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)."
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.
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.
Memorize the quote.
Dominus providebit!
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.
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.
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.
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.
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."
Let 'em strike it down.
Oh, please, let them strike it down!
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?
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?
Your post comes across as somewhat whiny.
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.
I just reread that passage too. Freaky.
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.
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.
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.
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?
It's a 12 year term, as I recall. Probably an ordinary citizen like Ms. Rose Bird remembers better than I.
Now, that's funny.
Rose Bird died of cancer in 1999.
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.
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!
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.
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.
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?
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.
Very true and very funny.
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?
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.
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.
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?
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?
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."
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.
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.
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.
http:// trustbutverify.wordpress.com/2008/11/20/ amendment-vs-revision-the-impact-on-prop-8/
Thanks.
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!
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.
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.
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.
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.
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.
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.
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).
Not according to the Nevada Supreme Court. In Guinn v. Legislature, they declared the amendment requiring a supermajority to pass a budget unconstitutional.
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?
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?
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.
The short answer is yes, recall of CA Supreme Court Justices is possible under the CA Constitution. This is separate procedural from retention.
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.
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):Further (p120), the decision states:
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?
Finley Peter Dunne's "Mr. Dooley" answered that question more than a hundred years ago:
I very much doubt that even the Rose Bird court would tell all Californians that none of them may marry.
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.
2. Lawyers decide that.
3. Well, what happens when a state invalidates a marriage that is discovered to be between siblings after 30 years?
Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936):
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) --
Establishing facts is not the only purpose of going through lower courts first -- another purpose is to develop legal arguments.
tvk said,
"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.
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.)
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).
.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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..
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.
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.
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".
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.
No, I don't think it would be a good idea. Civil unions are civil unions.
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.