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California Supreme Court Agrees To Decide Constitutionality of Prop. 8:

The AP reports:

California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.

The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court's decision in May that legalized gay marriage.

All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change....

The court directed [Attorney General Jerry] Brown and lawyers for the Yes on 8 campaign[, who had joined the challengers in arguing that the court should consider the case,] to submit their arguments for why the ballot initiative should not be nullified by Dec. 19. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5. Oral arguments could be scheduled as early as March ...

I think it's good that the California Supreme Court agreed to decide the case, and get it resolved sooner rather than the later. It's important to know what the law is on this, especially given the likelihood that Prop. 8 invalidates same-sex marriages that had been entered into after the earlier court decision but before Prop. 8's enactment. I also think that the California Supreme Court will reject the state constitutional challenges to Prop. 8, and conclude that Prop. 8 amends the state constitution in a way that supersedes the court's interpretation of the preexisting constitutional provisions. (Here's my response to the "unconstitutional revision" argument, but I think the other arguments I've heard about are unlikely to prevail, either.)

Of course, Prop. 8 can't overrule any federal barriers to its enactment. I think there are no such federal barriers, but it's not as clear to me that the California Supreme Court will agree. [UPDATE: After a correction from Rick Hasen, I now think that the California Supreme Court is highly unlikely to reach this question, given the issues that it ordered briefed and argued.] And if the California Supreme Court invalidates Prop. 8 on federal constitutional grounds, for instance on the grounds that it's precluded by the Romer v. Evans decision or that the federal constitution bars discrimination against same-sex marriages, then the issue will be reviewable by the U.S. Supreme Court (and I think the U.S. Supreme Court will indeed agree to review it).

Thanks to How Appealing for the pointer.

UPDATE: Rick Hasen (Election Law Blog) reports that, contrary to my suggestion, "it does not appear that an argument that the measure violates the federal constitutional guarantee of equal protection is fairly before the court in its review." Reviewing the issues listed in the court's order granting a hearing leads me to think that Rick is likely right.

Rick also says, "It is also noteworthy that the California Supreme Court denied a stay request pending briefing in this case, with only Justice Moreno voting to grant a stay. That is some indication, though not necessarily a very strong one, that the court will vote to uphold Prop. 8 (the reason is that one of the factors in determining the grant of a stay is likelihood of success on the merits)."

Houston Lawyer:
How does the court go about hearing a case that hasn't been brought in a lower court? That seems a very odd procedure.
11.19.2008 6:09pm
KeithK (mail):
HL, it doesn't seem all that odd to me. It doesn't seem like there's anything to be gained by going through lower courts in this case. There really isn't a record of specific facts that need to be established by a trial court. it's a constitutional question on a n issue that the CA Supremes are very well informed about. The question would make it to them anyway so why waste time with preliminaries?
11.19.2008 6:14pm
Down from the Ivory Tower:
Now for reading the tea-leaves. Justice Kennard dissented from the decision to hear the challenges, even though she supported equal marriage rights in May. What gives? Either she thinks the challenges are without merit, or she thinks they should have originated in Superior Court and wound their way up as usual. Or, is it possible she disagreed with the briefing schedule and favored a more expeditious resolution of the challenges, if possible?
11.19.2008 6:20pm
geokstr:
As a non-lawyer here, I was wondering what the chances are that the California Supremes will not overturn Prop 8? It seems to me unlikely that the justices will look kindly on the unwashed masses telling them where they can stick their earlier decision allowing same-sex marriages.

If they do overturn it, and the proponents of Prop 8 get it put on the ballot and pass it again, then what? Are we destined to see this cycle go on until the courts finally win?

Why can't there be a process whereby once a constitutional amendment or revision gets the requisite votes to be put on the ballot, there is an immediate judicial review to determine if it is constitutional, and if not, how the wording would have to be to make it so? Then the voters could cast their ballots for something they would have some assurance would pass legal muster.

The process as it now stands is going to make the voters adopt an even more cynical attitude towards the judicial system, which can't be good for the country.
11.19.2008 6:38pm
FWB (mail):
For the ignoranti:

Legal precedent and judicial activism not withstanding:

At the top of the food chain are THE PEOPLE. THE PEOPLE act as CREATOR and create a Constitution, a set of rules by which THE PEOPLE create a government entity, delegate some powers, and generally restrict their public servants. Thus THE PEOPLE are ALWAYS superior to the Constitution, be it state (people of the state) or federal (the people of all the states)and the constitution is superior to ALL government branches, agencies, elected public servants, and bureaucrats.

In our system THE PEOPLE of ALL the states are superior to THE PEOPLE of a single state in specific areas, i.e. those delegated to the feds. In the state arena, NO ONE is superior to THE PEOPLE of the state. Whenever, the (simple) majority of THE PEOPLE in the state wish to change the governing law, all that is necessary is for a simple majority of THE PEOPLE to decide to do so. This principle received honorable mention in the Declaration of Independence.

IF the judges in CA decide against the wishes of THE PEOPLE (simple majority), the judges can be charged with bad behavior and removed. If those elected to act in THE PEOPLE's behalf fail to do so, THE PEOPLE may act on their own accord so long as the Constitution THE PEOPLE agreed to does not delegate such authority away from THE PEOPLE.


For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6



Memorize the quote.

Dominus providebit!
11.19.2008 6:42pm
Parenthetical:

Either she [Justice Kennard] thinks the challenges are without merit, or she thinks they should have originated in Superior Court and wound their way up as usual.

Given that Kennard would permit an original action with regard to the marriages already performed, I think she's signaling that the claims are without merit. Or, much less likely, that this is the wrong case to revisit the amendment vs. revision issue.
11.19.2008 6:45pm
SFJD (www):
If Prop 8 passes, wouldn't it take a private challenge to someone's marriage to invalidate prior same sex marriages? Jerry Brown has made it quite clear that the state intends to honor all marriages performed before prop 8 passed.
11.19.2008 6:47pm
tvk:
Isn't a rather stronger signal of Proposition 8's chance the fact that Justice Kennard, a member of the majority and likely the "swing" vote of the 4-3 decision, would now deny certiorari? Denying the petition would leave proposition 8 intact by default without even briefing and argument. It seems to me rather like going up to the U.S. Supreme Court on a controversial case as the petitioner and Justice Kennedy noting before the fact that he dissents from the grant of certiorari. How are the anti-prop-8 forces going to find a majority without Justice Kennard?
11.19.2008 6:51pm
MisterBigTop:
"Given that Kennard would permit an original action with regard to the marriages already performed, I think she's signaling that the claims are without merit. Or, much less likely, that this is the wrong case to revisit the amendment vs. revision issue."

Yes, that's my thought as well. It suggests that she feels that it's an issue that doesn't need to work its way through the lower courts, so that possibility is out.
11.19.2008 6:51pm
Parenthetical:

If Prop 8 passes, wouldn't it take a private challenge to someone's marriage to invalidate prior same sex marriages?

