That Activist Judge

Apropos to the discussion of California’s Supreme Court ruling on same-sex marriage and whether the ruling was the work of “judicial activism,” the Los Angeles Times has a profile on the Chief Justice of the California Supreme Court, a Republican appointed by a Republican governor (and then later reconfirmed by the voters, as is California’s way) whose court has gained a judicial reputation of being “cautious and middle of the road,” and whom supporters of same-sex marriage suspected would not be on their side of the argument (he wrote the opinion).

It’s an interesting piece, and does accentuate the point that just because a ruling doesn’t go your way, it doesn’t mean it was a case of “judicial activism,” unless all that the term “judicial activism” means is “rulings that don’t go the way I want.” Which in the case of those who use the term with any regularity, is pretty much how it is.

57 thoughts on “That Activist Judge

  1. Another complaint I keep hearing is the ever popular, “It violates the will of the people.” Hate to tell you folks, but if a vote to declare whales fish went 10 to 1 for, it would not make whales fish.

  2. And in this particular case, such an objection it doesn’t make sense, since the judges on the California Supreme Court stand for re-election at the end of their term, and I do believe each of the judges currently on the court have done so. It was the will of the people to have them there.

  3. Why should the state be concerned about the sacrament of marriage? It isn’t the state’s job to make everybody like me.

    But the world is full of Righteous people who demand such conformance. And it isn’t just conservatives who KNOW how we should behave and want the state to enforce our values on others.

    We should go to war and commit all kinds of evils until everybody accepts that my way is right, therefore all other ways are wrong.

    Oh, we are already doing that. For various values of “we”.

  4. I haven’t heard “judicial activism” applied in a way that doesn’t make me think the person who says it really means “ruling which makes the infant baby Jesus cry.” In any case, the term gets used unevenly. As you’d mentioned before, has anyone called Bush vs. Gore judicial activism? (I think it’s worth noting that the Supremes explicitly declared that this decision should not set a precedent. IIRC, this didn’t stop the 9th district court from citing it in a decision though.)

    It’s sort of like the federal politicians who are all for “state’s rights” unless the issue is medical marijuana or the right to die. I don’t remember though if those are the same politicians who want a federal Constitutional amendment to prevent same sex marriage, or voted for the federal “Defense” of Marriage Act.

    BTW, one thing that deserves to be repeated over and over again is that it’s not just marriage. The California Supreme Court makes it clear that gay Americans have exactly the same rights as all other Americans. Full equality. On one hand, it’s kind of sad that this has to be said. On the other, I’m glad that it has been.

    Also, I don’t buy the argument that whether all Americans should have the same rights must be decided by plebicite. If someone went around saying that we ought to vote to decide whether red haired, freckle-faced Americans should have the same right to air that everyone else has, we’d all think he was crazy.

  5. In reading the actual ruling, they go out of their way to emphasize what the ruling is and is not:

    Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes[...] The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

    The issue they were deciding was not whether same-sex unions should exist because they already do under the name “domestic partnership”, nor whether the policy should be to call same-sex unions “marriage” or something else.

    The only issue they were addressing was whether it’s constitutional to use the term “marriage” to describe a very specific legal relationship between partners when they are opposite-sex, and “domestic partnership” given the same exact relationship between same-sex partners. To that end they ruled:

    One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation or the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.

    This is reminiscent of Brown v. Board of Education which overturned the Plessy v. Ferguson opinion that “separate but equal” was acceptable. So in some respects it is “judicial activism” in that it declares the use of separate terms for equivalent rights discriminatory and unconstitutional.

    But who ever said all “judicial activism” was bad?

  6. Some folks, including some intellegent enough to post here, seem not to have noticed that whatever some churches may consider marriage, it is basically a legal proposition. Those that are married in the USA, did you have to get a license from the state (or subdivision of the state) in order to be married? Yes, you did. You could march into any church in the country and have a marriage performed, but without that license from the state it is invalid. You can get get married without the religious ceremony, but not without the license.

  7. “equivalent rights”

    Er, only nominally so.

    To use the example above, simply SAYING that a whale is equivalent to a fish, does not make it so.

    Nor does simply SAYING that “domestic partnerships”/”civil unions” are equivalent to “marriage”. Because, sorry, that’s just NOT TRUE. And if you really believe that (as opposed to saying it because it makes you sound ‘reasonable’, even though you know it’s a damned dirty lie), then I got myself a bridge in Brooklyn, and some beachfront property in Kansas, that I’m happy to sell you.

  8. You know, I’m thinking of sponsoring a California ballot proposition to raise badly needed tax revenue by tripling taxes on red haired, freckle-faced Americans.

