the Court notes several recent state Court decisions refusing to recognize same-sex marriage have been decided by one vote, as if to prove that society is slowly evolving to the point that these courts will soon find (in their own state Constitutions, presumably, although the Court doesn't really address this) a right to same-sex marriage.
Even if same-sex couples can marry, brother still cannot marry brother, nor can a woman marry more than one man. Same-sex marriage changes nothing.
I'm sure some idiots will still claim a slippery slope.
But look at Massachussetts! As a direct consequence of permitting same-sex marriage, man-dog love is not only Constitutionally protected there, it's affirmatively required as part of the curriculum by the public schools (damn teachers' unions).
The person in the other thread who said America was now dead to him made a good start, but that overlooks the impact on his, my, and all of our personal lives. I'm going home right now to tell my wife I'm divorcing her -- if two guys or gals in California who love each other and want to commit to each other can now get married, my marriage is obviously undermined to the point where it's not worth it. And I'm telling my son not to ever consider entering such a devalued institution.
Ah, yes, it must have been the movie.
Of course, one of those coyboys didn't turn out so well in real life. Be careful about playing gay roles, it might lead to drugs and an early death.
Dilan,
That reminds me of the Bush v Gore coverage, with a lack leaping down a flight of stairs to give the opinion to Dan Abrams, who proceeded to declare that "per curium" "means that this was a unanimous decision."
It's an interesting question for the lawyers who comment here: could strict scrutiny be withdrawn through constitutional amendment? Could we amend the state constitution in that matter, or would it be found in violation of the very spirit of the document?
Because obviously the State has a compelling interest in all this: Imagine how messed up their biological children would be!
If, in November, the electorate approves the initiative, it will go into the Court. I do not think that the Court will be so simply overruled.
Now I must telephone my friends who are in long-term relationships and ask them when the wedding is.
Doesn't that mean that boy scouts will have to have gay scoutmasters? Doesn't that mean openly gay gym teachers in the locker rooms?
This is hella dumb. If they wanted to allow gay marriage this is the worst way to do it.
Decency and morality has been more or less in a free fall for the last 50 years. We just haven't found the bottom yet.
(Although I think we will shortly.)
In my own defense against an uncharitable assumption in the other thread (and thanks to others who challenged that assumption): As has been mentioned in this thread, the opinion's damn long. I skimmed it for the reasoning, then posted my comment, then went back to read some more. I don't disagree with Tennesseean: "The ends justify the means" is no way to run a state. I expect that my policy preferences won't always be justifiable under the law, and sometimes you can work to change the law and sometimes you just have to shrug and take it. I have lots of photos from the SF gay marriages a few years back, and I'm glad I got to be there, but I can accept the reasoning in Lockyer that Gavin Newsom doesn't get to decide who can get married in California.
As to Baxter's and Corrigan's separation of powers argument, well, I don't know enough about separation of powers doctrine to say. Some things are beyond the power of voters or legislatures to change or override; the violence of the majority faction has its limits. The majority says the right to make a family with whomever you choose is very much a fundamental right. If it's that fundamental, it doesn't seem, from my viewpoint of limited knowledge, that Californians or their Assembly have any power to ban gay marriage, and crying "judicial activism" won't change that.
Not even SCOTUS is immune from criticism that sometimes they just want to see their policy preferences institutionalized when they write their decisions. I don't see how it's *not* institutionalizing some people's policy preferences to add a constitutional amendment banning gay marriage by defining it away. I'm curious about what happens if the constitutional amendment on the November CA ballot to ban gay marriage passes. The privacy clause in Art. I s. 1 of the California constitution was added by California voters, and it was California voters who passed Prop. 22, which was at issue in today's ruling, which relied partly on the privacy clause. And if California voters amend the constitution to forbid gay marriage - then what? Can an amendment that affects one issue and one portion of the population, effectively undermine the very fundamental privacy and equal protection guarantees that came before it?
Yeah and now blacks are worse of today then what they were under segregation (just ask Bill Cosby) and women are the most confused and unhappy then they ever were in the past.
I personally support gay marriage and this decision. Though as an anti-statist libertarian, I also fear government violating the rights of those who might object. Perhaps we should follow James Madison ideal policy of government and religion: no cognizance or separation of church &state. Likewise separate marriage and state. Take the question out of the hands of churches and government altogether, make marriage a private contract and let churches decide whom they will marry.
