Prop 8 Ruling In

From the LA Times:

The California Supreme Court today upheld Proposition 8’s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.

I’ll likely update with more of my own comments soon. The short form of my thoughts, however, is that I’m not surprised at the ruling, that I’m very glad that no existing marriages were destroyed, and that because the previous same-sex marriages are still valid, the constitutional amendment embodied in Prop 8 is already mockably pointless (because the state has to recognize same-sex marriages as valid, despite the amendment), and I expect will not remain long as part of the California constitution.

Discuss in the comment thread. Be aware I am wielding the Mallet of Loving Correction very enthusiastically. If you can’t discuss the ruling without also taking personal shots at other commenters for their thoughts on the ruling, down comes the mallet.

Update 1: The actual ruling (pdf link)

176 thoughts on “Prop 8 Ruling In

  1. I hate it. Hate hate hate.

    I will give money to someone starting a petition to get California to require that both partners in a marriage be US citizens.

  2. This points out the problem with direct democracy in the form of ballot propositions that amend the constitution. The Will of the People is too often just the Will of the Minority of the People Who Have the Time and Inclination to Inform Themselves and Vote.

    From Prop 13 to Prop 8 you can trace California’s decline as a leading light. In the 1950’s through the early 80’s an awful lot of people saw California as the place to go. I don’t think that’s the case anymore.

  3. Courageous stand by the justices to punt to another ballot measure. Profiles in courage there.

    SEF@1: Citizenship may be voluntarily changed — at least theoretically, though it would be difficult for me to become a citizen of North Korea. I think you’re comparing apples and oranges. Very spiteful oranges. However, I also think it would piss off a lot of the right people. Please send me your newletter. Let’s get right to pissing off Californians.

  4. 1. My friends Liz and Henae are still married. so that is good, it was really important to them,

    2. just means a decision at the Fed Supreme court level… and that will take care of it all… it took a good long while for all discrimination to get to a point where the Big Supremes can get rid of it…

    as I like to say “patience, pitchforks, posters and plenty of people protesting.” torches are only an added bonus.

    Striaght folks, do us a favor. mention today how important it is to you that everyone who is in love can legally marry their partner… we need your help too… dont be afraid that others will think you are gay because you support gay marriage. its the right thing to do.

  5. “If you can’t discuss the ruling without also taking personal shots at other commenters for their thoughts on the ruling, down comes the mallet.”

    Can we make “down comes the mallet” into your “you might be a redneck” joke, Scalzi?

  6. You know, I was totally expecting this decision, but I’m still gut-kicked by it nonetheless … guess that’s what happens when your civil rights are overturned.

    I honestly think this is very much a revision and not an amendment, and that was what the ruling was on. They had already found for LGBT equality within the CA state constitution last year, so to remove such or curtail such IS a revision, IS a meaning change, not merely adding something to the constitution, which is the case for an amendment.

    But what do I know? I’m just a lay queer, hardly a constitutional scholar.

    What I do know is bigotry won today … good on you bigots, you go on get down with your hatred.

  7. But wait, what happened to that whole “equal protection” argument the court put forward previously?

    Can one part of the Constitution contradict another part?

    And I thought the Court previously ruled that marriage was “a fundamental right” under Article 1 Section 7? Can you constitutionally deny a fundamental right guaranteed by that very same Constitution?

    I’m so confused.

    Doesn’t this mean the California Supreme Court was wrong to begin with?

    It seems to me that proponents of gay marriage are now going to have to do what they should have been doing from the beginning: Convincing people of the correctness of their argument.

  8. 1. Darn pesky democracy.

    2. People for and against should be happy we still have the concept of Federalism. If you don’t like the way California runs things, move to Iowa. Or Wyoming. Whichever makes you happiest.

  9. Frank:

    “Doesn’t this mean the California Supreme Court was wrong to begin with?”

    No, as clearly evidenced by the fact that the Constitution had to be amended to get that particular bit of bigotry into it.

  10. Scalzi

    No, as clearly evidenced by the fact that the Constitution had to be amended to get that particular bit of bigotry into it.

    Oh? Did they strike Article 1 Section 7 from the Constitution and replace it?

    Did the “equal protection” clause go away?

    Because if either of those things happened, I missed it.

  11. Frank –

    That’s why so many of us argued that this was a fundamental change in the meaning of the constitution, and hence a revision, and not merely an amendment, which would have just been an addition to the constitution.

    and Brian … yeah “yay democracy”, that whole majority denying the rights of a minority thing *waves a democracy flag* … *snort* not.

  12. Yeah, the whole idea of the Republic system (not Republican, Republic) is “majority rules” BUT with protections for the minority.

    Which again, is a great reason to get rid of ballot propositions since they bypass that pesky “with protections for the minority” part.

  13. Sarah in Chicago

    yeah “yay democracy”, that whole majority denying the rights of a minority thing *waves a democracy flag*

    The California Supreme Court just today admitted they were wrong about that whole “fundamental right” thing.

  14. Frank:

    I’m not especially impressed with the logic that suggests that a second ruling which affirms a fundamentally contradictory constitution somehow means an earlier ruling which clarified said constitution was therefore poorly ruled.

    Likewise, you seem to have problems understanding that the constitution the court is working from for this ruling is not the constitution they were working from with the previous ruling. Because it was amended, you see.

  15. Yeah, this isn’t particularly surprising. Given that prop 8 was a constitutional amendment, I’d have been surprised if the court had found any way to rule otherwise: all the court can do is interpet the constitution, after all. All hail democracy… [sigh]

    I’m actually very curious (though happy!) how the court justified keeping the existing marriages, given the wording of prop 8; I’ll have to read the actual ruling when it’s available.

  16. Frank –

    The California Supreme Court just today admitted they were wrong about that whole “fundamental right” thing.

    *nods* it’s like “Whoops, our bad … those ‘rights’ thingys? Yeah, not so much”.

  17. @9: A Constitution certainly can be contradictory — and when one part of the constitution conflicts with another (see, e.g., the tension between the Free Exercise and Establishment Clauses in the first amendment) courts need to do a lot of juggling to find some way to reconcile them.

    N.B.: I’m opposed to the result here, but just want to note that this isn’t by itself an impossible result, although certainly (rightly) mockable.

    Here, there’s now this small class of 36K people who have a different status based on a date-certain. I haven’t followed this so closely that I know what the next step is on Prop 8 in and of itself and whether this suit has an obvious appeal to the US Supreme Court (I doubt it).

    What is interesting is that this separate class opens up at least one good approach to attacking this in court. While the difference in rights between a gay married couple and a domestic partnership is essentially nil (again, I think it should be called marriage) so its probably hard to find an obvious federal or state employer where you can get enough of a difference by name to get a court to find enough of a hook to say these folks are discriminated against (they are, but not in a really tangible way). And my sense is that most really big companies in California offer full domestic partner benefits.

    Nevertheless, folks should recall that Plessy v. Fergeson (which created the Separate But Equal doctrine ultimately overturned in Brown v Board of Ed) was a set-up case, where the railroads *wanted* someone to sue to break the separate cars requirement, because the RRs hated it. I hope a thoughtful employer will create a distinction between these two groups strictly on the basis of whether they are married gay people or simply as gay domestic partners, as it may open up an obvious avenue of attack. Basically, create the break in rights — fund the law suit against them — and see if you can’t get a ruling that says this is discrimination.

  18. Well, John, he’s right, to a degree: either marriage is a fundamental right, or it isn’t. If it is a fundamental right, then this ruling is wrong; if it isn’t, the earlier ruling is wrong. He doesn’t seem to be willing to admit the former possibility, though.

    It’s hard to see the actual decision, due to the site being overloaded, but quotes from Daily Kos include:

    The court further unanimously held that the scope of Proposition 8 is narrow, limited solely to restricting the use of the term “marriage” to opposite-sex couples, while not otherwise affecting the fundamental constitutional rights of same-sex couples described in its earlier opinion in In re Marriage Cases (2008) 43 Cal.4th 757.

    and

    The court also unanimously held that the new constitutional provision applies only prospectively

    My feeling is that this decision is wrong, is inconsistent with earlier rulings, and was almost entirely a political decision.

  19. From the actual ruling, an on-point comment re: the Equal Protection clause:

    Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

    This argument seems a little wacky to me at first blush, but I’m posting it as I’m reading it.

    Sean Eric Fagan:

    The question isn’t whether one or the other of the rulings is weirdly decided; my objection is what I see as his implication that it is the first ruling that has to be so.

  20. I guess all we have to do is get the California constitution amended back into a more equitable form and the problem will be solved.

    And by the time it comes to ballot, people will be have a harder time arguing that gay marriage will destroy the institution of marriage because we’ll have a number of existing marriages to point to as examples of said institution doing just fine, thank you.

    It’s a setback, but not a permanent one.

  21. I was really proud when the Canadian Liberal government recognized gay marriage. Now of course we have a Conservative bozo in power and they are rumbling about taking the big step backward. I only hope that we can be a little more intelligent than the Californians.

