Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyMay 26th, 2009
As most in our community expected, the Supreme Court of the State of California has upheld the constitutionality of Proposition 8, the voter initiative that excluded gay and lesbian couples from the equal protections promised in the state Constitution. Same-sex marriages will continue to be disallowed.
Tomorrow we start on the long process of making our case before the people of California and convincing them that equality under the law is worth upholding for everyone, including gay couples.
We will get another initiative on the ballot to reverse the declaration of discrimination that is Proposition 8. And we will win; if not in 2010 then in 2012. We have the advantage of a most moral and judicious position. And time is on our side.
UPDATE: It seems that the 18,000 marriages will remain intact.
The court’s website is unable to handle capacity and so far I’ve not heard from anyone who has seen the opinion. The LA Times is reporting a 6-1 split on the constitutionality of the proposition with only Justice Moreno voting to overturn it.
UPDATE 2: The LA Times reminds us:
Even with the court upholding Proposition 8, a key portion of the court’s May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.
Taken literally, this would then mean that an amendment to the California Constitution to exclude citizens from certain rights based solely on their race would also be constitutional on a state level.
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Ben in Oakland
May 26th, 2009
I’m not surprised, but i am disappointed. The handwriting as on the wall with the weak arguments that our side presented. no talking about religion, children, families, bigotry
If any of the justices that voted this way are on the confirmation ballot for next year, be sure that I will give them a resounding no.
On the other hand, there is a part of me that is not unhappy with this. we need to win hearts and minds, not judicial battles, though those are important. With hearts and minds, the question is decided. with judicial ones, it is only as good as the next set of judges or legislators.
werdna
May 26th, 2009
“Taken literally, this would then mean that an amendment to the California Constitution to exclude citizens from certain rights based solely on their race would also be constitutional on a state level.”
Well, maybe, but that would be challenged and overturned in federal court. Sexual orientation, obviously, doesn’t enjoy the same protection federally that race does.
Kansas Sebastian
May 26th, 2009
The fight will continue until our laws recognize what already exists in our society. With, or without, legal recognition same-sex marriages exist, and this is why it necessarily must be, and will be, recognized. This was a disappointing decision, but the battle isn’t over.
sammyseattle
May 26th, 2009
It should be interesting to see what propositions will come next. Will this embolden the right? Or the left?
Dan
May 26th, 2009
Werdna is correct. Californians can amend their constitution in whatever way they wish, no matter how vile. There is no state constitutional test for a state constitutional amendment. Even as to Prop 8, the argument was not that the amendment itself was “unconstitutional” per se, but rather that, as a revision to the constitution, it had to go through a different, more rigorous process.
The only higher authority is the US Constitution, but that issue would be resolved by federal courts, and there is no way they would hold that same sex marriage is a protected right under the US Constitution.
Mark Oliver
May 26th, 2009
Here is the site from which the text of the ruling can be downloaded: [ http://www.courtinfo.ca.gov/opinions/ ].
So far it has been an astonishingly good year for civil rights. Since both the Republican Governor and the Democratic Attorney General oppose Proposition 8, perhaps the California state government will find a way to implement the constitutional revision and still preserve equal treatment under the law. Once we have been able to read the fine print, we might find that the Supreme Court itself has suggested how this might be done.
From what I have read of the ruling so far, the court seems to have been obliged to have ruled as it has regarding the constitutional “revision†vs. “amendment†question.
The ruling goes on to say …
“Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage†(Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage†for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.”
The campaign for this proposition suggests that the word “marriage†is the exclusive domain of religious institutions. If that is so, then the government should not be in the “marriage†business.
Every (so-called) “marriage†is an instance of a personal contract between domestic partners. The state could recognize every such civil union / domestic partnership personal contract without resorting to the use of the word “marriageâ€, thus sidestepping religious disputes.
