California Overturns Gay Marriage Ban

[Luv2play]

In a landmark ruling, the California Supreme Court has overturned the ban on gay marriage. I am hearing this on CNN, which got the initial news confused and announced initially that the ban had been upheld. However, they then said AP was saying the ban was in fact overturned and gay groups in California are saying the same thing, according to CNN.

 

If this is true, then California becomes the second state (after Mass) to legalize same-sex marriage. This is truly a watershed moment for gays in America and could break the logjam in other states. In any case over 50 million Americans now live in states where gays can get married.

 

Boy, the religious right must be freaking!!! :7

[Boomer]

Breaking News Alert

The New York Times

Thursday, May 15, 2008 -- 1:15 PM ET

-----

 

California Supreme Court Overturns Gay Marriage Ban

 

The ruling paves the way for California to become the second

state where gay men and lesbians can marry.

 

Read More:

http://www.nytimes.com/?emc=na

[Rick Munroe]

This may be what finally gets Derek and me to move to L.A.

[ariadne1880]

It's possible to have a discussion about this subject without bashing the "religious right" or anyone else.

 

My problem with this decision and with the Massachusetts decision is that I think these decisions should be made by the people through their legislators. Having them imposed by the courts solves nothing. It exacerbates true acceptance. Look at Roe v. Wade as an example. We were well on our way to a middle ground on abortion in which a vast majority of people probably would have agreed. Then the Supreme Court stepped in and interrupted the democratic process. The result? 35 plus years of acrimony, upset, politics and confirmation hearings based solely on abortion, and no consensus. I hardly think that was preferable.

 

The same is going to happen here. If the courts impose "gay marriage" we are going to have 35 plus years of no consensus and the same old arguments.

 

It would be far better if we could work toward acceptance on this issue through our individual state legislatures to convince them that this is the right way to go. The courts should simply stay out of this.

 

I don't think this is a happy day because when things are imposed upon people who haven't yet accepted them it only leads to more problems of all sorts. This is a phyrric victory that will probably be short-lived. Winning one or two battles is not winning the war. I wonder when people will learn that.

 

Laws don't to acceptance; acceptance leads to good laws.

 

Mark

[ariadne1880]

Rather than lead to "breaking the logjam" in other states it only likely to lead to more polarization on both sides of the issues. That is sad.

 

History has shown that imposing things upon people who don't want them doesn't lead to acceptance. It leads to more bad results.

 

Mark

[Rick Munroe]

>History has shown that imposing things upon people who don't

>want them doesn't lead to acceptance. It leads to more bad

>results.

 

So true. Look what the case Loving vs. Virginia led to: people of different races being able to marry. They really should not have imposed that upon the racists who opposed it. We should have just waited and hoped that eventually, maybe, someday things would change. The same goes for that silly case Lawrence vs. Texas, which legalized sodomy between consenting adults. We really should have just let gay men continue to be arrested in their homes for having sex with their partners, and hope that someday things would change and the legislators would make it right. You're absolutely right; this California decision was a bad one, just as the Massachusetts one was bad. Look what the Massachusetts decision led to: thousands of gay couples are now happily married there, and that state still has the lowest divorce rate in the nation.

 

But who cares about all of this? David is gonna win on American Idol!!!!!

[KMEM]

I certainly agree it would be better and preferable for people in general to be accepting of gay people and their needs and wants. However, people are full of prejudices both for and against many things. I am not sure what social interactions will easily change that.

 

I also agree it does tend to polarize people in their positions when a law is enacted or over turned or the courts stike it down. Nonetheless, I do think that laws that are on their face seemingly fair and equitable do, over time, tend to change people's actions and this can lead, again over time, to a change in their attitudes. I beleive that I have personally seen this to be true while observing the various racial or minority laws and their results over the years of my life. To my knowledge we (people in the US) have not lynched anyone in quite a while and, in fact, some think the pendulum has swung to favor minorities in some instances. We might see some of the same results in gay issues if we live long enough. Some of those results, as you suggest, might be better than others.