Perhaps this decision can be viewed as an opportunity. What I've seen of the decision hints broadly at a solution to the problem: Get the government out of the marriage business. California already has civil unions, which are marriages in everything but name. Why should the State of California want to, or be required to, "bless" the union of two people? Leave "marriage" to the churches, synagogues, mosques, temples, ashrams, and whatever, and let them freely choose which other "marriages" sanctioned by other religions they will and won't recognize. More power to 'em, because as far as civil government is concerned, it won't matter.
Oh yeah, life was better with segregated businesses, job lines, public facilities, schools, etc., when employers can and did simply refuse to hire blacks and women on principle (or hire them and pay them less). All this equal rights stuff has been so CONFUSING for blacks and women, as has the ability to gain some positions of power in politics and the economy. I defer to your massive expertise on both history and the psychology of women and blacks.
But to get back to the point, since the country has been in decline for the last half-century due to all this equal rights stuff, I guess you agree that the increasing acceptance of same-sex marriage is pretty much an inevitability, right?
Well I just read Morrison, and it says no such thing. It said that homosexual behavior didn't fit the particularly statutory definition of "immoral" behavior, because that statute only referred to "immoral" acts which affected the ability to teach. It never said homosexual behavior was moral.
So, it looks to me that the California Supreme Court has followed the modern pattern of (1) dismissing any consideration that the public might possible consider something immoral - despite having voted on the issue in recent history, and (2) assuming that 'traditional' (i.e., Christian) morality cannot constitute a permissible basis for a law. Of course, any post-modern morality remains a-okay (e.g., eco-conservation).
I thought that if a given act was deemed immoral - even if not criminalized - there could be no fundamental right for anyone to engage in such an act. Thus, certain lewd acts can only be accomplished by men, and outlawing those acts does not violate notions of equal rights between men and women.
What do you think we do now? When I walk through the mall I see tons of black clerks and then one white manager? Instead of segregating by force of law now we just do it with economics, zoning, and taxes.
At least under segregation black had ivy league comparative schools, cohesive neighborhoods, communities, institutions, etc. Now they have a 70% illegitimacy rate and 50% of black teenager will either be pregnant of get an STD.
Now all they have are government programs, affirmative action, crime ridden neighborhoods, and poor schools. Sounds like they are truly the winners.
Some couples decide that they would like to have clergy bless their marriage, and this is their right.
Others decide that they would rather be married by a justice of the peace, who may or may not be an Elvis impersonator, and this is their right.
At no point do that actions of a representative of a religious group affect the validity of a licensed marriage. On the contrary, an individual who performs a marriage ceremony in the absence of a license, can be found (at least in some jurisdictions) guilty of fraud.
Jon Rowe and Mike G are wrong: marriage is not a religious institution. It is a creation of the state with a whole body of law concerning it. Were it otherwise, the plaintiffs in the Marriage Cases wouldn't have argued in front of the California Supreme Court.
After all, if a beit din won't let you convert to Judaism, you can't take them to the civil courts. If an ecclesiastical court finds you guilty of heresy, you can't have the matter addressed by the civil courts.
Let's be clear here: marriage is a right provided equally the government to its citizens. Let us drop the nonsense that it naturally belongs to religious institutions. In the early days of the Massachusetts Bay Colony, clergy were forbidden to officiate marriages. Perhaps the Puritans had something right.
Yes, it does defy logic that personal autonomy rights (i.e. privacy and that whole package) seems to stop short when it would allow things that society finds distinctly immoral (rather than is divided over their morality) like drugs and prostitution but that's not really the issue.
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As for all of you saying ughh where were your complaints when Turner v. Safley was decided. I find it deeply ironic that gay marriage opponenets dismiss it's proponents as merely issue driven yet for all their furor about marriage being about procreation they don't make a peep about the SCOTUS case that clearly states the right to marry includes spiritual, cultural and other elements that can't be abridged even when procreation is impossible (one party is imprisoned). Of course the plantifs in Turner v. Safley was a traditional couple but once you've accepted the principle underlying this case it's very hard to resist the conclusion that the constitution protects the rights of gays to marry just as much as it protects the rights of jailed inmates. I realize this isn't the grounds on which the California case was decided but for all this grousing about activist judges I've never seen this point substantially rebuffed.
As for the actual reasoning in this case it seems to be pretty straightforward that once you accept that the right to marry exists even in circumstances where procreation is impossible that if barring interracial marriage violates the constitution and sexual orientation is a suspect class then barring same gender marriage is also a violation. Every argument about men/women still having the right to marry women/men applies equally well to whites/blacks still having the right to marry whites/blacks.
