PDA

View Full Version : Legal Speaking of Supreme Courts: Prop 8 upheld in State Supreme Court 6-1


Stinger
05-26-2009, 05:15 PM
Wonder if this concept will be brought up ( I guarantee that it will be in both Rep and Dem talking points) in the confirmation hearings for Mrs. Sotomayor .......

(05-26) 14:30 PDT SAN FRANCISCO -- California voters legally outlawed same-sex marriage when they approved Proposition 8 in November, but the constitutional amendment did not dissolve the unions of 18,000 gay and lesbian couples who wed before the measure took effect, the state Supreme Court ruled today.

The 6-1 decision upholding Prop. 8 was issued by the same court that declared a year ago that a state law defining marriage as the union of a man and a woman violated the right to choose one's spouse and discriminated on the basis of sexual orientation.

Prop. 8 undid that ruling by reinstating the definition of marriage that the court had struck down, this time as an amendment to the state Constitution. The author of last year's 4-3 decision, Chief Justice Ronald George, said today that the voters were within their rights to do so.

"All political power is inherent in the people," George said, quoting the Declaration of Rights in the state Constitution. He said the voters' power to amend their Constitution is limited - and might not include a measure that, for example, deprived same-sex couples of the right to raise a family - but that Prop. 8 did not exceed those limits.

Under California's domestic-partner law and anti-discrimination statutes, the chief justice said, "same-sex couples continue to enjoy the same substantive core benefits ... as those enjoyed by opposite-sex couples, including the constitutional right to enter into an officially recognized and protected family relationship with the person of one's choice and to raise children."

George said voters have added "the sole, albeit significant, exception that the designation of 'marriage' is ... now reserved for opposite-sex couples." That was within their authority, he said, and any further change can come only at the ballot box.

In dissent, Justice Carlos Moreno, who joined the majority in last year's decision, said today's ruling accepted the separate-but-equal treatment for gays and lesbians that the 2008 ruling rejected.

"Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their officially recognized and protected family relationship a marriage, still denies them equal treatment," Moreno said.

The justices ruled unanimously that Prop. 8 was not retroactive and that gay and lesbian couples who relied on the court's May 2008 ruling to get married before the Nov. 4 election will remain legally wed.

Denying recognition to those marriages would disrupt "thousands of actions taken in reliance on (last year's ruling) by these same-sex couples, their employers, their creditors, and many others ... potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court," George wrote.

The ruling, the court's third major decision on same-sex marriage in five years, may be the last word from the state's legal system on the issue. But the matter is far from settled in the political arena. Gay-rights advocates, anticipating the decision, have discussed putting another constitutional amendment on the ballot in 2010 or 2012 to try to repeal Prop. 8.

"Today's decision is a terrible blow to same-sex couples who share the same hopes and dreams for their families as other Californians," said Shannon Minter, legal director of the National Center for Lesbian Rights, who argued the case before the court. "But our path ahead is now clear. We will go back to the ballot box and we will win."

Gov. Arnold Schwarzenegger, who opposed Prop. 8, said today, "I believe that one day either the people or the courts will recognize gay marriage."

Backers of the measure were also looking ahead.

"We will now turn our attention to public education and outreach so that citizens come to better understand and appreciate the many benefits that traditional marriage provides for society and our families," said Ron Prentice, chairman of Protect Marriage, the sponsor of Prop. 8. The group promised to fight any efforts to legalize same-sex marriage at the ballot box.

Prop. 8, which declared that only marriage between a man and a woman is valid or recognized in California, passed with a 52 percent majority after an intense and expensive campaign. Sponsors, mainly affiliated with Christian conservative groups, raised nearly $40 million for the measure and opponents more than $45 million - combined, a record for a ballot measure on a social issue anywhere in the nation.

While the issue has gone back and forth between the court and the voters in California, same-sex marriage has been legalized by the Supreme Courts of Iowa and Connecticut and the legislatures of Vermont and Maine. Those states joined Massachusetts, whose high court issued the first such ruling in 2003. Similar legislation is pending in New Hampshire and New York.