    Red Haired, Freckle-faced Americans: “Um, no! Bad! Nay!”

    Everybody Else: “Sounds good to me. Aye!”

    If my ballot proposition gets thrown out by some activist judge, rest assured that I will be very pouty. Very pouty indeed.

  9. OK, I’m one of the token conservatives who reads here. A couple of things. One, I don’t particularly care who can marry whom. If I lived in California I’d quite likely have voted to allow it. My personal preference would be to get the government out of the business of sanctioning marriage entirely, but I don’t see that happening.

    The thing about this case though, is that California already had domestic partnerships that were legally identical to marriage. The only thing this case was about, literally, was whether or not the state had a right to call the same thing, legally, two different names for two different groups of people. That’s it.

    And so the majority opinion held that given two couples, one same-sex and one mixed-sex, that have exactly the same rights and responsibilities, the state calling one marriage and the other a domestic partnership, is treating the domestic partnership couple “less favorably”. Under what basis in the California constitution? They don’t say. Instead, they say “…the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.”

    Stature? Dignity? These are not things that can be bestowed by the government, nor enforced by it. Either the people of California will accept it, or they won’t. And the court explicitly ignores the whole point of the law they invalidated, which was specifically to give same-sex couples all of the same legal rights that heterosexual marriages had. Viewing legislation that explicitly says its purpose is to do A, as an implicit endorsement of NOT A is just nonsensical.

    And that’s the part of this decision that makes it judicial activism. Not the result. The part that says “we’re doing this because we think this is going to happen, even though we have no real evidence of it.”

    So now, was Bush v. Gore judicial activism? Under some definitions, yeah it was. On others? Not so much. Here’s what I mean. There was broad agreement on the court, by a 6-3 margin, that what the Florida Supreme Court was doing was wrong, and needed to be stopped. On that standard, yes, it was activism. But the opinions are a jumbled mess, because there just wasn’t time to get the arguments sorted out coherently and build a consensus as to exactly what was “wrong”. I believe that, given time, a consensus with a proper constitutional founding could have been built. for it, with a decision that had no, or at least a whole lot less, activism in it. But time was the one thing they didn’t have.

  10. John Chu@4:It’s sort of like the federal politicians who are all for “state’s rights” unless the issue is medical marijuana or the right to die.

    Well, yeah. The problem is you think these are phrases that mean what they say, when actually they’re code words.

    “Judicial activism” means “they think fags and darkies are people.”

    “States’ Rights” means “those fuckers took away our slaves. WE PAID for those slaves, they’re OURS.”

    There are no exceptions. The use of those phrases marks the speaker, clearly and unambiguously, as a bigot.

  11. Howard, #3

    What we’re talking about here is plain, straightforward discrimination based upon what some people are. What they do has nothing to do with it. Why they are as they are has nothing to do with it. It’s all about them being what they are. The law of the land is very clear about this, you cannot discriminate against any group for being what they are.

    Unless there is a legitimate reason, everyone has the benefit of equal justice under the law. Being of a certain ethnicity or sexual orientation is not a legitimate reason to deny anyone that right. We established that quite clearly in the 60s, and it’s now damn time certain people learned it applies to folks who make them feel icky.

  12. Skip@10: Define “conservative” for me, as you apply the term to yourself?

    The thing about this case though, is that California already had domestic partnerships that were legally identical to marriage.

    Except they *weren’t* equal, in practice, for several reasons – many of which had to do with non-Marriage statuses simply being ignored at critical times, such as in a hospital emergency room.

    The simplest one, however, is the one that you dismiss outright: They are not equivalent because the State of California deemed it necessary to create a new, different, “separate but equal” status, because the status of “Marriage” was deemed to be something only accessible to the right kind of people, and allowing others access to it would “degrade” the privilege of being married.

    The reasoning behind the “domestic partnership” is simple and clear: Because fags aren’t real people and fags don’t have rights, fags can’t be married. We’ll just create a new, different thing for the fags to do while restricting the specialness of this thing only for special people.

    Saying that California’s domestic partnership laws produced equal rights and equal privileges is EXACTLY the same as saying that a law barring interracial marriage but allowing interracial “domestic partnership” instead would be okay.

  13. Skip, #9

    Because domestic partnerships are treated as less than marriages in California. Not only that, but allowing domestic partnerships for same sex couples, but not marriage, is still treating same sex couples differently than opposite sex couples. Even if domestic partnerships were treated the same as marriages, allowing only domestic partnerships for a certain class of people would still be discriminatory.