Fundamentally I don't think the state should be in the business of marrying people in the first place. However, given it does this question goes fundamentally to how far government should be able to intrude into private life. Should government be able to look at the statistics and decide that marriages differing by more than 10 years tend not to work and bar them? Should they be able to otherwise interfere with private lives in this manner? I think this sort of judicial protection from invasive government intrusion into personal lives is at the heart of the judicial responsibility to defend unenumerated rights and otherwise act as the framers intended the judicial branch to act. Besides, even if you think the judiciary should have a narrower role it certainly should be California's prerogative to experiment with a wider scope for their judiciary.
Um, that would mean we haven't gone far enough, not that the days of segregated drinking fountains and job lines were a sign of superior morality. Most-to-all institutions, private and public, are significantly less segregated than they were in the 1950s. Also, we now have many more black leaders in politics, business, and other realms, and the income disparities between blacks and whites and between women and men have shrunk significantly since the 1950s. This is not to say all problems have been solved, but significant progress has been made, and because of that progress, our society has become more just and moral, not less, in the past 50 years.
None of that goes to the gay marriage issue directly. But again I would suggest that if you really believe that the country has been going to hell in a handbasket for *fifty years* now, then you would probably think that increased acceptance of gay marriage was pretty likely in the next decade or two, right? If so, that's a prediction I would agree with.
We don't agree on the issue, but this is just plain clever.
" We've got two wars going on. Social Security is in trouble. Medicare is in trouble. There were two recent natural disasters in Burma and China, hundreds of thousands dead. Our students are getting less educated every year. And here we are, still wringing our hands over two guys who want to get married. Who cares???? No one says you have to get divorced if they get married. No one says that you're now less married. No one says you now have to marry someone of the same sex if you don't want to. Aren't there slightly more pressing issues to worry about?"
I don't know. But I can speculate. Some people feel the need to feel superior to others. "Gays are immoral, and since I don't have gay sex, I am therefore moral. Or at least morally superior to gays," is basically their thinking. If gays are raised to be equal to heteros, then who can you feel superior to?
Not saying that's for everyone, but certainly, anyone who is so worried about the sky falling in, or the of civilization, or other such hyperbole fits it.
Are they saying somehow that had the state never given gay couples any official status (civil union) that there would be no case here and that marriage could go on like it always had. It seems to go off on some tangent about once the status was granted, it's then unconstituional to designate it differently...
What am I missing?
Yes things are less segregated in some areas, but more segregated in others. When we abolished segregation, again by judicial fait, things just got worse and worse for the blacks. We destroyed institutions that they had built, such as first class and functioning communities.
I think there is a good book on it called something like "How Did Nine White People Screw Over African Americans."
there are some religious institutions that believe that masturbation is immoral (Mormons). So should their concept of morality prevail, and laws against mastubation should be legal?
Even if you make the argument that being gay is somehow immoral, it still fails. Most people lying is immoral, or exploiting another person, or engaging in emotional abuse, yet none of these things (outside of perhaps perjury), is illegal.
Morality as a basis of law leads us to the Tabiban, not a free and civilized society.
No it is morality that allows us to live in a free and civilized society.
You can't dismiss the morality based laws by simply stated morality = Taliban (or Hitler, or [insert despot]"
Wow! Anyone care to bring back the good old days of segregation? I have friends who are black, and I haven't yet seen this as a groundswell.
Pat Buchanan is the negro's best friend, (lunatic sarcasm). He did make this argument, but otherwise I haven't seen it.
Then it's pretty amazing, isn't it, that a majority of blacks and women aren't calling for a repeal of, say, Title VII and other laws granting them basic equality. In fact, weirdly, these groups overwhelming support equal rights laws.
As to the subject at hand, I don't think the U.S. Supreme Court will permit gay marriage anytime soon, but the political tide is turning and will continue to turn. Just as it turned on the issue of inter-racial marriage -- something often abhorred and sometimes made illegal back in your "more moral" 1950s.
Denouncing striking down segregation by judicial fiat is not the same as endorsing segregation. You can dispute the action which brought about a result but still agree with the result. So, don't make that leap in logic. It makes you look like a foolish man.
If you must know, I think we should have allowed voluntary integration. Forcing it on people did no long term help to the blacks.