  22. It’s not just that the decision goes against what I think is right and good here … it’s that they seem to have attempted to tie themselves into the equivalent of a constitutional pretzel in order to politically not do anything

    They may be able to justify it completely, but it’s really just awfully BAD LAW.

  23. Like most here, I find I’m unsurprised at this ruling, though I admit to being disappointed by it.

    Like in other institutional forms of discrimination, SCOTUS will need to resolve this on a federal level.

  24. Scalzi

    This argument seems a little wacky to me at first blush

    Um, yeah.

    And you have to be thinking, if Prop 8 just Amended the Constitution as you assert, why would they bother to try to reconcile their decision with their previous decision?

    Because to do so just leads to an argument that tortured if not incomprehensible.

  25. Of course the real fun is that the budget mess makes it possible that California will chuck the entire constitution in the next few years and start over.

  26. Brian 10: We don’t live in a pure democracy. California’s process for changing its constitution is a good example of the reason we don’t; pure democracy, especially on a large scale, is a bad idea. Especially when you have the Church of Jesus Christ of Latter-Day False-Witness Bearers spreading $20M worth of lies to get their religious ideas encoded into law.

  27. On first read this appears to be exactly Obama’s campaign stance: that “marriage” is strictly male-female, but same-sex couples should have equal protection under the laws of the land.

  28. “Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.”

    So, what — as soon as someone files the right lawsuit, we’ll have legally-recognized civil unions in California?

    It’s not marriage, but it’s something.

  29. Re: The Pathetic Earthling

    The US constitution trumps state constitutions, so there is a case to be made to bring this before a federal court.

    14th amendment:
    “[…] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. […]”

    If I recall my history correctly, this was a necessary step to prevent states from passing their own state laws that unbanned slavery.

  30. Janiece

    Like in other institutional forms of discrimination, SCOTUS will need to resolve this on a federal level.

    Not gonna happen.

    This is State business. There is no Federal issue.

    This is especially true since President Clinton signed the Defense of Marriage Act in 1996.

  31. Unsurprising but disappointing. As people have noted, the fact that there now exists a large group of people with grandfathered same-sex marriages, the Prop 8 is crippled already: California must acknowledge those marriages.

    I’m not a lawyer, nor do I play one on the ‘net, but to me this seems like a perfect crack to insert some legal crowbars.

    And Sheila @23 has a good point: the longer the married same-sex couples are around without the world ending or straight couples’ marriage licenses spontaneously combusting, the harder it will get to mobilize anyone to fight against the idea.

    I expect this to be over in a couple of more years. (Although if California goes into receivership, and/or collapses into Mad Max-style apocalyptic mayhem, all bets are off.)

  32. people will be have a harder time arguing that gay marriage will destroy the institution of marriage because we’ll have a number of existing marriages to point to as examples of said institution doing just fine, thank you.

    I don’t see this argument as carrying any weight. Those people who believe that the institution of marriage is threatened are not operating from a point of view where evidence to the contrary will ever be acknowledged, let alone allowed to sway opinion.

    Those people who don’t believe that the institution of marriage is threatened, are already on the bandwagon, so the evidence is unnecessary for them.

    And I strongly suspect that the number of people who are on the fence on this particular issue is vanishingly small.

  33. 34: Well, the US Supreme Court could make an argument on equal protection grounds that failure to allow same-sex marriage is in violation of the US Constitution, but, practically, yeah, you’re right. It seems pretty clear that the US Supreme Court is going to do no such thing, and the US Supreme Court doesn’t determine whether things are in accordance with the California Constitution.

    This will be resolved in a few years by a new proposition repealing Prop 8. And that’s, really, the right way to go about it.

  34. Goergmi@36:
    Those people who believe that the institution of marriage is threatened are not operating from a point of view where evidence to the contrary will ever be acknowledged, let alone allowed to sway opinion.

    Is this really true? Anyone have any good polling data for what happens to opinions re: gay marriage when a state passes such a thing? Or its neighbors do? Or when civil unions come into existence?

    My (very informal) perception of what has happened in NH is that with VT passing civil unions, and then MA passing gay marriage, is that seeing both of these happen relatively uneventfully were huge sources of public opinion swinging to its current state.

  35. I look at it this way – this means that when Proposition 8 is voted out the bigots won’t be able to say that it needs a supermajority or anything like that.

  36. See, I don’t get that stance. Because although the assumption is that marriage is one male-one female, as far as I know, no state actually requires any proof of that. Are we now to understand that gender or sex must be proved in order to be granted the right to “marry”, whereas, those couples not wishing to prove it can apply for a “a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” but isn’t called marriage? What will be the requirement? A genetic test? A physical examination?

  37. Michael B Sullivan

    This will be resolved in a few years by a new proposition repealing Prop 8. And that’s, really, the right way to go about it.

    Well I agree with that.

    But while I think that repealing Prop 8 is necessary, it is not sufficient.

    I think that it should be explicitly stated that marriages among same sex adults are legal.

    And I think this is the correct way to go because I don’t want anyone thinking that marriage is a fundamental right. I don’t want some future court thinking that it’s suddenly OK for a 40 year old man to marry a 12 year old girl, for instance.

    The control about who can marry who needs to remain in the hands of body politic.

  38. Don’t count on the SCOTUS to fix it! They’re a very conservative Court, and Souter’s likely replacement, while probably relatively liberal, won’t shift the balance on the Court.

    Remember Lawrence v. Texas? The Court still had Sandra Day O’Connor on it, and she was the swing vote. She was replaced by another slavering right-wing nutjob Bush appointee, so the Court is more conservative then it was when Lawrence came down. (OTOH it was a 6-3 vote.)

    The two justices most likely to retire during Obama’s administration are both liberals too (by the standards of the SCOTUS): Stevens is 89, and Ginsburg is sick. So Bush’s taint will be on the Court for some time.

    Given all that, I’m not sure it will help for it to go to the SCOTUS.

  39. @33: Yes, of course, but In Re Marriage Cases (the pre-prop 8 case) was decided entirely on State Constitutional grounds, so there was no federal hook on that. I simply haven’t paid enough attention to this round of litigation to know whether this has been decided on strictly state constitutional grounds.

  40. Having found a link to the opinion, I’m noticing that the judges like to randomly italicize words for no clear reason. It’s kind of weird.

    They find that since it’s just removing the word marriage, it’s not deep enough to count as a constitutional revision. I get the suspicion a broader amendment might have run into trouble, although it’s a long opinion and I’m not that far into it.

    Also, fun fact:

    In the mid-1970’s, however, at least in part as a consequence of changes in the language of the California marriage statutes made in response to an unrelated subject (id. at p. 794), same-sex couples applied for marriage licenses from county clerks in a number of California counties.

    I just thought that was interesting, considering I’ve seen it argued that gay people wanting marriage was invented in the 90s.

  41. Note, further, that what matters is not only which side of the fence people are on, but whether they feel strongly enough about it to go vote. And that’s subject to quite a lot of flux.

    Also, recall that a few months before the last election, public opinion in California was polling as reasonably strongly against Prop 8. Swings can happen.

  42. Georgmi writes: And I strongly suspect that the number of people who are on the fence on this particular issue is vanishingly small. (in post 36)

    This is wrong. Opinions are changing on gay marriage incredibly quickly. Ten years ago, you couldn’t have managed 40% of any state’s population to vote aye in a referendum on same-sex marriage. Now, freaking Iowa allows it. People’s minds are changing daily. Of course lots people are “on the fence about it.”

  43. Basically, my reading of the decision is that they admit that while this does remove a right that had previously been established and recognised in the CA constitution, the amendment wasn’t a revision because the amount of people effected by the proposition isn’t all that large.

    I guess this is their attempt to prevent the idea that the rights of women, or of ethnic minorities, could similarly be overturned by voter ballot, like they can for gays and lesbians.

    Of course, that then leaves open the question of how small is too small to have your rights protected as rights?

  44. Frank: I think that it should be explicitly stated that marriages among same sex adults are legal.

    I agree.

  45. Well, I guess I continue to wait on marrying my boyfriend. I live in California and won’t do it if everyone isn’t allowed to do it. I don’t want to support an institution that has bigotry legally voted into it.

  46. Damn and blast. Expected, but still–damn and blast.

    The good news (such as it is, I guess) is that 1) marriage rights are trending towards equality, and we’ll catch up again someday; and 2) the h8ers are now stuck arguing that majority rules. This will come back to bite them in the butt as time goes on–look at the demographics for support of gay rights among the youth, and you realize that opposite-marriage-only is *already* on the ash-heap of history.

    Yeah, yeah, a pretty cold comfort. My sympathies to all the newly-created second-class citizens, and FORWARD MARCH TO THE 2010 BALLOT, y’all.

  47. Goergmi@36:

    Those people who believe that the institution of marriage is threatened are not operating from a point of view where evidence to the contrary will ever be acknowledged, let alone allowed to sway opinion.

    No, overall these people are operating from a position of fear and ignorance. In Massachusetts, where I live, support for gay marriage grew tremendously after it became a reality. The attempt to amend the MA constitution failed because opponents changed their minds after seeing the effect (nil) and after meeting gay couples. One representative publicly changed their vote at the second ballot, because of mail and phone calls from constituents saying, “Now that I see who these people are, it doesn’t bother me anymore.” And the recent legislative action in New England is absolutely coming from familiarity and comfort levels.