No civil union / domestic partnership contract arranged for through the government EVER amounts to a religious assertion regarding “marriage†by the government. If all couples (straight and gay alike) get from the government the same piece of paper – a “Civil Union / Domestic Partnership†license, there are no religious ramifications. Every couple then can go to the church of their choice to have their unions sanctified by the church (and then deemed to be “marriage†according to the preferences of the churches and of the couples).
The churches are free to bless and approve whichever unions they choose and everyone gets the same piece of paper and the same legal rights and responsibilities from the government. The government only handles civil business and the church only handles religious business.
With such an arrangement, the rights of churches are protected and, presumably, everyone could finally be happy.
We’ll see. At any rate, the approach described here appears to be in harmony with what the court stated today in the case of Strauss v. Horton:
“We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.”
Emproph
May 26th, 2009
So the “family†groups will be praising the decision of the judges today, whereas just a year ago they were shrieking and howling that they were “activist judges†and the like.
At some point I’d like to see all those statements back to back. *hint* *hint*
Brennin
May 26th, 2009
Yes, please act like you did when Prop 8 passed. It will make it so much easier to hand you another defeat at the ballot box.
Galois
May 26th, 2009
I read the opinions. They’re long. The majority opinion garnered 5 votes, but a sixth concurring opinion agreed with all of the conclusions, it just disagreed with some of the reasoning about what constitutes a constitutional revision. All 6 of those justices reached the conclusion they did because they interpreted the amendment narrowly. In particular they distinguished the right to the term marriage from the right to the substantive protections of marriage. Prop 8 had the effect of removing from same-sex couples the right to the term marriage, but not the substantive rights. In particular same-sex couples still have a right to form a family relationship with substantially the same protections as marriage. (One of the concurring opinions noted that this means the legislature must seek to bring the domestic partnership laws even closer to marriage by, for example, removing the shared residence condition). As you noted, the justices also ruled unanimously that the 18000 marriages performed prior to Prop 8 remain valid. They specifically did not address the issue of whether out-of-state marriages performed prior to Prop 8 are valid.
Courage Campaign announced they are seeking a ballot initiative to overturn Prop 8 in 2010.
Bruno
May 26th, 2009
Brennin: Perhaps, perhaps. But then in 2012 and beyond, your side will never win a ballot initiative of this type against us again. And I’ll be proud to rub that in your face then, as you are doing so now to us.
Brennin
May 26th, 2009
“So the ‘family’ groups will be praising the decision of the judges today, whereas just a year ago they were shrieking and howling that they were “activist judges†and the like.”
They should have never been allowed to rule on Prop 8 because they do not have the constitutional authority to negate an amendment to the constitution, by which they are bound. I guess homosexuals will have to actually play by the same rules as everyone else now, instead of subverting the democratic process via activist judges.
Brennin
May 26th, 2009
“Brennin: Perhaps, perhaps. But then in 2012 and beyond, your side will never win a ballot initiative of this type against us again. And I’ll be proud to rub that in your face then, as you are doing so now to us.”
We shall see. I look forward to each and every conflict.
Galois
May 26th, 2009
An amendment to the California Constitution to exclude citizens from certain rights based solely on their race would also be constitutional on a state level PROVIDED the excluded rights were considered a narrow exception to general rights.
Bruno
May 26th, 2009
“I guess homosexuals will have to actually play by the same rules as everyone else now, instead of subverting the democratic process via activist judges.”
Vermont, Maine, very soon New Hampshire. I guess your “analysis” comes a bit late?
Bruno
May 26th, 2009
Brennin: “We shall see. I look forward to each and every conflict”
That says a lot more about you than anything else. You actually enjoy our pain? How nice.