Apparently not. The court's order specifically asks the state to brief on the question of the existing marriages. Presumably, the Prop.8 official proponents (whose request to intervene the court granted) will take the opposite view from the A.G.
11.19.2008 6:54pm
Down from the Ivory Tower:

Given that Kennard would permit an original action with regard to the marriages already performed, I think she's signaling that the claims are without merit

Not so sure about that. The validity of the marriages already performed is a more pressing issue since it involves families in doubt whether they are being forcibly divorced. The revision/amendment issues could be seen as less urgent because it involves the right to marry going forward, but no present marriages.
11.19.2008 6:59pm
Parenthetical:

The validity of the marriages already performed is a more pressing issue since it involves families in doubt whether they are being forcibly divorced.

I appreciate your point. Kennard was quite sensitive to the absence of the (apparent) spouses during the Lockyer proceedings.

On the other hand, there's no need to examine the effect of Prop. 8 on existing marriages if Prop. 8 was not properly enacted.
11.19.2008 7:04pm
Parenthetical:
P.S. I often use phrases like "forcibly divorced" too. But, I think that's an implausible outcome.

I would be very surprised if the court went any further than "your marriages were valid, and presumably continue to be valid in some other jurisdictions, and may even be valid again in California some day."
11.19.2008 7:07pm
CDR D (mail):
So far as I'm concerned, Prop 8 is/was a "jihad" against arrogant judges.

Let 'em strike it down.

Oh, please, let them strike it down!
11.19.2008 7:09pm
Matteo (mail) (www):
It was the case that all of these "marriages" were begun with the knowledge that the question had not yet been settled (it was known that Prop 8 would be put to a vote at the time the first "marriages" were enacted, and it was known that it was in the form of an amendment that could well render the court decision moot). What bearing might this have?
11.19.2008 7:15pm
Down from the Invory Tower:
Wow, the situation with Justice Kennard is turning into a real caper. She even wrote a concurring opinion in the Marriage Cases solely to stress that the question of equal marriage rights was solely for the court to decide:

Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government. Indeed, this court's decision in Lockyer made it clear that the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution's equal protection guarantee.

Has she now changed her mind and decided that a popular vote can override the court's finding that marrige discrimination strips a fundamental right from a suspect class?
11.19.2008 7:21pm
cdjj (mail):
Intriguing question: let's say that the California Supreme Court ends up saying that same-sex marriages were valid when performed but that California no longer recognizes them. A couple then splits up (but can't divorce, since the state doesn't recognize them as married) and at least one wants to remarry (to make it easy, let's specify heterosexually and within California).

1) Would such a marriage be valid, or would there be bigamy concerns?

2) Now, let's assume a Prop Anti-8 passes which re-recognizes same-sex marriages. What's the effect on someone who, in the interim, got married to someone other than his or her previous spouse?
11.19.2008 7:25pm
Josh644 (mail):
It seems to me unlikely that the justices will look kindly on the unwashed masses telling them where they can stick their earlier decision allowing same-sex marriages.

Your post comes across as somewhat whiny.
11.19.2008 7:33pm
MisterBigTop:
"Has she now changed her mind and decided that a popular vote can override the court's finding that marrige discrimination strips a fundamental right from a suspect class?"

I doubt she's changed her mind. However, this is not the same case as before. There is now a constitutional amendment to consider. It's perfectly consistent for her to say that now that the constitution has changed that the constitutional law must change in this regard as well.

Also, are you trying to suggest that her comment would still be valid if even a referendum were passed? That makes no sense, and I don't think even Justice Moreno would agree with that, so it's clear that Kennard's comment should be understood in the context of the case in which it was made and not as an absolutist statement in support of an oligarchy.
11.19.2008 7:34pm
Parenthetical:

Has she now changed her mind and decided that a popular vote can override the court's finding that marrige discrimination strips a fundamental right from a suspect class?

I just reread that passage too. Freaky.
11.19.2008 7:36pm
MisterBigTop:
"Has she now changed her mind and decided that a popular vote can override the court's finding that marrige discrimination strips a fundamental right from a suspect class?"

I doubt she's changed her mind. However, this is not the same case as before. There is now a constitutional amendment to consider. It's perfectly consistent for her to say that now that the constitution has changed that the constitutional law must change in this regard as well.

Also, are you trying to suggest that her comment would still apply if even a referendum were passed? That makes no sense, and I don't think even Justice Moreno would agree with that, so it's clear that Kennard's comment should be understood in the context of the case in which it was made and not as an absolutist statement in support of an oligarchy.
11.19.2008 7:36pm
Down from the Ivory Tower:
Justice Kennard wrote her concurrence in the Marriage Cases solely to emphasize that equal protection is not subject to majoritarian whims. Yet, if Prop. 8 stands, that is exactly what we'll have: a majority voting to strip a suspect class of fundamental rights, displacing equal protection with pure majoritarianism. If she meant what she wrote in her concurrence, surely Justice Kennard must consider such an outcome to upend the core principle of equal protection and therefore consitute a revision, not an amendment.
11.19.2008 8:04pm
Parenthetical:

Justice Kennard wrote her concurrence in the Marriage Cases solely to emphasize that equal protection is not subject to majoritarian whims.

Precisely.

As I mentioned in an earlier thread, there are essentially two ways of looking at Prop 8:

(a) It defines the contours of the fundamental right to marry. That definitely looks like an amendment not a revision.

(b) It guts equal protection. A simple majority of the electorate (acting alone) is now the final arbiter of what the state may do to an unpopular minority. That strays into revision territory.

Absent Kennard's objection to hearing this case, I would have been surprised if it survived review. I'm really surprised that Kennard wouldn't even vote to entertain the "turn equal protection on its head" claim.
11.19.2008 8:25pm
Thomas_Holsinger:
Houston Lawyer,

There are two possibilities here. The first is that the Court feels it has an adequate record on the issue from its earlier holding. The other possibility is that a majority on the merits already exists.

DownFromTheIvoryTower,

Kennard's reported desire to let a trial court hear the matter first, given her prior concurrring opinion, makes it more likely that a majority on the merits already exists, and IMO that the majority feels Proposition 8 is a constitutional amendment.
11.19.2008 8:26pm
geokstr:
Josh644:

It seems to me unlikely that the justices will look kindly on the unwashed masses telling them where they can stick their earlier decision allowing same-sex marriages.

Your post comes across as somewhat whiny.

I'm sorry you read it that way. It was meant to be a sarcastic comment on the fact that judges are people too, and could hardly be expected to have no reaction to those they must see as legally ignorant overturning a pronouncement they had just made.

So answer my question instead of making an ad hom. Why isn't there some process to insure that these types of amendments and revisions would at least pass minimal legal muster before tens of millions of dollars are spent, tempers become overheated, and the legality of prior acts (same-sex marriages) becomes questionable?

Would the same effect be possible at the federal level? Could an amendment be passed by 3/4 of the states only to be declared "unconstitutional" by the SCOTUS, or are they precluded from ruling on it afterwards?
11.19.2008 8:43pm
Smokey:
So, when is justice K up for reconfirmation by the citizens of the state? And the other justices, for that matter.