    Let me put it this way. Fags and dykes were being denied a basic human right, the right to wed. A right that pre-dates the Constitution and falls under the heading of common law. It is one of the numerous rights not enumerated in the Constitution, and which the 9th and 10th Amendments specifically state are not denied to the people by that fact.

    Here’s a shocker for you. The Constitution of the United States tells our government what it can and cannot do. It says nothing about what the people can and cannot do. The one exception was the 18th Amendment, and when that was repealed by passage of the 21st Amendment it became null and void. Under the current document nothing is forbidden to the people, it is statutory law which forbids certain actions, and those actions that have long been forbidden under legal codes going back to the beginning of civilization.

    As the doctor told the double amputee, “You haven’t a leg to stand on.”

  14. DHS @ 7: “equivalent rights”

    Er, only nominally so.

    In California “domestic partnerships” extend all the same legal rights and responsibilities to a same-sex couple that “marriage” provides for opposite-sex couples. So in that regard, yes they are equivalent.

    What the court ruling says though is that when you call that set of legal rights and responsibilities two different things based solely on the sexual orientation of the couple, the two terms are not equivalent. Whether it’s “judicial activism” or not, I believe they reached the correct decision.

  15. BTW, over on Tim Blair’s old blog a commenter once referred to me as “a moderately well known conservative blogger.” If a pro-choice, pro same sex marriage, pro drug legalization, abolish statutory rape laws, pro evolution, mindless slave of PZ Meyers can be a “moderately well known conservative blogger”, then some people really aint got nothin to be huffy about. :)

  16. Alan@9,

    Um, no. Domestic partnerships in California were not treated as less than marriage. That was the entire point of the law (which, in fact, I have absolutely zero problems with). From the majority opinion – “Accordingly, the legal issue we must resolve is
    not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an
    officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”

    This court case was strictly and solely about the label. The rights and responsibilities were exactly the same. As for your constitutional arguments – here’s what the bill of rights actually says:

    Ninth amendment:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    It’s very hard to argue that the right to wed whomever you want is ‘retained by the people’ because at the time, and to this day, they don’t have this right, even in California.

    Tenth amendment:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    What this means is, if California wants to do something and it’s not explicitly forbidden by the constitution, more power to them. And this is why Gonzales v. Raich was such a bad decision. Because it essentially rendered the tenth amendment as a dead letter.

    The funny thing is that the net result of this is that the constitutional amendment in California enshrining marriage as only between a man and a woman will now probably pass, when it was a tossup before this decision. So without this, in a few years the legislature would have been able to do this (and quite likely would have). Instead, they will be forbidden doing this until such time as they can get the amendment repealed.

  17. Just a follow-up to the first comment and Herr Scalzi’s response…the California State Legislature, an elected body comprised of two houses, has twice approved gay marriage only to have Arnold veto it. So for those who think that our 8-year-old voter-approved initiative is “the will of the people” in 2008, not so. Public opinion has changed, evolved even (and that’s in spite of Will & Grace, Bravo, and the right wing doing everything they can to advance every negative stereotype ever invented).

    I think our “activist” Supreme Court was just trying to right a wrong that had outlived the bigotry that put it there in the first place.

  18. By the definitions of the words, two things cannot be separate but equal. Proof:

    Def. 1. For two things to be separate they must be different in some way. Another way of putting this is, they must not be the same.
    Def. 2. For something to be equal, they must be identical in every way.
    Pos. 1. For something to be separate but equal, it must meet both the definitions above.
    Pos. 2. Therefore, Something must be different in some way but also, at the same time, identical in every way
    Con. 3. Since something cannot be identical in every way if even one thing is different about them, there cannot exist two things that are separate but equal.
    Q.E.D.

    In this case, marriage and domestic partnerships are separate but not equal. The names of the two things are different and since the names are different they are not identical in every way, and thus not equal.

    Just remember, you can say 1 = 2 all you want, but you can only prove that by dividing by zero (i.e. by having a vacuous argument).

  19. The “conservative” Judges in California perhaps represent the old Republican Party’s individualistic “western” wing rather than the moralistic “southern” one as was described in the August 9th, 2007 edition of European magazine, The Economist: “The Economist has never made any secret of its preference for the Republican Party’s individualistic “western” wing rather than the moralistic “southern” one that Mr Bush has come to typify. It is hard to imagine Ronald Reagan sponsoring a federal amendment banning gay marriage or limiting federal funding for stem-cell research. “

  20. #16: I believe there may be a game of dueling definitions here. If we can assume that everywhere in California Law which had once given a right or responsibility to a married couple, the legislature modified to give the same right or responsibility to a domestic partnership, then you’re right speaking strictly of California law. (e.g., if a domestic partnership can file state taxes exactly as a married couple can.)