 

Best regards,

KMEM

[Rick Munroe]

From HRC's blog:

 

Governor Arnold Schwarzenegger released the following statement today regarding the state Supreme Court’s ruling on same-sex marriage:

 

“I respect the Court’s decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”

[ariadne1880]

By the time Lawrence vs. Texas was decided no one was making an argument that gay men shouldn't be allowed to have sex in the privacy of their own homes.

 

If you see that as analogous to this ... you are kidding.

 

Look at what the Massachusetts decision did ... it led over 28 states to pass laws stating that those "marriages" would not be recognized in their states. That would have never happened without that particular judicial decision.

 

If you think this is the right way to go you are certainly entitled to that opinion ... but I think this will prove to be a setback for gay rights nationwide.

 

Mark

[Luv2play]

It should be noted that 6 of the 7 judges sitting on this case were Republican appointees and they based their decision on constitutional and civil rights. This court is also considered to be a conservative body. IMO, they acted in a way consistent with conservative principles, protecting individual rights against political oppression.

 

It amazes me that in 2008 people, and especially gay men, still think that it is alright that a majority of voters should be entitled to override people's constitutional rights. The courts are an equal branch of government under the US constitution and they are sworn to uphold the constitution. Legislatures can vote as they please but they can't override the constitution.

 

In US history courts, even the Supreme Court, have made horrendous mistakes, especially on racial issues (Dread Scott). But eventually, they get it right. That is the strength of the American justice system (and I am a Canadian observer). Just my two cents worth (which at today's market closing is worth exactly two US cents 1Cdn$=1US$. ;-)

[Epigonos]

Here is an interesting quote from today's Wall Street Journal regarding this California Supreme Court decision:

 

But here’s a catch: Even if the court votes to overturn the appellate court ruling and invalidate the 1977 law, the ruling might not stick. “Pro-family” organizations have submitted more than 1.1 million signatures for an initiative that would amend the state Constitution to outlaw same-sex marriage. If at least 694,354 signatures are found to be valid, the measure would go on the November ballot and, if approved by voters, would override any court ruling in favor of same-sex marriage.

 

An interesting aside is that in 2000 when the 1977 same sex marriage ban was affrimed in California it was passed as a statute NOT as a constitutional amendments. Backers of the ban secure in their belief that the issue would pass with ease chose the statute route because it requires an affrimative vote of ONLY 50%+1. A constitutional amendment, on the other hand, requires an affrimative vote of two thirds. At the time the initiative passed with well over the two thirds that would have been required had it been presented as a constitutional amendment. There is NOW some question as to whether or not,TODAY, a gay marriage ban will pass with the required two thirds.

If the gay political leaders here in California have any sense they will begin immediately raising the major bucks it will require to to fight and defeat the anti same sex marriage constitutional amendment initiative that is now a certainy.

[Guest soccerstud]

This will be somewhat long--but hopefully worthwhile….

 

The California decision today is--despite the warnings which others have sounded here--a meaningful and important victory for civil rights, including gay rights. Just like the Loving case (interracial marriage) paved the way for many other civil rights gains. Yes, there could--and most definitely will be--a backlash. The backlash could even be as important as that which probably resulted in George Bush's election relatively shortly after the Massachusetts decision. But think of the backlash--including murders--during the civil rights movement. One can't move forward without resistance; but surely and certainly most steps forward are worth the backlash in the long run.

 

I'm not going to argue that anything was worth Bush's election. It was not, particularly in hindsight. But I would be willing to take this chance--given to us by the California Supreme Court--of making this fundamental and important step forward while still hoping (and expecting) that Obama will prevail.