It's a 12 year term, as I recall. Probably an ordinary citizen like Ms. Rose Bird remembers better than I.
11.19.2008 8:48pm
CDR D (mail):
>>>It seems to me unlikely that the justices will look kindly on the unwashed masses telling them where they can stick their....<<<


Now, that's funny.
11.19.2008 8:55pm
Thomas_Holsinger:
Smokey,

Rose Bird died of cancer in 1999.
11.19.2008 8:59pm
Thrasymachus (mail):
Geokstr:

The U.S. constitution does not distinguish between "amendments" and "revisions." SCOTUS CANNOT declare an amendment to the federal constitution to be unconstitutional, although it can void amendments to state constitutions.
11.19.2008 9:05pm
Mike (mail) (www):
I find the more interesting issue the fate of the existing same-sex marriages. I vaguely recall a case many years ago where a state allowed first-cousin marriages, and later changed its law to prohibit these marriages. When this occurred, already existing first-cousin marriages remained legally recognized.
11.19.2008 9:40pm
anon345 (mail):
I think that Kennard wants to confirm that existing marriages are valid quickly and avoid the question on the constitutionality of prop. 8. I think when push comes to shove she will undoubtedly vote to strike prop. 8. She was hoping that by denying review for other than existing marriages that prop. 8 would be overturned by a popular vote before it reached the Supreme Court.
11.19.2008 10:33pm
whit:

As a non-lawyer here, I was wondering what the chances are that the California Supremes will not overturn Prop 8?


true dat. many people talk about cops and "contempt of cop" arrests.

contempt of cop has NOTHING on "contempt of judge"

judges are like feudal lords.

for example, I can recall countless cases where judges gave a minor fine etc. to people convicted of driving with a suspended license, even with repeat offenders.

i recall one instance though where the judge suspected the guy had driven to the court for the suspended hearing (he was still suspended at the time, and an officer had seen his car in the parking lot and he appeared alone) and sternly told the guy "don't even think about driving home".

well, the guy DID get in his car and start driving from the courthouse (staked out the whole time and promptly pulled over).

the officer brought the guy back in, who grinned sheepishly at the judge.

judge threw him in jail for 30 days on the spot!

i've seen 3rd offender DUI's get less jail time.

CONTEMPT OF JUDGE. it's what's for dinner!
11.19.2008 10:42pm
whit:

Could an amendment be passed by 3/4 of the states only to be declared "unconstitutional" by the SCOTUS,


what?

constitutional amendments are BY DEFINITION UNconstitutional or at least extra-constitutional. that's the whole point. they want to CHANGE the constitution, making something constitutional by the process of adding the amendment.

they become constitutional once they are passed. the scotus can't rule a new amendment to the constitution UNconstitutional. if they could do that, what's the point of having a process to amend the constitution?

seriously.
11.19.2008 10:44pm
Mike (mail) (www):
The question isn't whether Prop 8 is unconstitutional, it whether or not it was properly enacted. By definition, if it is a valid, properly enacted amendment, then it is constitutional. But, if it was improperly enacted, then it isn't part of the constitution.
11.19.2008 10:57pm
Cornellian (mail):
Since an amendment to the federal constitution is, by definition, part of the constitution, the amendment cannot be unconstitutional anymore than the constitution itself can be unconstitutional. However, SCOTUS could rule on whether the amendment was validly enacted in the first place, e.g. if one of the states purported to approve it by declaration of the governor, rather than resolution of the legislature.

Similarly, what is at issue before the California Supreme Court is not whether Prop 8 is unconstitutional, but whether it was validly enacted according to the procedure provided in the constitution. If it's an "amendment" it was validly enacted, and if it's a "revision" it was not validly enacted. In other words, it is an amendment or is it a revision? Who knows - the terms are not self defining and the cases on the issue don't provide a definitive answer.
11.19.2008 11:37pm
Cornellian (mail):
Whenever, the (simple) majority of THE PEOPLE in the state wish to change the governing law, all that is necessary is for a simple majority of THE PEOPLE to decide to do so.

What if THE PEOPLE enact a law which says it can be amended only by a two-thirds majority? Are THE PEOPLE unable to enact such a law?
11.19.2008 11:38pm
Repeal 16-17 (mail):
What if THE PEOPLE enact a law which says it can be amended only by a two-thirds majority? Are THE PEOPLE unable to enact such a law?

That reminds me of the Corwin Amendment. Could an amendment to the U.S. Constitution make itself unrepealable?
11.19.2008 11:44pm
Vanhattan (mail):
I really hope that the California Supreme Court rules that it was in fact a revision and not an amendment. If proposition 8 is ruled to be valid as an amendment, this will only open up the spigots of majority tyrany over the minority. This would be a very dangerous precedent for the court to make.

My only warning to the majority is that the majority can one day become the minority in a generation or two. If it only takes a simple majority vote to take away minority civil rights we will all suffer the consequences and none of which I predict will be very pretty.
11.20.2008 12:07am
MisterBigTop:
Can someone explain to me what led California to have two different categories of constitutional changes? It seems silly to me. If the problem is that the amendment process is too easy and thus major changes to fundamental parts of the state constitution (like getting rid of the executive branch or something else that extreme) are too common under the amendment process, then why not just make it a harder process? Require two-thirds of the people or something along those lines.
11.20.2008 12:07am
Mac (mail):
It seems to me unlikely that the justices will look kindly on the unwashed masses telling them where they can stick their....<<<

Very true and very funny.



this will only open up the spigots of majority tyrany over the minority.


That's right. We should forget about Democracy and the will of the people and majority rule and continue to have the tyranny of the minority. Much better that way.

I won't even ask how something can be a fundamental right that was only thought of what, 10 or 15 years ago?
11.20.2008 12:38am
Roger Schlafly (www):
The question isn't whether Prop 8 is unconstitutional, it whether or not it was properly enacted.
You mean P8 might not have properly qualified for the ballot? I think that issue should have been raised before the election, or not at all.
11.20.2008 12:51am
Marina Martin (mail) (www):
I'm not a lawyer, but I'm wondering if there's a different legal approach that could be pursued. Has the legality of the state defining marriages been challenged, given the idea of the separation of church and state? Could they get California to stop declaring *anyone* married, leaving that to the churches, and allowing for civil unions between all consenting couples regardless of their gender?
11.20.2008 5:58am
Marina Martin (mail) (www):
I'm not a lawyer, but I'm wondering if there's a different legal approach that could be pursued. Has the legality of the state defining marriages been challenged, given the idea of the separation of church and state? Could they get California to stop declaring *anyone* married, leaving that to the churches, and allowing for civil unions between all consenting couples regardless of their gender?
11.20.2008 5:58am
Soronel Haetir (mail):
I have a hard time seeing the Ca. court looking to the federal constitution here in order to strike this. Leaving this open to SCOTUS would be such a risky move I can't see it.
11.20.2008 8:11am
JTW (mail):

I think that Kennard wants to confirm that existing marriages are valid quickly and avoid the question on the constitutionality of prop. 8. I think when push comes to shove she will undoubtedly vote to strike prop. 8. She was hoping that by denying review for other than existing marriages that prop. 8 would be overturned by a popular vote before it reached the Supreme Court.


To my mind, this is probably what's going on with her vote to deny review. We can't forget that Justice Kennard stands alone on the California Court in her continuing advocacy for gay rights and same-sex marriage (case in point: she alone voted to uphold the marriages performed in San Francisco in 2004). Indeed, her separate concurrence in the marriage cases essentially wrote the book on why questions of equal protection and why the protection of minorities from hostile majorities are the unique--and inviolable--province of the judiciary. These constitutional principles, of course, reach far beyond the narrower question of gay rights.