California's legal battle dates back to February 2004, when San Francisco Mayor Gavin Newsom authorized the city clerk to issue marriage licenses to same-sex couples. Nearly 4,000 weddings took place in the next month before the state Supreme Court ordered a halt, then voided the marriages in August 2004 and found unanimously that Newsom had no authority to disregard state law.

The city and a number of couples quickly returned to court and sued to overturn the law. They won in Superior Court, lost in an appeals court, and won in the state's high court on May 15, 2008 - but by then, their opponents had already submitted more than 1 million signatures qualifying Prop. 8 for the November ballot.

This time, the issue before the justices was whether the voters' power to amend the Constitution by initiative.

Plaintiffs in the lawsuits were two groups of same-sex couples, some already married and some thwarted by Prop. 8, along with an array of local governments led by San Francisco. They argued that a measure eliminating fundamental rights exceeds the scope of a constitutional amendment and amounts to a revision, which needs a two-thirds legislative vote or approval from delegates at a state constitutional convention to reach the ballot.

Attorney General Jerry Brown, who usually defends state laws in court, joined Prop. 8's opponents and argued that "inalienable rights" in the California Constitution cannot be repealed by majority vote. Brown said today, "I really believe that over time, Californians will accord this right that the court previously has upheld but has now invalidated by Proposition 8. I predict that in the future, the right of same-sex marriage will be restored."

Prop. 8's sponsors noted that the court had declared ballot measures to be revisions only twice. As George pointed out in today's ruling, the court has rejected similar challenges to such far-reaching measures as a legislative term-limits initiative, the Proposition 13 tax cut and the reinstatement of the death penalty.

To be a constitutional revision, the chief justice said, a measure "must make a far-reaching change in the fundamental governmental structure or the foundational power of its branches." He said Prop. 8 leaves the governmental structure intact and preserves the judicial power to protect rights under the Constitution.

Moreno, in dissent, argued that the initiative process must not be used to allow a majority to deny fundamental rights to a historically persecuted minority.

The ruling, he said, "is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal-protection clause of the California Constitution."

The decision can be read at www.courtinfo.ca.gov/opinions/documents/S168047.PDF. The case is Strauss vs. Horton, S168047.

Chronicle staff writer Henry K. Lee contributed to this report. E-mail Bob Egelko at begelko@sfchronicle.com.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/05/26/BAE017PTAD.DTL&type=printable

Saul Good
05-26-2009, 09:22 PM
I'm happy with the ruling even though I have no opposition to gay marriage. Laws should be passed by convincing the citizenry, not by judicial fiat.

SBK
05-26-2009, 09:46 PM
These folks can just go to Iowa, they have judges that legislate better there.

wild1
05-26-2009, 10:02 PM
I'm happy with the ruling even though I have no opposition to gay marriage. Laws should be passed by convincing the citizenry, not by judicial fiat.

:clap:

TEX
05-26-2009, 10:21 PM
I'm happy with the ruling even though I have no opposition to gay marriage. Laws should be passed by convincing the citizenry, not by judicial fiat.

This. :clap:

Mr. Kotter
05-27-2009, 12:01 AM
These folks can just go to Iowa, they have judges that legislate better there.


Heh. Very nice. LMAO

RINGLEADER
05-27-2009, 09:21 AM
I'm happy with the ruling even though I have no opposition to gay marriage. Laws should be passed by convincing the citizenry, not by judicial fiat.

Yes, agree. But the laws that the citizens pass need to constitutional. The fact that the CA Supreme Court left intact the marriages that were conducted before Prop 8 creates two different classes that most definitely violates the 14th Amendment. That was the first thing I thought when I heard the ruling and now I hear Ted Olsen and David Boies(?) are taking the case to SCOTUS. And they're going to win, as they should.