    However, is that enough to get people treat domestic partnerships as equivalent as marriages? e.g., do hospitals uniformly give domestic partners the same rights as spouses? Of course, people are free to treat some marriages unequally than others too. But that’s a much easier bigotry to expose.

    Skip, I think you’ll be able to answer something that I’ve never gotten a satisfactory answer to:

    If domestic partnerships are absolutely equivalent to marriage in every possible way, then why do we need two parallel systems? Why not just call it all either “marriage” or “domestic partnership”? It’s certainly much simpler that way. You can’t accidentally mis-draft a law giving one or the other more rights or responsibilities. You certainly wouldn’t need multiple paragraphs justifying its Constitutionality. What is the benefit of have two, by your own say so, utterly indistinguishable parallel systems over just having the one?

  21. John@20,

    Personally I’d prefer that there weren’t two separate, parallel systems. I’d prefer that there would be be either one covering both, or none. As a single guy with no kids, the existence of government benefits for either penalizes me, because I’m not eligible for them.

    But as to why there “needs” to be two separate systems? At this point there probably doesn’t need to be, and in fact the court decision states that if the legislature decided to call all these couples ‘domestic partners’ that would be fine. But historically, in California, all this came about because the people of California recognized, and rightfully so, that the partners of longtime same-sex couples needed and deserved the same rights in terms of healthcare – ie, visitation rights, rights to make some decisionmaking when one partner is incapacitated, that married couples had. But when they did so, they needed some way to distinguish between those people who had a serious, committed relationship and those who were just “shacking up”. So hence the domestic partnership registry. Interestingly, per wiki, it isn’t restricted to same-sex couples. mixed-sex couples seem to be allowed, but only if one or both partners is elderly. Why that exception? I have no idea.

    Since then, in several incremental and one huge step, all the rights and responsibilities of marriage have been bestowed on domestic partnerships. So does California need two tracks today? No, not really, but up until 2003, I think, they did, because the rights and responsibilities were different.

    So why didn’t they do that in 2003? I think it’s fairly obvious. For a majority of people, marriage has a religious component, and for the vast majority of the religious sects and denominations in the US, same-sex couples don’t qualify. So calling it “marriage” at that point would have been seen as an affront to all of those people, who would quite possibly have rebelled against it. And if, as I suspect will now happen, the constitutional amendment passes in the fall, that’s exactly what will have happened.

  22. Skip, Do you feel that republicans in Califiornia tend to reflect the moralistic “southern” wing of the party typified by President Bush rather than the individualistic “western” wing as was typified by President Reagan?

    Personally, I rather respected the individualistic western thinking of the party.

  23. just remember, you can say 1 = 2 all you want, but you can only prove that by dividing by zero (i.e. by having a vacuous argument).

    Given that dividing by zero gives you an uncertain result — yes you get infinities, but some infinities are bigger than other infinities and so are not equal — your argument would be a bit better if you said to “multiply both sides by zero”, since that would actually make them equal.

    Dr. Phil

  24. I am with Skip. As a single guy I don’t see why a couple should get any official breaks. The big one being tax breaks. Why should the government aid people who are married or domestic partners? The health insurance benefits are another issue. My employer includes health insurance as a benefit. As a single guy I am the only one covered. My married coworker who has three kids gets coverage for five. If we are paid the same rate he is actually earning more because it costs more to insure five people than it does to cover one.
    Doug from Vancouver, I take it you don’t remember how Reagan got into office. The moral majority had a big part in gettting him in office. In fact I think that was the peak of their power.
    Me? I just want the republicans to stay out of my bedroom and the democrats to stay out of my wallet. I consider myself republican because I think less government equals more freedom. Sadly Dubya has failed us in this respect and many others.
    Frankly I think California should be more concerned about getting back in the black budgetwise. Gov Arnie tried to sell off the CA lottery a while back. It failed. Now he wants to borrow against future lottery sales and if that fails he wants to raise the CA sales tax 1%. Wasn’t the lottery supposed to cure school budget issues? Wasn’t it ALL suposed to go to schools?
    I am sorry I got off subject. Here is my soloution to the whole marrige domestic partnership thing. Eliminate all benefits/ tax breaks for both. If you want someone other than next of kin (not counting a spouse as next of kin)to make healthcare decsions you must document the choice. If you want health coverage for anyone other than yourself through your work insurance you have to pay for it. If there are no financial benefits government or private sector then it really won’t matter what you call it.

  25. Doug@22,

    I don’t live in California, so I don’t really know. I live in Texas, which is about as far culturally from California as you can get. But I suspect that you’re right on that.