Whites have generally supported interracial marriages and in fact do in drove. I think the last poll put it at about 95% acceptance.
Guess who doesn't like interracial marriage now? The blacks. Only about 50% support it.
I bet almost 100% of everyone thinks interracial marriage should be legal. It doesn't matter who "supports" it.
For example, I support not having you post on this thread ever again, but I don't think you should be prevented from doing it.
Re inter-marriage, you were so clear in your response to Randy R. about the difference between personal voluntary feelings/actions and laws, yet you seem to blur the distinction between (i) a modern minority group fretting about inter-marriage (a common issue, by the way, see also Jews); and (ii) the state CRIMINALIZING inter-marriage, as Virginia did in your beloved 1950s.
Also, it's fine that YOU don't approve of civil rights laws striking down segregation, but my point was if such laws were so bad for blacks and women, you would think blacks and women would in large numbers now be opposed to such laws. But it's quite the opposite. Guess blacks and women don't know what's good for them, right?
Alot changes in 10 years, culturally and socially. Many notoriously conservative justices ended up being quite liberal in the end (I recall one example is Blackmun.) Throw in what will probably be 8 years of a democratic president and who knows what will happen.
Slater -
The point is that the results of these laws has been bad and the cause was the mechanism used to deconstruct segregation and racial seperation.
Again, I do NOT think that the law was good. The mechanism used to attack it was the culprit, not the law.
Abailey-
I am glad you support my right to post. Having an old crank around always makes life interesting.
John, it's called an "establishment of religion." And it once was something that was forbidden to the federal governemnt, but was permitted for the several States. (Or done by them as an improper establishment of religion whether the endorsement of a religious ceremony was constitutional or not.) In this case, California took something that started out as a religious ceremony and co-opted it, giving religious marriage its stamp of approval but in doing so also insisting on its own participation in the rite and imposing its own restrictions (such as a ban on miscegenation until 1948).
You aren't really trying to convince us that the Christian marriage ceremony does not predate the founding of the United States, are you? So how can there be any merit in this argument?
Yeah. So what?
Look, if you get married in the Catholic Church, you get a piece of paper from the State that says you are married, and the Church agrees. If you then get divorced, you get a piece of paper from the State that says you aren't married any more ... and the Catholic Church disagrees -- according to them you're married until you die, your wife dies, or the Church grants an annullment. If you remarry, in a civil ceremony or in a ceremony in a Christian church that recognizes divorce, the State gives you another piece of paper that says you are married ... which the Catholic Church would not recognize this as a valid second marriage but which some other religious sects would. Fortunately, the Catholic Church does not have the power to throw you into prison for adultery for this.
Extend the concepts involved in "recognition of divorce" to "recognition of initial union" and keep the only legal consequences in the realm of civil government, and it doesn't matter whether you're talking about gay people or straight people. Give the word "marriage" to the priests, ministers, rabbis, imams, and shamans, and let them do with it what they will.
Let's be clear here: Governments do not "provide" rights. But the Conspiracy has other long and inconclusive discussion threads on that subject.
abailey wrote:
I don't understand your objection. We seem to be in complete agreement up to the last sentence. By endorsing civil unions (as California already does) and staying out of the issue of who's "married" to whom (as I believe California ought to do), the State would essentially be telling the religious right to go pound sand as far as having the government enforce any religious diktat one way or the other. I don't see this as an appeasement.
(abailey, do you live in San Diego? I know an "abailey" there.)
g
For the last time then, while I understand that YOU think civil rights laws are bad, what do you make of the fact that blacks and women, overwhelmingly, support them and believe they have been on the whole good (and to the extent they have been flawed, it's because they haven't gone far enough)? Not even Bill Cosby would argue that we should reverse Brown v. Board of Ed. or repeal Title VII.
Do you know better than blacks and women what is best for blacks and women?
Overruling Brown would do little, if anything. The damage has already been done. The same goes for Title VII. Removing a hammer after using it to destroy a statue does little to reconstruct the statue.
As for your obviously loaded question, it is blacks and women who know better for themselves. Some won't confront the reality but others will (like Bill Cosby.)
Again, the damage has been done and white people have once again screwed black people (albeit at least this time we had good intentions.)
The dissent, commenting on Note 52, says:
It appears to me that the court's decision both rejects and appeals to social norms. While I can see bans on incestuous relationships based on (shaky) medical reasoning, it appears that polygamous relationships are banned simply as the being socially unacceptable - the same reasoning that was used to ban same-sex marriage. As far as claims that polygamy is incompatible with a "sound family environment", I doubt that view is sustained by research any more than the anecdotal evidence against same-sex marriage.