Mojo Jojo
05-27-2009, 10:13 AM
Yes, agree. But the laws that the citizens pass need to constitutional. The fact that the CA Supreme Court left intact the marriages that were conducted before Prop 8 creates two different classes that most definitely violates the 14th Amendment. That was the first thing I thought when I heard the ruling and now I hear Ted Olsen and David Boies(?) are taking the case to SCOTUS. And they're going to win, as they should.

The local Constitutional Experts I heard yesterday believe the SCOTUS will refuse to hear the case. The CA case is based on the CA Constitution and how amendments may be added. The challenge wasn't based on gay marriage it was based on could voters pass an amendment without it going through the legislature first. CA law says "yes" and that is what the CASC ruled. This was a case and a ruling based on procedure, not on civil rights.

Chief Henry
05-27-2009, 11:12 AM
These folks can just go to Iowa, they have judges that legislate better there.

Don't remind me :rolleyes:

talastan
05-27-2009, 01:03 PM
I'm happy with the ruling even though I have no opposition to gay marriage. Laws should be passed by convincing the citizenry, not by judicial fiat.

I don't oppose civil unions that have access to the same taxes, privileges, and rights as a heterosexual couple. I do believe though that the term marriage is a religious term and should be reserved in reference for a heterosexual couple. As for the court's decision, I think that they got it just right IMO.

2bikemike
05-27-2009, 01:25 PM
The local Constitutional Experts I heard yesterday believe the SCOTUS will refuse to hear the case. The CA case is based on the CA Constitution and how amendments may be added. The challenge wasn't based on gay marriage it was based on could voters pass an amendment without it going through the legislature first. CA law says "yes" and that is what the CASC ruled. This was a case and a ruling based on procedure, not on civil rights.


This is correct. The original vote was to ammend the CA constitution to define marriage between a man and a woman. Californians have a lot of leeway in defining our state constitution.

Saul Good
05-27-2009, 04:55 PM
Yes, agree. But the laws that the citizens pass need to constitutional. The fact that the CA Supreme Court left intact the marriages that were conducted before Prop 8 creates two different classes that most definitely violates the 14th Amendment. That was the first thing I thought when I heard the ruling and now I hear Ted Olsen and David Boies(?) are taking the case to SCOTUS. And they're going to win, as they should.

They were passing an amendment to the Constitution. By definition, that makes it constitutional.

BucEyedPea
05-27-2009, 05:27 PM
The local Constitutional Experts I heard yesterday believe the SCOTUS will refuse to hear the case.

Good for them—as it should be.

DenverChief
05-28-2009, 03:25 PM
They were passing an amendment to the Constitution. By definition, that makes it constitutional.


in California, it may still be a violation of the Federal Constitution

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

RINGLEADER
05-29-2009, 08:52 AM
They were passing an amendment to the Constitution. By definition, that makes it constitutional.

They weren't amending the US constitution.

That's where the next challenge will be.

I'd be very surprised if SCOTUS doesn't hear it because the ruling does create two classes in direct violation of the 14th Amendment.

Who knows how SCOTUS will rule -- maybe they'll agree and invalidate the marriages that did take place -- but I'll be surprised if they don't.

Then again, I've been surprised before...

Garcia Bronco
05-29-2009, 08:54 AM
in California, it may still be a violation of the Federal Constitution

I would argue since the 10th Amendment does not allow the Federal Goverment to regulate this, the 14th Amendment doesn't apply.

patteeu
05-29-2009, 09:09 AM
Yes, agree. But the laws that the citizens pass need to constitutional. The fact that the CA Supreme Court left intact the marriages that were conducted before Prop 8 creates two different classes that most definitely violates the 14th Amendment. That was the first thing I thought when I heard the ruling and now I hear Ted Olsen and David Boies(?) are taking the case to SCOTUS. And they're going to win, as they should.

How does it create two different classes of people? When deer tags in limited numbers are offered, you have to get one before they run out. That creates the same type of "two classes of people", those who jumped when they had a chance and those who didn't get a license.