    I’ll be the first to say I didn’t expect that; I thought anti-marriage-equality positions were unchangeable. That turned out to be absolutely wrong.

  48. Hmmm, what with California’s budget crisis, it will be interesting to see how fast the legislature is to turn this around when/if droves of tax paying gay couples leave town for a more hospitable state… like Iowa…

    It’s like we’re in bizzaro world.

  49. @ georgmi & @ Abby:

    Speaking as a resident of Massachusetts, my impression is that having a bunch of same-sex marriages around made zero impact on the people out there saying stupid things in public. But I think it made a practical difference in the attitudes of many average folks, whose initial quesy opposition to same-sex marriage has changed to a shrug and a “Oh fer crissake, just leave ‘em alone”.

    It’s hard to maintain a long-term opposition to people loving each other, unless one is deep-down convinced that it isn’t love and refuses to even consider the possibility that it might be.

  50. Abby @38:
    I suspect that what you have seen in NH with respect to what has happened in VT and MA is that the populations of all three states are subject to the same shifts in demographics, and that the will of the voters has changed because the electorate has changed its mix of conservative vs. liberal, not because individual opinions have been changed.

    Michael B Sullivan @47:
    I disagree. Individual minds are not changing on this issue in significant numbers. What is happening is that people who oppose same-sex marriage are dying of old age and being replaced on the electoral rolls by people who support it. Boomers skew liberal on these sorts of issues, and their children skew even further. That the LDS was able to mobilize enough of the old guard to pass Prop 8 in the first place is a testament to their leet marketing skillzorz.

  51. @ georgmi:

    The poll numbers have changed too quickly to be accounted for simply by people “dying of old age and being replaced on the electoral rolls by people who support it”. That’s a factor, no doubt, but it’s not the only one.

  52. Nothing in California is likely to change until and unless the ballot initiative process is overhauled. Representative democracy may have its challenges, but when done right it at least stops the kind of “mob rule” that the ballot initiative process will always be.

    One idea they might consider would be to require a supermajority vote for the proposed change to automatically become law. They could word it so that a proposition that gets a simple majority would be sent to the legislature to hammer out.

  53. OK, let me be clear on this: I was happy when the California Supreme Court made its ruling supporting gay marriage, and I was very much opposed to Prop. 8. In fact, voting against Prop. 8 was one of the few occasions when I found voting for or against our seemingly endless parade of dumb initiatives to be viscerally satisfying. And I look forward to the overturn of Prop. 8 in 2010 or, failing that, 2012.

    But given that an overturning of Prop. 8 was pretty unlikely, I find the actual ruling to be, maybe, the next best thing. The court made it clear that gay couples must be able to avail themselves of a state-recognized relationship with all of the legal benefits that straight couples get.

    In fact, a guest on one of the local talk shows here in the Bay Area made an interesting observation about the decision’s upholding of equal protection, which I’ll present in the form of a syllogism:

    1) Gay and straight couples must be afforded equal protection under the law.

    2) A union of gay people can’t be called a marriage.

    3) A union of straight people __________ .

    Now, I don’t read the ruling that way, and I think that there’s exactly zero chance of California doing away with straight marriages in favor of civil unions. But I have to admit that the very thought of such a thing arising from the passage of Prop. 8 makes me laugh myself into a hernia.

  54. As a California resident who voted against Prop 8 and who actively supports equal marriage rights for all…

    Unfortunately, I think that the CA Supreme Court called this one right.

    Not because it’s the right thing to do.

    But because their hands are tied.

    Face it – we lost this because Prop 8 was voted through by a slight majority of the voting populace in November.

    The CA SC were already stretching to issue the first ruling in the Marriages case. It was a stretch that went against prior CA state law and state propositions – but it was a legally and constitutionally defensible stretch, and one I approved of.

    Prop 8 was clearly a repudiation of that. To overturn it completely, the CA Supreme Court would have had to challenge the validity of the proposition process in ways that it’s never done before and probably shouldn’t.

    Is the process flawed? Yes. Is the result sucky? Yes. Am I offended that 52% of the people in my state voted for this pile of crap? Yes.

    Am I offended that the CA Supreme Court acknowledged that? No.

    I think it’s a fundamental right. But justices inventing or acknowledging previously unacknowledged rights against public opinion is one thing. Doing so against a direct public vote to amend the constitution the other way is another.

    Population statistics shows that the same proposition would likely fail in this upcoming November election – there’s a 1-2% per year shift on the issue due to voter aging. I think it’s tactically a mistake to force the issue that soon. But in 3 more years, I would be happy to write up and sponsor the proposition to repeal it if nobody else does (though I think there will be a long line for that). I think letting it sit a bit, and the “Oh for Chris’sake, leave them alone” effect mentioned in a comment above will sink in a bit. Between that and the voter demographics, we clearly win it back in 2012.

    It’s offensive to wait. It’s offensive that it passed. But acknowledging that it passed with a majority vote is important.

  55. The court made it clear that gay couples must be able to avail themselves of a state-recognized relationship with all of the legal benefits that straight couples get.

    Unless a state has gone out of its way to prevent it, a couple that is married in one state is still married in another state.

    A couple that is signed up as domestic partners in California does not have that benefit.

  56. Tarnation, don’t we have more pressing issues to vote on other than who gets married to who? For instance, when are they going to vote me king? As a married person I have zero fear that my relationship will be invalidated if my marital designation is suddenly shared by same sex couples. How does this affect my marriage? Not at all.

  57. Lawyer here, though not a Con law expert. I only have passing familiarity with this issue, but I don’t think the Court could have come down the other way on this and still called themselves lawyers afterward, no matter how much they may have disliked the result. That the amendment seemingly contradicts the Constitution, at least as it was interpreted in the previous marriage cases, isn’t grounds for invalidation at all. The 21st Amendment to the US Constitution repealed the 18th, which established prohibition, but the 18th is still technically a part of the Constitution.

    Lawyers have a sort of established playbook for dealing with apparently contradictory rules, which (and I’m sure this will shock the non-lawyers in the crowd) come up surprisingly often. One of them is the “last in time” rule, which means you respect laws inversely proportionally to how long they’ve been around. Another is that specific rules trump the general. Under both of these approaches, the prop 8 amendment will prevail over the previous interpretation of the equal protection clause. These “canons of construction” are certainly not an iron-clad method of interpreting laws, but it’s tough to come up with a single argument that passes the sniff test in opposition to this interpretation.

    In fact, based on the section John quoted the Court seems to be doing the best they can to help out gay marriage while still keeping their self-respect, through application of another canon of construction: the misleadingly named “clear statement” rule, which suggests that laws should be interpreted to not abridge fundamental rights without a clear statement that they are supposed to do so. What the Court has done here is to read a bigoted and short-sighted constitutional amendment as having no substantive effect other than limiting the word “marriage” to heterosexual couples, even though the intent was to be much more pervasive. In jurisprudential terms, they are giving the finger to the electorate.

  58. Andrea @50

    Well, I guess I continue to wait on marrying my boyfriend. I live in California and won’t do it if everyone isn’t allowed to do it.

    Hmmm. Sounds like commitment avoidance.

    Ben @54

    it will be interesting to see how fast the legislature is to turn this around when/if droves of tax paying gay couples leave town for a more hospitable state

    You’re dreaming. California hasn’t cared that for years they’ve been driving away businesses and the Wealthy who paid most of the taxes. Why do you think they care abour a small minority of taxpayers?

    georgmi @56
    has changed its mix of conservative vs. liberal,

    Go back and review the demographics of those who voted for Prop 8. If it was just conservatives, it wouldn’t have passed. Perhaps you have a more racial point to make?

  59. Frank:

    “Hmmm. Sounds like commitment avoidance.”

    Frank, I’m sure you intended that to be amusing, rather than somewhat rude armchair psychoanalysis. Be that as it may, please refrain from doing it again. You might also apologize.

  60. Frank @34

    I disagree. Saying gay marriage is a state’s rights issue is like trying to assert that the civil war was about state’s rights. Disingenuous at best.

    Forbidding gay people the same rights as straight people is a violation of their 14th Amendment rights, which is specifically forbidden under the U.S. Constitution. Unfortunately, only the SCOTUS can make that determination and have it “stick” in every state.

  61. Frank @64:
    I’m not sure where my statements in 56 either imply or ignore a racial component to the demographic shift I suggested.

    And as an affluent white male, I tend to actively avoid making racial points because I don’t have the background to know what the hell I’m talking about.

    Which makes me a bit of a hypocrite, I guess, because I’m also straight, but I apparently don’t have any problem commenting on gay issues. Though I call an exemption because my attitude in this case is, “why shouldn’t they be able to do whatever I can do just because they mix and match parts differently than I do?”

