I think the term marriage in all cases (whether a homosexual couple or heterosexual couple) should be replaced with civil union. The government should not be in the business of 'sanctifying' anything. Also, calling it two different things is still uncool. Words have power.
That way everyone has the same terminology on their tax forms.
If this is your main criteria for evaluating major social policy, then God help you.
It's not. I think that this is a major issue that can't be solved with terminology and legislation. It has to be a point were people don't make a big deal about someone being gay. I'm not talking about anyone here. I think more that we have to not care about someone's sexuality. I think that this is a step to making people not make a big deal that is why I feel that there has be the same terminology for all 2 people pairings.
I find myself agreeing with the dissenting opinions. They basically state that even though the majority has the best of intentions the court lacks the power to do what it is doing and should leave this up to the Legislature and the people of the state to vote on.
Joe, what is your legal analysis of the court doing this? Do they have the legal right in CA to do this or should this be handled by the Legislature and the people of California?
Please put aside the topic of the case and look at it as a separation of powers issue.
Do they have the legal right in CA to do this or should this be handled by the Legislature and the people of California?
By definition they have that right. The job of the CA Supreme Court (much like the SCOTUS) is to evaluate laws that have been passed either by the Legislature, or by voter initiative, and weigh if said laws are constitutional as defined by the constitution of the state of CA. This is not the first time that the CA Supreme Court has found a law passed by voter initiative to be unconstitutional and I doubt that it will be the last. But in this case, it's just become fashionable to cry judicial overreach(!!1!) every time a decision is handed down that the crier does not agree with.
The CA Legislature has already passed a law legalizing same-sex marriage twice only to have it vetoed by the Governator.
Also of note, 6 of the 7 judges that heard this case were Republicans.
Do they have the legal right in CA to do this or should this be handled by the Legislature and the people of California?
By definition they have that right. The job of the CA Supreme Court (much like the SCOTUS) is to evaluate laws that have been passed either by the Legislature, or by voter initiative, and weigh if said laws are constitutional as defined by the constitution of the state of CA. This is not the first time that the CA Supreme Court has found a law passed by voter initiative to be unconstitutional and I doubt that it will be the last. But in this case, it's just become fashionable to cry judicial overreach(!!1!) every time a decision is handed down that the crier does not agree with.
Ah, but there is a difference between striking down laws and voter initiatives and creating or amending them.
I was not aware of the Gov vetoing earlier same-sex marriage laws.
Do they have the legal right in CA to do this or should this be handled by the Legislature and the people of California?
The CA Legislature has already passed a law legalizing same-sex marriage twice only to have it vetoed by the Governator.
Fo ril? The article says something else, though:
He also reiterated his previously stated opposition to an anti-gay marriage initiative proposed for the November ballot. That initiative would write a ban on same-sex unions into California's constitution.
Last month, Schwarzenegger told a gathering of gay Republicans that he would fight the initiative.
Stated his opposition to an anti-gay marriage bill. Did he change his tune from previous statements?
I was going to post this this morning, but I didn't know if people would consider it that relevant. Guess I was wrong.
I don't know enough about the legal aspects to know how big a deal this really is -- if this means that we're really going to continue to have gay marriages, but I got super stoked when I read this.
I have a couple of female friends who were "married" in San Francisco last summer (they live there, they didn't go there to get married), but now they can do it for "real". I'm thrilled for them.
It is a nuanced change of tune. He vetoed the previous Legislature bills since they invalidated the previous voter initiative which had not at that time been deemed unconstitutional. What he is currently opposed to is a pending voter initiative that would change the CA Constitution. Constitutional amendments tend to impart rights, not revoke them. So that is what he is not supporting.
Ah, but there is a difference between striking down laws and voter initiatives and creating or amending them.
I was not aware of the Gov vetoing earlier same-sex marriage laws.
This line of talking point has become so tiresome.
To review: they did not "create" a law.
There was an uncontested voter initiative that banned same-sex marriage. The City and County of San Francisco under it's own power and working legitimately within its own legal system legalized the ability to issue marriage licenses within its jurisdiction. The City and County of SF was shut down by the CA Supreme Court due to this previous initiative. The mayor and City sued in retaliation and as a result, the original law was now contested. In this process, it was found that the original initiative/law was unconstitutional. (That would be the "striking down" part) Since the law used to prevent the City and County of SF was deemed to be unconstitutional, then what they did was alright and is now state law. The ZOMG GHEYS faction rolled the dice and lost.
Like it or not, the government in this country has three legs, not two. The CA decision did not "create a law out of whole cloth", it very much followed proper line of law review. There was a law, it was used to invalidate another law, a fight occurred and the first law lost.
This decision, handed down by a strong (6-1) Republican majority, was most likely informed by the fact that the only thing that the ZOMG GHEYS faction had to offer was that it would make people feel bad by stripping them of their right to beat down another segment of the population so they could feel better about themselves. Which is pretty much all their arguments boiled down to.
Obama proposing a repeal on DADT (or "Don't Ask, Please Put Your Skirt Back On" as we say in my flight) is just one more point in his favor in my book. If he was more public about this I think he'd win even more straight (and gay) service-member votes.
