Prop 8 struck down in California

My debate-happy friend is constantly infuriated by my ever-indifferent position on political issues. He'll definitely not be glad about this, considering his family's "tithing" partly goes to Prop 8. Or so I've heard.

But, it is about time. But, Argentina WAS the first entire country to abolish the marriage law. Hopefully we'll follow in their footsteps.

 

I'm very excited that Prop 8 was overruled, but I wasnt terribly surprised. (That didnt stop me from dancing around when I heard about the decision, though. ) You cant proclaim personal freedom with one hand and prohibit marriage to certain people with the other. Civil unions are not enough and are by no means a fair compromise --in the United States, civil unions only allow you some of the priviledges that a marriage has.

Go, California!

And Cogito's right. Now we should turn our attention back to the legal mess that is Arizona...

 

Apparently the battle isn't over. Prop 8 proponents have filed for an injunction barring any new gay marriages pending appeal of the decision.

As for whether the majority can vote in a law that restricts the rights of a minority, that argument is as old as the broader issue of civil rights for ANY minority. "More of us dislike what you do/are than line it, so we will pass laws to limit you."

I see no merit whatsoever in that argument.

Furthermore, no religion may decide what is and is not marriage for everyone else. Like it or not, they have successfully pushed for marriage to have a legal/civil presence with certain rights and privileges attached. That presence exists apart from the religious entity, and therefore its existence as a legal entity cannot remain the sole province of the religion or religions that lobbied for recognition under the law.

Marriage under the law is a contractual entity. Its protections and benefits under the law cannot apply only to those who subscribe to a certain set of beliefs, due to constitutional law. The attempt to create a definitiuon that specifcally excludes a subset of the population who are protected against discrimination by federal law is intrinsically unconstitutional.

 

Judge Walker has issued a stay of any new gay marriages in the state until the injunction is ruled on, probably next week.

 

I was very pleased to hear about the ruling, and if I may be permitted to toot my own horn, called Prop 8 unconstitutional as soon as it was placed on the ballot. I'm not a lawyer, but I do have a pretty fair comprehension of the Constitution. I've been trying to explain the mechanics of this decision to various people for the past two days.

Being a photographer and an aspiring documentarian I went to the local rally to take some photos of the celebration. You may view them here if you wish.

It was a great day for equality! I was please to be on scene to witness the effect of such a historical moment.

 

I guess I'm going to go out on a limb and be the lone voice of dissention here. I completely disagree with Judge Walker's decision. There is no way Prop 8 should have been overturned under these circumstances.

So, before everyone gets mad and starts throwing fire, let me clearly state here and now I AM NOT TRYING TO CHANGE ANYONE'S OPINIONS. I'M NOT STATING MY PERSONAL OPINIONS ON SAME-SEX MARRIAGE ONE WAY OR THE OTHER. I'm only stating an opposing view so perhaps you might get an idea why a lot of people are upset by this decision. Please keep this in mind. Also, I'm not a lawyer or legal expert. Politics is my hobby, one in which I indulge greatly. My assertions and opinions are based on the writings of legal experts, political experts, and the law of the United States. In no way do I put forth my own opinions on same-sex marriage one way or the other, as they have no bearing on my disagreement with Judge Walker's decision.

Thus:

1) This is a states' rights issue, as defined in the US Constitution. All powers not specifically delegated to the federal government lie with the states. There is a clear argument to upholding Prop 8 because it presents a reasonable judgment that the people of California are entitled to make. When the original ruling on same-sex marriage in California came to light, a judge ruled it legal. The people reacted against a decision that they rightly saw as a judge bypassing the desires of the citizens and using an activist position to force an agenda on them. They reacted by proposing and passing Proposition 8. The Proposition was allowed to stand because it was legally determined that the first judge had indeed flouted the state's right. In ruling against Prop 8, Walker has now again over-turned what has already been determined to be a state issue and is opening the way for it to become a federal case, which allows the possibility of a Supreme Court ruling that can then be applied to the country as a whole. (See Roe v Wade, another horrible Supreme Court decision that countermanded states' rights.)