  62. So, what — as soon as someone files the right lawsuit, we’ll have legally-recognized civil unions in California?

    Prop 8 conspicuously and explicitly avoided voiding the California Domestic Partnership statutes. Had it not, the vote might have gone the other way. Had the California DP statutes not left differences between the rights of marriage and the rights of domestic partnership, the previous CSC decision would have been baseless, as the difference really would have been “in name only.” I suspect that what we will see in California in the near future is not a repeal of Prop 8, but legislative tweaking of the DP statutes to eliminate those differences.

    Ten years ago, you couldn’t have managed 40% of any state’s population to vote aye in a referendum on same-sex marriage. Now, freaking Iowa allows it.

    Iowa didn’t vote it in. As in California, it was a state supreme court decision that brought it into being. The test there will be if the legislature puts up a Prop 8-similar amendment for ballot approval.

    And Vermont just plain did it right.

  63. “Proposition 8 does not entirely repeal or abrogate” — So because it only partially repeals it, in their eyes, it’s okay? Hey, we didn’t take away every right you had, just some! I cannot believe that in 2009 a U.S. court rules that separate but equal constitutes equal protection. Especially when the separate isn’t equal, of course, never is. It’s like we’re pretending the 1960’s Civil Rights movement didn’t happen. Makes you wonder what other exclusively reserved things lurk in California’s constitution, doesn’t it? Paying low taxes is exclusively reserved for the top 1% income earners. Tracts of land are exclusively reserved for Christian real estate developers. But it doesn’t infringe on your rights being equal to mine, no it does not. It’s just a little favor we’re doing, like saving a good bottle of wine for special customers. California has now officially become the South.

    There will be no help at the federal level. Obama’s hands are tied until the economy is better and he’s won a second term, and when he can, he’ll probably concentrate on the gays in the military ban. The Supreme Court handed George Bush the presidency — they haven’t been an impartial body since the 1990’s, and one new juror who’s not that liberal won’t change it. Only if a large number of states pass resolutions for gay marriage will they have any chance at a federal change. And if they don’t have California in that fight, it’s not going to happen.

    The best thing gays can do is not shut up. Make them face you, let gay kids and kids of gay families that there’s nothing wrong with them. And we straights who support you will keep talking too.

  64. We don’t need rights to protect the majority, we need rights to protect minorities. California’s ammendment process has always been a joke and an example of what mob rule looks like, not what democracy looks like. Democracy respects the fundamental rights of minority groups. Mob rule simply allows the 51% majority to do whatever they want to the remaining 49%.

    Bigotry and hatred encoded in law by a majority vote. Yay California.

    I’d agree that the older generation has a higher proportion of bigoted and hateful views than the current younger generation. Here’s hoping a few more of the old bigots will die off by the time the next ballot initiative rolls around.

  65. We’re progressing faster than “one funeral at a time,” as someone upthread pointed out. But those bigot funerals…every little bit helps.

  66. The way I see the whole “gay marriage” issue boils down to this: Since when do we allow discrimination in this country to continue? Haven’t we fought this battle before (ie: women’s suffrage, civil rights, etc) Are we going to have to have “gay riots” like the old race riots to get this form of discrimination stopped? Have we as a country (this includes every State) not learned from our past history and are we doomed to repeat the destruction and carnage that was required to end previous discrimination? I’ve always seen California as a fairly forward looking State but no more. And whatever happened to separation of church and state? Why do we allow laws to be written and even presented because of some religious ideal? heck, even if you want religiously based laws, when did God ever discriminate? Discrimination in any form should not be allowed to continue.

  67. Tully: And Vermont just plain did it right.

    This is a common assertion by those who don’t want gay marriages, and it presumes that the Judicial branch doesn’t have constitutional powers as a check against the mob.

    Having a state supreme court rule that it’s constitution demands that gay marriage be allowed, even when the mob tried to disallow it, is just as correct as having the population experience a change of heart and drop its bigotry.

    Not saying that you’re sayign this, but when when you say “vermont did it right”, that’s reinforcing a certain argument the anti-equality folks are making.

  68. I don’t usually double post, but the conversation took off while I was writing my post. (I may not be double posting as there will probably be more posts before I’m done this one.) But I feel compelled to point out that 52% of the California population didn’t vote for Prop 8. 52% of the people who bothered to vote on Prop 8 said yes. I don’t know what the exact California vote stats were, but for this election it was a little over half on average of people voting who can. So a little over a quarter of the population of California decided for the other three quarters. Which isn’t majority mob rule either. It’s a narrow slice of special interest groups. The Mormon church, the Catholic church, and the evangelical churches who supported Prop 8 got a lot of money from wealthy donors for this fight, and not all that money went to the campaign. They profited from this, and increased their political power base. They benefited from a distracted electorate focused on the presidential election.

    So if a new Proposition to counter/reverse Prop 8 comes up in 2010, 2012, I guess we’ll see what Californians really believe.

  69. Greg, you are backhandedly mislabelling me even if you say you aren’t. Please don’t.

  70. I’m thrilled with this decision.

    (a) the existing marriages stay valid.
    (b) the right of the people to do pretty much anything they want via initiative constitutional amendments is upheld.
    (c) Proposition 8 is read *extremely narrowly* and the court flat out says that the state remains constitutionally required to give gay couples all of the rights and responsibilities of marriage, except for the name.

    So … the pro-prop 8 people win on the *word marriage* and lose on the *substantive issue of state recognition and treatment of gay couples*.

    Seperate but equal sucks, but given the importance of the iniative system in our state, it was the best outcome possible.

  71. GWH @ 60 — nicely stated, and I agree with your points.

    One area I don’t think has been sufficiently discussed is the effect of the pro-Prop 8 ads on the voters. The one with that law professor from Pepperdine — ol’ what’s his name? — that was a very effective use of fear-mongering from a seemingly credible source. And the anti-Prop 8 ads? Not so great, IMO. You can google lots of links to “too little, too late” op-ed pieces. The anti-Prop 8 side was seemingly complacent, and it cost them/us.

    I don’t hold the LDS leadership solely responsible for the outcome, though I’m sure the additional funds helped out quite a bit. This was not a Mormon-led fight; instead, it was a broad Christian coalition that raised funds, put together effective ads, and got out the vote for its side. There are lots of “villains” to point to, if one needs to identify them.

    For example, let us not forget that Rick Warren, hugely influential “moderate” Christian leader and friend to our newly elected President, personally endorsed Prop 8 efforts, saying:

    “For 5,000 years, EVERY culture and EVERY religion — not just Christianity — has defined marriage as a contract between men and women. There is no reason to change the universal, historical definition of marriage to appease 2% of our population. This is one issue that both Democrats and Republicans can agree on. Both Barack Obama and John McCain have publicly opposed the redefinition of marriage to include so-called ‘gay marriage.’ Even some gay leaders, like Al Rantel of KABC oppose watering down the definition of marriage.

    “Of course, my longtime opposition is well known. This is not a political issue, it is a moral issue that God has spoken clearly about. There is no doubt where we should stand on this issue.”

    http://www.bpnews.net/BPnews.asp?ID=29209

    In a nutshell, the pro-Prop 8 side did a better job of communicating their message and mobilizing their base. I think that if the anti-Prop 8 folks had their act together just a smidgeon more, the outcome might well have been different. Once the outcome was known, though, the CA Supreme Court had to respect “the will of the people”.

  72. “The California Supreme Court just today admitted they were wrong about that whole “fundamental right” thing.”

    Nonsense. The issue before the court was whether or not Prop 8 had been validly adopted. It was.

    Any right “given” by the express language of a constitution or determined to have been implicitly “given” by the constitution can be taken away by a subsequent amendment. The later amendment can override the earlier language. That’s exactly what happened here. From a technical perspective, the California Supreme Court did the right thing.

    I’m not happy about the outcome earlier, but I do share John’s optimism that there will be another subsequent amendment to the California constitution to repeal Prop 8. Let’s keep our fingers crossed.

  73. Frank, at #13: the court said that the equal protection guarantee remains, and that proposition 8 carves out an *extremely limited* exception applying *just to the word marriage*. the state remains required to recognize gay relationships in a fashion equivalent to their recognition of straight marriages.

    Pathetic Earthling, at #20: there is no obvious appeal to the US Supreme Court; the decision does not in *any way* address the question of wheether or not the federal constitution’s equal protection clause requires gay marriages.

    John, at #22: it is wacky; i think it’s hilarious. It reads to me as if (a) the state supreme court *hated* Prop 8; (b) they felt constrained to uphold it because of the importance of the iniative in California (Eg, overturning it woudl have been revolutionary in terms of its effect on the structure of our political system), so (c) they defined it down to the narrowest possible scope, in effect handing conservatives a pyrrhic victory.

    Brooks Moses, at #32: we already have legally-recognized “domestic partnerships” which are almost but not completely equal to marriages. This decision seems to (a) say the constitution mandates them, and (b) require them to be equal to marriage.

    Frank, at #42: I don’t want anyone thinking that marriage is a fundamental right. Too late; the US Supreme Court said in Zablocki v. Redhail that it is a fundamental right.

    SEF, at #61: I think that there’s a good argument that a domestic partnership in state A must be recognized in state B if state B recognizes domestic partnerships at all.

    Tully, at #69: activist groups are debating whether to bring a repeal iniative in 2010 or 2012. Whichever year they choose, it *will* qualify.