For the sake of argument, this is a case where the constitution has changed. Up until Prop 8, the CA constitution was interpretted as allowing same sex marriage. When the prop passed, it no longer allowed them. The fact that it didn't retroactively reverse the previous state of affairs doesn't create a 2nd class, it just changes the way things are handled from now one for EVERYONE.

BucEyedPea
05-30-2009, 12:25 AM
in California, it may still be a violation of the Federal Constitution

Nope. This is a state issue. The Tenth Amendment applies. This is not about privileges or immunities or any natural fundamental and inalienable right.

Mr. Kotter
05-30-2009, 12:36 AM
in California, it may still be a violation of the Federal Constitution


Your equal protection argument has NOT yet been embraced by the SC.

In this case, we shall see, won't we? :)

DenverChief
05-30-2009, 06:49 AM
Nope. This is a state issue. The Tenth Amendment applies. This is not about privileges or immunities or any natural fundamental and inalienable right.

it doesn't matter it has been held that a state cannot create two classes of citizens (unless one class has broken the law) period end of discussion

DenverChief
05-30-2009, 06:55 AM
I would argue since the 10th Amendment does not allow the Federal Goverment to regulate this, the 14th Amendment doesn't apply.

Brown v Board of Education set the precedent that is going to be argued. Not that being gay is equal to being black but that separate is not equal and the states cannot have "marriage" for heterosexuals and "civil unions" for homosexuals. My guess is that if they do hear it they will rule that the government must call all non-religious weddings a "civil union" to which homosexuals and heterosexuals may enjoy all the rights and privileges of "marriage" but that "marriage" is reserved for religious ceremonies to which homosexuals may also use if their place of worship so allows them to do so. The funny part is that in lay terms it will always be "getting married" no one is going to say we are going to go get "civil unioned"

BucEyedPea
05-30-2009, 09:03 AM
it doesn't matter it has been held that a state cannot create two classes of citizens (unless one class has broken the law) period end of discussion

Yeah, well as far as I'm concerned, when I first came here I dissected the abuses in using the 14th Amendment due to the leftist revolution in the courts years ago. It was written for black people. It was written due to the Civil War and it's aftermath.

I think it should be abolished and rewritten with tighter language. It was never intended to expand the BoRs with the long arm of the central govt dictating such policies in certain locals. The federal govt did not pass any law on this matter for it to be a fed matter. This clearly violates the federalism we're supposed to have which the Constitution established. I don't care what some black robed diety with life tenure on the courts dreamed up on his own using the 14th.

I don't think this matter creates two classes of citizens either, since you have equality under the law when you're treated the same as everyone else —that is you can marry a person of the opposite sex. Same rule for everyone.

You want next of kin benefits and/or economic benefits? Find another way or get the state out of marriage and keep it as a private and/or religious matter which it was for thousands of years.

I'm sick of the Federal govt expanding it's powers over the state in complete disregard for the Tenth Amendment.

patteeu
05-30-2009, 11:40 AM
it doesn't matter it has been held that a state cannot create two classes of citizens (unless one class has broken the law) period end of discussion

That's kind of a circular argument don't you think?

We have two classes of people when it comes to drivers' licenses. Those who are 16 and over who can take a test and get a license. And those who are under 16 and cannot.

patteeu
05-30-2009, 11:42 AM
Yeah, well as far as I'm concerned, when I first came here I dissected the abuses in using the 14th Amendment due to the leftist revolution in the courts years ago. It was written for black people. It was written due to the Civil War and it's aftermath.

I think it should be abolished and rewritten with tighter language. It was never intended to expand the BoRs with the long arm of the central govt dictating such policies in certain locals. The federal govt did not pass any law on this matter for it to be a fed matter. This clearly violates the federalism we're supposed to have which the Constitution established. I don't care what some black robed diety with life tenure on the courts dreamed up on his own using the 14th.

I don't think this matter creates two classes of citizens either, since you have equality under the law when you're treated the same as everyone else —that is you can marry a person of the opposite sex. Same rule for everyone.

