quote: SAN FRANCISCO -- A judge ruled Monday that California's ban on gay marriage is unconstitutional, saying the state could no longer justify limiting marriage to a man and a woman.
In the eagerly awaited opinion likely to be appealed to the state's highest court, San Francisco County Superior Court Judge Richard Kramer said that withholding marriage licenses from gays and lesbians is unconstitutional. "It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners," Kramer wrote.
The judge wrote that the state's historical definition of marriage, by itself, cannot justify the denial of equal protection for gays and lesbians.
"The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional," Kramer wrote.
Kramer ruled in lawsuits brought by the city of San Francisco and a dozen same-sex couples last March. The suits were brought after the California Supreme Court halted a four-week marriage spree that Mayor Gavin Newsom had initiated in February 2004 when he directed city officials to issue marriage licenses to gays and lesbians in defiance of state law.
The plaintiffs said withholding marriage licenses from gays and lesbians trespasses on the civil rights all citizens are guaranteed under the California Constitution.
...
Kramer is the fourth trial court judge in recent months to decide that the right to marry and its attendant benefits must be extended to same-sex couples. Two Washington state judges, ruling last summer in separate cases, held that prohibiting same-sex marriage violates that state's constitution, and on Feb. 4, a judge in Manhattan ruled in favor of five gay couples who had been denied marriage licenses by New York City. That ruling applies only in the city but could extend statewide if upheld on appeal. Similar cases are pending in trial courts in Connecticut and Maryland.
Two quick legal notes:
1.) I don't know how many levels of appeals courts there are between this and the California Supreme Court.
2.) This is based on interpreting the state constitution. I have no knowledge of how much of a reach this is.
posted
Book, an amendment would have to be passed repealing the previous amendment.
It would be next to impossible right now.
It would be like if the South had managed to pass a "Black people will always be slaves" amendment instead of withdrawing from the Union. No law, or emancipation proclimation would have been able to save them. Only another amendment. And the south would get a vote on weather or not it passed.
Pix
(edit: there are currently two proposed anti-gay marriage amendments on the ballot in California for November. They will probably both pass.)
quote:It would be like if the South had managed to pass a "Black people will always be slaves" amendment instead of withdrawing from the Union. No law, or emancipation proclimation would have been able to save them. Only another amendment. And the south would get a vote on weather or not it passed.
This just about right. For clarity's sake, I'll note that a Federal Amendment in will override state amendments.
So, for California to overcome this decision (assuming it's affirmed by SCOCA), California will have to pass an amendment, or the Federal amendment will have to be passed. The former will be much easier mechanically.
The proposed federal amendment states that no state constitution will be interpreted as requiring gay marriage. So if the Federal Amendment is passed as written, then this CA decision will be overriden. Hoever, after the federal amendment is passed, an amendment to a state constitution legalizing civil unions or gay "marriage" (called something else - the amendment will prohibit calling it marriage) will be federally constitutional and will legalize gay marriage.
Since VT passed a civil union law, presumably the amendment wouldn't override that.
Dagonee OK, that wasn't for clarity but completeness.
posted
I feel about this like I feel about the new Star Wars movie: I have hopes, but I refuse to get excited because I've been burned before.
Posts: 6394 | Registered: Dec 1999
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posted
I'm with Karl. I'd love to jump up and down and cheer but there are a LOT of people out there who will stop at nothing to prevent gay people from having equal rights.
Posts: 7085 | Registered: Apr 2001
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posted
Unfortunately, adam, the other side has a vast enough numerical superiority to pass anti-gay amendments in 13 states.
Posts: 7085 | Registered: Apr 2001
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posted
Yes, the number of people who want equal rights is growing. Soon the vast-majority will no longer have the numbers for an amendment. When that happens, the lack of a cogent secular argument against gay marriage will dictate equal rights for gay people.
To prevent that, they must pass an amendment. If they get that, which they likely will, it will take a super majority in the other direction to fix it. Which we might never get.
The more I think about this issue the more depressed I get. Even liberal Hawai'i passed an amendment barring gay marriage a few years ago. I really don't think we have a chance.
Posts: 7085 | Registered: Apr 2001
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posted
I'm all for keeping some old laws on the books. As the first born son of a Virginia family, I'm allowed to carry a sword in public. You wouldn't want me to lose that privilege would you?
Posts: 1480 | Registered: Dec 2004
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quote:it will take a super majority in the other direction to fix it
At least this issue is requiring a super majority to lock the inequitable status quo in place. Protection of unborn children from abortion was stripped in most states by a super-minority.