    KatG, at #70: So because it only partially repeals it, in their eyes, it’s okay?So because it only partially repeals it, in their eyes, it’s okay? No. The decision *quite clearly* disapproves. But the question they were asked isn’t “is this ok”; it was “is this a revision or an amendment”, and their analysis of the history of the distinction makes it quite clear that it’s an amendment.

  74. But will a repeal initiative pass, aphrael? That’s the question. Whereas legislatively eliminating all the differences but the label will probably get by, without provoking nearly as much backlash. The numbers to do that legislatively are there.

    In any case, it’s once again back in the hands of the voters instead of the courts, either directly or indirectly. And more experience with existing same-sex marriages NOT ushering in the EOTWAWKI will continue the slo-mo erosion of opposition.

  75. As hinted at above, it would be very easy to resolve the discrepancy here by simply changing the name of the civil contract currently called “marriage.”

    The contract would remain the same thing as it’s always been. Only the name–say, “legal partnership” or something like that–would change.

    People who wanted to get “married” would have to have that title conferred by some other body, since the state would no longer be issuing contracts under that name.

  76. As an aside about the anti-Prop-8 ads –

    I know the family who started the anti-8 campaign. Their summer house and my grandparents summer house out in Marin County were within walking distance, and we kids sometimes hung out.

    Their initial organization was appropriate for the initial pro-8 campaign, which was small and felt to be marginal within California. It was a fairly rational appeal to reason.

    The major outside funded pro-8 Campaign which developed was not something they were prepared to fight, no. But I don’t blame them for not having forseen the level of external funding and vehement support it would get from some religious groups. Those were not exactly well telegraphed prior to 8 getting on the ballot.

    If you start off assuming that every proposition campaign will attract foaming-at-the-mouth outside political support and tens of millions of dollars in outside money, your in-state response to them is disproportionate and likely to turn people off. Sometimes, it happens, and you’re mismatched for a while.

    Problem’s with the process.

  77. But will a repeal initiative pass, aphrael? That’s the question.

    It’s possible.

    I’m neither despondent enough to believe it is guaranteed to fail nor blindly optimistic enough to believe it is guaranteed to win.

    I think we have to fight, and that if we fight smartly and effectively, we will win; and that if we fight stupidly and ineffectively, we will lose.

  78. seems a clear message to the legislature:
    if you pass a ‘civil union’ law there won’t be a judical challnege to it as long as it:
    allows one to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829).

    but beware – anyone who denies anything to a person/couple in civil union that they grant to a married couple will not have a legal leg to stand on. (of course this would not apply to religious institutions )

  79. Go back and review the demographics of those who voted for Prop 8. If it was just conservatives, it wouldn’t have passed. Perhaps you have a more racial point to make?

    Only if you were pretty shallow in your research. Other people have refuted any racial correlations on Prop 8, as other factors have better explanatory power (see, for example, church attendance).

  80. Jasonmitchell: as previously noted, there is *already* a “civil union” law in California; we just happen to call them “domestic partnerships”.

    What’s different now is that (a) it can’t be repealed and (b) whatever rights/responsibilities of marriage weren’t included in it now need to be, either in the existing domestic partnerships or in new not-marriage partnerships.

  81. John Scalzi (#3):
    “My personal suspicion is no later than 2012.”

    The implications of that are frightening to me…

    Mark Maranta (#24):
    “Now of course we have a Conservative bozo in power and they are rumbling about taking the big step backward. I only hope that we can be a little more intelligent than the Californians.”

    I don’t think it’s a matter of intelligence. As KatG points out, it’s about mobilising the right people to participate and really getting the more complacent and less-inclined-to-take-action sort of people out there and voting on the matter.

    But I’m with you on this one in general. The Conservatives need to go. Unfortunately, I’m also not entirely convinced that Ignatieff would be any better.

    KatG (#75):
    “So a little over a quarter of the population of California decided for the other three quarters.”

    Isn’t that always the way though? I’m referring to every democratic vote since…well…forever.

    I’m with most people on this one; not surprised, but not happy with the news either. Of course, I continue to be bewildered by the idea that same-sex marriages (because that’s what they are even if they’re not called that) are, in point of fact, being recognised as valid…so long as they’ve already taken place. Which isn’t to say that I’d be happier with a ruling that would dissolve those marriages, but as others have pointed out it remains a rather curious aspect of the issue.

    How exactly is that being legally justified?

  82. I want an amendment to the Federal Constitution that goes something like:

    A. The right of any two legally adult single persons to marry is a fundamental one and may not be denied by any government within the United States, be it Federal, State, or local.

    B. States may restrict marriage according to their individual laws only in the following manners:

    i. by setting the minimum age at which a person may marry, and
    ii. by establishing rules regarding consanguinity.

    C. All laws, State constitutional amendments, administrative rules and regulations, etc. that violate the restrictions laid out in parts A and B are hereby repealed.

    Also, I’d like to live in a glass castle in the sky. Is that so much to ask?

  83. John: I expect will not remain long as part of the California constitution.

    Maybe. In contrast to other interlocutors upthread, I suspect that depends upon the perception gay marriage advocates in California cultivate about themselves to the middle during the interim. If they take an adult approach which seeks to gain converts by seeking common ground and welcoming former opponents, then sure. If, on the other hand, they respond to this ruling with another round of demonization for people on the other side, then it might be a long, long wait. They need to make up that 3% somehow, and “vote the way I want, you bigot hatemonger!” is rarely a compelling argument.

  84. Dennis Brennan @

    Nonsense. The issue before the court was whether or not Prop 8 had been validly adopted. It was.

    Actually, the issue before the court was whether or not Prop 8 was an Amendment or a Revision of the California Constitution.

    A Revision would have required the Legislature get involved.

    By declaring Prop 8 an Amendment, they basically said that they were wrong in declaring marriage a “fundamental right” since changing a fundamental right would be a revision.

    aphrael

    the court said that the equal protection guarantee remains, and that proposition 8 carves out an *extremely limited* exception applying *just to the word marriage*.

    You’re right. That’s pretty much how things got started here in Vermont as well. But the Vermont Supreme Court never tried to make law. They told the Legislature that they had to fix the problem. From my point of view, it’s shaky, but acceptable.

    So the Legislature passed Civil Unions which gave gays all the rights of marriage but the name.

    That wasn’t enough for the Gay community and they kept pushing.

    I suspect this is what will happen in California. But, correct me if I’m wrong, the Legislature still has to craft a Civil Unions bill, right?

    the US Supreme Court said in Zablocki v. Redhail that it is a fundamental right.

    Check that. I don’t think you’re correct. And I’m pretty sure the SCOTUS doesn’t think that’s what happened in that case. If it were the case, The Defense of Marriage Act which Clinton signed into law would be unconstitutional.

    gwangung

    Other people have refuted any racial correlations on Prop 8, as other factors have better explanatory power (see, for example, church attendance)

    Uh huh. So what are you saying? Real Liberals don’t go to church?

  85. Uh huh. So what are you saying? Real Liberals don’t go to church

    I’m saying you should do your homework.

  86. One point you would think that even the “conservatives” would see is that joint filling requires ‘marriage’ not ‘civil union’. Dollars and cents bigotry.

    I see the LDS stance as having a truly sour-grapes aspect. “We don’t get our definition of marriage so you can’t either”.

  87. Frank: as to whether the legislature has to do anything, it’s not clear. The legislature passed a domestic partnership bill years ago which is almost, but not quite, identical to marriage except in name. What we don’t know is if that’s enough, or if the remaining differences have to be closed off; and the other thing we don’t know is whether, if the existing DPs aren’t enough, the existing DPs automatically convert to not-marriage, or there is a new not-marriage thing which must be recognized.

    as for DOMA: the Supreme Court hasn’t actually ruled on its constitutionality, so arguing that something can’t be true because it would imply that DOMA is unconstitutional doesn’t actually get you anywhere.

    As for Zablocki, it’s extremely difficult to successfully argue that it doesn’t say that marriage is a fundamental right, given that it says: “By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.”

  88. Gerrymander:

    I disagree rather profoundly that pointing out bigotry and hatemongering for what it is is in every case ineffective; likewise I disagree that finding ways not to hurt the feelings of bigots and hatemongers is always an “adult approach.”

    There are many reasons for this, but one that I find especially compelling (and often overlooked) is the fact that the battle is not just for those who are committed to their positions, but those who are standing on the sidelines, unsure of where they will stand when the moment comes. These are the folks who need to hear bigotry and hatemongering called for what it is.

  89. Then again, calling people hatemongers and bigots for not conforming to the entire orthodoxy of one side does not inspire support amongst those who may share the goal but have heterodox opinions on some of the particulars.

  90. Frank 93: If it were the case, The Defense of Marriage Act which Clinton signed into law would be unconstitutional.

    It might be. As far as I know, no one has challenged it. And as you know, the SCOTUS can only react to cases brought to it; it cannot proactively rule a law unConstitutional, regardless of what the Justices may think.

  91. Concerning terms like bigot and hate-monger:
    When someone tells me he doesn’t like being called a bigot, I always answer, “Then quit acting like one.”