  26. By the way, the constitution is there to protect us from the will of the people. The people have repeatedly demonstrated their stupidity if not their out right evil nature.

  27. Rembrant, you sound more like one of those individualistic western types of Republicans. Need more of those, than the so-called moralistic types. Unfortunately, moralistic often ( but not always ) equates itself with bigotry, which to me, is not moral.

    I would suggest however, that the Constitution is indeed THE WILL OF THE PEOPLE, and designed to protect us from the whimsical tyranny of the majority. As such, Constitutions tend to be designed to be harder to change than just using a simple majority. I am not familiar with California’s method to change a State Constitution.

  28. @John Chu,

    Gay marriage is great and your points about it are correct. But a world where gingers are treated like real people? I’d fight to the death to prevent that. :)

  29. Skip@21: So you’re saying we need two separate, utterly indistinguishable systems so that certain people’s feelings don’t get hurt? But people get married over the objections of other people all the time. It’s not as if we have to hold a plebicite before every marriage to confirm that it holds wif the beliefs of everyone in the state. If we hold by what you say, then why does California allow marriage between people of different churches or different religions? Calling those relationships “marriages” is an affront to those whose religion dictate that they marriage inside their community.

    Why is same sex marriage a special case?

    Nice job, BTW, conflating the religious institution of marriage with the civil institution. I should note that no one is forcing anyone to admit that two men or two women married to each other are married in the eyes of any church. For some people, those couples are living in sin just as they have always been. Allowing those couple the civil institution of marry doesn’t change their status at all.

    sng@28: I take it that you’re a Mary Ann person? :)

  30. Well I live about ten miles from the Pacific so I am certainly western!
    Does anyone consider themselves to be amoral? I suspect that most evil people can rationalize what ever action they take as a moral action. I personally prefer the word prejudiced over the word bigoted. It is an opinion formed without information. Usually passed from parent to child.

  31. I’m sure that Californians were deeply divided on the issue of interracial marriage before the 1948 ruling in Perez v. Sharp that the prohibition of such marriages was “inconsistent with the fundamental constitutional right to marry.” Six decades later there is no doubt a small minority of people who would still seek to outlaw interracial marriage — to most people such thought is pretty silly.

    I suspect the same will happen with same-sex marriage.

  32. Skip wrote: “Domestic partnerships in California were not treated as less than marriage.”

    Maybe not in the function of the government, but the difference in terminology offers lots of scope for private individuals and organizations to become real sticklers when forms of that word ‘marriage’ appear in their rules and policies.

    For example:

    “Oh, so sorry, but according to the lease, if you’re not married you can’t have an additional person living in the apartment. It’s right there in clause 5.”

    It might not stand up in court, but much of the time it doesn’t have to because the oppressed individuals lack time or money to fight the offending pissant.

  33. John@29,

    No, I’m saying it was necessary to get the law passed at all, as a political reality. I placed no value judgement on the matter. As for conflating the civil and religious institutions of marriage, no, I’m not. I’m noting that, as something for the last several thousand years was strictly the province of religion you’d be silly not to recognize that this decision did have religious implications.

    Jon@32, this decision changes nothing for those private individuals and organizations. You’re still going to have to sue them, and they’re still going to lose

    John@31 (there are too many Johns on this thread… :) ) it’s interesting that you bring up Perez v. Sharp, because that was, in fact about as big an example of judicial activism as you can come up with. That decision created out of whole cloth a “fundamental right to marry whomever you choose” which didn’t exist at the time, and doesn’t exist today. Leaving off same-sex couples, different states have different rules concerning marriages of people related by blood, and even marriages of people not related by blood (step-relations). And it simply wasn’t necessary to do so in order to invalidate the law in question. A decision nullifying the law solely on the basis of the Equal Protection clause of the Fourteenth amendment would have sufficed, achieved the same result, and not been judicial activism.

    I know some of you have me confused with someone who thinks that this was a bad idea on policy. It wasn’t. But the method of arriving there was, and will likely have long-term bad consequences. You want an example? Aside from the greatly increased chance of California adopting the proposed constitutional amendment, the California Supreme Court has ensured that the fight to give civil unions and domestic partnerships in other states more rights will be fought against even harder. Because the California judges basically said “once you’ve given them everything else a marriage entails, you have to call it marriage”.

  34. Skip wrote: “Jon@32, this decision changes nothing for those private individuals and organizations. You’re still going to have to sue them, and they’re still going to lose”

    No, because they’ll be *married*, license and everything, just like hetero couples. The bigots won’t be able to, troll-like, play stupid and say “Sorry the rules/lease/policy clearly requires marriage, not a ‘domestic partnership'”.