Also, given the religious discrimination aspect against polygamy, it would appear to me that this decision is ripe for challenge.
In other words, the justices wanted a particular outcome (yes on same-sex, no on polygamy), and found ways to justify it. I'm not commenting on the desirability of the outcome, just he shoddy way it appears to have been reached.
It's there somewhere. You just have to keep searching in the penumbras and emanations, and I'm suure that eventually it'll turn up.
Things are far from perfect today, but you aren't going to get much agreement from blacks, women, gays, and others (who, collectively, make up a majority of the U.S. population) that things were better in the 1950s.
Vast majorities of blacks, women, and indeed the vast majority of whites think the country is a better and more moral place than it was in the 1950s because of increasingly equal role of blacks and women in private and public life.
Let me flip your example around.
You get married in a Jewish ceremony. Then you get a get, a Jewish divorce. You don't get a civil divorce. Then you remarry. The state does have the power to punish you for bigamy.
We've made a clear distinction here: in the legal sphere, state decrees concerning marriage trump religious degrees.
While a religious denomination can decide for their own purposes who counts as married (for example, a couple married in a civil ceremony are not actually married by the standards of the Catholic Church), they cannot translate that into the public sphere (a Catholic state employee cannot refuse the benefits of marriage to a couple who had a civil ceremony).
Given the large number of laws regarding marriage, I have counter suggestion for you:
Let the religious groups who do not approve of same-sex marriage find some other word. Or, they can even refuse to take part in this. No member of the clergy is obligated to be an agent of the state. They don't have to sign marriage licenses. They can even tell their congregants that it is a corrupt "thing of Caesar" in which they should not participate.
Let them file their taxes as single. Let their joint property be viewed as separate. No skin off my nose.
I do think that if a religious group holds a position that is an affront to justice and equality, they should be told to "pound sand," as you put it. If a denomination refused to perform interracial marriages, that's their right, and it's my right to consider them beyond contempt. I don't have to affirm their decision.
In the interest of disclosure, I belong to a religious group that sided with the plaintiffs in the Marriage Cases.
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Oh, and a correction to my earlier musings: Erwin Chemerinsky (who is a legal scholar, unlike me), says that the proposed amendment would reverse the ruling. KCBS has the audio here.
Per your discussion of divergences between when the gov't recognizes a marriage and when the Church does -- recognition as legitimate in some transcendent sense seems to be precisely what the California court's opinion is aiming at.
After taking 79 pages to conclude gays should have the same substantive rights in regard to their family arrangements, they ultimately have to get to why putting different labels on homosexual unions and heterosexual unions somehow harms the homosexuals. And when they get to that point they talk about how the word marriage connotes a "historic and highly respected designation" and that denying them the word denies them "equal dignity and respect". But obviously what the court is missing here is the fact that they cannot compel anyone other than the government of California itself to accord "dignity and respect" to anything.
The court's conclusion that there is a: "right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples" is just empty rhetoric. No person or institution other than the state gov't has to give these "marriages" any respect if they don't want to do so. Yet this empty rhetoric seems to be the basis for concluding that different labels are unconstitutional.
Whether or not gay unions are accorded respect by the population at large is not so much a concern of the gov't as it is a concern of the gay lobby. Yes, they would like it very much if they could push the needle of opinion on their unions from "grudging acceptance" to "full-blown enthusiasm", but changing hearts and minds is their job, not the government's.
Let the religious groups who do not approve of same-sex marriage find some other word. Or, they can even refuse to take part in this. No member of the clergy is obligated to be an agent of the state. They don't have to sign marriage licenses. They can even tell their congregants that it is a corrupt "thing of Caesar" in which they should not participate.
John, we seem to be substantially in agreement -- at this point we're just arguing over who has the right to use a single word.
Given that religious groups have a strong emotional and historical attachment to the term "marriage," and given that the government already has the term "civil commitment" for a government-recognized (and societally recognized) domestic partnership that is almost exactly like traditional marriage except for ignoring the sex of the participants ... then why invent a third term? Especially when taking the word "marriage" away from religious groups will gratuitously piss them off?
f
You asked how this California Supreme Court ruling would affect the presidential race in Ohio (which has an anti-same-sex marriage amendment in the Constitution).