You want next of kin benefits and/or economic benefits? Find another way or get the state out of marriage and keep it as a private and/or religious matter which it was for thousands of years.

I'm sick of the Federal govt expanding it's powers over the state in complete disregard for the Tenth Amendment.

Excellent post (except I disagree about whether gay marriage should be legislatively sanctioned or not).

DenverChief
05-30-2009, 03:16 PM
That's kind of a circular argument don't you think?

We have two classes of people when it comes to drivers' licenses. Those who are 16 and over who can take a test and get a license. And those who are under 16 and cannot.

Okay but I would argue that drinking and driving (although not at the same time HA!) are privileges granted by the government (not a fundamental right) whereas entering into a contractual agreement recognized by the government and given "special rights" under that contract is a fundamental right (Loving v Virginia (1967), Zablocki v Redhail (1978)) is something that can only be taken away if you break the law. Actually Turner v Safley (1987) held that a Missouri regulation for a complete ban on marriage while in the D.O.C. was unconstitutional. Being gay or lesbian is not a crime and therefore there should be no reason a homosexual should not be able to "wed" in the eyes of the law. I really don't give a damn if the church wants to do it or not that is their right to do whatever they please.

On top of all that, California let thousands of homosexuals get married then closed the door on them. Now not only do you have the Heterosexual/Homosexual argument you also have the fact that 18,000 homosexuals were allowed to get married and stay married.

patteeu
05-30-2009, 04:23 PM
Okay but I would argue that drinking and driving (although not at the same time HA!) are privileges granted by the government (not a fundamental right) whereas entering into a contractual agreement recognized by the government and given "special rights" under that contract is a fundamental right (Loving v Virginia (1967), Zablocki v Redhail (1978)) is something that can only be taken away if you break the law. Actually Turner v Safley (1987) held that a Missouri regulation for a complete ban on marriage while in the D.O.C. was unconstitutional. Being gay or lesbian is not a crime and therefore there should be no reason a homosexual should not be able to "wed" in the eyes of the law. I really don't give a damn if the church wants to do it or not that is their right to do whatever they please.

All men and women, regardless of sexual orientation, are allowed to marry a person of the opposite sex. No man or woman, regardless of sexual orientation, is allowed to marry a person of the same sex. Everyone is being treated the same here.

I'm a gay marriage supporter, but I'm not willing to trash the constitution to get it.

On top of all that, California let thousands of homosexuals get married then closed the door on them. Now not only do you have the Heterosexual/Homosexual argument you also have the fact that 18,000 homosexuals were allowed to get married and stay married.

I don't see this as a problem. During the window of opportunity, all men and women in California (who were of age and who weren't already married) were allowed to marry someone of the same sex. Now, no men or women are allowed to marry someone of the same sex. Everyone is being treated the same here. In your opinion, could Congress decide to end the special tax treatment of new IRAs but allow those who have already relied upon the law to plan for retirement through the use of IRAs to be grandfathered in under the old rules? I think it's pretty clear that they could and I don't see any difference here.

DenverChief
05-30-2009, 04:51 PM
All men and women, regardless of sexual orientation, are allowed to marry a person of the opposite sex. No man or woman, regardless of sexual orientation, is allowed to marry a person of the same sex. Everyone is being treated the same here.


and the argument here is circular because at one point in time all men and women regardless of race could be married to a person of the same race and that was found to be unconstitutional...this is not trashing the Constitution

DenverChief
05-30-2009, 04:52 PM
In your opinion, could Congress decide to end the special tax treatment of new IRAs but allow those who have already relied upon the law to plan for retirement through the use of IRAs to be grandfathered in under the old rules? I think it's pretty clear that they could and I don't see any difference here.