2) This is not a Constitutional issue. Nowhere in the Constitution does the issue of marriage- gay or straight or otherwise - come up. There is no inference whatsoever to the Constitution addressing gender design. Therefore, a judge had no basis for ruling the law unConstitutional because it doesn't qualify as a Constitutional issue. In Judge Walker's decision he fails to cite any provision in the federal constitution which prevents states from making distinctions based on sex differences primarily because there isn't one. This is a very important point.

3) Walker cites the Due Process clause of the 14th Amendment (prohibiting state and local gov'ts from depriving any citizen of life, liberty, or property), but he fails to connect this to the issue. He makes an incredible leap to finding a "right to marry" argument in that clause. However, he fails to address any of the arguments in the 39th Congress surrounding the ratification of that Amendment, which specifically addressed in what manner this clause was to be applied. (Marriage was not among the issues intended to fall under this clause.)

(Note for reference to our non-American friends- there is a fierce, on-going debate in the US right now regarding the interpretation of our founding documents -Constitution, Bill of Rights, and various additional Amendments. One side of the debate believes that the Constitution is a "living" document, meaning interpretation can change as society evolves. The other believes the Constitution is a "static", meaning it should be interpreted as the Founding Fathers intended at the time of writing in 1787, and that any modern interpretations should be heavily considered and there needs to be considerable evidence both historically and currently to support the review. This issue comes up in the Prop 8 argument because there is merit to the idea that many activist judges in the past decades have used the "living" Constitution concept to invent new laws and re-interpret the Constitution in ways for which there has never been any precedent. Prop 8 and same-sex marriage fall under this umbrella.)

4) Walker then goes on to cite the Equal Protection clause, also of the 14th Amendment (the state is required to provide protection under law to all citizens within its jurisdiction). Walker says "The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender." Walker is clearly ignoring the huge amount of scientific data that proves there are distinct differences in the sexes. This concept isn't antiquated or discredited; quite the opposite. Walker bases this casual dismissal of sex differences in neither the Constitution nor in the scientific findings. (The point of this item is that a judge cannot make a ruling without referring to a precedent that supports his decision. Walker provides no legal or scientific support to his opinion that biological differences of the sexes do not exist. While you may argue - perhaps correctly - that gender in marriage today doesn't mean what it used to, by law the judge is required to support his assertions with fact. This prevents judges from simply inventing new laws and interpretations of facts that may determine the outcome of a case based on personal biases. Walker hasn't brought any support to his argument in this case.)

5) Another note for our non-American friends, the concept of "precendent" is a BIG deal in the US judicial system (see the item above regarding interpretation of the Constitution). Many cases are decided (rightly or wrongly in terms of justice) by the existence of a preceeding judicial decision or strong history on a similar matter. In this case, precendent exists in the form of an historical pattern. Judge Walker dismisses the historical precendent that has defined marriage in terms of gender as a non-historical gender construction, which, if you look at any culture under the sun, is clearly not the case. (I'm not saying that because marriage has traditionally been heterosexual means it should stay that way. Read on...) Walker is claiming that marriage is merely an socially-engineered state-mandated gender assignment institution and that gender and race have had no influence on it in the past. Again, history clearly contradicts. (See the miscegenation laws of the US in prior to the 60's.) By attempting to reduce marriage to nothing more than a social contract, the judge discredits his own logic when he very successfully outlines the benefits of marriage in his opening arguments. Legislatures have gradually moved towards removing laws that render one sex less equal than other, but they've failed as a whole to remove stipulations that require partners to be of different sexes. (This item also relates to the item above regarding support for an assertion.)

6) Prop 8 never denied same-sex couples the right to marriage. Couples are free to seek marriage if they desire. It only limits what type of unions the state recognizes. In this case, it limits recognized unions to those of one man and one woman. Arguments claiming that Prop 8 doesn't allow same-sex couples the ability to marry are off-base, and haven't thoroughly read the Proposition.

