The California Supreme Court has voided same-sex marriages that were contracted in the state. The story is here.
Fortunately, they didn't attempt to rule on the constitutionality of same-sex marriages. They struck down the marriages by ruling that the city exceeded its authority under existing law. I'm all for gender-blind marriage, but I think the court did the right thing by the law. It is the law itself that must be challenged, perhaps before the same court.
And it will be--the ACLU together with other groups filed a suit against it at the same time Newsom began licensing marriages, and it's hitting the courts within a matter of weeks. Here's hoping that suit fares better; some of my friends are LGBT activists, and they almost unanimously believe there's at least a 50/50 chance we could have a repeat of the Massachusetts scenario on our hands. What I'm keeping my eyes on is the 2006 Massachusetts referendum. If gay marriage can survive there, mainstream America will notice that the Beast with Nine Heads, the Whore of Babylon, et. al. haven't arrived yet and will be more likely to accept it in other states. Cheers,
In my opinion, a repeat of the Massachusetts nonsense in California, will all but ensure a Bush victory in November. The gay relationship issue is one that needs to be dealth within the legislature, not the courtroom. If another bent left judge disregards this, undecided voters will likely swing to Bush.
I don't think this will come into play during the election; while the initial court rulings might come in as soon as early September, the California Supreme Court is unlikely to rule until well after November 2nd. Cheers,
Three Cheers for the California Supreme Court. Now if the next step can be taken and Gay Marriage and Civil Unions are made illegal it will be one less perversion allowed to plague humankind. BLD
I have mixed emotions about this. On one hand, I agree with the court in today's decision. Newsom was grandstanding big-time and he can't just ignore state law because he thinks that his heart is purer than everyone else's. Regarding gay marriage in general, I have nothing against it. (Though I would really like to see some credible estimates on what it might cost employers in additional benefits.) Assuming that the costs aren't excessive, I wouldn't be upset at all if the state legalized gay marriage. I'd even welcome it. Except that the California public voted against gay marriage in a referendum a few years ago. The spectre of judges overruling democracy gives me the creeps. It might be necessary now and then to protect Constitutional principle, but rule by judicial decree is inherently a bad thing and should be resorted to as seldom as possible. I really don't know if this presents the threat to constitutional rights that would justify the courts overruling the people. Newsom and his supporters obviously think that it does. But I can't help seeing the whole thing as kind of a symbolic issue. It seems like a battle over which agenda is privileged in the public sphere, the left's social change agenda or the much more traditional ideas that the right favors. I'd better stop. I'm sure that I've pissed off both sides and will be flamed into a smoking lump of charcoal in short order.
Bill, I'm basically in sympathy with your points except that if there were no activist judges overruling public opinion, there never would have been desegregation in the South. I, too, see a conflict between a commitment to democracy and a commitment to individual rights--a conflict that is also present in questions like "Aren't we happier that Pakistan is a dictatorship, since if it were a democracy it would likely become a theocracy comparable to Iran?" Tough questions. Taking either side definitively makes me feel like a hypocrite. The best road, I think, is one much like that which Massachusetts has taken--the judiciary initially coming in, but the people of the state having the opportunity to overrule the judiciary through referendum. I hope California will follow the same path. Cheers,
The last poll I saw on the subject showed MA residents to be about 70% against gay marriage. I blame the MA Legislature for not acting when they could have, and I especially blame the MA Supreme Judicial Court for interjecting themselves into a place where they had no business being.
Exactly. I believe that when President Bush proposed the Federal Marriage Amendment, he was reacting to the actions of the Mass Sup Ct.
I wonder if all those couples will be getting refunds for their marriage license fees? Or are homos unworthy of refunds, too?
According to Boston.com: "Polls taken before and after the SJC's ruling indicate that between 42 to 59 percent of Massachusetts voters favor gay marriage, with most polls showing about half the electorate favoring the idea." Cheers,
Boston.com is owned and controlled by the Boston Globe, which is the most liberal paper in the country. I have no doubt whatsoever that the Globe would print misleading statistics if it suited their agenda.
There are potential religious issues obviously. But I can't see how it can be constitutional to prevent gay marriage under the equal protection clauses as the courts have been interpreting these protections over the last thirty years. The religious issues are not legal issues and the popularity of something should be a non-issue in the area of civil rights. By the same token I don't think individual clergy, churches, or denominations should be forced under law to conduct such marriages. Short of changing the constitution itself I don't think people should or even can be denied the right to contract a same sex marriage--nor should churches that are willing to conduct such marriages be prevented from doing so.