    Bigots will have to find another way to harass them. They might succeed, but they won’t be able to use this particular word as a weapon.

  35. Jon@34,

    Do you really think that will stop bigots? If so, I’ve got this bridge to sell you…

  36. “Do you really think that will stop bigots?”

    It’ll prevent the lazier ones from taking advantage of outdated language in leases and other binding documents.

    The more energetic bigots will still cause problems, but they’ll lose an easy, quiet, legalistic excuse for it, and probably be forced into actions that are devoid of any credible excuse, making it easier to prosecute them or have them fired.

    I’m pretty sure that if interracial couples had been restricted to ‘domestic partnerships’, bigots would have used that to cause a lot more trouble than they were able to cause for married interracial couples.

    Simply put, when you remove the discrimination in terminology, you remove a tactic for sly discrimination against people. If everyone can get married, then it becomes difficult to draw up policies that discriminate against some married people without making the prejudice explicit.

  37. Dang, Scalzi:

    The way you have consistently raved against a single branch of government engaging in overreaching power plays, I expected you to be consistent. But then, that would be inconvenient. What a shock.

  38. Skip, #16

    Recently Megan Mcardle had this to say,

    I recently surprised the hell out of a male friend who considers himself fairly feminist by mentioning that I got catcalled an average of at least once a day.

    This is the opening line to an essay on perceptions of bigotry and discriminations. You don’t see domestic partnerships as being treated inferior to marriages, others have different experiences. I can best explain by telling you this; not being in a domestic partnership, you have no first hand experience with how domestic partners are treated.

    Overall your comment misses my point. Rights do not have to be enumerated, written out, laid out, specified to be effective. You say that the state of California has not specifically granted the right to get married to same sex couples. So what? What California did was specifically deny same sex couples the right to wed, and that restriction is what the California Supreme Court has overturned. And it was rightly overturned because it established gays and lesbians as a separate, inferior class.

    The law in question violated one of the most basic foundations of our law, that so far as possible all are to be treated equally under the law. By banning the right to marriage to same sex couples the law in question was treating them as a separate class of inferior status. Bigotry in short.

    In short, you are trying to justify your own bigotry by appeals to the law. You don’t want dykes and queers to get married, and you need justification for your animosity. Whether a couple decides to get married or not is their business as far as I can see, and I am strongly opposed to any agency denying any group a right held by other groups. Unless, that is, society has a compelling interest in denying that right to a group. Sibling marriage for example, or marriage between an adult and a small child. Then government is right to forbid the act. But between two competent adults who are not closely related, who just happen to be of the same gender? No.

    For all your protestations and rationalizations you are bothered by homosexuality. This is evident in your constant use of the refrain, “I’m not anti-gay, but…” in one form or another. You are anti-gay, and your adamant opposition to same sex marriage shows this. Were you not, then gay weddings wouldn’t even register in your life.

  39. OK, so now we’re talking about an impediment to some mythical people who would discriminate against domestic partners, but when presented with a marriage license will say ‘ok, that’s too much trouble, go on about your business’. That’s thin. Very thin.

    While not exactly analogous, this is similiar to the contrast between facial challenges to a law and ‘as-applied’ challenges. Facial challenges are where you try to preemptively get a law declared unconstitutional, and with the exception of first-amendment cases they typically fail, unless the court rules that no possible implementation of the law would pass muster. On the contrary, as-applied challenges require documenting actual damage caused by real circumstances that have already happened. Given that, if actual discrimination is occuring with any frequency, you’ve got grounds for an as-applied challenge to the law in question. One which, given the judicial climate in California, would most likely have succeeded.

  40. Skip, #21

    Why was it necessary to establish domestic partnerships for same sex couples, when marriage does the same damn thing? Why the duplication of effort when it wasn’t strictly necessary?

  41. Alan,

    You seem to have reading comprehension problems, so let me state this for you as clearly as possible. I don’t care who marries whom. If I were to get my way, there would be zero prohibitions, because the government would not be sanctioning them for anyone. Same sex? No problem. Group marriage? No problem. Heck, first-cousin Arkansas marriages? Whatever floats your boat. If you choose someone who is so closely related that there are resulting problems I don’t want to have to pay for the results with my taxes, but that’s about it.

    Contrary to what you seem to think, it is quite possible to be ok with the outcome of a case from a policy standpoint, but not be ok with the process that got there.

