California’s top court has ruled that a state law banning marriage between same-sex couples is unconstitutional.The state’s Supreme Court said the “right to form a family relationship” applied to all Californians regardless of sexuality.
[…] The seven-judge panel voted 4-3 in favour of the plaintiffs who argued that the 2000 law was discriminatory. “Limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute,” California Chief Justice Ron George said in the written opinion.
Opponents are already threatening to put in a constitutional measure to ban it again. Why I’m still not clear on.
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Because they lost! The great threat to America is not Al-Queda or a crushing deficit, or citizen apathy about participating in politics, or even the semi-corrupt nature of politics in the 21st century, it’s people who want to get married. Or at Roy Zimmerman says “It’s people who want to commit to a stable, monogamous, lifelong, relationship – What are they, nuts?!
And, no doubt, most of the people upset at the “judicial activism” of the CA court for striking down this law will be first in line to advocate packing the Supreme Court with conservative judges who will strike down Roe vs. Wade.
An interesting side note is that all but one of the judges on this court were appointed by Republicans.
Dave, I do agree with your previous comment that most people are generally more forgiving and understanding about the plight of gay people. And generally most US religion will not openly discriminate against gays so there is some hope. However, the official stance of most major us religions (Catholics, Baptist, Methodist, etc) is anti-gay which prevents a lot of people standing up to this type of legislation. (Politicians or otherwise)
Here is hoping we regain our common sense as a nation before my children get older…
Jim: Most Christian denominations interpret the Bible to consider homosexuality sinful. Some members and leaders of those denominations go further to consider gays evil; others try to adopt a “hate the sin, love the sinner” stance (which ought to be better, but often isn’t).
That said, from *my* perspective, the issues of church theology and civil policy are not necessarily. There are many things that are legal that are not (in one sect or another) considered moral– and there are some things that one sect or another considers moral that are not legal.
If the First Baptist Church down the street considers gay marriage to be an abomination, they shouldn’t be compelled to religiously officiate any such weddings. If the St Swithins Episcopal next door feels they are okay, they should be allowed to do so. And if a heterosexual couple can get married in a civil ceremony, absent *any* religious trappings, why (I ask rhetorically) should homosexual couples be any different?
You are correct, though, that issues of “equal treatment under the law” and public policy and so forth often get swamped by moral outrage (and conflated aesthetic judgment), esp. when whipped up by crusaders and demagogues.
Kelson: Yeah, but they’re *Californian* Republican judges. That’s only just short of raving lunatics as far as the Right is concerned …
Marriage is a civil contract by California statute and not a constitutional right.
The California Supreme Court stated that if California were to recognize marriage contracts under its statues, then it must not discriminate against same-sex couples under the equal protection clause.
Prop 22 for the November ballot would change the California Constitution to ‘define’ the word marriage as between one man and one woman. It would not change the constitution to make marriage a legal right nor would it change the equal protection clause of the constitution to permit discrimination against same-sex couples.
Contract law invalidates contracts that violate California statutes, making them null and void. The State of California may not pass or maintain statutes in its criminal or civil codes that violate its constitution.
If Prop 22 passes, the State of California would be required to nullify all marriage contracts because marriage as a defined by the referendum would violate the equal protection clause of the State’s constitution. It could continue to offer civil unions as they do not discriminate.
What is your opinion?
Are you suggesting that Prop 22 would actually nullify *all* marriages?
There is some confusion here I think. Prop 22 passed in 2000, and it looks to be what the California Supreme Court declared to be unconstitutional. The new proposal is the Limit on Marriage Amendment which would not pass muster in Colorado since it says one thing, and then adds much more to it.
The actual text is much more legallese:
My opinion?
That you make a point that makes sense enough to be responded to.
The law prior to 2000:
After Prop 22 passed in 2000:
The new proposal looks like it do all the things that Prop 22 did, but make it so that the Courts or the Legislature cannot do anything about it, and that it will be carved in stone, which to me seems to make it very Discriminatory since there is no way to seek redress for wrongs and it also looks like it would do away with all Civil Union/Domestic Partnerships that are currently in effect. And again, since the courts cannot review the Amendment after it is passed, they would not be able to review if it violates the Equal Protection Clause or not.