Posts: 26071 | Registered: Oct 2003
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posted
I do think it is unconstitutional. people should be able to marry whoever they want to marry. Government shouldn't intervene. Just because someone is gay doesn't mean that they are perverts or immoral. Straight people also have sex.
Posts: 3389 | Registered: Apr 2004
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posted
It drives me crazy that almost every topic worthy of discussion on Hatrack inevitably finds its way to an attack on legalized abortion. I'm done with this topic.
Posts: 1480 | Registered: Dec 2004
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quote:It drives me crazy that almost every topic worthy of discussion on Hatrack inevitably finds its way to an attack on legalized abortion. I'm done with this topic.
Gee, sorry to see you go.
The implications of constitutional mandate is exactly parallel within the two issues, and arrived at from opposite political/legal processes. There's a lot in common between the two, and the commonality is enhanced by the different processes.
And what the hell exactly did you contribute to this topic except a comment about swords? You say you're done with it like you've been contributing to the topic in a meaningful way, when all you've posted is less related than the post you're complaining about.
posted
Dag: Abortion seems to offend the majority but they either never had the numbers for an amendment or mass murdering innocent babies (their opinion, not mine) doesn't annoy them as much as two people in love who happen to be of the same sex.
Probably the former.
I hope the former.
Posts: 7085 | Registered: Apr 2001
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posted
The general name-calling and lack of respect for one another in gay marriage threads are the only times I'm ashamed of Hatrack.
Posts: 1163 | Registered: Jan 2005
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quote:Dag: Abortion seems to offend the majority but they either never had the numbers for an amendment or mass murdering innocent babies (their opinion, not mine) doesn't annoy them as much as two people in love who happen to be of the same sex.
But similarly, the proponents of abortion have never had the numbers for an amendment protecting the right, either. At least civil gay marriage rights are still something that can reasonably be advocated for in legislatures.
posted
While I was avoiding commenting on this, I do feel the need to point out that social issues are usually so intertwined that it becomes difficult to cut any single topic from the rest of the pack.
posted
A court finding a fetal right to life could just as easily be said to be protecting the rights of a minority.
Further, but in the civil gay marriage arena, the courts that are stepping in are ones that can be overturned without a supermajority (most state constitutions don't require supermajorities for amendment). It's a big difference.
quote:... doesn't annoy them as much as two people in love who happen to be of the same sex.
Not everyone who opposes gay marriage does so because they have a problem with gay couples falling in love.
And the order of events you imply here is interesting. It's like your hypothetical couple fell in love first, and then noticed, "Hey wait a minute ... we're the same sex! Oh, well ... we're already in love, nothing to be done about it." I'm pretty sure that the majority of human beings actually have a particular gender in mind when they think about falling in love, long before they actually do so ...
Posts: 1539 | Registered: Jul 2004
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quote: While I was avoiding commenting on this, I do feel the need to point out that social issues are usually so intertwined that it becomes difficult to cut any single topic from the rest of the pack.
Really, what's the link between gay marriage and abortion? Gay people don't typically have abortions...
To me, the question on abortion is "When does life begin" and if it begins at conception then abortion is always wrong. Even in cases of rape or incest. If you believe life begins sometime later, say, when brainwave activity starts, then abortion is Ok up until that point becuase you're protecting the rights of the mother. (oh boy.. here goes the thread hijack... please respond to this in a fresh thread maybe?)
Equal rights for gay people seems to boil down to "Is god OK with it?" People have tried really hard to come up with secular arguments.. they usually involve the line "What will I tell my children?" which is a circular argument. "Gay marriage is bad becuase I don't want to have to explain it to my kids becuase gay marriage is bad."
There is also the argument that children are better off with a mother and a father. Unfortunately this leads to arguments in favor of polygamy. Heck, if one mom is good wouldn't two be better? How about two dads and a mom so the mom can stay home (heck, even home school!) and the dads can go earn a fantastic living for the family. But I'm pretty sure the same people who are against gay marriage would be against polyamorous marriage.
The only real connection between the abortion argument and the gay argument is the question of what would god think. And I think the bible is silent on the abortion issue (I haven't looked. If you know of a reference I'd love to hear it along with where it is in the bible. In another thread.) aside from Thou Shalt Not Kill which brings us back to the "When does life begin" question.
But then again, we (try) to base our laws on secular arguments rather than what god says. We are a constitutional secular democratic republic, not a theocracy thank god. So ultimately even that connection breaks down.
quote:Really, what's the link between gay marriage and abortion? Gay people don't typically have abortions...
I thought that was pretty clear - both are issues where courts are making or have made rulings contrary to the will of the majority in at least some state, and part of the populace is extremely upset about it.