 

Two posts here argued that this should have come "from the people" rather than being imposed by the courts. While that may have made the decision more platable to the majority, that is a serious misunderstanding of purpose and intent of the Bill of Rights and 14th amendment. The Bill of Rights is there "to protect the minority from the tyranny of the majority." Pure and simple. The majority will always have a tendency to trample the rights of the minority (such as budgeting funds away from incredibly inferior black schools in the South--and elsewhere--to their own white schools). The Founding Fathers were wise enough to insist upon this fundamental protection of fundamental rights. (Remember that they were a product of religious persection.) So if the majority is going to vote to violate the fundamental rights of a minority to wed and have a "legal" family, the overturning of that vote is exactly what the Bill of Rights requires. I have no doubt that the current U.S. Supreme Court would not agree. What I don't know (because I haven't read the 120-page decision) is how much of the California decision is based on the California Constitution and, therefore, not appealable to the U.S. Supreme Court.

 

In short, we've all gotta keep fighting for these and other rights. I have no doubt whatsoever that in 15-20 years, the issues of gay marriage and gays in the military and so on will be simply a part of history. Those of us who have helped get us there even in our own small ways are, and will be, proud. This has been a good day.

[Rick Munroe]

That's why all of us who care about this issue should give what we can to Human Rights Campaign's California Marriage PAC. All of the money will go directly to fighting back against the anti-marriage amendment in CA. Even if you just give a small amount, it all helps:

 

https://secure.ga3.org/03/caequalpac

[ariadne1880]

I have never heard one lawyer or scholar argue that the California Supreme Court is a "conservative" one. Where do people get this stuff? John Paul Stevens was appointed by a Republican president. That doesn't make him a conservative.

 

I don't think that people's constitutional rights should be overturned by a majority or a minority of people. But I don't think that the courts should make laws either. That's not their place.

 

I think these kinds of things should be decided by the democratic process, not by 7 people wearing robes who don't really live in the real world.

 

Oh, and by the way, it was the "Dred Scott" decision, not the "Dread Scott" decision.

 

Mark

[alanalt]

Mark,

 

In an ideal world, I would wholeheartedly agree with you that such decisions of this nature are better coming from elected legislators. But how long are gay men and women in the U.S. supposed to wait for that to happen? Moreover, how do you expect change to happen unless there is debate? The reason for the rash amendments to marriage laws affirming heterosexual unions is because the issue has become a real one, in large part, because courts are willing to hear cases on this issue and act upon them. You may argue that matters are worse, because gay marriage is now explicitly forbidden rather than not addressed (or allowed) as before, but the reality of no gay marriage is the pretty much the same in either case. But such court decision bring the issue out into the open and I'd rather risk the polarization that can come with debate than have the subject ignored because 'decent people' don't need to talk about such things.

 

Moreover, In Canada, court decisions striking down explicitly 'heterosexual-only' marriage laws went a long way towards persuading politicians to change their minds on this issue so that many Members of Parliament who had voted to define marriage as only between a man and a women in the 1990s, reversed their position, mainly because Canadian courts were striking such laws down as unconstitutional. I grant you that U.S. legislators have a lot further to go on this issue than there Canadian counterparts, but the reality is that having laws struck down by an independent judiciary should at least make some legislators re-think their position on the issue.

 

If history shows anything, it's in a democracy there are times when legislators are wrong and there are also other times when judges get things wrong. That's why successful, stable democracies have independent judiciaries and legislatures to act as safeguards or checks upon each other's power. Maybe today's victory for gay marriage rights in California will be a Pyhrric victory, but there's also the chance it won't be, and that such court decisions will have the effect of advancing the cause, just as they did in Canada and in several European countries. But I think you'll find that most gay people are willing to take the gamble in order to see progress on this issue.

 

Alan

[ariadne1880]

First, correcting a few errors. George W. Bush was "elected" president long before the Massachusetts Supreme Court issued their gay marriage decisions.

 

Also, any state court decision is "appealable" to the US Supreme Court. It's simply a question of whether the court chooses to take the case or not.

 

Further, I don't think it's worth a few murders or a lot of murders or anything else to have a judicially-imposed decision on an issue as fundamental as marriage. I would prefer to see it fought out, over time, in state legislatures. I have enough faith in the American people to believe that the appropriate decision will eventually be made. And it will be made after acceptance and understanding.

 

I also think that it would be a good idea to try civil unions long before we even consider gay marriage. Especially since they are something supported by roughly 64% of the American public.