    Do you know what I’d consider the earliest example of judicial activism? Most conservatives who aren’t students of law and history would say Roe v. Wade, but they’d be incorrect, and by decades. The earliest example I know of was in 1896. You might have heard of it, the case was Plessy v. Ferguson. Plessy v. Ferguson decided to ignore the plain language of the fourteenth amendment and instead invented out of whole cloth a vague “reasonableness” standard, that has been used by judges to apply their policy preferences ever since. It’s been used by judges to do what I would consider evil (Plessy v Ferguson itself, and the next half-century or so of law), and it’s been used by judges to do what I would consider plainly good (the abovementioned Perez v. Sharp for example). Regardless of the outcome it’s what I would consider a BAD THING. It allows judges to essentially just make stuff up to enact whatever they want.

  42. “Why was it necessary to establish domestic partnerships for same sex couples, when marriage does the same damn thing? Why the duplication of effort when it wasn’t strictly necessary?”

    Because when they were established they didn’t do the same thing. They did much less. It was only in 2003 that they were equalized by the legislature.

  43. Skip, #41 and 42

    Wrong is still wrong. Your previous posts laid it out very plainly, you don’t want same sex couples to get married. So you seek justification for what is plainly a duplication of effort, and an effort to establish a segment of the population as inferior based on what they are.

    In #42 you say…

    Because when they were established they didn’t do the same thing. They did much less. It was only in 2003 that they were equalized by the legislature.

    The legislation was enacted to deny a part of the population a basic right. Even after the amending it still in effect denied homosexuals that basic right, while providing an unnecessary alternative.

    I say unnecessary because marriage does the same damn thing, and does it better without discriminating against a ‘suspect class’.

    You say there is no effective difference between marriage and domestic partnerships. A difference, as the wise man once said, that makes no difference is no difference. Domestic partnership legislation is a duplication of effort, an unwarranted complication, and serves only as an attempt to legitimize discrimination.

    In so far as domestic partnership laws are enacted to justify denying the right to wed to a part of the population, they are discriminatory. In so far as domestic partnership laws are composed to provide the same rights as laws regarding marriage, they are a waste of time. You only need one hammer to drive home a nail.

  44. I am with Skip. As a single guy I don’t see why a couple should get any official breaks. The big one being tax breaks.
    Why should the government aid people who are married or domestic partners?

    Actually, in many cases they don’t, since a two-income married couple filing jointly often ends up paying more than they’d pay separately because of the higher bracket their combined income puts them in.

    The big tax break is really for single-income families where one of the parents is doing child care full time, which are not as common as they used to be decades ago–and such families are likely to have a harder time making their money go as far as it ought, so there may be some sense in giving them a break, though that’s a whole other judgment call.

    Regardless, the point in this discussion is that whatever the government does, it makes sense to do it the same way for same-sex or opposite-sex couples.

    The health insurance benefits are another issue. My employer includes health insurance as a benefit. As a single guy I am the only one covered. My married coworker who has three kids gets coverage for five. If we are paid the same rate he is actually earning more because it costs more to insure five people than it does to cover one.

    I see this as just another example of why we need a universal single-payer health insurance system. The system we’ve got has all kinds of perverse incentives and effects built in.

    I’ve actually seen people oppose same-sex marriage on the grounds that it will lead to more people getting spousal health benefits and driving up their premiums. Leaving aside the fact that many of these folks probably already get domestic-partner benefits anyway, since employer health plans are way ahead of the social curve here–what do they want, for these people to not be covered at all? If the concern is that for some reason the payment burden will fall unfairly on them rather than on somebody else, that’s just an argument against employer-based health care.

  45. Contrary to what you seem to think, it is quite possible to be ok with the outcome of a case from a policy standpoint, but not be ok with the process that got there.

    Yes, but in practice this is almost never what the American right is doing when they complain about judicial activism, so I think it’s understandable that the rest of us would become more selectively results-oriented in response.

    I can think of exceptions. Sebastian Holsclaw over on Obsidian Wings seems to be a genuine advocate of same-sex marriage who opposed the Massachusetts Goodridge decision on conservative process grounds. But this is rare.

  46. I’m imagining some alternate-universe-America in which Jews used to be forbidden to own real estate directly, but figured out clever legal mechanisms through which they could exert owner-like powers as a trustee. So I couldn’t say “I own this house”, but I could say “I am the trustee for this house” (after spending hundreds of dollars in legal fees to set up legal instruments that no Christian homeowner has to deal with).

    And then some liberal-minded states passed laws that made this kind of trusteeship have exactly the same powers as ownership, but still they couldn’t call themselves “owners”. And when some even more liberal-minded jurists suggested that everyone should just be allowed to own property under the same rules, they met with a firestorm of objections: “Real estate ownership has always been a Christian thing! It’s not discriminatory at all—any Jew who wants to own a house just needs to get baptized! Besides, they can become trustees and do the same things that Christians can do, so why are they making such a fuss over what the relationship is called? Not that I’m antisemitic or anything, of course…some of my best friends are Jews….”