Todd
May 26th, 2009
So, based on this decision, and the previous one, could the legislature act to move the law in harmony with theh SC ruling? That is, can they make all marriage contracts in California Civil Unions and leave the marriage designation to the various churches? That way, those couples, gay and straight, who want marriage can have one if there church marries gay couples. If the California governmet only recognizes marriage as between a man and a woman, no one should care one way or the other is some gay couples choose to marry as well as have a civil union. I know not everyone will be happy with that solution, but it would provide full equality.
werdna
May 26th, 2009
@BenInOakland and Chris
I really hope we don’t get dragged into a battle against the justices who voted to uphold Prop 8. Yes, we’re upset about this ruling, but let’s recognize that this was a 6-1 decision. That’s a pretty clear sign that as a matter of law the case to overturn Prop 8 was weak. That doesn’t mean that the case for marriage equality is weak, just that the grounds for overruling Prop 8 weren’t terribly solid. We knew this all along.
The focus now should be on winning a campaign to pass a new amendment reinstating marriage equality, not on petty, vindictive and misguided efforts to punish the justices because we disagree with one decision. That’s the kind of crazy thing our opponents are known for, and it’s not going to help us in the slightest.
Brennin
May 26th, 2009
“Vermont, Maine, very soon New Hampshire. I guess your ‘analysis’ comes a bit late?”
I oppose gay “marriage” but at least gays prevailed in those states fair and square.
“That says a lot more about you than anything else. You actually enjoy our pain? How nice.”
I take no pleasure in your pain. For me, this is an ideological battle. I don’t care who you spend your days with (as long as we are talking about consenting adults) but I do care about having gay “marriage” imposed by judicial fiat.
Emproph
May 26th, 2009
Brennin: “I guess homosexuals will have to actually play by the same rules as everyone else now”
You mean lie?
Gerald Hayes
May 26th, 2009
Interesting, the silence regarding Chris’s call to execute judges he doesn’t agree with. That speaks volumes about this site.
Ben in Oakland
May 26th, 2009
Werdna: you are correct. The arguments were weak, as were those doing the arguing. This is what I wrote at the time:
“I have read in the news and online the bases for the lawsuits against 8. All very well and good, and possibly even valid. But they don’t convince even me– especially the revision vs. amendment part of it, which seems to be the main plank– and so I have a hard time believing that they are going to convince a judge, especially if his/her job is on the line in a future recall. As with the No on 8 ads, obscure and irrelevant as they were, I’m not convinced. And I really want to be convinced. Also, I believe this tack was already tried, and was rejected by the court. Of all possible arguments, this seems to be the weakest. And if it fails, there is no basis to appeal the matter in Federal court under equal protection or religious freedom laws.
I’m not a lawyer, but I do have my 58 years of life, and 37 years as an out, proud, and happy gay man to guide me. Very frankly, it seems to me that these lawsuits are being conducted from the closet as well, and in exactly the same way as the campaign was. Once again, I see these three words being avoided: children, religion, and prejudice. And if this is indeed the case, then I truly fear that result will be the same. It will allow our opponents to say once again, “We don’t hate you. We’re just trying to preserve heterosexual marriage/the family/traditional values,” by which they mean the myth of heterosexual superiority and the realities of heterosexual privilege and prejudice. It will also allow them to continue to claim that somehow, if gay people are protected from discrimination, whether in marriage or the usual employment/housing/accommodations, that their freedom of religion is compromised, by which they mean their freedom to discriminate against gay people on the basis of their religious belief.”
and this…
Where is the lawsuit from a coalition of religious groups– UU, UCC, Episcopal, Reformed Judaism, to name but a few, plus a host of ministers from many other denominations– who don’t want their religious beliefs dictated by the conservatives and imposed upon civil law, especially in the matter of how civil law affects their parishioners? Since this is a civil contract, why is my access to it compromised by the religious beliefs of people who want their religious views reflected by civil law? Why is it that only THEIR freedom of religion the one that counts?
Moreover, just because they claim it is about their religious beliefs does not make that a true statement. Nor does it make it right. It only makes it sound reasonable, unmotivated by hate or fear. Like all prejudice, religious prejudice is never reasonable. It’s just prejudice. And what about MY freedom of religion, which is every bit as important as theirs? Again, by not speaking out about it, we are consenting to it. We don’t have to attack anyone for their religious beliefs. But we do have to talk about it.