Beyond that, non-sanctity of life justifications for banning abortion will have a lot in common with civil support for reproductive families arguments against gay marriage.
I don't make non-sanctity of life justifications for banning abortion nor civil support for reproductive families arguments against gay marriage, but I've seen several of each made on this board with a lot of premises in common.
quote: Not everyone who opposes gay marriage does so because they have a problem with gay couples falling in love.
Yeah, these people are fine as long as we're just "playing house". Just so long as we don't get so uppity as to expect any legal recognition?
The religious argument most certainly does have a problem with the "falling in love" part, and I have yet to hear one single legitimate argument against gay marriage that wasn't religiously based.
quote: And the order of events you imply here is interesting. It's like your hypothetical couple fell in love first, and then noticed, "Hey wait a minute ... we're the same sex! Oh, well ... we're already in love, nothing to be done about it." I'm pretty sure that the majority of human beings actually have a particular gender in mind when they think about falling in love, long before they actually do so ...
I'm curious what your point is here. Is this more to you than a semantic quibble? Are you arguing/implying that because we know we're gay before we seek one another out we somehow have less of a claim than if we were blind-sided by it? Posts: 6394 | Registered: Dec 1999
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quote:Equal rights for gay people seems to boil down to "Is god OK with it?" People have tried really hard to come up with secular arguments.. they usually involve the line "What will I tell my children?" which is a circular argument. "Gay marriage is bad becuase I don't want to have to explain it to my kids becuase gay marriage is bad."
First, lots of people say the same thing about abortion. That it supposedly *always* boils down to a religious argument. Which isn't true. Same here, at least for me. The God of the Bible appears to be 'not okay' with a lot of stuff that is legal and practiced by many American Christians. (No fault divorce, adultry, gluttony, taking the Lord's name in vain, just to name a few...) It's a null argument.
For myself, this is more an argument of social advisability. I honestly don't think we had any idea what a bucket of worms we were opening when we legalized no-fault divorce. Equal social recognition on par with marriage of same sex couples has *never* (until recently) been done in the history of the world. That I know of, anyway. How can we know what social effect it may have? I don't understand why we can't wait 10 or 15 years to see what happens in the other countries that have already adopted the practice. In the meantime, offering legal protection but not callling it marriage seems very reasonable.
Posts: 5948 | Registered: Jun 2001
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posted
Hooray! Hopefully these gestures of acceptance and tolerance will drip drip drip and eventually become a flood and then it will seem odd that anyone ever argued this in the first place. Posts: 70 | Registered: Jan 2005
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posted
I, personally, could care less what it's called. I think it's beyond silly to quibble about the name because when all is said and done, when it quacks like a duck and walks like a duck, etc.
The "why not wait 10-15 years" arguement doesn't wash with me. There are a lot of liberties other countries have had for far longer that we still shudder over. Most of Europe and South America are baffled by the flack we gave Janet Jackson over a nipple viewed from 100 yards away. Their civilization hasn't crumbled from daily viewings of far more skin than that. Holland has many legalized substances that our country jails people for, yet they still function. So what weight will it have in 20 years when we can point to Canada and say "see, they're still alive even with married homosexuals in plain view." Do you really think that the majority of people who oppose it now will not oppose it then because Canada has shown us the light?
The only reason, in my opinion, to wait it out is that the next generation is bound to be less worried about gays getting married than this one is. By fighting in this generation, it is possible that we have stirred a hornets nest that will prevent us from making progress as quickly. That is sad. But as a reason to wait it speaks only to political expedience. It does not address compassion, logic, rationality, fairness, justice, love, freedom, or fairness.
But then again, those things regularly take a back seat to political expedience in this country. Not something I'm particularly proud about.
Posts: 6394 | Registered: Dec 1999
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quote:jeniwren: In the meantime, offering legal protection but not calling it marriage seems very reasonable.
quote:KarlEd: I, personally, could care less what it's called. I think it's beyond silly to quibble about the name because when all is said and done, when it quacks like a duck and walks like a duck, etc.
I agree that it doesn't matter too much what you call it, but I think that jeniwren is missing a key word... EQUAL. We need something that provides equal protection... hospital visitation rights, ironclad benificiary status etc. It not only has to look like a duck and quack like a duck but it darn well better swim like a duck and fly like a duck.
My basic gripe is thus - no religion can lay singular claim to the term "marriage". As a result, no religion should be allowed to dictate the use and how it is applied.