Of course, the question of whether Prop 8 is an amendment or a revision is constitutionally unrelated to the questions of whether same-sex marriage is a fundamental right under the CA Constitution and whether homosexuals and same-sex couples are entitled to heightened judicial protection as a suspect class.

But unless Kennard has had some massive change of heart about the latter issues since May 15 (unlikely), it is almost unthinkable that, as a conceptual matter, she would vote to uphold ANY "amendment" that strips a fundamental right (marriage, voting, exercise of religion) from a vulnerable minority (gays, blacks, Mormons) that has been identified as a suspect class under the equal protection clause of the CA Constitution.

Given her prior positions, it is far likelier that she views an initiative like Prop 8 as a revision, given the singular change that it works regarding the foundational meanings of "fundamental right" and "equal protection."

(Keep in mind that the federal constitutional principles applied to protect some of these rights and classes of people are NOT in play here, because the CA Constitution itself says that it is wholly-independent from the federal constitution. The majority opinion in the marriage cases confirmed this.)

In light of Kennard's past positions on such issues, therefore, my educated guess is that she's hoping to delay a constitutional ruling until after the 2010 midterms (or perhaps even later) for at least two reasons:

(1) The possibility that Prop. 8 is repealed by a subsequent ballot initiative, thus mooting the question of its constitutionality by removing it from the constitution.

(2) She hopes to avoid the threatened recall fight for ALL Justices voting to strike Prop 8, because we know that a recall battle will be BLOODY. She's a liberal, but she's also a pragmatist.
11.20.2008 10:56am
cbyler (mail):

You mean P8 might not have properly qualified for the ballot? I think that issue should have been raised before the election, or not at all.

It *was* raised before the election. The Court ruled that it was unnecessary to rule on the issue at that time because P8 might lose at the polls and then it wouldn't matter whether it was an amendment or a revision. In retrospect, that decision seems unwise, because ruling on it *after* the election is politically incendiary.

They can't very well rule that it can't be decided before the election *and* it can't be decided after the election, though.

Can someone explain to me what led California to have two different categories of constitutional changes? It seems silly to me. If the problem is that the amendment process is too easy and thus major changes to fundamental parts of the state constitution (like getting rid of the executive branch or something else that extreme) are too common under the amendment process, then why not just make it a harder process? Require two-thirds of the people or something along those lines.

Those seem like good ideas to me, and if the people of California had taken that advice even 5 years ago they wouldn't be in this fix now. But they didn't, and since Prop 8 has already passed, even eliminating the too-easy "amendment" process entirely won't resolve the current problem.

I agree that it would be a good idea, though. Making "minor" amendments easy and only "major" ones tough just invites line-drawing problems like this one. (Vitiating the Equal Protection Clause certainly looks major to me, but I don't sit on the CA SC.) Worse, it makes the entire constitution look shaky - if the EPC can be gutted by 51%, what else is safe? Self-incrimination? Search warrants? Defendants' right to counsel?
11.20.2008 11:02am
Lymis (mail):
A serious question:

Prop 8 defines marriage as solely between a man and a woman, and puts that (if it stands) inviolably in the state constitution.

The Marriage Cases decision declared that the constitution as it stood required that either marriages (with all their benefits) be given equally to all, specifically to include same-sex couples, or else withheld from all. Period. It then went on to say that they were requiring same-sex marriage because they assumed it was not the will of the people nor in the best interests of the state to wipe out civil marriage.

Prop 8 went ahead, and it passed.

Why isn't the obvious current situation that a majority of Californians just eliminated civil marriage benefits for everyone in California? All the discussion is what happens to the same sex couples. But why, given that the Court bluntly declared the two options, isn't anyone talking about the straight couples? Prop 8 does not mention any benefits whatsoever, and therefore does not guarantee them to straight couples. In fact, one of the underlying justifications of Prop 8 was that denying the benefits associated with marriage was no hardship for same-sex couples, since they could get all the benefits from a domestic partnership. By that logic, denying them to straight couples could not possibly create a hardship for them.

Seems like a pretty clear syllogism:
1) No benefits can be given to straight people that is not equally given to gay people.
2) Civil marriage, is limited to straight couples.
Therefore:
3) The state of California cannot attach any benefits to civil marriage.

People have asked upthread why the Court couldn't rule on whether Prop 8 was or wasn't an amendment. It seems to me vividly clear that they essentially DID rule in advance that passing Prop 8 would eliminate all state marriage benefits.

It wouldn't, however, eliminate Federal Benefits to married opposite sex couples. They would just need a Domestic Partnership as well for any state benefits.

I think this result would be a Bad Thing, but is there any reason why it isn't the only possible consistent outcome? And would that level of restructuring of civil benefits require a revision rather than an amendment?
11.20.2008 11:35am
Smallholder (mail) (www):
I puzzled by the people who seem to think that the courts should always defer to majorities of the people or legislative majorities. If that is the case, what is the point of constitutional review? Any law must have been passed by a majority to become law. Does the majority over judges viewpoint imagine a situation where it would be appropriate for judges to overturn a law?

My understanding was that the judicial branch was designed to prevent a majority from trampling constitutional rights. They were designed to be the final authority. Sarah Brady and a majority of the residents of the District of Columbia may believe that there shouldn't be an individual right to own guns, but the Supreme Court, not Sarah Brady, gets to decide. When the Supreme Court ruled in Heller that there is an individual right (no matter how incohate), that settles the matter.

In Loving, the Supreme Court ruled that marriage is a fundamental right. If, in the future, the Court determines that equal protection requires all states to allow gays access to the institution, it ought to settle the matter. Alternatively, if the Court finds that states' rules for marriage do not violate equal protection, the Court may still find that states who do not allow gay marriage must still recognize out of state marriages under the Full Faith and Credit Clause, essentially allowing Massachusetts to set national policy. In either case, the Court would be usurping (at least temporarily) public opinion.

But isn't that how our system is supposed to work.

If you disagree and believe that judges should not overturn majorities' laws, do you believe that Brown and Loving were wrongly decided? What about Heller?

It strikes me that clinging to the "Majorities rule" mantra is dangerous: While it may serve your purpose of keeping the icky gays from marrying, it may work against you in other issues like gun control or private property rights. Secondly, majorities change. The American public is rapidly becoming more tolerant of homosexuality. When - note I don't say "if" - majorities vote to extend marriage to gays, you will have to accept that decision if you wish to remain intellectually consistent.

Not that I think gay-marriage opponents have any intention of being intellectually consistent. The silliness of arguments like "banning gay marriages isn't discrimination because straights are banned from same sex marriage too" leads me to conclude that if you scratch most anti-gay marriage "logic," you'll reveal the true bottom line: "My Jesus says fags are icky."
11.20.2008 11:51am
Fub:
CDR D wrote at 11.19.2008 7:09pm:
So far as I'm concerned, Prop 8 is/was a "jihad" against arrogant judges.

Let 'em strike it down.

Oh, please, let them strike it down!
I'm not sure I understand the reasoning behind this approach, unless it expresses the wish to engage in even more political campaigns centered around gay marriage.

If one favors Prop 8 and the court strikes it down, then one has to engage in a political campaign to enact a replacement.

If one is hoping that outrage against the court for overturning Prop 8 will result in some SC judges losing retention elections, then one will have to engage in two campaigns. Even if successful, there is no guarantee that the next appointed judges will do one's bidding.