If this were not about gay marriage, but was about any other religious difference of opinion, this would be called what it so clearly is: discrimination on the basis of religious belief. We have laws at every level of government which say that discrimination on the basis of religious belief, yours or mine, is wrong and has no place in secular, pluralistic society. Why is this different? I’m certainly old enough to remember “exclusive” country clubs and neighborhoods. But if Prop. 8-1/2 said that Jews could be discriminated against because they do not share majority Christian belief, it would be thrown out by the courts without a moment’s hesitation, though before WWII such practices were considered acceptable. But because this is about this very ancient prejudice against gay people, often supported by religious belief but occasionally admitted for what it is, and about sex in our deeply puritanical culture, somehow, we are not allowed to point this out. Why is this 800 pound gorilla in the living room apparently invisible? What do we have to lose by calling out bigotry for what it is? What do we have to gain by pretending that it is not? How is the continuation of the closet served by not talking about bigotry and prejudice?”
Jim Burroway
May 26th, 2009
Gerald Hayes,
Just before you left your comment, I had gone in and deleted “Chris’s” comment.
To everyone else, let me reiterate in case there is any doubt: we will enforce our comments policy.
Ben in Oakland
May 26th, 2009
Regarding de-confirming the judges. I absolutely understand the narrowness of the ruling, as well as the narrow exception. But I also believe that a factor for the judges in their reasoning was the possbility of a recall and the end of their carrers, or the possibility of a deconfirming vote on the three judges when they appear on the ballot. And they went with where they were most likely to experience the least pain.
From my position, I will be voting to de-confirm them, which I have never done in my 34 years as a california voter. But they may be in for a surprise, becuase prop8 supporters may well do the same thing on the basis of their first vote, not their second.
John
May 26th, 2009
I really would like to see an California proposition not allowing recognition of marriages performed by Mormon clergy. It would be narrow enough. Mormons could still get married by the county clerk. They could also still have their sealing ceremonies, but the sealing ceremony would have no force of law.
Timothy Kincaid
May 26th, 2009
I don’t think that this is any indication of poor judicial process of anti-gay bias on the part of the justices. Nor do I think that reelection had much impact on their decision.
Alex
May 26th, 2009
Brennin,
Why do you oppose gay marriage?
werdna
May 26th, 2009
@Ben in Oakland
With all due respect, I’m not sure how you’d more effectively challenge Prop 8 by bringing in “children, religion, and prejudice.” I think you make a great case about the way the No on 8 campaign was run, and I agree with you that religious bigotry gets an undeserved pass when it comes to LGBT issues, but a legal challenge is a different matter. The issues you bring up appeal to fairness and emotion, but are they legal grounds for anything? As I’m sure you well know, law isn’t about necessarily about real world justice, it’s about the rules of the legal process.
Besides, in its ruling last year which legalized same-sex marriages, didn’t this same Court reveal an awareness of and sympathy to these kinds of concerns? This was a different issue and a much narrower one. I know it’s upsetting when a decision goes against what we think is right and just (and I’ll speculate wildly that it was probably upsetting to several of the justices themselves to rule as they did), but it’s important to consider the legal logic and whether it’s sound. Obviously this decision has just come down so I’m waiting to read more about the decision, but as I wrote above, at 6-1, I’m guessing the ruling is pretty sound. Do you want justices who agree with you whether or not it makes good legal sense or do you want justices who fairly evaluate the legal issues?
Nor am I sure how you’d make a case for overturning Prop 8 on religious grounds. There’s nothing in the language of Prop 8 about religion. It doesn’t prevent churches from marrying whoever they like, nor does it prevent any particular churches from performing marriages. It says that the state won’t recognize civil marriages between two partners of the same sex. It also doesn’t grant any special favor to churches which marry opposite-sex couples. The state doesn’t recognize those marriages as valid based on any religious test–they’re valid because they are licensed by the state and the religious officiant is acting as an agent of the state in solemnizing them. Again, there’s no test of their religious views here, ministers who believe in marriage equality may perform legal marriages of opposite-sex couples just as well as those who oppose marriage equality.