And if the concept of "marriage" recieves special recognition under the law, it cannot be legally denied to another group.
quote:I thought that was pretty clear - both are issues where courts are making or have made rulings contrary to the will of the majority in at least some state, and part of the populace is extremely upset about it.
I'm sure both of us can each come up with a dozen examples in which the majority was tragically and dangerously wrong. So this "majority" argument cannot stand on its own.
What else you got?
Posts: 1515 | Registered: Feb 2002
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posted
Karl, the second paragraph in my post above was meant to be a quibble. The whole thing was just a facetious reaction to the straw man that Pix was setting up. In my opinion, it doesn't help the pro-gay-marriage cause to portray gay marriage opponents' positions in ridiculous terms that they would never accept.
While some gay marriage opponents may have some strong negative attitudes towards homosexuals themselves, so far, I have seen none of those people here at Hatrack, so such characterizations are inappropriate in this context.
If Person X says, "I don't think we should sanction homosexual marriages," and then Person Y responds, "What do you have against people falling in love? Are you anti-love? You hate love, don't you? You're a love-hater!" I fail to see how the conversation has gone anywhere productive.
We could also write similar conversations that go the opposite direction (as you began to demonstrate in your post). I think we should avoid both.
quote:I thought that was pretty clear - both are issues where courts are making or have made rulings contrary to the will of the majority in at least some state, and part of the populace is extremely upset about it.
I'm sure both of us can each come up with a dozen examples in which the majority was tragically and dangerously wrong. So this "majority" argument cannot stand on its own.
What else you got?
What do you mean, what else I got? I was pointing out a similarity between two different issues. The rightness or wrongness of various majority opinions throughout history has no bearing on whether this similarity exists or not.
Did you perchance think I was making another argument? If so, which one?
quote: If Person X says, "I don't think we should sanction homosexual marriages," and then Person Y responds, "What do you have against people falling in love? Are you anti-love? You hate love, don't you? You're a love-hater!" I fail to see how the conversation has gone anywhere productive.
Were this less hyperbole, I might agree with you. However, I think it's a bit of a stretch to read all that out of Pix's "straw man".
On the other hand, many people make simplistic statements about the gay marriage issue without thinking of the implications of what they are asserting. If someone states outright one of the implications of an opposing view, is it that person's fault if it sounds ridiculous?
As for couching the arguement in "ridiculous terms that [we] would never accept", well, I'm perfectly willing to accept the characterization of "two people in love who happen to be the same sex." See, there's nothing implied here about order of events. The reason this phrasing is attractive is because it lists the aspects of our relationship in order of importance, or at least in the order of importance it should have from a legal aspect. We are primarily two people in love. Our point of view is that the fact that we "happen to be of the same sex" should be irrelevant to our being able to pursue legal recognition of our commitments to one another. Pix's phrasing, in my opinion, underscores this ranking of importance nicely. It is my opinion that in this particular case, you have created an implication and developed it to absurdity on your own. ("What's wrong with love? You must hate love" etc.) I really don't see that implication in Pix's phrase, though she could tell you whether it was meant that way or not better than I, I suppose.
That said, I would really like to discuss this topic with you one on one sometime. You are one of the most thoughtful. . . well I was going to write "proponents of the opposition view" but I can't really do that in good faith. More often you seem to couch your points in language that implies (at least to me) that you don't necessarily hold said views yourself, but you want the other side to at least admit they aren't irrational, etc. So I guess what I'm saying is that I'd like to know what your views really are and why you, youself, hold them, because I believe you don't hold your views lightly, and I feel you are willing to recognize legitimacy in the opposite view when it is deserved.
I hope this makes sense and is received without offense, as that is how it is intended. Posts: 6394 | Registered: Dec 1999
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quote:What do you mean, what else I got? I was pointing out a similarity between two different issues. The rightness or wrongness of various majority opinions throughout history has no bearing on whether this similarity exists or not.
Did you perchance think I was making another argument? If so, which one?
Dagonee
Sorry, knee jerk reaction. I have a Christian friend in law school that argues against gay marriage relying heavily on the fact that the majority is against it. So when I see another Christian law student/lawyer make reference to the idea...
Posts: 1515 | Registered: Feb 2002
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posted
Ah. For the record, my preferred option is a unified civil union system for any two sufficiently unrelated consenting adults. This system would replace civil marriage in all respects.
Barring that, I prefer to simply allow same sex couples access to the existing civil marriage institutions.
The underlying philosophical reasoning behind this is that civil marriage is a separate entity from the religious/spiritual/personal meaning attached to marriage by different people of different faiths.
The quick summation is that we have gay marriage in many places throughout this country, just not the civil rights that go with it.
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