It reminds me of the old leftist idea of encouraging the state to bring down the jackboots on the workers so that the oppressed workers will arise in revolution. Perhaps it makes a nice Armageddon fantasy, but the reality is that one's cause is even more at risk if it happens.
11.20.2008 12:10pm
Parenthetical:
JTW:

In light of Kennard's past positions on such issues, therefore, my educated guess is that she's hoping to delay a constitutional ruling until after the 2010 midterms (or perhaps even later) . . .

That would certainly be more in keeping with her prior opinions and predilections than an apparent unwillingness to hear a challenge in which equal protection was the central issue.

What I find ironic about that suggestion is that "King" George always struck me as most overt institutionalist (at least as concerned about the court's stature as about any given case). Kennard probably the least so.

But, it's George (and Chin) who is up for a retention election in 2010. Kennard will be 77 years old at her next election (2018). I doubt that election looms large in her mind at this point.

Regardless, the die is cast. We'll almost certainly have a decision next year.
11.20.2008 12:59pm
jrose:
Seems like a pretty clear syllogism:
1) No benefits can be given to straight people that is not equally given to gay people.
2) Civil marriage, is limited to straight couples.
Therefore:
3) The state of California cannot attach any benefits to civil marriage.


As applied only to marriage, Proposition 8 makes #1 a falsehood (as either an amendment or revision to the California constitution). So, #3 does not follow.
11.20.2008 1:01pm
David Schwartz (mail):
Jrose: "Only marriage between a man and a woman is valid or recognized in California." That doesn't say anything about benefits. It doesn't invalidate 1. It simply states 2.
11.20.2008 1:58pm
reagan21 (mail) (www):
I do not have enough space to explain why I believe Prop-8 was an amendment and not a revision. the argument in favor of it being a revision is razor thin and does not stand on uch precedant. I explain further at the post below. Please take a gander.

http:// trustbutverify.wordpress.com/2008/11/20/ amendment-vs-revision-the-impact-on-prop-8/

Thanks.
11.20.2008 2:09pm
KWC (mail):
Eugene:

Do you really consider this fair commentary? Your "response" to the revision argument seems to be a response to what you imagine the revision argument to look like. You don't actually respond to the arguments that the ACLU (and others) have actually made. In fact, the points that you (and Bainbridge) have made are the tip of the revision-amendment debate iceberg.

Also, I think there is a much more compelling explanation for why the stay was not granted: (1) To grant the stay, i.e., to grant relief, would require much more detailed reasoning or analysis into the merits, for the reasons you suggest. Why do that now, when this is already on an expedited track?; (2) the "imminence" problem isn't that compelling. That people can't get married during December seems like it would cause the world to halt, especially in light of the fast-tracked review they are already doing.

Finally, and this is more of a comment. I think it's weird (and I therefore agree with Justice Kennard) that this Court is hearing anything about the validity of the current marriages. Where is the standing of the other party to challenge this? It might have something to do with Allred's inclusion of an already-married lesbian couple. In which case, that might have been a dumb move. It seems to me that none of the proponents would otherwise have standing to challenge the validity of these marriages. Also, it seems odd that they would be able to go back and undo the specific marriages that aren't before the court.

I think Eugene's point about invalidating the likelihood that the Court will invalidate the pre-November 5 marriages is blinded by the proximity of the In re Marriages case and the November 5 vote. Maybe an 8 month marriage would be easy ot invalidate without any real reprecussions. But what if Prop 8 were brought in 2028 instead of now?

Eugene, do you honestly believe that the Court could, based on Prop 8, invalidate a 20-year marriage (and all the legal rights that are related to it) in an instant?

I also disagree that all marriages should be converted to DPs. What if I don't want a DP? The government certainly can't impose that condition on me. What if the Federal Constitution were amended to disallow Judaism? Would it be okay for the Government to say, well, you are Christian now, it's close enough!
11.20.2008 2:14pm
KWC (mail):
Oops. The poor writing of the Order confused me. It seems Kennard DOES want to hear about the marriages of the same-sex couples. Odd. I think that's the LEAST interesting question.

Who knows what she's thinking?

The funniest thing to me is that the people shouting "activists, activists" will say "the court did the right thing" if they uphold Prop 8. Hypocrites.

Anyway, you should read Pugno's brief in opposition (i.e., in favor of Prop 8). It's a classic example of how NOT to write an appellate brief. Parts of it border on insulting to the judges, caveating it with "with all due respect." They should lose for having such awful attorneys. I guess that's what you get from McGeorge-educated lawyers.
11.20.2008 2:26pm
Lymis (mail):

As applied only to marriage, Proposition 8 makes #1 a falsehood (as either an amendment or revision to the California constitution). So, #3 does not follow.


Wrong. That only applies if the status of marriage is automatically linked to the benefits of marriage. Which isn't so. Clearly, the voters took for granted that it is , but there isn't any basis for that. There are no state benefits inherent in marriage.
11.20.2008 2:42pm
Parenthetical:

Anyway, you should read Pugno's brief in opposition (i.e., in favor of Prop 8). It's a classic example of how NOT to write an appellate brief.

Sadly, the quality of advocacy by the opposition to SSM has been dreadful for the entire four+ years of proceedings. Hell, they're still clogging up the docket with requests for judicial notice of newspaper articles. I've lost count of how many times the court has had to explain that it won't do that.
11.20.2008 3:08pm
John Howard (eggandsperm.org) (mail) (www):
Remember that the May decision specifically stated that they were not addressing whether their Constitution requires that same-sex couples be allowed all the rights of marriage, but only if having a different name for the same rights violates the Constitution. They did not rule that California must offer same-sex couples all the rights of marriage. They ruled they can't have different names:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a "marriage" whereas the union of a same-sex couple is officially designated a "domestic partnership." The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

And indeed, they found that it did violate the constitution to not designate DP's as marriage. But they have also just ruled that DP's that give the same rights as marriage must be called marriage. So that means that now, after Prop 8, DP's that give the same rights as marriage must still be called marriage (prop 8 didn't change that), and that means those DP's are not valid or recognized in California. That's inescapable: the combination of Marriage Cases and Prop 8 mean that those DP's are not valid or recognized in CA. The only way out, and it's what should happen in every state, is to make DP's somehow different, so they no longer give all the same rights of marriage. They need to define them (and I propose changing the name to Civil Unions) as "marriage minus conception rights" so that marriage continues to protect the couple's right to attempt to conceive children together, and same-sex conception can be prohibited with a federal anti-cloning/ethical conception law.
11.20.2008 3:23pm
Alanmt (mail):
A random thought: Where does the concept of "inalienable rights" as described in the Declaration of Independence and most state consitutions come to play in this issue?

1. Are there some rights that are in fact inalienable, so that no governmental enactment, even a constitutional amendment or revision, that eliminates them can stand?

2. If so, do such rights include the rights recognized by the California Supreme Court in its earlier decision - the right to marry, and the right of equal protection under the law?

3. Is it an appropriate function of the judiciary to identify such fundamental rights? (I can't imagine it would fall within the purview of any other governmental branch).

My initial impression of the correct answers to these questions is yes, maybe and yes.
11.20.2008 3:47pm
John Howard (eggandsperm.org) (mail) (www):
Alan, all three branches need to respect inalienable rights. Any branch can identify something as an inalienable right. Ultimately, it is the people who decide if their government is respecting them.