IRAs are not a fundamental right...apples and oranges

patteeu
05-30-2009, 05:07 PM
and the argument here is circular because at one point in time all men and women regardless of race could be married to a person of the same race and that was found to be unconstitutional...this is not trashing the Constitution

Every man, regardless of race (or any other defining characteristic) is now allowed to marry any of the entire pool of available women. We no longer have restrictions that black men have one pool to draw from while white men have another. That's not an issue in the gay marriage debate. Every man, regardless of sexual preference, can already marry any of the women that any other man can marry.

Mr. Kotter
05-30-2009, 05:07 PM
IRAs are not a fundamental right...apples and oranges


Nor is marriage, as yet. :hmmm:

patteeu
05-30-2009, 05:08 PM
IRAs are not a fundamental right...apples and oranges

Nor are gay marriages.

Mr. Kotter
05-30-2009, 05:10 PM
Nor are gay marriages.


Beat you. Heh.

Yet, Jason keeps trotting out this same bogus claim....as if it's new, every time the topic comes up.

DenverChief
05-30-2009, 05:28 PM
Nor are gay marriages.



marriage period is ... the “freedom to marry” is “one of the vital personal
rights essential to the orderly pursuit of happiness by free men.” not the freedom to marry only men and women

patteeu
05-30-2009, 05:35 PM
marriage period is ... the “freedom to marry” is “one of the vital personal
rights essential to the orderly pursuit of happiness by free men.” not the freedom to marry only men and women

Well, I have a problem calling marriage a fundamental right, but for arguments' sake we'll agree that it is. All men and women, whether straight or gay, have access to the fundamental right of marriage already. It's more appealing to some than to others, but that's true of lots of things.

JohnnyV13
05-30-2009, 05:37 PM
Nor are gay marriages.

Pat, I think the gays will eventually win this one though, in some kind of legal incarnation. Sort of like how it took 30 years to overturn Bowers v. Hardwick.

The best argument against gay marriage is "not a fundamental right" and "intent of the framer" arguments.

The gays will counter with establishment clause, non-discrimination, and liberty interests (freedom to pursue happiness, which is a fundamental right for you non-lawyers out there).

DenverChief
05-30-2009, 05:40 PM
Well, I have a problem calling marriage a fundamental right, but for arguments' sake we'll agree that it is. All men and women, whether straight or gay, have access to the fundamental right of marriage already. It's more appealing to some than to others, but that's true of lots of things.

on this myself and these gentlemen will have to disagree with you

http://www.equalrightsfoundation.org/images/Attorney_Bios.pdf

patteeu
05-30-2009, 05:42 PM
Pat, I think the gays will eventually win this one though, in some kind of legal incarnation. Sort of like how it took 30 years to overturn Bowers v. Hardwick.

The best argument against gay marriage is "not a fundamental right" and "intent of the framer" arguments.

The gays will counter with establishment clause, non-discrimination, and liberty interests (freedom to pursue happiness, which is a fundamental right for you non-lawyers out there).

I'm in favor of gay marriage and I think it will happen one way or another eventually too. I'm afraid that you're right that courts are eventually going to decide to make gay marriage a right whether it should be or not. AFAIC, that's just another reason to expand marriage to same sex couples legislatively (one way or another) before the courts decide to do something like expand the meaning of the equal protection clause again.

patteeu
05-30-2009, 05:43 PM
on this myself and these gentlemen will have to disagree with you

http://www.equalrightsfoundation.org/images/Attorney_Bios.pdf

OK, all three of you are wrong. :D

DenverChief
05-30-2009, 05:57 PM
OK, all three of you are wrong. :D
:)wouldn't be the first and won't be the last :p

Mr. Kotter
05-30-2009, 06:06 PM
Pat, I think the gays will eventually win this one though, in some kind of legal incarnation. Sort of like how it took 30 years to overturn Bowers v. Hardwick.

The best argument against gay marriage is "not a fundamental right" and "intent of the framer" arguments.

The gays will counter with establishment clause, non-discrimination, and liberty interests (freedom to pursue happiness, which is a fundamental right for you non-lawyers out there).

Civil unions, or domestic partner status--to be determined by each state.....will eventually quiet this debate. It can't happen soon enough IMHO.