7) Given the judge's reasoning on the precedent of gender as a defining characteristic of marriage, many religious groups are (rightly) concerned that the federal government can and may sue religious organizations who refuse to marry same-sex couples. The US, unlike many other countries, does not have separate legal and religious routes for marriage. Marriage is the one area where the powers of certification cross (and there is great merit to the argument that this should be abolished, but another time...) A church has authority to issue a government-recognized marriage certificate. So does the state. This is an area of concern because technically the state has the right to claim discrimination against a religious organization that won't marry same-sex couples because the state grants that organization the authority to validate the marriage legally. Sort of a twisted version of "He who pays, says." Judge Walker's logic leaves the door wide open for this, and past challenges to the exclusivity right of religious institutions makes such a situation completely plausible. (And no, contrary to popular opinion, there is absolutely no provision in the Constitution, the Declaration of Independence, or the Bill of Rights that mandates a "separation of church and state", so the state technically has the power to mandate certain aspects of a religious organization, but preceeding interpretation of the First Amendment -in itself under contentious debate - is biased towards the people and not the state.)

Now, all this being said, Judge Walker does make an excellent social argument for same-sex marriage in his opening statements. If the case could be decided on that alone, I highly doubt anyone would quibble. However, the issue 99.9% of the people have with his decision is based on his faulty legal reasoning, not on personal opinions about whether homosexual couples have the right to marry (as I said before, that's never been the issue.)

Just some thoughts to chew on.

Let the flaming begin.

 

States' rights are trumped by the Constitutional laws against discrimination. Same sex partners are protected against discrimination.

If the State of California tried to define a law defining marriage as only recognized between two people of the same skin color, no one would dare try to claim that it falls within States' Rights. Yet well into first half of the twentieth century, there were places in the deep South that forbade "mixed" marriages.

 

Actually, this is what this case is going to determine, right? Thus far, same-sex marriage has never been recognized as protected federally under the U.S. Constitution. Even our newest Justice, Kagan, is on record saying it is not federally protected, though I suspect she'll decide differently when this case comes before her.

But at this point, it is not established that same-sex couples are protected. This will be a landmark ruling once it gets to the Supreme Court and is decided, but with the current court I'm not at all convinced they'll side with this District Court judge.

jwilder:

Marriage is traditionally a State issue, but when you speak of precedent it is worth remembering that Marriage, under our current precedent, is an established, fundemantal Constitutional right. The question here is whether that fundamental right extends to same-sex couples. If it does, then regardless of the State's traditional role, the federal Constitutional protections will trump State action to the contrary.

Of course, predicting what the District Court would do here, or even the 9th Circuit on appeal, isn't much of a feat. The request for a stay was filed before the judge even handed down his ruling because everyone knew how it would come out.

Predicting how the current U.S. Supreme Court will deal with it is another matter, and in the end they're the ones who are going to determine Constitutionality.

 

Agreed. I guess some people could argue the tenth ammendment here, but the Equal Protection Clause in the 14th ammendement, which Judge Walker cited, is much more important that states' rights.

To be honest I think states' rights are a little overrated and dont deserve to be defended as strongly as some people think. There's a hierarchy, and we're going to come to trouble if people start to protest it. Therefore, in my opinion, Roe v Wade had a fantastic ruling... But I guess that's another day's issue.

Jwilder, I applaud you for articulating the opposing side's point so clearly, but I still disagree with it wholeheartedly. The Constitution is a living document and it adapts. The original, unammended Constitution never said anything about race either, and it adapted when it became a serious issue to the poeple. Now gay and lesbian rights are a serious issue to the people and should be treated in the same manner as racial rights.

And who are you to say that marriage was not intended to fall under the due process and equal protection clause? Is that not the judge's job, to interpret the Constitution and to decide if it was intended or not? People can disagree all they want, I guess, but I think a judge's opinion far outweighs any other person's.