True many people who voted in favor of Prop 8 were motivated by their religious views. The same is true of many who voted against it. So what? Isn’t that part of what freedom of religion means in the US? You can make religious arguments about laws, you can be guided by your religious beliefs in how you vote, but the law itself can’t favor or disfavor any group or individuals on the basis of religion. Maybe I’m missing some key point here, but if there were a strong argument to be made on these grounds why would our advocates in the challenge to Prop 8 have ignored it?
Jason D
May 26th, 2009
something occurred to me the other night, saw it on some other site.
I resolve to never call it “gay marriage” or “same-sex marriage” ever again, and to correct people whenever possible with what we’re really fighting for “Marriage Equality”.
“Gay Marriage” and “Same Sex Marriage” have the air of “special rights” that we’re constantly being accused of, and they’re not accurate anyway, we’re not trying to replace regular marriage with “gay marriage”. Just as those who are for a woman’s right to choose are not trying to abort every fetus (the idea conjured up by the term “Pro-Abortion”.
Let us not let other people frame the debate with misleading words. This is about equality, about marriage equality.
----
May 26th, 2009
I wonder the following:
When the majority vote in favor of marriage equality, will social conservatives respect the will of the people then?
Alex
May 26th, 2009
“When the majority vote in favor of marriage equality, will social conservatives respect the will of the people then?”
Not a chance. The only opinion social conservatives are willing to respect is their own.
Patrick
May 26th, 2009
Perhaps, in the interest of preserving the separation of church & state, Californians should change their Constitution to ban active church members from holding political office. It wouldn’t be discriminatory because any religious person could still hold office and attend church, they just couldn’t be under the authority of a church. Maybe then conservative Christians would understand how wrong their actions were.
Matt
May 26th, 2009
Back to the ballot box in November.
Bruce Garrett
May 26th, 2009
“In particular they distinguished the right to the term marriage from the right to the substantive protections of marriage.”
…the right to drink from the good water fountain, verses the right to drink the water. Which is the substancial right? I have to hand it to them…no court in the union has ever done a better job at excusing Separate But Equal. Not even in the South.
Zeke
May 26th, 2009
The California Supreme Court has just given us a new definition for the term “inalienable right”, the term they used LAST YEAR to describe the right to marry the person of one’s choice. As of today an inalienable right is a right that SHOULD be a birthright to ALL people but, at the whim of a simple majority of their peers, can be taken away until that person, or oppressed minority, can convince the majority of their peers to change their minds.
Thanks for clearing that up for us douche bags! I’m SURE that thats exactly what the authors of the Declaration of Independence meant when they coined the term.
Swampfox
May 26th, 2009
“Taken literally, this would then mean that an amendment to the California Constitution to exclude citizens from certain rights based solely on their race would also be constitutional on a state level.” – Timothy
That is what confounds the heck out of me.
Mark F.
May 26th, 2009
“That is what confounds the heck out of me.”
No need to be confounded. There is no argument that the California constitution can’t be changed. The court was adressing the question of whether Prop 8 constituted an amendment or a revision to the Constitution. Only Justice Moreno thought it was a revision, which would require a different procedure to enact than an initiative amendment. But nobody argues the California Constitution can’t ever be changed as long as it does not conflict with the U.S. Constitution. That would be a bizarre argument.
Swampfox
May 26th, 2009
“No need to be confounded. There is no argument that the California constitution can’t be changed. The court was adressing the question of whether Prop 8 constituted an amendment or a revision to the Constitution.” – Mark F.
I would argue that there is no difference between an amendment or a revision………….and, I am one gay that is not necessarily for gay marriage.
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