DenverChief
05-30-2009, 06:10 PM
Hey Patteau just out of curiosity what kind of law do you practice?

patteeu
05-30-2009, 06:27 PM
Hey Patteau just out of curiosity what kind of law do you practice?

I don't. I'm a born-again human. :)

I was trained and licensed at one time, but I've never really practiced law as a profession. Except ChiefsPlanet law, of course.

Mr. Kotter
05-30-2009, 06:31 PM
I don't. I'm a born-again human. :)

I was trained and licensed at one time, but I've never really practiced law as a profession. Except ChiefsPlanet law, of course.


WTF DO you do? Seriously? :hmmm:

DenverChief
05-30-2009, 06:34 PM
I don't. I'm a born-again human. :)

I was trained and licensed at one time, but I've never really practiced law as a profession. Except ChiefsPlanet law, of course.

:LOL: gotcha

CaliforniaChief
05-30-2009, 06:35 PM
A couple of observations. I worked on the "Yes on 8" campaign and am glad to see the courts respect the will of the people. I don't view marriage as a right because the Constitution only gives rights to individuals and not couples.

Having said that, striking down the 18,000 or so same-sex marriages would have been a problematic precedent in terms of Contract Law. If they overturn the existing marriages, what's to stop future legislatures/courts from striking down existing contracts in real estate, business, etc?

One potential solution is to drop the term marriage altogether. Legally the state would only offer unions and religious organizations/others could use the term marriage. I'm not sure conservatives would go for it, but it could be a legal compromise.

DenverChief
05-30-2009, 06:37 PM
I don't view marriage as a right because the Constitution only gives rights to individuals and not couples.



:spock: say wha?

banyon
05-30-2009, 06:44 PM
:spock: say wha?

did you see the EMT thread? I'm curious as to your thoughts.

patteeu
05-30-2009, 06:47 PM
WTF DO you do? Seriously? :hmmm:

Good question.

orange
05-30-2009, 06:48 PM
A couple of observations. I worked on the "Yes on 8" campaign and am glad to see the courts respect the will of the people. I don't view marriage as a right because the Constitution only gives rights to individuals and not couples.

Having said that, striking down the 18,000 or so same-sex marriages would have been a problematic precedent in terms of Contract Law. If they overturn the existing marriages, what's to stop future legislatures/courts from striking down existing contracts in real estate, business, etc?

One potential solution is to drop the term marriage altogether. Legally the state would only offer unions and religious organizations/others could use the term marriage. I'm not sure conservatives would go for it, but it could be a legal compromise.


That would never go. There are hundreds of federal laws/regulations applying to married couples. Allowing religious organizations to define who's eligible would be laughably unconstitutional.

patteeu
05-30-2009, 06:51 PM
That would never go. There are hundreds of federal laws/regulations applying to married couples. Allowing religious organizations to define who's eligible would be laughably unconstitutional.

I think he's just talking about what quite a few other people have proposed where the state has a civil version of marriage (perhaps not called "marriage") open to both same-sex and traditional couples and religious organizations are allowed to define their own religious versions according to their beliefs. Federal laws/regulations would only be impacted by the civil version.

orange
05-30-2009, 06:55 PM
Then the California law would have to say something like "Every instance of 'Civil Union' embodied under this law shall be construed as "Marriage" under all Federal laws and the laws of every other state."

What's the point?

patteeu
05-30-2009, 07:00 PM
Then the California law would have to say something like "Every instance of 'Civil Union' embodied under this law shall be construed as "Marriage" under all Federal laws and the laws of every other state."

What's the point?

I presume the point is to establish gay marriage without calling it marriage. I prefer just calling it marriage, but some people think it might go down easier with traditionalists if a different word is used. :shrug:

orange
05-30-2009, 07:07 PM
I think even in the land of David Copperfield, that kind of misdirection is a little too obvious.