  92. Granted without dissent, John. As a heterdox thinker who quite often encounters this I’m sensitive to it, and I see it much on display.

  93. Tully at 98: Not to rehash RaceFail, but there’s a difference between pointing out that someone’s words and/or actions are upholding/reinforcing bigotry and hatred and calling them hateful bigots.

    Generally speaking, bigot is as bigot does, but there are a lot of people who simply don’t realize that what they’re saying or doing is in fact bigotry/hatred, and thus sometimes need that fact pointed out.

    Mature people shouldn’t dissolve into hissy fits when this is brought to their attention. People who sincerely believe in protecting the rights of marginalized people will instead accept and welcome the nudge.

    Case in point: An otherwise-progressive and kind friend didn’t understand that the the term “gypped” was offensive. When it was pointed out, she was shocked, and quickly apologized, and resolved to not use that term anymore.

    OTOH, I quickly discovered that another friend was only a fauxgressive–talking the talk without walking the walk–when I asked him to stop using the word “lame.” He pitched a massive fit, insisting that I was labeling him a bigot, just because I was trying to bring something to his attention.

    Bigotry is not perpetuated only by violent, openly hateful asshats. It’s perpetuated in large part by the inaction, apathy or insensitivity of people who insist they’re not bigoted, but who refuse to change their behavior when someone points out that it furthers discrimination.

  94. Frank@64:
    Hm, think what you may about Prop 8, but NH is swinging more liberal a whole heck of a lot faster than it’s becoming less overwhelmingly white. *bemused eyeroll at her home state*

    To the general discussion:
    People are hypothesizing that CA may in fact take the step many of us dream of, and simply create a non-m-word civil partnership for both gay and straight couples. Seems to me this will never happen as it closes off federal marriage benefits to the straight couples who otherwise qualify. Am I missing something?

  95. Frank @ 42 – I don’t want some future court thinking that it’s suddenly OK for a 40 year old man to marry a 12 year old girl, for instance.

    Oh, you just had to go drawing a line between same sex and legal pedophilia, didn’t you? I mean, it’s absolutely inevitable in any thread like this that someone will decide to try and connect homosexuals and pedophiles.

    As someone who knows what the blood libel looks like from my Jewish heritage, what you just did is the same damn thing.

  96. gwangung

    I’m saying you should do your homework.

    Well, I was using the CNN Exit Polling data which showed

    36% of Democrats and 46% of Independents voted yes

    70% of Black and 53% of Hispanics voted yes while only 49% of whites and Asians voted yes

    52% of women voted yes

    56% of Union members voted yes

    Perhaps you have another way of interpreting these numbers, but my reading of this is that if it was only Conservatives who voted for Prop 8, it wouldn’t have passed.

  97. Well, I was using the CNN Exit Polling data

    Like I said, do your homework.

    Homework involves more than regurgitation of data (or, at least it did when I went to school). At the very least, it involves analysis, thinking about underlying variables and what they mean and how they’re connected.

    Have you done a partial correlation of variables and controlled for effects of one variable on another? Have you done some factor analysis here?

  98. Have you done a partial correlation of variables and controlled for effects of one variable on another? Have you done some factor analysis here?

    Lol

  99. Xopher: while i’m sure that DOMA has been challenged, so far as I know the Supreme Court has never taken a case which implicates it.

    Odds are that it will have to in the next couple of years, as the existence of gay marriage in a handful of states is going to create all sorts of opportunities for other states to deny full faith and credit to the public acts of the states which recognize gay marriage.

  100. Frank…*looks over at the Mallet of Loving Correction in John’s hands*…never mind.

  101. Tal #103: I hear that argument used all the time to justify otherwise offensive actions and words from activists, and I disagree. Sometimes it’s true, many times it is not, being just a rhetorical hammer used to bludgeon the pesky heretics who dissent from the orthodoxy even though they share the goal. See #74 for illo of my actual point in action. Being used against me for an uttered opinion that differs from the orthodoxy, calling me out as a facilitator of the “anti-equality folks” for so doing.

    But I’m not gonna meta the thread, so having made my point I’m gonna STFU about it.

  102. John @ 97: the battle is not just for those who are committed to their positions, but those who are standing on the sidelines, unsure of where they will stand when the moment comes. These are the folks who need to hear bigotry and hatemongering called for what it is.

    Fair enough. But. It’s important to remember that those same people on the sidelines will be judging their positions relative to how representatives of the two sides display themselves. If they can’t easily distinguish how the pro-gay marriage side differentiates their fence-sitting from those castigated as bigots, the net result will be a de facto assessment that they are also being called bigots.

    Contra your reply to Tully above, it seems the “hatemonger” hammer is increasingly the only tool in the box ever pulled for use, and oddly enough, people tend to object to being treated as nails.

  103. Bad news, Frank: courts already recognize pedophiles’ marriage, as long as the marriage was legal in the state where it occurred.

    So try another inflammatory bit of nonsense, k?

  104. Gwangung at 107

    Have you done the factor analysis? Or can you link or point to it?

  105. The other standard suggestion other than pedophilia are usually bestiality or incest. You know, “If we let them queers marry, next thing it’ll be men marrying sheep, or dogs or somesuch” or “what if someone wanted to marry his sister, could that be legal too?”

    People who say those sort of things usually do it because they’re bigots who want to hurt people, make others afraid, and/or lack the human empathy to care who they hurt by saying it.

  106. Heh, I initially wrote a way, WAY longer response than this but I guess I’ll just summarize it as this:
    I am a Malagasy (Madagascan for the layman) citizen, in a committed relationship with a Californian citizen. I always adhered to the idea that marriage had no special effect on a relationship – it only imports to how others see it. Except that it DOES have an effect when a country bars me from living with him as a member of his family, because under that country’s law I’m just a foreign citizen with no family relation whatsoever to him.

    I know, Prop. 8 is a State-level issue and my problem is a Federal-level one, but the fact still remains that a mere semantic difference can have a HUGE effect in some situations : being forced to live 11,000 miles apart because we can get a “civil union” but not a “marriage”, isn’t that just great?

    At least, there’s one person I’m happy for : a friend of mine who got to marry his boyfriend before Prop. 8 passed. He used to say that he wouldn’t bear having gotten something (marriage) that his friends won’t be able to get, but I’ll keep telling him how happy I am to know his marriage holds. If not just for the sake of being happy, then at least for the idea that if he got married, then it is only a matter of time before we do, to.

  107. *aphrael: “No. The decision *quite clearly* disapproves. But the question they were asked isn’t “is this ok”; it was “is this a revision or an amendment”, and their analysis of the history of the distinction makes it quite clear that it’s an amendment.”

    The decision doesn’t disapprove because if it did, it would have ruled Prop 8 a revision, not an amendment, because it clearly is a revision of the constitution’s equal protection under the law, the part that overturned the illegal law last year. What the court said is that Prop 8 doesn’t effect gays enough to constitute a revision of their constitutional rights. But it quite clearly does. So the court may have technically followed the laws of ballot initiatives, but did not follow constitutional law.

    Essentially, they picked one part of the constitution over another, in order to pass the buck. The court institutionalized discrimination, discrimination they’d overturned previously, on the grounds that as long as the discrimination provides separate but equal facility (domestic partnership,) it can continue, even if it violates the federal constitution that says such laws are illegal in the U.S. (But hey, DOMA is the same thing.)

    I would suggest that gay couples in California who want them have marriage ceremonies. They may not be legally recognized but they aren’t recognized at the federal level anyway for taxes and such, so why not. File as domestic partnerships legally, but call them marriages in public. File lawsuits for every denial of equal rights for the partnerships, flood the courts with them. The fact is that you can’t stop someone from calling their relationship a marriage, only in getting the law to recognize it as such. Slaves jumped the broom, and gay people having commitment ceremonies and weddings even though they weren’t legal in the 1990’s did a lot to help gay marriage rights go as far as they have now. They can’t stop us using the word marriage, or the idea of marriage for gays. They won with the law, for now, but not with free speech.

    And yes, I know that most of the populace doesn’t vote in elections because they are idiots or sadly are sometimes prevented from voting. But it’s worth pointing out that this is not the will of the people of California, but of a narrow group that worked the system.

    The anti-gays always claim that the U.S. gay population is 2-3%, and therefore should be ignored. But studies show that gays make up about 10% of any population, a far more sizable group, which is why they lie and downplay it. But even 2% is of course millions of people.

  108. Frank @34:

    This is State business. There is no Federal issue.

    Can you clarify what you meant? Are you referring solely to Prop 8 or to SSM in general?

  109. This doesn’t directly affect me — I’m a single Californian, and only 80 years old, but with absolutely no intention of marrying anyone. At least I’m cheered by the fact that this Decision recognizes the same-sex marriages that have been performed here, and presumably those performed in in the few, more-progressive, other states where they’re now legal.

    My guess is that the neighboring state of Nevada, which has a lucrative business in performing marriages and divorces with practically no waiting/residence requirement, will soon legalize same-sex marriages.