1. The simplest explanation is that it puts the issue to the fore of the public debate again.
2. A case involving same-sex marriage/federal issues/conflicts of laws/full faith and credit becomes all the more likely when the the largest state in the union permits it. This moves the issue of Supreme Court appointments to the spotlight.
3. Look for more states to have ballot issues on gay marriage now.
4. All in all, gays gained nothing tangible from this ruling and they gave Republicans an issue that brings out the base. They already had every right granted under state law available as domestic partners. All this ruling has done is poke a stick in the eyes of evangelicals.
Yup. I never said I agreed with the decision -- I think the majority's argument is flawed, and I think they looked for an opportunity to get the result that they wanted. All I'm saying is that one of their apparent conclusions -- that the government can either (a) endorse the right to marriage betwen couples without regard to their sex, or (b) not endorse the right of marriage for anybody -- leaves open the possibility of using option (b) to get to a solution that most people can live with.
These days even the religious right seems to tolerate the concept of gays in civil unions (even though they're sure that God will condemn them to eternal damnation in the afterlife). And I suspect that most gays would be content with the idea of getting a civil union "blessed," if they wanted to, in a "marriage" ceremony by the Metropolitan Community Church or some other gay-friendly sect, in spite of the fact that Islamic or Catholic theologians would not recognize it as a valid marriage. But it's that business of having the government force a particular religious/moral precept (one way or the other) down everyone's throat that ticks people off.
k
Bet that's the fun part though.
Randy R.:
Wow. You both have let your emotional reaction blind you to basic civic history.
The reason I am in favor of 'legislating morality' is because that is how the law has always been, and always will be. This is basic criminal law stuff (e.g., malum in se). People only happen to recognize it when the law conflicts with their own personal morality. Thus most people think it is perfectly acceptable to outlaw prostitution, drugs, and gambling. But those are all MORAL decisions, imposed by the majority on the minority. The last time I checked, Democrats still hate Libertarians because Libertarians would allow eeevil corporations take advantage of stupid people. Anti-capitalism is, at its heart, a MORAL position.
You can try and dress it up in some sort of statistical rationalization or 'tradition' (as we see people doing all the time on the anti-SSM side), but it really is all about morality. I'm in favor of morality as legislated by the people in their separate states, subject only to the limits imposed on the states by virtue of their surrender of sovereignty on the items identified in the federal Constitution (i.e., if certain states go off the deep end, the others can reign them in through Amendment). Personally, I will avoid living in Utah and Alabama. Federalism at its finest.
Maybe, except (i) there already is an anti-gay marriage amendment in Ohio, so it's not like there's going to be anything specific for the religious right to vote for here; (ii) there's no plausible chance the U.S. Supreme Court would mandate permitting gay marriage in the short or medium term (nor could they overturn this decision), so it's a tough sell that voting McCain is really going to have a huge impact on this; and (iii) honestly, I think this issue will be less and less of a big deal over time, as people see that where legalized gay marriage actually exists, the the ridiculously overblown parade of horribles hasn't (haven't?) happened.
And as others have noted, there are other issues that Ohio folks mind find more important.
Especially when taking the word "marriage" away from religious groups will gratuitously piss them off?
mrbeezy:
Bet that's the fun part though.
Very likely! 8-)
OTOH, some of the people who cling to religion also cling to guns ... 8-O
Hey, I'm all for having fun. I plan on getting stinking drunk tonight. But I don't expect any sympathies for my inevitable hangover tomorrow. Fun has it's consequences.
President McCain nominating a replacement for a dearly departed Stevens or Ginsburg is something I doubt the California Supreme Court is eagerly anticipating, regardless of how much they want to call a gay civil union a marriage.
I don't have strong opinions about this issue one way or the other, but I have to laugh over the furor surrounding this as I live smack in the middle of one of the largest congregations of gay men in this country and I have to be honest with you guys - the typical lifestyle on display here is extremely not ready for primetime and about as far removed from the institution of marriage as you could possibly conceive. Lesbians, I suppose, have a more credible claim on social policy grounds.
Who is taking anything away from anyone? Why on earth should the government endorse the rites of one religious group over another? Wouldn't that be a violation of the establishment clause?