We're on the same side in this debate, though. I wonder if CaliforniaChief and the Yes On 8 people really think churches ought to have that power. I believe that many do, or at least are willing to overlook or finagle that argument.

JohnnyV13
05-30-2009, 08:12 PM
A couple of observations. I worked on the "Yes on 8" campaign and am glad to see the courts respect the will of the people. I don't view marriage as a right because the Constitution only gives rights to individuals and not couples.

Having said that, striking down the 18,000 or so same-sex marriages would have been a problematic precedent in terms of Contract Law. If they overturn the existing marriages, what's to stop future legislatures/courts from striking down existing contracts in real estate, business, etc?

One potential solution is to drop the term marriage altogether. Legally the state would only offer unions and religious organizations/others could use the term marriage. I'm not sure conservatives would go for it, but it could be a legal compromise.

Yeah, I'm on this position myself. I think its the best realistic result that conservatives can get.

In fact, this position makes sense from a legal history perspective, since our law of marriage goes back to the Normans' early decision to give direct jurisdiction over family law to Church ecclesiastical courts in England (in the early days after the Norman Conquest).

These legal roots seem rather incompatible with the establishment clause.

I suppose conservatives could hold out for a domestic partnership law with a bundle of rights somewhat different than hetero marriage; but the gays are understandably reluctant to accept this result (fearing some kind of 2nd class legal status).

JohnnyV13
05-30-2009, 08:15 PM
That would never go. There are hundreds of federal laws/regulations applying to married couples. Allowing religious organizations to define who's eligible would be laughably unconstitutional.

That's not what he means (I believe). I think he's talking about excising the term "marriage" from our law altogether. The idea is that marriage becomes a purely secular/religious concept, and the only legal status recognized is domestic partnership (or whatever terminology legal jurisprudence ends up devising).

BucEyedPea
05-31-2009, 12:26 AM
Excellent post (except I disagree about whether gay marriage should be legislatively sanctioned or not).

Thank you but I have no idea where I said the part you have in parens.

BucEyedPea
05-31-2009, 12:29 AM
Nor is marriage, as yet. :hmmm:

If it were a right then no one would have to procure a liscense to marry. That is seeking permission from the state to marry. If it were a right then it wouldn't be done this way.

BucEyedPea
05-31-2009, 12:32 AM
Yeah, I'm on this position myself. I think its the best realistic result that conservatives can get.

In fact, this position makes sense from a legal history perspective, since our law of marriage goes back to the Normans' early decision to give direct jurisdiction over family law to Church ecclesiastical courts in England (in the early days after the Norman Conquest).

These legal roots seem rather incompatible with the establishment clause.

I suppose conservatives could hold out for a domestic partnership law with a bundle of rights somewhat different than hetero marriage; but the gays are understandably reluctant to accept this result (fearing some kind of 2nd class legal status).

Actually, I've found that to be a compromise many conservatives can deal with...especially if they know churches handled marriages before and not the state. ( There's always been a push/pull factor between what the state would handle and what the Church would in general) From what I've researched even in ancient Rome marriage was a religious ceremony and not a state one. In fact, it was a devout Roman Catholic who is a history teacher and who knows Church history well, who I ran this compromise by. He said that people just up and married in the past. He had no trouble with it at all.

CaliforniaChief
05-31-2009, 01:41 AM
That's not what he means (I believe). I think he's talking about excising the term "marriage" from our law altogether. The idea is that marriage becomes a purely secular/religious concept, and the only legal status recognized is domestic partnership (or whatever terminology legal jurisprudence ends up devising).

Thank you...yes, this is what I meant. Obviously there are complications here too, and social conservatives are still going to feel like they're losing "traditional marriage" under this compromise.

DenverChief
05-31-2009, 07:19 AM
did you see the EMT thread? I'm curious as to your thoughts.

I did. and while I have to say we don't know what happened before the video started....I was disappointed in what was going on and I'm no exactly sure what those troopers were thinking....I think that Ambulance crew was a private company not a local FD ambulance and that is probably where the trouble began...just a guess