The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.There's more at the link, but check Dale Carpenter at Volokh Conspiracy for some of the legal trade-offs the Court must make to come to its expected ruling. Looking ahead, will a simple majority by initiative be able to strip the fundamental "rights" of any numerical minority in the state?
The long-awaited hearing, which came as dueling demonstrators chanted and carried banners outside, was a disappointment for gay rights lawyers.
They had hoped the same court majority that overturned the state's previous marriage ban would conclude that Proposition 8 was an impermissible constitutional revision.
Two members of that majority -- Chief Justice Ronald M. George and Justice Joyce L. Kennard -- expressed deep skepticism toward the gay rights lawyers' arguments. Without their votes, Proposition 8 appeared almost certain to survive.
The other two justices who ruled in favor of marriage rights last year - Carlos R. Moreno and Kathryn Mickle Werdegar - seemed more open to the revision challenge. Moreno even helped gay rights lawyers with their arguments.
But the court revealed no division on whether to uphold the marriages of an estimated 18,000 same-sex couples who wed before November.
Even Justice Marvin Baxter, the court's most conservative member, observed that the couples got married after receiving the right by "the highest court of the state."
"How can we deny the validity of those marriages?" Baxter asked.
The court's ruling is due within 90 days.
No matter what happens, the gay marriage debate doesn't end here.
A legal rights group, Gay & Lesbian Adocates & Defenders (GLAD), filed suit on Tuesday to challenge the Defense of Marriage Act of 1996 (DOMA). The federal law grants an exception to Article IV's Full Faith and Credit command for states' obligations to each other (which requires that states recognize the acts, records, and judgments of other states). So, things at some point will move up from the state level to the federal courts - in California, for example, following the resolution of the Prop 8 challenge, but also in other parts of the country where gay activists are pressing their advantage in the perceived leftist climate engendered by economic crisis and Obamessianism.
Recall, though, that just 31 percent of Americans currently support full same-sex marriage rights (when the question is asked with the alternative responses of "civil unions or partnerships for same-sex couples," or "no legal recognition for same-sex couples"). So, we'll be back to largely a political war over defining what it means to uphold traditional values, but also a struggle to seek a moderate compromise that might work to calm the culture wars before things become so intractable the nation sees a repeat of the worst violence and excesses of the civil rights era.
8 comments:
Liberals don't like laws.
Wait- they only like them when they lean sharply their way.
So when a majority VOTED in November to ban gay marriage,and then the law is upheld after the courts reviewed it, they won't stand for it.
I don't care what the issue is, that is BS. It means that they can badger and badger until they get their way and that is not democratic. It is bully tactics plain and simple. No matter what you "think" the law should be, it had it's day, or rather it had many days, in court and now you should shut up and sit down!
Reminds me of a line from the great movie Network. William Holden's character said "I am mad as hell and I am not going to take it anymore!" Well that's about it. I am sick and tired of people forcing down our throats whatever issue they deem is their right, even if it goes against my rights or beliefs. How come they should win over what the masses chose?
I'm tired of it too, Trish. These folks will never stop. Bully tactics...
No they're not going to stop, no matter how much you and others want to keep loving and committed couples from enjoying the rights that the rest of Americans now do. When the California supreme court overturned the states anti-miscegenation laws over 90% of voters supported preventing different races from intermarrying.
I personally think that the courts are the wrong way to go on this issue however. Gay rights advocates need to remain calm and just wait for a sufficient number of Boomers and homophobes to die off and a corresponding number of Millenials to come of voting age.
Gay marriage will be legal someday, first in California and then across the country. Gavin Newsom hurt the cause when he said it but it's still true, "It's coming, whether you like it or not."
I love laws but only when they're fair and just, not whether they lean "my way" or not. Your anger over this says much more about yourself Trish than it does this issue. I feel sorry for any gays who have to talk to or deal with you on a regular basis.