 

As to the question of divorces in Massachusetts. As the New York Times has pointed out that we have no idea about the divorce rate yet since it has been only 3-4 years since the decision was made and the marriages began. Also, they point out that most of the first people to get married were gay men and women who had already been in long term relationships and so are less likely to divorce anyway. So using that kind of statistic at this time is simply a straw man.

 

I hope it all works out but my sense is there will now be a further rush to amend state constitutions to ban gay marriage which has already occurred in many states. Does anyone out there think that this decision today will overturn that? It will never happen. And that's the rub in this.

 

Many states have already amended their constitutions to prevent their courts from doing the very thing that the California Supreme Court did today. And those amended Constitutions will be next to impossible to change. So, as a result of this kind of judicial activism there are already many places that gays will never get a chance to marry in our lifetimes or in many lifetimes .. and that would never have occurred had not the courts intervened.

 

Beware of unintended consequences.

 

Mark

[+ deej]

Gosh, an entertainment mogul AND a constitutional scholar.

 

How DO you find time to post here?

[+ deej]

Thanks for that. Clear, unbiased, and thought-out.

 

>Two posts here argued that this should have come "from the people"

>rather than being imposed by the courts.

 

But it was NOT imposed by the courts. It was imposed by the people who approved the CA constitution.

 

Our courts validate laws created by legislation or "the will of the people" against the standing constitution. Sometimes the people are wrong when measured against the constitution -- also approved by the people.

 

Sometimes you have to tell a child "no". Sometimes that child is a voter.

 

The people of California ratified a constitution. In times past, there may have been votes enough to amend the constitution but the last numbers I saw said they can't raise the 3/4 support, and the simple majority is questionable.

 

The people HAVE had their say.

[Kevin Slater]

>Also, any state court decision is "appealable" to

>the US Supreme Court. It's simply a question of whether the

>court chooses to take the case or not.

 

Actually, no. This case was decided vis-a-vis the California Constitution. Unless somebody could convince at least four of the US Supreme Court justices that gay marriage in California might somehow violate her rights under the Federal Constitution, the US Supreme Court could not hear an appeal of this case.

 

Kevin Slater

[Kevin Slater]

Castro flag?

 

When the decision was released in Lawrence v. Texas, the giant gay pride flag at Castro and Market was replaced for the day by a giant American flag. I was really touched. Can anybody in SF tell me whether something similar was done today-- perhaps a giant California state flag?

 

Kevin Slater

[Lookin]

RE: Castro flag?

 

I'll check it out tomorrow.

 

But both flags were "flying" today outside the State Supreme Court building:

 

http://www.in-forum.com/ap/images/photos/APTOPIX_Gay_Marriage.20080515154310.jpg

[nate_sf]

The California legislature twice voted to allow gay and lesbian couples to wed, so indeed the state legislature had been trying to make this happen as a reflection of the will of the people. However the governor vetoed both bills.

 

In 2006 Arizona was the first state to reject an anti-gay marriage amendment initiative. Hopefully this was a bellwether for the kind of acceptance we're talking about here and we'll be able to do the same in California this fall. To his credit the governor is not supporting the proposed anti-gay marriage amendment.

[RM]

This may not last long. California is notorious for legislation by ballot box. There are two on the June ballot (both on eminent domain), but there are usually half a dozen. Frequently there are propositions on the ballot to amend the state constitution. Soon there will be petitions circulating for a constitutional amendment on the November ballot. A constitutional amendment will void today's Supreme Court decision, and is likely to pass.

[Rick Munroe]

"The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their 'marriage' laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed 'it is up to the state Supreme Court' to decide the issue."

 

http://www.salon.com/opinion/greenwald/2008/05/15/california/index.html

[Guest zipperzone]

>Gosh, an entertainment mogul AND a constitutional scholar.

>

>How DO you find time to post here?

 

Not hard to do when you don't have a life and no friends to turn to.

Unless of course you count "MY COUSIN, ANDERSON COOPER" who when I was last speaking to him, denied having any cousin called Mark