Marriage and procreation are fundamental rights, and that means the right to attempt to conceive children with someone who agrees to have children with that person, using each other's genes. There are supportable basis to prohibit certain public relationships from procreating together, and requiring people to pick someone with whom they are allowed to procreate.

There is no right to create people any other way, using modified or synthesized genes.
11.20.2008 3:57pm
Dilan Esper (mail) (www):
they become constitutional once they are passed. the scotus can't rule a new amendment to the constitution UNconstitutional. if they could do that, what's the point of having a process to amend the constitution?

Well, if there were an amendment that, say, deprived a state without its consent of its equal representation in the Senate, I assume it could be declared unconstitutional or unenforceable (absent unanimous adoption by the states) by the Court. And the Court might also determine what constitutes valid adoption of an amendment (though based on precedents in the area of legislation, that might be nonjusticiable).
11.20.2008 4:21pm
ShelbyC:

By definition, if it is a valid, properly enacted amendment, then it is constitutional.


Not according to the Nevada Supreme Court. In Guinn v. Legislature, they declared the amendment requiring a supermajority to pass a budget unconstitutional.
11.20.2008 4:32pm
Down from the Ivory Tower:
Well, actually, Article I of the California Constitution reads as follows:

All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

The fundmental right of marriage inheres in the rights to "liberty" and "privacy." The right to marry, which the court has held applies to gay people too, is therefore "inalienable." If this means anything, how can an inalienable right be stripped away from an unpopular group by a majority vote?
11.20.2008 4:35pm
KWC (mail):
Would a recall against the Justices actually be possible? I think Prop 8 support is tepid. Sure, people voted YES, but did they actually vote that way with gusto? Unlikely. Probably only 35% are actually avid anit-SSMers. That wouldn't be enough. Also, many people (despite what LAWYERS might think) don't actually care about "activist judges" etc.
11.20.2008 4:39pm
cymatic (mail):
@KCW
I'm actually curious about the same question you ask, although in a different sense. I know that CA SC justices come up for retention votes every 12 years, but would a recall--that is gathering signatures on a petition to hold a special retention vote outside of the 12 year term--against the Justices actually be possible? Somebody here must know...

There's plenty of bluster about "recalling these activist judges." Is there anything to it? Are they just using "recall" as shorthand for "when they come up for retention votes we'll campaign against them," or do they just not know what they're talking about?
11.20.2008 5:03pm
jrose:
Clearly, the voters took for granted that it is , but there isn't any basis for that. There are no state benefits inherent in marriage

Knock yourself arguing that technical parsing of the words. I strongly suspect any court would use common sense, as they should, and conclude the voters intended to take away marriage, and its benefits away from same-sex couples.
11.20.2008 6:04pm
KWC (mail):
cymatic:

The short answer is yes, recall of CA Supreme Court Justices is possible under the CA Constitution. This is separate procedural from retention.
11.20.2008 6:34pm
Thomas_Holsinger:
Dilan Esper refers to the last part of Article V of the U.S. Constitution stating:
"... no State, without its consent, shall be deprived of its equal suffrage in the Senate."

I agree that the U.S. Supreme Court could find a Constitutional amendment unconstitutional if it gives states proportional Senate votes without obtaining proper consent from the affected state legislatures.
11.20.2008 8:13pm
Lymis (mail):
jrose: I strongly suspect any court would use common sense, as they should, and conclude the voters intended to take away marriage, and its benefits away from same-sex couples.
I agree and stipulated that. You miss the point of my question. Of course the voters didn't intend to vote away their own marriage benefits.

But the decision (p64) clearly states that the constitutional right to marry does not obligate the state to grant any tax or other governmental benefits, just to grant public recognition to their status as a family and enforce their mutual obligations to each other. NOT to give benefits.

The decision states (p119):
When a statute's differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class.
Further (p120), the decision states:
In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation. [...] there can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state's general legislative policy and preference.

But Prop 8 takes away the option of extending the "class of treatment or benefit" that civil marriage gives gay people. That seems to leave only the option of stripping away any benefits from marriage. The benefits are still available to all couples equally, because straight people can sign up for Domestic Partnerships.

I'm not saying this is socially or politically or even morally the right answer, but could someone other than jrose give an explanation of just how the voters of California haven't just boxed themselves in?
11.20.2008 8:29pm
Thomas_Holsinger:
Lymis,

Finley Peter Dunne's "Mr. Dooley" answered that question more than a hundred years ago:
"Th' Supreeeme Curt follows th' election returns."

I very much doubt that even the Rose Bird court would tell all Californians that none of them may marry.
11.20.2008 10:40pm
JohnnyR (mail):
I would very much like EV to elaborate on KWC's point above. How can the Supreme Court invalidate marriages like that? If the legal principle that justifies invalidating the marriage now is the same as would justify invalidating it in 30 years (if the proposition was to take place then instead), how could that be. Imagine these scenarios. How do you respond:

1. Male and Male get married. They then apply for visa to Netherlands, which recognizes any marriages (same-sex or otherwise) from any state/government/country for visa purposes. They are in Netherlands now. Is their marriage invalid, as well as their visa?

2. Female and Female got married. Female 2 died (this happened, right? to that 89-yr-old woman). Community property for those few months was given to Female 1. Does that property get taken away from Female 1?

3. In 30 years, this proposition passed (instead of right away), then all that CP is gone? How can that be? 30 years person a relied on person b's income and potential community property, does it go away?

I guess the real question is, was the marriage NEVER valid (becuase it is retroactive?), and if so, isn't that like effectuated a divorce on the party and forcing them to lose valuable property they may have gained? If the marriages were valid, but just aren't now, then a similar problem exists.

I agree with KWC that EV seems a bit flippant and uncareful in his analysis.
11.20.2008 11:52pm
John Howard (eggandsperm.org) (mail) (www):
1. The Netherlands decides that. It would have nothing to do with California recognizing it or not. Or, it could, if the Netherlands buys that argument.

2. Lawyers decide that.

3. Well, what happens when a state invalidates a marriage that is discovered to be between siblings after 30 years?
11.21.2008 12:03am
Larry Fafarman (mail) (www):
The US Supreme Court said, "The cardinal rule is that repeals by implication are not favored," but IMO Prop. 8 does not even "repeal by implication" anything in the Calif. constitution because so far as I know no one has clearly identified what specific provisions of the Calif. constitution were implicitly repealed by Prop. 8. BTW, here is the US Supreme Court's complete statement about "repeals by implication," from
Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936):

The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment.

Also, IMO, Romer v. Evans is inapposite. What would be unconstitutional under Romer v. Evans would be a proposition that would prohibit propositions that would legalize same-sex marriage.

KeithK said (11.19.2008 6:14pm) --
It doesn't seem like there's anything to be gained by going through lower courts in this case. There really isn't a record of specific facts that need to be established by a trial court.

Establishing facts is not the only purpose of going through lower courts first -- another purpose is to develop legal arguments.

tvk said,
Isn't a rather stronger signal of Proposition 8's chance the fact that Justice Kennard, a member of the majority and likely the "swing" vote of the 4-3 decision, would now deny certiorari?