As some religious groups define it, the rite/sacrament of marriage is limited to one man and one woman. As other religious groups define it, the rite/sacrament of marriage can be entered into by two individuals of the same gender. The government has decided to have its own institution that it will also call "marriage". Either the word is defined in a religious way, "taking it away" from one set of religious groups, or it is not, in which case it has not been "taken away" at all.
the Catholic Church, the Union for Reform Judaism, the Evangelical Lutheran Church in America, the Metropolitan Community Church, the United Church of Christ, or the New York Mosque (just to name a few)
recognize my marriage. I am utterly indifferent.
I do care that the governmental bodies in the United States recognize my marriage.
I am not a member of any of the religious groups named above (although I slipped in a couple that I know support marriage equality).
I am a citizen of the United States and a California resident. Why should any government withhold a right from its citizens on the say-so of a religious organization. The Catholic Church says it's wrong. The Latter-Day Saints say it's wrong.
Well, I say if their opinions on how non-Catholics and non-Mormons should live were already irrelevant, the views of the Union for Reform Judaism and the United Church of Christ should trump theirs.
The problem with bowing to religious dictates in law is that religions are going to differ. How do you sort it out?
On giving the word marriage to the religious groups, I worry about the vast body of law which already uses marriage and related words. If the Baptists don't get around to changing their language, it won't affect me. If the legislature drags its feet, it will.
And that's good enough for me!
As for morality, again, Wooga, you fail to explain -- if morality is the basis of law, then why are so many things considered immoral NOT outlawed? And why are so many things are not moral issues outlawed? We have health and safely laws that are not based on morals, but issue of health and safety.
Yes, of course, there often are laws which try to regulate morals. It's immoral to steal, and also outlawed.
But the fundamental question that you still refuse to address: How is homosexuality immoral? What exactly is your definiation of morality? If it's anything prohibited by the Bible, then you have problems of mixing religion and law (My Taliban argument). Plus, the Bible allows a lot of things that our law doesn't (like Lot having sex with his daughters, smiting our enemies, killing tribes that don't worship our God) and prohibits a lot of things our laws do not (interest on loans)
If our law is supposed to be based upon morality, then who's morality? The Mormons? atheists? Deists? The Taliban, again?
(When answering, remember that "grossness" or it being "against culture" and the like is not a permissible excuse, as these reasons are clearly not compelling state interests. According to the opinion, that is.)
..The question is, said Californians, whether you can make marriage mean so many different things.
...The question is, said the Great and Learned Court, who is to be master-that's all.
..And in deed it is !
AngelSong:
Um, that would be John D, explicitly taking the word "marriage" away from religious groups. Go back and read the thread.
What we have here is a failure to communicate ...
John D would be happy if what are now called "civil unions" were called "marriages" by the government, and religious groups called their rites something else (and set their own standards for them). I propose keeping the mane and definition of government-sanctioned "civil unions" as they are now, and having the government acknowledge that it has no business dictating who can be "married" in a religious rite and who can't, especially since the various religions can't agree among themselves on this. And if the religious groups can't work out some sort of mutual-recognition agreements, then tough for them — that shouldn't affect civil unions, which would be the only partnerships recognized by law (if I ran the government).
That's why Word Perfect and Microsoft Word have a "search-and-replace" function. ;-)
Seriously, if this change were somehow to be accomplished, I think it would pretty much have to be by State constitutional amendment. The amendment might simply state that all references in the body of the law to "civil union" would remain intact, and that all references to "marriage" would be interpreted to mean "civil union" ... that plus a disclaimer of any jurisdiction over "marriage" ceremonies and rites performed by non-governmental groups.
On the other hand, IANAL, so the odds are it wouldn't be quite as simple as this ... but it would have to be better than the mess we have now!
How extensive is the current set of references in the California legal code to "civil union"? How did they make those changes?
Mike G. suggested that the government give up the word marriage. He then mischaracterizes my position.
You act as if the government doesn't already call them marriage.
Actually what would make me happy would be if what are currently called "marriages" by the government (those things for which you get a marriage license from city hall) are offered to unrelated, unmarried adults without regard for the sex of the participants. I would be happy to see marriage licenses granted throughout the country.
Religious denominations that disapprove of homosexuality may continue to do so and may continue to solemnize only the marriages of opposite-sex couples.
Religious denominations that would be happy to solemnize the marriages of same-sex couples would also be allowed to do so. (I suppose a religious group could refuse to solemnize opposite-sex weddings. Okay.)
Please note that the activities and views of religious groups of which I am not a member should not have any affect on my life. The Episcopalians don't tell me how to live, and I don't tell them how to.