  47. #33: As for conflating the civil and religious institutions of marriage, no, I’m not. I’m noting that, as something for the last several thousand years was strictly the province of religion you’d be silly not to recognize that this decision did have religious implications.

    Fine, I’m silly. Funnily enough, that doesn’t actually change the discourse any. How is asserting that a decision about civil marriage has religious implications not conflating the two? People choose to treat the two as if they were the same. That doesn’t actually make them the same. Same sex marriage, or the marriage between members of different religions are examples of where they may be different. Like I said, we commit marriages which offend one religious group or another all the time, but we don’t ban those.

    More importantly, you keep asserting that you don’t care who gets married to whom. In that case, why do you keep justifying why gay Americans should have a parallel system which is pointedly not called marriage? Wouldn’t it be lot easier just to take yourself at your own word and go do something fun instead?

  48. Seth @49: I used to live next to a Jewish cemetery in Clifton, in Cincinnati. Supposedly, it was founded in the mid-1800s by a Jewish man who’d bought the land to build a big mansion, like other rich folks had in the neighborhood.

    Only problem, there was a covenant on the deed, preventing Jews from building on the land.

    So he founded the cemetery. ;^)

    If it’s true, what a fantastic way to give a big, lasting F-U to the bigots.

  49. Same sex marriages in CA are transferable to those in Massachusetts. So an MA resident can get a marriage license to someone from and living in CA, and the licenses are recognizable intra-state.

    Skip is wrong. Changing things to use the actual word marriage has meaning, both for CA residents who might get married in MA, vice verse, and eventually for tax reasons once someone who’s not enforcing bigoted policy gets put in charge of the IRS.

    It’s the transferal of benefits form state to state, and the federal tax benefits that really matter

    Eventually, we’ll see a GLBT version of Loving v. Virginia to overturn the state laws prohibiting same sex marriage. You can view it as “oh god they’ll force (some bigoted state) to recognize same sex marriage against their will”. And yes, that’ll happen. But Loving V. Virginia also stopped Virginia from forcing Mildred and Richard Loving from living as second class citizens.

    It’s damn hard for the anti SSM crowd to argue that Loving v. Virginia never should have happened without looking like monumental bigots. Because the contrasting cases end up arguing in favor of cases like Pace v. Alabama, which was the racial version of Bowers v. Hardwick, which, if you’re not interested in following the link, established that states had the right to regulate only same sex sexual contact between consenting adults in the interest of community standards.

    Unless you’re willing to say that laws prohibiting race mixing are constitutional, it comes down to trying to find a “gays are icky” clause in the constitution.

    Marriage is a federally protected right, and there’s case law that supports it. You don’t get to throw out part of that because gays are icky. Either remove the whole thing, or allow it all.

  50. Um, no. Domestic partnerships in California were not treated as less than marriage.

    Very good on the careful choice of words. Domestic partners are given the same legal rights as spouses in California; they are not recognized as married outside of California, or by the Federal government, or outside of the United States.

    Contrary to what you seem to think, Skip, it is entirely possible for an unpopular court decision NOT to be the result of judicial activism.

    As for thousands of years of religious tradition, many other thousands of years of religious tradition have gone out the window. Compared to giving wives equal legal standing to, and parity with, their husbands, same-sex marriage is hardly a blip.

  51. Skip @ 16: Um, no. Domestic partnerships in California were not treated as less than marriage.

    I’m sort of curious as to how you knew this. Have you experienced both first hand? I thought you were from Texas?

  52. it is true that the legal substance of the two institutions (marriage and domestic partnerships) are for the most part the same (the opinion mentions a handful of minor differences). but, as many have mentioned and as the court explained, you have one well-established, long standing institution for one group of citizens, and another, novel and unfamiliar institution, for another group of citizens. considering the very powerful equal protection clause of the california constitution (which provides greated protection than even the 14th amendment of the us consitution), and the history of discrimination against gays and lesbians, the court rightfully asked if there was any legitimate reason for two “separate but equal” institutions. the california constitution requires the state to treat its citizens equally, and the government could not offer any compelling reason for the discrimination that was necessary to a legimate state goal.

    another difference, which doesn’t implicate california so much, is that foreign jurisdictions do not recognize california domestic partnerships. but canada, massachussetts, new york, the netherlands, belgium, spain, south africa, and possibly other jursidictions will recognize same-sex marriages performed in california.

  53. Seems to me, every time America has shafted liberty in favor of tradition, it’s turned out to be a mistake.

    Every time America has shafted tradition in favor of liberty, it’s turned out well.

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