__________________________________________________ "But I can't see how it can be constitutional to prevent gay marriage under the equal protection clauses as the courts have been interpreting these protections over the last thirty years." __________________________________________________ The equal protection clause from the 14th amendment was initially written to protect the rights of newly-freed slaves in the Reconstruction Period. Over time, it has been expanded far beyond it's original meaning--bloated, some would say. As an attorney and one who also teaches American Government, State & Local Government and Business Law at the small college and university level, I don't share your opinions regarding the inevitability of equal protection sweeping homosexuals or homosexual marriage under its protections. Sure, you'll find some 9th circuit judges and the odd state court willing to rule in virtually any manner that suits their own egalitarian views, but these courts are almost invariably overturned by the Supreme Court (I believe the 9th circuit averages a 90% overturn on cases for which the U.S. Supreme Court grants cert.) I just don't see any strong judicial trend towards making race, national origin or ethnicity--all constitutionally "suspect classes" against which government discrimination is viewed with strict scrutiny by the courts--constitutionally equivalent from an equal protection standpoint with a characteristic that is based solely, purely on behavior. That's an entirely different animal. The only constitutional protections that we see from an equal protection standpoint based on behavior--as opposed to immutable characteristics--is religious practice. And the difference is that the Free Expression Clause for religion is right there in black-and-white in the First Amendment; no such counterpart exists for sexual behavior. Take a look at 14th Amendment equal protection jurisprudence over the last thirty years, you'll find that disrimination against sex is subject only to intermediate scrutiny by the courts and discrimination against age is subject to rational basis scrutiny--a virtual rubber stamp of the government discrimination! How much less then the chances that sexual orientation will in the near future or ever be a suspect class and actions discriminating against them subject to the highest levels of scrutiny. Again, let me repeat, a black person cannot change their skin color, and their classification is plain for all to see, their skin tone has no bearing per se on their behavior or beliefs. On the other hand, we have homosexuality, a classification defined by behavior and beliefs. The federal courts wisely view government discrimination against the former under a very harsh light, but against the latter in a light most favorable to the government. "Discrimination" should not be a bad word, when we discriminate on the basis of behavior--as opposed to discriminating against those with characteristics that have no bearing on behavior--we are making a reasoned choice.
MRW142: Thanks for the clarification. I am certainly no lawyer. I do wonder if the Gay side can or will argue that homosexuality is not a behavior but a inherent quality that, like race, is not subject to "choice" or change. I think too that there is growing sentiment in the courts--based on employee benifit issues and related litigation--in favor of extending the same protections to gays as to gender or racial groups. Of course even if that is true it may well not play out that way in higher courts. But I think a number of New England states will follow Mass with legalization. You may very well be right but my guess is that gay marriage will be a legal reality--if not now in ten years.
We'll see about gay marriage. Obviously, there are certain states with appointed--not elected--liberal judges with an activist bent who are not subject to the will of the electorate and who will strike down such laws limiting marriage to heterosexual on equal protection grounds. It is a quantum leap from that, however, to affirmation by the U.S. Supreme Court on the same grounds. And even were that to occur, a further quantum leap to national acceptance. Were the U.S. Supreme Court next term to rule homosexual marriage protected on 14th Amendment grounds, the likelihood of a a constitutional amendment overturning the Supreme Court would become very high. The reason it's low now is because there's yet no U.S. Supreme Court seeking to enforce the will of a small minority upon the majority. Remember, 97-98% of all adults do not have such a proclivity, and an overwhelming percentage of those think that such behavior isn't equatable with heterosexual. I will agree, however, that society can change, so I must grant your point that in our lifetimes, things could change. Since I was born 40 years ago, the societal changes have been unprecedented--the next 40 could bring more of the same. One contention: there's a possibility that homosexual orientation may be immutable (although that is very controversial and there yet exists no valid study establishing that homosexuality is part of genetic makeup). But homosexual behavior--as opposed to inclination--is the only thing that is ever discriminated against; think about it, there are zero laws discriminating against inclinations. The behavior is by definition never an immutable characteristic; to engage in intercourse with one of your same sex, to insert square pegs in round holes, is a behavior. One may follow their libido where it may take them, but do not say that it's not a behavior. Otherwise, you know the slippery slope--if one's natural desire is to engage in relations with children or multiple adults simultaneously or a Holstein cow, well, that desire is an immutable characteristic, the desirer did not ask for it, therefore such must be as constitutionally protected as the behavior of the nuclear family--sophistry!
________________________ "Bill, I'm basically in sympathy with your points except that if there were no activist judges overruling public opinion, there never would have been desegregation in the South." ________________________ Tom Head: 1964 Civil Rights Act? Voting Rights Act of 1965? Redistricting Revolution following the--in my opinion--non-activist and constitutionally-defensible Supreme Court decision in Baker v. Carr in 1962? These examples of legislation and a non-activist judicial decision (at least from an equal protection standpoint) came very soon after the so-called activist decisions that "saved the day". Are you really convinced that the South would never have been desegregated in the absence of activist judges who disregard precedent? I agree with you that the preferable course of action is through the democratic process rather than via unelected--and virtually unaccountable--lawyers in black robes. However, I do not believe that Massachusetts allows for referenda--it's an initiative that they need to employ. I believe what they would need to do is get 3% of the "population" (expressed as total number of those voting in the previous gubernatorial election) to sign an initiative for a constitutional amendment to be put on the Mass ballot. I know, I being pedantic in my distinction between referenda and initiative. You are right, the voters do have recourse, and they will likely exercise it soon.
