Justice Chin’s Proposition

Timothy Kincaid

March 5th, 2009

In the debate over whether Proposition 8 should be overturned, Justice Ming Chin asked few questions. But there was one that he presented to both sides:

Would it not be a both a consistent with the court’s ruling In Re Marriages and with Proposition 8 for the State of California to provide that because marriage is restricted solely to heterosexuals and because California cannot discriminate against homosexuals then therefore the State can recognize no marriages? And does this court have the purview to make such a declaration.

Both sides agreed that this would be a legal remedy. Ken Starr, in defending Prop 8, argued that the court would have no such right to make such a declaration.


March 5th, 2009

Could you imagine? All marriages, gay, straight, to boxturtles ruled unrecognized by the state? Pandemonium would likely ensue.


March 5th, 2009

Pandemonium would indeed ensue. Every Justice who voted for it would likely lose their retention votes.

But what would be the outcome? Might well be a popular repeal of Prop 8, and maybe also a very hasty repeal of DOMA in the mean time — imagine all heterosexual California couples being required to pay taxes on benefits they confer to their spouses!

Timothy Kincaid

March 5th, 2009

Yes if the state were required to only recognize Domestic Partnerships, it would be only days before the California delegation changed federal law to place Domestic Partnerships on the same level as marriage from other states.


March 5th, 2009

Fascinating! I think that would be a great solution – give everyone a civil union and make marriage truly democratic. Unfortunately, I cannot believe any judge has the gall to do it, justified or not.


March 5th, 2009

the reality is, marriage, if a “sanctioned-by-God” institution as many Prop 8 supporters insist, should *never* have been recognized by the state or any other government in a country proud of the separation of church and state! civil unions and contracts, absolutely, but marriages are socio-cultural contracts that some churches already maintain the right to not recognize!

so, fine! no marriage for anyone… at a governmental level! leave that to the socio-religious institutions in which marriage was born….


March 5th, 2009

I actually have thought this might be the solution the court would go for, that they could view their hands tied in both directions. But from the sound of today’s hearing I highly doubt it. But at least my marriage looks like it’ll stand.


March 5th, 2009

Wouldn’t it be ironic that in their (dishonest) efforts to “protect marriage” from gays, the religious right loses marriage for straights. Seems rather biblical in a way.


March 5th, 2009

That’s the solution that I’ve always favored as a good compromise: Abolish marriage altogether and replace it with civil unions or domestic partnerships for everyone.


March 5th, 2009

The real comical idea about abolishing marriages means that it opens marriages up to anyone – including gays. Who’s to say that the unions of the MCC aren’t marriages? Not the law, anymore. People are. So even if you don’t recognize my marriage, according to my faith, it is one. Not quite the victory they were looking for…yes, Patrick, absolutely biblical.


March 5th, 2009

Sounds like a good idea. Abolish marriage keep civil unions and domestic partnerships.

Love the idea actually.

Ben in Oakland

March 6th, 2009

Actually, I think it is a bad idea from the get go. It owuld solve a problem, but not THE problem, which is antigay prejudice.

Jason D

March 6th, 2009

it seems a bit far fetched, though it would be an object lesson to the anti-gay crowd. It would be forcing them to walk in our shoes. Having their marriages taken away might make them realize how damaging and evil Prop 8 was. At least those who don’t deal in “them vs. us” mentality.


March 6th, 2009

It couldn’t happen to anyone more deserving.

I have always believed that if heterosexuals knew what it was like to be discriminated against, to be targeted for hatred, in other words: to be treated the way they treated gays for centuries, maybe then would they see the error of their ways.

Timothy (TRiG)

March 6th, 2009

If it happened, it wouldn’t last long. Actually, I’d love to see this happen. The reaction would be fascinating.


Regan DuCasse

March 6th, 2009

Such fantasy, people! I understand your feelings.
But the point IS, that marriage that is sanctioned and ceremonial within a church or temple is ALREADY separated by CIVIL marriage.

Religions don’t OWN marriage rights in America, they participate through the choice of whoever belongs to their church.

And because of that, no church or religious institution would have had the state interfere on the basis of a same sex marriage.
Civil weddings are as valid as church weddings.
It is the state the issues the licenses, and whatever else is signed in church or temple is ultimately private.

This is what I mean by people requiring gay people to do something that is illegal or restricted to do to heterosexuals.
The only thing between civil marriage and religious marriage is a prejudiced majority. That’s it.

They can’t and won’t do to heterosexuals AT LARGE what their religious restriction compel them to because they couldn’t get away with it.
That is why the state separated from the church on this issue because it’s prejudicial and leaves no individual choice and freedom,otherwise.

BTW, in Cleveland a paroled MURDERER (he only served five years), got married to a young woman with three young children from previous relationships.
Well, another domestic violence tragedy has happened.
Said parolee murdered his new wife, her sister and three of the little ones.

This another example of the hypocrisy of the marriage restrictions on gay people.
Heterosexuals apparently can’t control their own from wiping out an entire family, yet assert that it’s gay people who are the greatest threat to families.

Starr’s doublespeak at the hearing put this entire issue decidedly in the Orwellian camp.

Timothy (TRiG)

March 6th, 2009

It’s a pleasing fancy, though, isn’t it?



March 6th, 2009


Though in general accurate, your points do not actually prove it unlikely that the CA Supreme Court would chose to uphold both Prop 8, and the Equal Protection Clause. CA’s equal protection clause states very clearly that no group of people in California can have any right that is denied to another group – the Court could conclude that Prop 8 stands, but no one’s marriage can be recognized.

If Prop 8 supporters thought the boycotts by GLBTQ people were worrisome, the personal consequences for them, if they have inadvertently deprived all hets of marriage as well, will almost certainly be severe.

However, it is unlikely that the Court will show that much integrity on its own. It would probably take a deliberately framed case, invoking the Equal Protection clause, to bring this about. And GLBTQ people do not want to be the ones bringing that case and getting all marriages voided.

But, there is a lot of covert bad-blood between Catholics and Mormons, so if some Catholic group could be inspired to sue to abolish Mormon marriage because Mormon couples have a right that some other Californians do not, or vice versa . . .

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