 

Marrige is in the eyes of the law a legal institution and meant to protect the rights of them in it. In my eyes it weird that it just possible for couples of any kind to get this.

From an ownership perspective it protects the right of people owning something together, sharing an economy, ensues that if they decide to go separate ways, and affects taxes. A married couple sharing household economy owning a farm together will have much stronger legal protection and lower taxers than if a two siblings sharing household economy owns a farm together.

I would like to see that from a legal prespective you should be able enter into different kinds of legal partnerships, meaning that "we are a unity, in this together, are each others next of kin, shares an economy, inheritance each other", no matter if it man and husband, gay partners, mother and grown daughter, sisters or two best friends that legally want to have legal protection and be counted as a unit.

People can then go through whatever rituals they want to go through after the legal registration in any form they want and call their relationship whatever they want. That don't have anything to do with their legal status.

 

Judges disagree all the time. Many important cases are decided with just one vote's majority.

 

I know this thread trailed off a day or so ago, but indulge me. I spent the last year teaching US politics and I just got here!

jwilder - a couple of points.

While the constitution does not mention gay marriage, the 9th amendment makes it clear that just because something is not mentioned specifically, does not mean it isn't protected by a constitution.

While it is true that proposition 8 doesn't outlaw gay marriage outright, but simply states that California law will not recognise such unions legally, this is precisely the crux of the issue. While marriage is connected to law, and a section of the population are being denied equal access to those laws then it is a constitutional issue and should be afforded the protection established by the 14th amendment.

Fundamentally, the arguments against gay marriage must fall down to the idea that gay marriage is unchristian. Arguments based on family cannot work since it is perfectly possible for there to be a family unit including a gay couple. Where legal rights are being denied on the basis of religion, this is precisely what the US system of checks and balances is designed to protect against.

I have a huge admiration for the US constitutional system. It seems a shame that it is being drowned out by money (which is probably better than the UK system being drowned out by ineptitude). At points like this however, I think it really shines.

Phlogiston

 

Thank God Prop 8 is gone. May it be remembered as the most crap piece of legislation my generation has seen. Good riddance.

My uncle and his boyfriend go to California a lot with my grandma. Maybe they can finally get married (still not legal in Wisconsin unfortunately). I have gay relatives and gay friends, and they deserve the same rights I have.

 

Amen. A large percentage of my friends are gay, and they deserve the right to get married just as much as I do.

 

In all honesty, I'm just shocked it's taken so long to make this change. This should have happened years ago.

 

I guess that came across as harsh, and furthermore I didnt represent myself the way I wished I had. I didnt mean to say that he shouldnt have an opinion because he disagrees with me; I meant that having an opinion on this issue shouldnt exist at all. It shouldnt be an issue. (And secondly, while I admire him for speaking his piece while most of us posting here are of the same opinion, it doesnt change the fact that his arguments are flawed.)

Phlogiston put it in a way that I did not; the only argument with gay marriage is that there is some sort of moral issue. But the law should not allow any room for moral arguments; separation of church and state has always been an issue with this country, but that doesnt mean it needs to be any longer.

We faced the same problems in the 1900s about racial rights. There was absolutely no legal basis for an arguement there --"it's just not right" they said. And people are saying the same exact thing about gay and lesbian rights now. "It's unnatural. It's not right. It's immoral."

Who cares? The Constitution is a legal document, not a moral one. There is no place for personal opinion in the Constitution. Most judges keep their personal opinions out of it, but the general population cannot yet grasp that. Yes, it is open to interpretation, but only legal interpretation. The fact that gay rights has to be an issue at all disgusts me. Have we learned nothing from history?

It shouldnt be an issue at all; it's the people who want to engineer society to fit their delusions' personal issue that they need to deal with on their own. It shouldnt be a national debate.

I hope I cleared myself up...