If they did not "create law" then where was the right to same-sex marriage in California before this?
I'm just playing Devil's Advocate here. I like the result I just don't know if I like the method used to achieve the results.
Alackof the right to deny same-sex couples the same rights as everyone else was found. This is obvious. A new law was not created.
But, but, but... This was already covered by the courts and it was found that because gays are not barred from entering marriage (with an opposite sex partner) there was no discrimination. CA also recently clarified its marriage laws to specify man and woman. It's all in the opinion piece.
How does this ruling not pave the way for incestuous marriage or other weird shit?
@tygerbox - your analysis and comments are very clear and helpful. Thank you.
Ah, but there is a difference between striking down laws and voter initiatives and creating or amending them.
I would think you would have learned in Civics that the Court cannot amend or create a law. Oh yeah, you don't even know what "Civics" is. So, I guess that's why you're so confused.
But, but, but... This was already covered by the courts and it was found that because gays are not barred from entering marriage (with an opposite sex partner) there was no discrimination.
If you had taken Civics, you might know that the cases you cited aren't binding precedent on California state law.
What right is being denied? Both sexes are free to marry someone of the opposite gender.
The right for people who wish to enter into a legally binding relationship of mutual responsibility/care and partake in the legal security of said (inheritance rights, medical power of attorney, et al) with someone of the same sex obviously. It was also found that granting said right to that group enhances the common good and does not infringe on any other rights.
Is this all you got? I regret to inform you that that particular talking point is played out and never made any sense in the first place. I'm happy to discuss this from a political or legal point of view, but I don't really have time for silly shit like "but homosexuals can enter into fake heterosexual partnerships". And wouldn't that violate the "sanctity of marriage" anyways?
What right is being denied? Both sexes are free to marry someone of the opposite gender.
The right for people who wish to enter into a legally binding relationship of mutual responsibility/care and partake in the legal security of said (inheritance rights, medical power of attorney,et al) with someone of the same sex obviously. It was also found that granting said right to that group enhances the common good and does not infringe on any other rights.
How does that not also allow for incestuous marriages? The judge in the majority opinion clearly pointed out that procreation is not a requirement for marriage so the fact that two people of the same gender can not procreate should not be used as a barrier to marriage. Would that not also extend to marriage by siblings/mother/father/etc as long as no procreation was involved?
How does that not also allow for incestuous marriages? The judge in the majority opinion clearly pointed out that procreation is not a requirement for marriage so the fact that two people of the same gender can not procreate should not be used as a barrier to marriage. Would that not also extend to marriage by siblings/mother/father/etc as long as no procreation was involved?
If two people want to team up to get a tax break, hospital visitation privileges, etc. regardless of anything else, what does it matter who the two people are?
What right is being denied? Both sexes are free to marry someone of the opposite gender.
The right for people who wish to enter into a legally binding relationship of mutual responsibility/care and partake in the legal security of said (inheritance rights, medical power of attorney,et al) with someone of the same sex obviously. It was also found that granting said right to that group enhances the common good and does not infringe on any other rights.
How does that not also allow for incestuous marriages? The judge in the majority opinion clearly pointed out that procreation is not a requirement for marriage so the fact that two people of the same gender can not procreate should not be used as a barrier to marriage. Would that not also extend to marriage by siblings/mother/father/etc as long as no procreation was involved?
We already allow infertile heterosexual couples to be married, so obviously non-procreation is not the deciding factor.
As Scott said, why would it matter? If there's no procreation, what does it matter who marries who?
Just for the sake of elaboration, marriage is very simple. Two people both enter a contractual agreement with each other, just like any other contractual agreement. However, the state gives special privileges to people who enter this specific contractual agreement. The only reason for the state to grant privileges to people who enter this agreement is to create an incentive for people to enter this agreement with other people. I don't think that incentive is really necessary. If people want to enter contractual agreements with each other, they will do so. If they don't want to, they won't.
If you do decide that you want to give special privileges and benefits to people who enter a specific contractual agreement with other people, that's fine. However, you can't pick and choose who can enter the agreement with who. Absolutely anybody who is allowed to enter a legally binding contract must be allowed, and everyone who does must receive the same benefits and privileges.
But, didn't CA amended their laws in the 70's to clarify marriage requires one man one woman? Did that not allow for same-sex marriage? If that did not allow for same-sex marriage and it is being struck down by the court can't other laws that restrict marriage be struck down using the same arguments?
What about the anti-gay marriage Constitutional Amendment that will soon be on the ballot? If that passes what happens?
Such is already not allowed by other laws wholly unrelated to and unaffected by this decision.
You do understand that gay-marriage was outlawed just like incestuous marriages are outlawed, no? If the reasoning of the court is that everyone deserves equal rights, then how do you say that a brother and sister who are in love do not get those equal rights? The problem is that you can't distinguish this. So saying that there are laws to protect against this is bogus. Laws can be declared unconstitutional. Insomuch as the gay-marriage prohibition and the incest prohibition were similar laws, HMTKSteve brings up a valid issue.