JBW- I will die one day, aftre which time I will not be able to voice my opinion. I will try and do it fater for your sake.
But until then, you can't bully me to think like you do. Sorry, but it's true. And if you think that loving gay couples cannot validate their love without overturning traditional values of marriage, than that is a terrible pity for them and for you.
Trish, I don't know what "fater" means but as to the rest of your comment: I'm not trying to bully you or to get you to think as I do. In fact, the point of my comment was that it doesn't matter what you think.
You can hate gays or you can just hate the idea of them marrying or you can hate both. It doesn't matter what you and the others in this country who oppose marriage equality think because soon there will be enough of us who support it to change the laws forever.
This isn't about beliefs or ideas, it's about time. This issue will be decided generationally, not culturally. Just as it took a while for the majority of the racists in this country to die off, so too will the homophobes. Then gays will marry, society will not collapse and we'll move on to more pressing discussions. Think whatever you please, honey.
JB You might be wrong about enough of whoever dying out and then gay marriage being accepted. The reason Prop 8 won is that the Democrats were very successful in getting out their vote and their more difficult to turn out voters are culturally opposed to gay marriage. You can try and whistle past the graveyard but blacks and Hispanics are the coming Dem majority and they just don't like gay marriage. Gays have attacked Mormons and Christians and just about anyone but blacks and Hispanics about all of this. But they smell weakness and fear there and that's how these Democrat cowards operate
I am very conservative and do not favor gay marriage. But I am even more troubled by the Defense of Marriage Act. If constitutional provisions can be over ridden by congress then we are truly screwed. The Constitution says that every state must give full faith and credit to the contracts of every other state. So be it. I feel that the social contract includes accepting the good with the bad. If one of my major beliefs is that that our Constitution is great and fantastic and should be respected and followed, then I may have to accept some gay marriages. I think that is better than swaying with every gust of the wind when we have a finely crafted instrument like the Constitution that can be a firm foundation.
JBW, faster, not fater, sorry if you didn't gather that from the context.
I do not hate gays. Never have and never will. Have friends (of both genders) who are gay, and I get along famously with them. We discuss this issue at length, some agree with me and some don't. Two of my lesbian friends were married in MA a few years ago. It was a lovely ceremony.
I am talking here, about the CA prop 8, as it was on the ballot and it was voted on. Nothing more.
It's a matter of my belief that this issue and some other issues, I feel ought to be voted on state by state. And then upheld after being voted on.
If my state (after a vote) allows gay marriage, then so be it. But if my state (again, by vote)doesn't then it doesn't fly! And some day when all 50 (or 57 of Obama's) allow it, okay then, it's official.
Somehow, you think that it's not fair for people to make their choice or that their vote doesn't matter.
Snaggletoothie was correct, the get out the vote for Obama brought out culturally conservative democrats, which is likely the reason the Prop went the way it did!
Trish, gay activist groups were wrong to blame the black vote for the passage of Prop 8, and so is snaggletoothie (really? That's the best screen name you could come up with? I feel like I'm five here). Studies have shown that it would have narrowly passed without their support.
And I of course don't wish for the expediency of your death, as fast or fat as that may be. I don't wish for the death of anyone, I just accept the fact that we all will someday die and that those deaths will change the makeup of the American electorate.
In fact, you're actually agreeing with me. I said that the courts are the wrong way to go on this issue. And I never said that you hate gays, just that you're free to hate them if you wish and that it will not change the inevitability of their marrying.
I think that it's totally fair for people to make their choice and of course their vote matters, I just also think that the choices people make (especially when they're making those choices for others) can be unfair.
But as I said, the choice has been made and we can live with it. No more court cases! The voters will choose to allow marriage equality someday and we'll then live with that choice (wanna bet that some Christian groups appeal that one to the "activist judges" then?).
Perhaps I was a bit harsh in my assessment of you earlier, Trish. You actually seem to be more open-minded about this issue than most on your side of the aisle. Take care.
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