 

This is just a District Court decision. Anyone who thinks we've finally arrived at something here should keep in mind that this is going up on appeal.

Most law (all law?) boils down to some moral component as its ultimate source, so the idea that there should be no moral component to law presents an impossibility.

 

Obviously law has to be based on a society's moral beliefs, but I think the point that was being made was that questions of sexuality are not moral issues (in the same way that racial prejudice is not based on morality). The problem that arises is that traditional Christian morality says that being gay is immoral, and that's fine, people can believe what they want. But what they can't (well, realistically can but shouldn't be able to) do is mix their personal religious beliefs with public laws that affect other groups. As people have already pointed out, this is one of the big failings of democratic systems: the majority have effective control over the rights of minorities.

 

Yes, that is a problem in democratic systems. One reason the U.S. system is set up the way it is, and not as a democracy.

But when you talk of legal rights with respect to this case, there's an assumption underlying the discussion - that sexual orientation is protected by the U.S. Constitution such that rights (like marriage) are recognized. That's what is going to be decided by this case, and it is not at all clear at this point how the ultimate decision will come out. Given the current court, I don't think anyone would be astounded if the Supreme Court said that sexual orientation was not, in fact, a Constitutionally-protected status.

In other words, the Supreme Court could rule that the federal Constitution does not mandate the recognition or provision of gay marriages. The issue would then go to the States, because even if the Supreme Court overturns this decision, it only means the States aren't required to provide for gay marriage. But those States that wish to will still be able to do so.

 

The real problem that the US does not have a SECULAR system. There should be a separation between religious and state affairs as there is in e.g. France or Turkey.

This is why I said earlier that gay marriages should not be performed with a religious ceremony. Gay 'marriage' is outside the concept of marriage for all mainstream established religions--right or wrong as you may think this is, you have to acknowledge this fact.

If marriage/partnership is treated simply as a legal contract, the issue becomes much more simple. There would be no discrimination if ALL marriages required a civil ceremony like they do in secular countries, and then it was left to the couple to have a religious ceremony or blessing.

 

Oh I don't know. It won't be at the supreme court for a while, and since Sotomayor and now Kagen are taking a place on the court it will be interesting to watch.

Dick Cheney (I know he's not on the court but he is a strong conservative Republican) is a good example of how high profile figures can take somewhat unexpected stances. There seems to be a strong strand of conservatives who take a similar view to Cogito.

 

Actually, we do have a very specific portion of the Constitution which denotes the concept of separation of church and state. It is called The First Amendment:

The problem is not that the law of the land is not written to separate church from state; the problem is that we have a love/hate relationship with this bit of constitutional law. We hug it close to our bosom when it serves our needs and then pay it lip service when it doesn't.

 

Kagan has gone on the record saying there is no federal Constitutional right to gay marriage. She may change her mind on that, but she replaces a liberal justice so she isn't really going to pull the court in any one direction. It is still a center-right court.

I think this will get up to the Supreme Court by the end of 2011, so that's not really too far away.

Cheney has a lesbian daughter, and from what I understand they're very close. It doesn't surprise me to see a person set aside politics and see something like gay marriage or gay rights as a much more personal issue.

I would expect conservatives, in large part, to want to leave the issue to the States, since marriage is generally a province of State law. Either that or have the government get out of marriage altogether, which probably isn't a bad idea. Have a civil union available for any two people who want it, regardless of sexuality, and leave religious marriage to the churches.

 

The question then becomes: what is an "establishment" of religion. There is a lot of interesting case law on the establishment clause. The First Amendment also has the free exercise clause, which is the second of its two clauses pertaining to religion.

Some people still point out that it says "Congress shall make now law..." and argue that the States, therefore, are not bound, but the 1st amendment has been applied to State governments via the 14th amendment (incorporation doctrine), so the State's are definitely bound by it.

 

Therein lies my point. The 1st and the 14th Amendments can be described as loopholes, one to the other, so that we are free to claim or denounce either one when it serves the cause we wish to espouse.