For the record, I live in a state with civil unions and I believe that they have been a good thing for my state. I'm just pointing out that the court really engaged in a morality determination, because we know that they are not going to allow siblings to marry. Let's call a spade a spade. They framed it as an equal rights argument, but are they really willing to extend those equal rights to all?
If the reasoning of the court is thateveryonedeserves equal rights, then how do you say that a brother and sister who are in love do not get those equal rights? The problem is that youcan'tdistinguish this. So saying that there are laws to protect against this is bogus. Laws can be declared unconstitutional. Insomuch as the gay-marriage prohibition and the incest prohibition were similar laws, HMTKSteve brings up a valid issue.
No he didn't. The Court in this case decided that sexual orientation is a suspect classification because, among other parts of the analysis, sexual orientation is an immutable trait. Laws treating the class differently are therefore to be reviewed with strict scrutiny.
The distinguishing characteristic here is the class. Incestuous relationships would not be a suspect class because the people engaging in these relationships do not share an immutable trait that makes them need to engage in incestuous relationships. Therefore, laws that treat them differently would not be reviewed with the strict scrutiny standard and would be upheld.
Comments
I find myself agreeing with the dissenting opinions. They basically state that even though the majority has the best of intentions the court lacks the power to do what it is doing and should leave this up to the Legislature and the people of the state to vote on.
Joe, what is your legal analysis of the court doing this? Do they have the legal right in CA to do this or should this be handled by the Legislature and the people of California?
Please put aside the topic of the case and look at it as a separation of powers issue.
The CA Legislature has already passed a law legalizing same-sex marriage twice only to have it vetoed by the Governator.
Also of note, 6 of the 7 judges that heard this case were Republicans.
I was not aware of the Gov vetoing earlier same-sex marriage laws.
I don't know enough about the legal aspects to know how big a deal this really is -- if this means that we're really going to continue to have gay marriages, but I got super stoked when I read this.
I have a couple of female friends who were "married" in San Francisco last summer (they live there, they didn't go there to get married), but now they can do it for "real". I'm thrilled for them.
Cheers.
To review: they did not "create" a law.
There was an uncontested voter initiative that banned same-sex marriage. The City and County of San Francisco under it's own power and working legitimately within its own legal system legalized the ability to issue marriage licenses within its jurisdiction. The City and County of SF was shut down by the CA Supreme Court due to this previous initiative. The mayor and City sued in retaliation and as a result, the original law was now contested. In this process, it was found that the original initiative/law was unconstitutional. (That would be the "striking down" part) Since the law used to prevent the City and County of SF was deemed to be unconstitutional, then what they did was alright and is now state law. The ZOMG GHEYS faction rolled the dice and lost.
Like it or not, the government in this country has three legs, not two. The CA decision did not "create a law out of whole cloth", it very much followed proper line of law review. There was a law, it was used to invalidate another law, a fight occurred and the first law lost.
This decision, handed down by a strong (6-1) Republican majority, was most likely informed by the fact that the only thing that the ZOMG GHEYS faction had to offer was that it would make people feel bad by stripping them of their right to beat down another segment of the population so they could feel better about themselves. Which is pretty much all their arguments boiled down to.
I'm just playing Devil's Advocate here. I like the result I just don't know if I like the method used to achieve the results.
How does this ruling not pave the way for incestuous marriage or other weird shit?
Is this all you got? I regret to inform you that that particular talking point is played out and never made any sense in the first place. I'm happy to discuss this from a political or legal point of view, but I don't really have time for silly shit like "but homosexuals can enter into fake heterosexual partnerships". And wouldn't that violate the "sanctity of marriage" anyways?
As Scott said, why would it matter? If there's no procreation, what does it matter who marries who?
Five point demerit for using the Slippery Slope Fallacy.
If you do decide that you want to give special privileges and benefits to people who enter a specific contractual agreement with other people, that's fine. However, you can't pick and choose who can enter the agreement with who. Absolutely anybody who is allowed to enter a legally binding contract must be allowed, and everyone who does must receive the same benefits and privileges.
What about the anti-gay marriage Constitutional Amendment that will soon be on the ballot? If that passes what happens?
Stupid Conservatives.
You stated: You do understand that gay-marriage was outlawed just like incestuous marriages are outlawed, no? If the reasoning of the court is that everyone deserves equal rights, then how do you say that a brother and sister who are in love do not get those equal rights? The problem is that you can't distinguish this. So saying that there are laws to protect against this is bogus. Laws can be declared unconstitutional. Insomuch as the gay-marriage prohibition and the incest prohibition were similar laws, HMTKSteve brings up a valid issue.
For the record, I live in a state with civil unions and I believe that they have been a good thing for my state. I'm just pointing out that the court really engaged in a morality determination, because we know that they are not going to allow siblings to marry. Let's call a spade a spade. They framed it as an equal rights argument, but are they really willing to extend those equal rights to all?
Good article. Those conservatives should do a little bit of reading before opening their mouths.
The distinguishing characteristic here is the class. Incestuous relationships would not be a suspect class because the people engaging in these relationships do not share an immutable trait that makes them need to engage in incestuous relationships. Therefore, laws that treat them differently would not be reviewed with the strict scrutiny standard and would be upheld.