"Certiorari" is not an appropriate term here -- a "writ of certiorari" is a writ requesting a lower court's records for review, and there are no lower-court records here.
11.21.2008 1:21am
Robert Greeley (mail):

In light of Kennard's past positions on such issues, therefore, my educated guess is that she's hoping to delay a constitutional ruling until after the 2010 midterms (or perhaps even later) for at least two reasons:

(1) The possibility that Prop. 8 is repealed by a subsequent ballot initiative, thus mooting the question of its constitutionality by removing it from the constitution.

(2) She hopes to avoid the threatened recall fight for ALL Justices voting to strike Prop 8, because we know that a recall battle will be BLOODY. She's a liberal, but she's also a pragmatist.


I can think of a third reason:

(3) She knows that time favors the pro-SSM side, and so the longer the delay, the greater the support among the voting public for SSM. So even if there's not another initiative (whether in 2010 or later) on the topic before the Court has to rule, the inevitable recall effort will presumably have that much less support in the electorate. (This line of thought presumes that increasing support for SSM tracks roughly the same with declining support for a recall of justices -- which may or may not be true. But perhaps J. Kennard believes it to be so.)
11.21.2008 2:32am
jrose:
When a statute's differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class.

But Prop 8 takes away the option of extending the "class of treatment or benefit" that civil marriage gives gay people. That seems to leave only the option of stripping away any benefits from marriage.


Your analysis assumes that Proposition 8 continues to violate (California) equal protection principles. But it can't because it is now part of the Constitution (unless it is a revision). So, we don't even make it to the second part of your analysis (the relief).
11.21.2008 11:08am
Honey:
Lymis


But Prop 8 takes away the option of extending the "class of treatment or benefit" that civil marriage gives gay people. That seems to leave only the option of stripping away any benefits from marriage. The benefits are still available to all couples equally, because straight people can sign up for Domestic Partnerships

.


As I understand it, under AB 205, only certain straight couples are able to become "Registered Domestic Partners", the status that affords then with virtually all the rights of Married Spouses. This is, of course, only on a state level and would not apply to any Federal rights/protections.

I also understand that even "marrried" SS couples (approx 18,000) cannot even file taxes jointly in the state due to the fact that your state return status must match your Federal return status.

I believe I am correct, but am just learning many of the ins and outs of both levels of status.
11.21.2008 2:36pm
John Howard (eggandsperm.org) (mail) (www):
so far as I know no one has clearly identified what specific provisions of the Calif. constitution were implicitly repealed by Prop. 8.

Well, it certainly didn't repeal the provision that makes it unconstitutional to have a statutory scheme resulting in equal institutions having different names for same-sex couples which was the provision that the May decision was based on. That part is still there, if it ever was there. It is still unconstitutional, it still implies a second-class status that harms the relationship, to have a statutory scheme where the same legal relationship is called DP's for same-sex couples.

There needs to be a substantial difference in the rights of relationships that is rational and understandable and acceptable in order to be constitutional and avoid creating a second-class status that harms families.

I suggest making the difference "conception rights" so that marriages continue to be allowed to attempt to join their own genes to create children. Same-sex couples wouldn't be giving up anything that they can currently do or are ever likely to be able to do. Heck, most people don't even know it is a possibility, they wouldn't miss it.

Why not get behind this idea to put in place Recognition-Ready Civil Unions that Congress could then recognize federally? The DOMA debate is coming up, and this is how it should be resolved. Please get behind it and get equal protections to same-sex couples across the country, and preserve natural conception and marriage.
11.21.2008 4:04pm
Parenthetical:

As I understand it, under AB 205, only certain straight couples are able to become "Registered Domestic Partners"

Going back to the original domestic partnership (DP) scheme (AB 26, 1999), only opposite-sex couples in which both partners were 62 years old could register. AB 25 (2001) relaxed the requirement somewhat (only one partner needed to be 62 years old). That requirement remained intact under AB 205 (2003), which greater expanded the scope of DP rights and responsibilities.

I also understand that even "marrried" SS couples (approx 18,000) cannot even file taxes jointly in the state due to the fact that your state return status must match your Federal return status.

That was true under the domestic partnership (DP) scheme for many years. Starting in the 2007 tax year, however, DPs would file as a married couple on the Calif. return, but not on the federal return.

Presumably that would also be true of same-sex spouses in current tax year. But, that's unchartered and now turbulent water.

In any event, the DP scheme has a convoluted history, and the particulars were changing right up through the present legislature.
11.21.2008 4:05pm
KWC (mail):
John Howard,

After reading your posts, all I can think is "WHAT?!" You don't make a lot of sense. And in response to JohnR's questions, your answers were weird and illogical:

"1. The Netherlands decides that. It would have nothing to do with California recognizing it or not. Or, it could, if the Netherlands buys that argument."

Yeah, okay, but the point seems to be whether the effect the marriage has on other agreements should factor into whether or not to invalidate them retroactively.

2. Lawyers decide that.

Lawyers don't decide things. They argue things and courts decide. But again, this doesn't answer the question. What should courts do?


3. Well, what happens when a state invalidates a marriage that is discovered to be between siblings after 30 years?

I don't know. Have you seen such a case? What was the analysis in this type of case? That would be interesting, but just answering a question with a question is utterly not helpful.
11.21.2008 6:21pm
John Howard (eggandsperm.org) (mail) (www):
The point is that courts can look at a specific case and make a decision about justice being done in that case. Different cases can have different results. Yes, it has happened with siblings and the marriage is supposed to be declared void by law, and a probate court resolves matters that are in dispute.

Please tell me what I've said that doesn't make sense so I can try again.

I'm trying to make two points on this thread:

1. The May decision still rules: two different names for the same rights is unconstitional and harmful to families. An institution with the same rights has to be called marriages. Prop 8 didn't change that. Prop 8 in combination with the rest of the Constitution therefore says equal rights for same-sex couples are not valid or recognized. The only way out is for the institution not to give all the same rights, for there to be a rational and substantial difference in rights for the two institutions.

2. We should look at this issue with an eye on the DOMA debate that is coming in Washington, with the goal to get equal protections to same-sex couples as soon as possible. Coming up with Recognition-Ready CIvil Unions would be a great way to jumpstart the issue in Washington and make progress. Congress should recognize Civil Unions that are defined as "marriage minus conception rights", ie, all the rights of marriage but creating genetic offspring is prohibited rather than protected.
11.21.2008 6:57pm
KWC (mail):
John Howard,

Your analysis fails because it is based on a false premise: "An institution with the same rights has to be called marriages." In In re Marriages, the Court said that there's nothing magical about the word marriage. The issue is that you can't give that title to some, but not to others. If anything, the decision implied that the inequality could be remedied by getting rid of the term "marriage" altogether, not what you suggest--which sounds something like 'if it can't be equal, let's make it even MORE unequal.'

You are trying to be too creative and create a result that defies logic. No serious scholar or jurist would ever accept this type of reasoning.
11.21.2008 9:55pm
John Howard (eggandsperm.org) (mail) (www):
Well, my solution would make it more equal, since it would enable Congress to enact federal equal protections and only takes away a right to do what can't be done today and might not ever be possible.

The court actually didn't address the question of calling them both Civil Unions, and didn't say that was a possible solution: "We need not decide in this case whether the name "marriage" is invariably a core element of the state constitutional right to marry so that the state would violate a couple's constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples."