  110. Have you done the factor analysis? Or can you link or point to it?

    When in doubt, check with fivethirtyeight.com. He’s done several comments about breaking out the various factors, pinpointing the generational divide (older voters were more supportive of Prop 8, and older voters are more actually likely to vote) and the religiousity factors (the more regular church goers are more likely to support Prop 8).

    As well, the Public Policy Institute of California also pinpointed a factor of eduction and socioeconomic level (the more highly educated the voter, the less likely to support Prop 8, which held across races at roughly the same level).

  111. KatG: because it clearly is a revision of the constitution’s equal protection under the law

    Yes. It changes the meaning of the equal protection clause; nobody is disputing that.

    But what the court is saying is that a revision is a change to the constitution of “the kind of wholesale or fundamental alteration of the constitutional structure that appropriately could be undertaken only by a constitutional convention” – ie, something which institutes “far reaching changes in the nature of our basic governmental plan”.

    Previous courts have held that creating the initiative system wasn’t a revision; that repealing the fair housing law and denying black people equal right to protect property wasn’t a revision; that abolishing the diminished capacity defense (and thereby restricting the rights of criminal suspects) weren’t a revision, etc.

    Given these precedents, the only way that Prop 8 *is* a revision is if somehow the right to marry trumps these other rights … which I think would be hard to support as a matter of legal theory.

    I think it’s extremely difficult to read the following as an endorsement of Proposition 8:

    Equal protection’s continuing vitality in the present context is shown by this court’s unanimous reaffirmation of its conclusions in the Marriage Cases, supra, 43 Cal.4th 757, that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that — excepting the name — same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions “marriages,” but it does not otherwise affect the state’s obligation to enforce the equal protection clause by protecting the “fundamental right . . . of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.” (Marriage Cases, supra, at p. 830.) For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains.

  112. Like Obama, I am not for same-sex marriage, rather I am for equality of civil unions.

    Obama’s words: “I have not said that I was a supporter of gay marriage, but I am a strong supporter of civil unions, and I would, as president, make absolutely certain that all federal laws pertaining to married couples — benefits pertaining to married couples are conferred to people who — same sex couples who have civil unions as well.”

  113. Frank@93
    I wrote:
    >Nonsense. The issue before the court was whether or not Prop 8 had been validly adopted. It was.

    You schooled me thus:
    >Actually, the issue before the court was whether or not Prop 8 was an Amendment or a Revision of the California Constitution. A Revision would have required the Legislature get involved. By declaring Prop 8 an Amendment, they basically said that they were wrong in declaring marriage a “fundamental right” since changing a fundamental right would be a revision.

    Huh. Guess I’ll have to actually read the decision, then, since this distinction between an “amendment” and a “revision” is not something that I’ve ever heard of before, and it sure sounds wacky.

  114. Aphrael: Yeah, I get it. The courts must ratify institutionalized bigotry because that’s the law on law-making. I understand how their hands were tied. They were just following orders. Legally, they can say that it’s not a revision. Technically, it is, because it isn’t really equal protection. So now gays have to spend millions and waste years trying to make it real equal protection for more than the 18,000 couples. And that’s only for California.

    Understand, I’m not saying that California is worse than a lot of the country. But saying that discriminatory segregation is legally justified is trying to duck out of the true intent of constitutional law. It’s not the first time, it won’t be the last. Saying that gays can have separate but equal rights is the same as saying that they can’t have the rights. The former usually is a transitory step in getting true equal rights, but the intent of segregation is the same as prohibiting rights. It’s the fallback position.

    Which is why, JimmyJones, you and Obama saying that the gays can have their own water fountains so they don’t have to touch your water fountains is not acceptable and is still bigotry. Obama is using the same language that used to be used to deny people like his parents the right to marry — interracial and interfaith. I won’t give you the rights I have, he’s saying, but I’ll give you rights that are just as good. You’ll live there in gay domestic partnership land, segregated from me, so you can shut up and go away. It’s like saying that I have religious freedom, but you have what I let you have, out of the generosity of my overcoming my repugnance of your ways. It’s not good enough, and it certainly isn’t equal.

    Equal is equal, not separate. Segregation never works.

  115. you and Obama saying that the gays can have their own water fountains so they don’t have to touch your water fountains is not acceptable and is still bigotry

    Since I’m an openly gay man, I find this remark pretty funny. It’s impossible for “the gays” not to touch my water fountain.

    I understand how their hands were tied. They were just following orders.</em.

    Pretty much, yeah. This is in general how courts work: they answer the questions posed to them based on the law as it stands.

    What the court did last year was say that the California constitution requires equal protection of gay people; they were right. What they did yesterday was say that the California constitution allows the people to amend the constitution in pretty much any way they want, as long as that ‘amendment’ doesn’t change the structure of government … and that all the people did was take away the name, but all of the other the substantive rights remain.

    I think they’re absolutely right about the structure of the California constitution; the people’s reserved power to amend the constitution includes the power to take rights away, and the people have (unfortunately) done it numerous times.

    But the brilliance of the decision in my mind is that they narrowed it to being just the name. Domestic partnerships are now constitutionally required.

    I would greatly prefer to be able to have my marriage recognized by the state as a marriage and not a domestic partnership; to me it’s a marriage, and it’s accepted as such by my friends, family, and community. But 999/1000th of a loaf is a lot better than none, and as a student of the law I’m highly amused at how the Supreme Court gave the proponents of Proposition 8 the minimum possible without overturning it and not an inch more.

  116. Those of us who are truly happily married cannot countenance the idea that we would ever be told that a) we’re not allowed to be married even though others are and b) it’s OK, we can have a ‘civil union’ and it’s just as good. One day we’ll look back on all this fuss as a human race (I hope) and be evolved enough emotionally to wonder how we could ever be so daft. How many versions of ‘us and them’ can we find as a human race to divide ourselves?

    However, I do have a positive suggestion. I think that John Scalzi should produce and market the Loving Mallet of Correction (TM) and use the profits to support any work which opposes hatred and bigotry. Come on, Mr. Scalzi, humanity needs your Loving Mallet …

  117. aphrael 125: Since I’m an openly gay man, I find this remark pretty funny. It’s impossible for “the gays” not to touch my water fountain.

    You missed part of KatG’s sentence. She changes from addressing you to addressing JimmyJones thus: Which is why, JimmyJones, you and Obama saying that the gays can have their own water fountains so they don’t have to touch your water fountains is not acceptable and is still bigotry.

    KatG was responding to JimmyJones having said Like Obama, I am not for same-sex marriage, rather I am for equality of civil unions.

    JimmyJones is not an openly gay man, AFAIK, so KatG is quite a bit more justified in saying that to him.

  118. The people who do the boffer war weapons at various sci-fi conventions sell warhammer type things. I’ve got one. It works pretty well.

  119. Xopher: that’s fair. Your interpretation had not occurred to me; I took it as “Jimmy Jones, you, and Obama”, as a three element list.

    KatG, if Xopher’s interpretation is correct and mine is wrong, you have my apology for misreading you.

  120. Xopher, I think your amendment is too complicated. Something more like,

    Whereas the Marriage Contract is a fundemental right, Congress shall make no laws preventing the people from forming Contracts of Marriage in such forms as the parties see fit.

    So, no you can’t marry your dog, because your dog can’t enter into a contract. You can’t marry a child, for the same reason.
    Other than that, I don’t see why consenting adults can’t arrange their responsibilities to each other in a manner that suits them.

  121. aphrael 131: Ah, I see. No, that’s why the serial comma is important. But I think if KagG had meant that, the phrasing ‘you, JimmyJones, and Obama’ would be more natural, don’t you? But do let’s wait and see what KatG has to say about it.

    Steve 132: That’s a more radical change than I wanted to make. Your version allows full siblings to marry, which would be grounds for opposing it (in fact I’m not entirely sure *I* don’t think consanguinity restrictions are legitimate). Also, there are some good reasons for making marriage a special contract. We don’t want groups of 45 conspirators all to be able to claim spousal privilege and refuse to testify against each other. Perhaps you’d eliminate spousal privilege, and other things that make marriage unique (IANAL but I hear it’s the only contract that can require specific sexual behavior of the parties involved).

    And there, I think, is the rub: your version would fundamentally change the nature of marriage in the United States. I don’t want to do that (much as the anti-equality folks would claim I do); I just want in. Changing who gets to do it doesn’t change its fundamental nature.

  122. Btw aphrael, your interpretation hadn’t occurred to me until you made it explicit at 131. I was mystified as to how you could think KatG meant you!

  123. Xopher is correct, I was responding to JimmyJones on that part, not you, aphrael. But it’s my fault because I did not use the proper “JimmyJones:” formatting to make it clear. JimmyJones is saying that you, openly gay married law student, cannot touch his water fountain, but that you can have your own kind of water fountain that will be just as nice.

    Of course, you could go that way. When Jews were prevented from using country clubs and hotels, they built their own, and they were very nice. Segregated, but nice. And if you feel, with better understanding of the courts than I’ll probably ever have, that the court decision made as much headway as possible, as Scalzi does, well then I’m glad to hear it. But one day, you get to walk in through the door of the hotel and not be told that you have to go to your own place, you can’t stay here. You get that 100 parts of a loaf.