Now, what will be interesting bit will that it would keep XX Chromosome males or XY Females from being able to marry, granted these being rare genetic defects, that might be already be a given.
Not as rare as might be thought. 46X,Y genetic male births that suffer from Androgen Insensitivity and appear as females are listed as 1 in 20,000 births – that’s a lot of people in the state of CA. And that’s just one possible variation.
However, that brings up the issue that genetic testing might be required for the law to be enforced, an argument that might lean against this proposition for many Republicans. The whole blood test thing for marriage has finally gone out the window, and now we’ll need genetic testing in order to get married? Is that invasive or what?
Finally, even though I am completely opposed to this amendment, the more heinous it is when passed, the sooner it can be appealed to the US Supreme Court, which is the final arbiter of Constitutionality. Although I think we, as Californians, can defeat this stupidity especially if we can mobilizes the youth vote.
Ahhh, okay I didn’t have time to go and look up the numbers for the 46X,Y defects. I knew they were out there, just not how many, thank you.
As to SCotUS, the proposal as written would not allow review from the California or the Federal courts, so once passed, that’s it ( a new trick by the GOP to thwart “activist judges”), and since it also prohibits an initiative at a later date to overturn it, best thing to do would be to keep this one from passing in the first place.
I wouldn’t count on SCOTUS to review this (or, reviewing it, to decide against it).
A few key take-aways from the text that BD quoted:
1. No transsexuals allowed. There is not, at present (to my knowledge), any sort of legal restriction against transsexuals getting married. Under this proposals, based on the genetic testing, that would also be prohibited (unless a person born as a woman married a person born as a man, regardless of how they are currently configured).
That would also affect people who were born hermaphroditic and where the surgical correction that was chosen was not (for whatever reason) in line with the underlying genetics.
2. As with some other DOMA amendments (Michigan is going through this right now), the proposition forbids not just marriage, but effectively anything that resembles it.
I.e., if you want to allow a “civil union” or “domestic partnership” — as California already had — you can’t actually give those “unmarried” people any of the “rights, incidents or benefits” of marriage by law or compel companies to do so.
It’s not clear whether this would prevent companies from offering (uncompelled) such benefits, as has also happened in some states.
Bad law.
It very possible that those provisions would make the law unconstitutional, at least according to some legal experts I have heard. e.g. you couldn’t pass a law barring some issue of free speech with that clause and have it hold up in court. This being a law issue, of course, the debate will continue.
Well, again, as Mary pointed out Dave, California will have to go back to Blood Testing to determine if folks are truely male or female per the law. According to this it’s going to cost $100 bucks for the test and most sites list a 3-10 business day turn around for that test, and it is doubtful that with California’s budget issues that the cost of the testing will be covered or subsidised by the state.
So, yes, it is a bad law and hopefully all of this will come out in the months before the election.
Imagine the privacy requirements for this information And what about HIPAA requirements? Since the state will be contracting out the genetic testing, they may well need to abide by HIPAA. The HIPAA website states ‘The Privacy Rule protects all “individually
identifiable health information”‘ Sounds like one’s genetic makeup would be applicable.
~runs away screaming and waving arms from the HIPAA TLA~
HIPAA stuff sounds like it falls in to MK’s bailiwick.
Now, since I am thinking about all the great big can of worms this amendment could unleash on Guliforrnya my neurons flashed about a bit of a memory about problems that came up during the ’96 Olympics when 8 women were initially banned from competing since the tests showed them as Male since they were XY androgen insensitive.
So, this could really make life exciting for young couples planning to get married and it turns out that they are the same gender. ;P
Also, will folks moving to California from other countries or states need to undergo testing to determine their Genetic Gender? Will they be forced the get divorced if it turns out the one of them are not genetically pure gender wise?
I don’t think a state constitutional amendment can trump jurisdiction of the federal courts, if it is deemed a federal matter.
I would imagine that:
a. Anyone who was not “obviously” of the “correct” gender mix would simply not have their marriage recognized by California law/government.
b. I can imagine law suits and crimninal fraud charges filed someone’s “hidden secret” came to light and they had been being treated as a “legitimately” married company by the state.