I think if they did address that, they would find that the word marriage was invariably a core element of the right to marry, because it is used so universally as the civil legal term for the civil status. It would again result in some couples using the name marriage (from other states and couples with existing marriages) and other couples being deprived of the historic and universal name for the civil status bestowing state approval of conceiving children together.

And anyhow, the most important thing is that same-sex couples should not have equal rights. People should only have the right to conceive with someone of the other sex. That has to happen anyway, in order to preserve equality and natural conception rights and human dignity. That it makes a perfect distinction between marriage and civil union is a bonus that we can use to create constitutional Civil Unions.
11.22.2008 1:54pm
John Howard (eggandsperm.org) (mail) (www):
Another thought, regarding designating the civil status something other than marriage: other states and countries are not interested in the religious ceremony, what matters is the civil status. If that isn't called marriage, would a couple actually be married as far as other states and countries are concerned? Also, the constitution now includes the word marriage, so it can't refer to only a religious ceremony, it refers to the civil status.

So the word "marriage" for the civil status of marriage has to stay. That means any civil status with all the same rights of marriage have to be called marriage. Which means that any civil status that gives the same rights to same-sex couples is not valid or recognized in California.
11.22.2008 2:24pm
Larry Fafarman (mail) (www):
John Howard said (11.21.2008 4:04pm) --
so far as I know no one has clearly identified what specific provisions of the Calif. constitution were implicitly repealed by Prop. 8.

Well, it certainly didn't repeal the provision that makes it unconstitutional to have a statutory scheme resulting in equal institutions having different names for same-sex couples which was the provision that the May decision was based on.

What California constitutional provision makes it unconstitutional to have a statutory scheme resulting in equal institutions having different names? I want to know the exact wording of that provision and the article number, section number, etc..
11.22.2008 3:19pm
KWC (mail):
No one can argue with you, John Howard. Your arguments rely on core beliefs that you accept as true. Unfortunately, your core beliefs are so idiosyncratic that they are shared by few people. I could argue that lesbians must all move to Lesbos because that's their true place of origin. People would ignore me, though. Much like people must (and do) ignore you.
11.22.2008 3:22pm
John Howard (eggandsperm.org) (mail) (www):
Larry, if there had been a specific article and section that said that, the court wouldn't have had any "question we must resolve". They found it in there somewhere, that two separate names for the same rights confers a second-class status and causes harm to families. Prop 8 didn't repeal that or change that, so if that was in there, it is still in there. That's why no one has identified a specific provision that was repealed by Prop 8, because Prop 8 didn't repeal anything in the Constitution. The court never said that the Constitution requires same-sex couples to have equal right to marriage of the rights of marriage.
11.22.2008 4:22pm
John Howard (eggandsperm.org) (mail) (www):
There are two ways to argue with me: Either argue that same-sex couples should have conception rights and that same-sex procreation using lab-modified genes should be allowed, or, to say that marriage should no longer protect a couple's right to attempt to conceive children together using the couple's own genes, that the state should be allowed to publicly prohibit married couples from attempting to create offspring together.

My core beliefs are not idiosyncratic, most people agree that we should ban cloning and genetic engineering of children and that same-sex procreation is not necessary and attempting it would be unethical and it should not be allowed.

Ignoring my suggestion harms couples because they will go longer, perhaps forever, without equal protections for their relationship, and would lose natural conception rights. People that ignore this solution are guilty of directly causing harm and suffering to same-sex couples.
11.22.2008 4:36pm
Larry Fafarman (mail) (www):
John Howard said (11.22.2008 4:22pm) --
Larry, if there had been a specific article and section that said that, the court wouldn't have had any "question we must resolve".

It seems that in order to apply the US Supreme Court's principle that "the cardinal rule is that repeals by implication are not favored," Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936), there must be some specific California constitutional provision that Prop. 8 appears to repeal by implication or modify by implication.
11.24.2008 12:13am
John Howard (eggandsperm.org) (mail) (www):
Well, I'm not sure if we're disagreeing, but giving all the rights of marriage to same-sex couples was a statute, a decision made by the legislature and enacted as a law. It wasn't in the Constitution, and the court did not address the question of whether the Constitution required same-sex couples to have the rights of marriage. They only addressed the question of whether that set of rights had to be called the same thing as what it was called for a man and a woman (they also didn't address whether that civil package had to be called marriage). And, they concluded that it had to have the same name, which is currently "marriage". Calling the same set of rights something other than marriage causes harm and is unconstitutional, and that is as true after Prop 8 as it was before Prop 8. So this point has to be addressed, if we are to show any respect to the Court and the Constitution. They can't just go back to DP's with all the rights of marriage again, those are marriages now, since May. So Prop 8, inadvertently perhaps, now says that any civil package that gives the same rights as marriage is not valid or recognized in California.

But it would still be Constitutional to recognize civil packages of rights for same-sex couples if they were not "substantially similar" or "virtually identical" to marriage, aka, "marriage in all but name." So, Larry, just say it would be a good idea, please, to define Civil Unions as "marriage minus conception rights", and leave the right to attempt to have children together protected in marriage. Same-sex couples shouldn't have that right, right? It requires genetic modification, and is an unnecessary expensive experiment on unwilling subjects. If we decide to allow it, then of course we should allow the couple to marry, but we shouldn't allow it.

What do you think of the new suggestion: Enact "Recognition-Ready Civil Unions" that Congress can agree to recognize federally as marriage, if they are defined as "marriage minus conception rights".
11.24.2008 2:31am
Larry Fafarman (mail) (www):
John Howard said,
Well, I'm not sure if we're disagreeing, but giving all the rights of marriage to same-sex couples was a statute, a decision made by the legislature and enacted as a law. It wasn't in the Constitution, and the court did not address the question of whether the Constitution required same-sex couples to have the rights of marriage.

You are making this too complicated. Prop. 8 is an amendment to the California Constitution. When I talk about applying the US Supreme Court's principle that "the cardinal rule is that repeals by implication are not favored," Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936), I am talking only about what is in the California Constitution and not about what is in California statutes.

So, Larry, just say it would be a good idea, please, to define Civil Unions as "marriage minus conception rights", and leave the right to attempt to have children together protected in marriage.

No, I don't think it would be a good idea. Civil unions are civil unions.
11.24.2008 4:28am
John Howard (eggandsperm.org) (mail) (www):
I'm not making it too complicated. You're making it too meaningless, I don't know what your point is about repeal by implication, or if you have one.

Civil Unions that are "marriage in all but name" are neither politically viable nor constitutional. There has to be a difference in rights. And, happily, there is a right of marriage that same-sex couples should not have. So we're saved, the solution is to define Civil Unions as "marriage minus conception rights". I don't know why you don't agree, I thought you agreed same-sex couples should not demand marriage. I also thought you didn't care about same-sex conception rights. The fact is, it is a good idea that achieves equal protections for all the rights that matter and makes a constitutional distinction that preserves the rights of marriage. Think more about it and please help achieve this. Please explain where you disagree.
11.24.2008 12:48pm
Larry Fafarman (mail) (www):
I am tired of explaining things to someone who doesn't listen. For example, I explained exactly what I meant by "repeal by implication."
11.24.2008 4:59pm