  124. Xopher, at 133 and 134: English is an astonishingly ambiguous language sometimes.

    Josh, at 136: aye … but unfortunately English teachers are now teaching that the last comma in a list is not necessary, meaning that that cue is no longer reliable. :(

    KatG, at 135: But one day, you get to walk in through the door of the hotel and not be told that you have to go to your own place, you can’t stay here. You get that 100 parts of a loaf.

    That’s the goal. We’re not there yet. But I’m keenly aware of just how much more of the loaf I have today than I did, say, eight years ago. :)

  125. Just remember folks, my view is the same as the Almighty Obama himself. I stand behind my president on this one.

  126. That’s not the comma that made the crucial distinction in KatG’s comment, though. It was the one after “why”:

    Which is why, JimmyJones, you and Obama saying that …

    The first comma is one of a pair delineating an aside that, in this case, clarifies the rest of the sentence by identifying who is being addressed.

  127. John 139: He does seem to like rubbing that one in, doesn’t he? It’s like he thinks we worship Obama, or are invested in his infallibility or something. He must be astonished by how little rise that’s getting out of us.

  128. Xopher

    I had about six jokes about sandwichs involving condiments and other things including channeling Clara Peller, that I know you would appreciate, but I hesitate to divert the thread any more than it is or have the LMOC applied to my skull.

    Consider them said and know I’m giggling out loud with you… 8D

  129. aphrael @ 137

    Josh, at 136: aye … but unfortunately English teachers are now teaching that the last comma in a list is not necessary, meaning that that cue is no longer reliable. :(

    Spelling counts and clarity is awesome.

    Use it, I say, and a pox on English teachers.

  130. Xopher, not astonished at all, you did comment ;-)
    And yes, from prior comments I have read here you would think obama had cured cancer or something. I suspect he feels the same as you but is too much a wimp to say it.

  131. JimmyJones

    And yes, from prior comments a really stupid right wing meme, not from real evidence or anything I have read here I got instructed to use by right wing astroturfers, you would think obama had cured cancer or something.

    Fixed that for you, Mr. Troll.

  132. I know at least one publisher whose copyediting standards put serial commas in if the writer leaves them out.

    Teaching people to leave them out is the same kind of nonsense as teaching them never to end a sentence with a preposition (and mostly they don’t know the difference between a preposition and a separable prefix) or not to freely split infinitives.

  133. LOL I meant “if you respond to JimmyJones.” Failed to notice that you’re also a JJ.

  134. [Deleted because you’re a troll when I say you are. You’re done with this thread, JJ — JS]

  135. Where IS that MOLC when you need it?!? Drat.

    Jeff S. 144: Thank you! :-)

    Brian 146: Hear, hear!

  136. [Deleted — and unread past the first sentence, so anything you wanted to say to me, JJ, is gone. Also, since you know the rules but choose to ignore them, now you’re in the moderating queue. Enjoy it — JS]

  137. or not to freely split infinitives

    The absolute only reason anybody argues for split infinitives is that Star Trek did it.

  138. That’s how they really got the energy for warp drive: They didn’t rely on anti-matter, or dilithium crystals (or even as referenced in Spock’s Brain “ion power) — they simply split the infinitive.

    Splitting the atom was nothing in comparison.

  139. There it is! JS to the rescue! Thanks, John.

    mythago 156: Oh, untrue. I argue for them because a) the reason for banning them in the first place was stupid (Latin infinitives are single words, so can’t be split; but the language English that same thing as Latin not is) and b) because I believe that the reason English infinitives are two words is so you can put something in the middle.

    Sometimes splitting an infinitive is awkward, and then it’s the awkwardness that should be avoided, not the split infinitive. The alternatives to splitting infinitives are usually even more awkward than the split infinitive would be. To use your example, ‘To boldly go where no one has gone before’ is less awkward than ‘To go boldly where…’ and either is better than the egregious ‘Boldly to go where…’ which last I heard is what the enemy Latinate prescriptivist grammarians were advocating.

    Adverbs in English go, by default, right before the stem of the verb they modify. It’s relatively rare to have an adverb with an infinitive at all, but when you do it goes between the ‘to’ and the verb stem. Unless it sounds awkward, which is the rub, because all those years of being taught grammar by Latinate prescriptivist grammarians have made the split formation sound awkward to some people.

  140. John 159: I wrote my last when he was just in the moderation queue. I now have this to say about his going in the banned queue: And there was much rejoicing. Sic semper….sic semper…damn, gotta find out the Latin word for ‘troll’.

  141. And I’m happy to report that I saw neither 155 prior to its deletion nor the comment that tried to get around moderation, so I’m blissfully unaware of what JimmyJones might have said. I’m sure it was angry-making, but it didn’t work because I was typing my other posts when those went up, so neener neener.

  142. because I believe that the reason English infinitives are two words is so you can put something in the middle.

    In the middle of the verb, you mean? It’s nigh unto an infix, something English barely uses. “To go” is a verb. “Boldly” is an adverb. Adverb + verb != verb. You’re just putting the adverb where it doesn’t belong and calling it a whole verb.

    And c’mon, the only place you hear about the tyranny of the unsplit infinitive is in the SF community. Why….could that be?

  143. Actually I learned how stupid that rule is when I was getting my linguistics degree. That’s also where I learned that English doesn’t actually have any true infixes. An infix has to be within another morpheme. ‘Fucking’ isn’t an infix in ‘in-fucking-credible’, because ‘in-‘ is an affix too, a prefix, and ‘fucking’ is just another prefix.

    Even if you consider the English infinitive a single word (prefix ‘to’ + verb stem), which I certainly think is an incorrect analysis, the adverb would be a prefix that “binds” more closely to the verb stem than the ‘to’ prefix.

    The other fallacy in your analysis is the idea that the infinitive is the base form of the verb, which isn’t accurate. The stem is the base form in English. In fact I’m not sure the infinitive is a true infinitive; it’s the form used where other languages use their infinitives, but I think that ‘to’ isn’t so much a prefix as a particle.

    As for blockquote, if you explicitly close your quote with </blockquote> you won’t have these problems.

  144. I hear there’s a move afoot for a ballot initiative in California to amend the state constitution to ban split infinitives.

  145. Actually I learned how stupid that rule is when I was getting my linguistics degree.

    Oh, I see – so you had teachers who were Trekkies. I’m sorry, but I’m not going listen to this nonsense from somebody who is unaware that every time you end a sentence with a preposition, God tapes bacon to a cat.

  146. mythago 168: A cat is a fine thing to tape bacon to. Tape is a fine thing to attach bacon to a cat with. God is a fine person for bacon to be taped to a cat by.

    *notes world does not end*

    DG 167: The more of this people see, the less chance there will be for that initiative to pass! A snowball in hell is what it has the chance of passing of! (OK, I’ll stop now. I’m sure a hole in the head is what you all need this like.)

    Marc 170: Hmm, fair enough. I think in the context of English ‘fantastic’ and ‘California’ are monomorphemic, whatever their history may be (and I don’t have my books with me to look them up*).
    ___
    *Please note that ‘up’ is not a preposition in this context. It’s a particle, part of the verb ‘look up’. To see the distinction, consider the following sentences:

    The wind blew up the stairs.
    The wind blew the stairs up.

    In the first sentence, the meaning of ‘up’ is ambiguous, but we assume the NP V PP construction (that is, the wind blew, and the direction it blew was up the stairs). In the second, ‘up’ is unambiguously a particle, part of the verb ‘blow up’, and means that the wind caused the stairs to explode (when that happens the “wind” would usually be called “the tornado” or something similar).

    But ‘up’ COULD be a particle in the first sentence too. Compare

    Al Qaeda blew up the trains.

    We don’t know, but because exploding as a result of wind is unusual, and because the second sentence would be used if it occurred, we’re safe in assuming that ‘up’ is a prepositional phrase indicating the direction of the wind. Al Qaeda, on the other hand, cannot blow in the sense the wind does, so that interpretation too is rejected, without even impinging on our conscious minds. We assume that the meaning of this last sentence is basically

    Al Qaeda blew the trains up.

    I am running off at the keyboard (and wayyy off topic). I will stop now.

  147. Arggh. Should be …in assuming ‘up’ is a prepositional phrase indicating the direction…

  148. Xopher: And anyway, everyone knows that a ban on ending sentences with prepositions is the kind of errant pedantry up with which no one should put.

  149. I am sickened by the ruling. I would have participated in the protests on Wednesday… or maybe it was Thursday…
    Time really losses meaning when you’re trapped in the center of homophobic hell, or educational purgatory, which ever you prefer. It really disgusts me to think that California is a host to such extreme hate and homophobia. Many of my friends have been hurt by this unconstitutional ruling. I am not a homosexual, but I believe in freedom to love! Where is John Lennon when you need him?

  150. Corby, I just finished looking at (to call what I did “reading” would be an exaggeration) a paper on how carbon nanotubes can assist in neurocoupling, even neuroprosthesis.

    When you used the phrase Gay Legal Couplings I had a moment of confusion where I wondered if carbon nanotubes could help with marriage equality…it was weird.

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