So, it wouldn't affect my happiness, no matter what Mike G. might think, if religious groups keep using the word "marriage." Go for it. Fine. Happy for you.
When the views of religious groups are taken as a reason for civil servants to refuse me rights, then I am not happy.
This is my real view:
"Marriage" is that thing for which you get a license from the government, which forms a close relationship between two previously unrelated individuals. This must be issued without regard to sex, creed, or ethnicity. A pair of unmarried, unrelated adults who wish to marry must be allowed to do so.
A religious group that does not agree with with very simple precept may, without affecting my happiness one little bit, decided that they don't like the word "marriage" anymore.
Because I'm not going to be happy giving it up.
Finally a search on the California Law page yields no hits under family law for "civil union." Zip, Mike, zip. I had heard that California recognizes Vermont Civil Unions as Domestic Partnerships, but it would seem that they have no legal standing.
cjwynes (and John D),
I just ran across (I was doing real work, I promise) this from Nunes v. Vaughan-Jacklin (1988) 200 Cal.App.3d 1518, :
Granted, this doesn't say "Amendment," but it should apply unless there is some specific rule excluding amendments.
I think that even they would agree that just because some religious faith might bless a particular type of union (say, father/daughter or man/chicken) gives those "couples" no claim for government sanction, correct?
And I think that even they would agree that the government already provides for "unions" of two of more people of whatever sex — called "partnerships", correct?
I think we need to go back to first principles: What is the reason for government sanction of, and benefits for, opposite sex romantic unions? Is it to "honor the romantic commitment"? Or is there something more important?
Because sometime people thing something is only 'a little immoral.' Coveting your neighbor's ass, for example, is against the 10th Commandment - but nobody is calling for a law against it. But it is still considered immoral by many. Essentially, your question is a tu quoque fallacy.
! Law and religion have ALWAYS been intertwined. I don't know of a single legal system in history that was not mixed with religious underpinnings.
Soooo. If I base my voting on the Bible, that's not allowed? As a matter of fact, I do base my moral decisions on the Bible. But as a Christian, I believe that the New Testament 'cleans up' a lot of the inconvenient rules of the Old Testament. At the founding, most states in the US were explicitly religious, some even had official state churches. The 'separation of church and State' (capital 'S') rule has been around for a lot longer than 'separation of church and states (small 's').
I already answered that. Popular representative vote, under the umbrella of a Constitutional Federalist system.
"Marriage" is that thing for which you get a license from the government, which forms a close relationship between two previously unrelated individuals. This must be issued without regard to sex, creed, or ethnicity. A pair of unmarried, unrelated adults who wish to marry must be allowed to do so.
To which I ask:
(1) Doesn't that sound a lot like a "partnership"?
(2) What is the compelling state interest in limiting it to "two" persons? If, say, a woman is bisexual, why should she be banned from entering a marriage — as defined by JohnD — with both a man and a woman?
(3) What is the compelling state interest in limiting it to "unrelated persons"? Does JohnD have some moral or aesthetic objection to the marriage of, say, aunt and nephew that he should be able to force onto the rest of society?
Again, we need to return to first principles: What is the reason that governments grant a special sanction for, and provide special benefits to, opposite-sex unions of two, unrelated persons?
This is what the Lovings were seeking, and what was being denied to them. The right to mix their genes. Marriage is an international legal structure, recognized in every country and required in many countries if the couple wants to sleep together and conceive children together.
The couples can, and likely many of them will, apply for new licenses now.
Same-sex couples shouldn't have what should continue to be the essential right of marriages everywhere and throughout history - the right to conceive children together. Marriage establishes consent and obligation of the couple and the approval of the state to conceive of children that are of the couple's combined genes.
I think this gets us closer, but not quite there. Government-sanctioned marriage doesn't provide "consent and obligation" to conceive children. It does provide "opportunity". If child-bearing is an "obligation", then John Howard's definition would raise questions about why elderly or barren marriages would be sanctioned.
First, I am well aware of the difference between "marriage" and "holy matrimony." The second is a sacrament of the Catholic Church. It has no legal bearing. Many people manage to get married without being joined in holy matrimony. Were people obligated to be joined in holy matrimony, it would be a violation of the separation of church and state.
As for your comments on my somewhat ad hoc definition of marriage (which was constructed solely to point out that governments can use the word without interference from religious use of it), well,
(1) "Partnership" means something else. "Oh, you're in business together."
As for (2) and (3)