Mythago:
The *least* activist choice is to snip off whatever makes the law unconstitutional and leave it otherwise intact.
Duly granted. If the California law said something like “blah blah blah, only one man and one woman,” and that statement was excised as unconstitutional, then they can rock on proper with their bad legal selves. However, my:
Legislature … [can] amend the constitution so that the marriage law no longer conflicts with it.
still stands – if the legislature wants the law to stand in its original form, it has the power of amendment at its disposal.
Regarding the second point, yes, you’re correct. However, my point was not that all historical laws are good/bad and should be embraced/reviled, merely that historical precedent plays a role in the language and interpretation of law. If most states hadn’t had laws granting the right to vote only to white males, the respective race- and sex-related language in the 15th and 19th Amendments would have been rather meaningless.
Perhaps I mis-emphasized my point… I’m not trying to say that historical marriage (and other) laws are what we should go by. I’m merely arguing that it’s not correct in this instance for Judge Kramer to say that laws or practices restricting marriage to heterosexual relationships became traditional, since there was never a point when (to the best of my understanding) homosexual marriage was embraced or actively supported by law. <shrug> Mayhap I’m splitting the hairs finer than they’re worth. :-)
John H.:
One thing that makes our country great is the flexibility to amend our laws to embrace new ideas; to fix the system if it proves to not work the way it should.
Amen to the amending. It’s just important that the legislature do the amending, and that the judiciary stick to judging.
Amen, brother.
Indeed. But you missed my favorite line:
“…it appears that no rational purpose exists for limiting marriage in this State to opposite-sex partners.”
I know that the use of the word ‘rational’ stems from this being part of the Rational Basis Test, but it still makes the truth apparent– that people that are against same-sex marriage are irrational. :)
That opinion is a laugh and a half. Judge takes some nice shots (citing Lawrence v. Texas, direct comparison to Sep but Equal, anti-miscegenation laws) and does it with style.
You know, I wonder how many state supreme/circuit court judges across the nation already had outlines of opinions written out. It’s slow pitch, as far as judicial decisions go.
Whether marriage itself is rational depends on your postulates; and if you examine those postulates rationally, sooner or later you’ll get to one that’s pure preference over logic. (Even if it’s “I prefer to be alive.”)
That said, I don’t really care that marriage is irrational. That’s actually better for open marriage — we’re all irrational creatures, so there’s no grounds to impose our particular brand of irrationality on others in issues that don’t affect us.
Once again, Canada shows its leadership on the world stage. Glad to see youse guys is keeping up.
Eh?
OMFG! WTF! I feel the bonds of my marriage dissintegrating! I am set adrift into unbridled lawless lust! Where’s the nearest hot chick, hot guy, reasonably clean dog, unplugged kitchen appliance?
Fortunately, Ronco has a new product for people like me. Gay-Away!
FADE IN to tastefully appointed sitting room. MOTHER and DAUGHTER, dressed prep, sit on a retro Laura Ashley couch. CUE soft ochestral music. CUE soft focus.
DAUGHTER [uncomfortably]: Mom … do you ever feel … you know … not so sacred?
MOTHER [reassuringly, placing hand on daughter’s knee]: Oh, of course, Muffy. Things just aren’t the SAME anymore now that godless liberal judges have changed the institutions that make our society great.
DAUGHTER: Oh, Mom, that’s just what I mean? How can Chip and I have a sacred and intimate moment when I know that two stinking homosexuals are allowed to formalize their lifelong commitment as if it were as good as mine?
MOTHER: I feel the same way with your father, dear. The first Saturday night of the quarter just can’t be the same when I know that the legal system won’t let the proper authorities round up the deviates. [Leans in closer.] But there’s something new that can take that feeling away! [Pulls brightly-colored aeresol can from under teak coffee table] New Gay-Away!
DAUGHTER: [Looks at table, tilts head, puts finger to chin] Gay-Away?
MOTHER: Yes, dear! Gay-Away helps preserve your sacred relationship from assaults by the gay agenda!
[CUT to animated diagram for rest of MOTHER’s speech: icon of couple holding hands is attacked by vicious-looking pink triangles, gold Stars of David, and little red copies of the Bill of Rights; suddenly HAND appears with GAY-AWAY can and sprays the couple to the sound of holy chorus. The icon of the couple is now protected by a shining force-field; the attacking icons dissolve impotently against the shield.]
MOTHER: Nine out of ten doctors and talk-radio personalities agree that GAY-AWAY protects your sacred relationship from 99.9% of the corruption threatened by homosexuals, Jews, and communist ACLU lawyers!
[DIAGRAM dissolves back to scene of mother and daughter]
DAUGHTER [happily]: Oh, Mom! It sounds like GAY-AWAY is just what Chip and I need!
MOTHER [holding up can to the camera]: And now GayAway comes with new NegroGuard! Are you upset that the permissive laws of our sick society permit Betty Sue down the block to marry Lamont, a Negro? GayAway with NegroGuard can take you away from all that and help you remember a time when everyone knew their place — in marriage or out of it! [MOTHER smiles brilliantly]
DAUGHTER [laughing happily]: Oh Mom! I can always count on you! [Takes can]
MOTHER: To the sacredness of your marriage, dear!
DAUGHTER: No, Mom, to the sacredness of OUR marriages! [They laugh. DAUGHTER lifts the can and prepares to spray the room with it]
MOTHER: No, you have to huff it.
FADE OUT
[Ah, that’s not as good as the version I wrote during the whole SF gay marriage thing last year, but I lost my copy of that and had to re-write it.]
Kramer isn’t exactly known for his wild liberal opinions herebouts.
The local nuts are shrieking about “God’s constitution” and “judicial tyranny,” because there’s frankly nothing substantive to oppose his opinion.
This judge actually has it right, IMO, in saying that the law runs counter to the California Constitution, as it now stands. Thus, the responsibility is now with the legislature to either adjust the law so that it passes judicio-constitutional scrutiny, or to amend the constitution so that the marriage law no longer conflicts with it. The gripe I have is with judges who say, “The current law is unconstitutional, therefore this other law that I made up that is constitutional is now in force.” That’s not the way it should be. Legislative branch says, “Here’s law;” judicial branch says, “Okay, that’s fine” or “Nuh-uh, no way, fix it!”Also, a small semantic point:
It’s really not so much the case that the heterosexual marriage has “become traditional” in our society as it is that at the time when much our law was drafted, homosexual marriage wasn’t even being considered. (Yes, yes, Utah and polygamy, special case. Still heterosexual, however!) Thus, as above, if the judicial branch is now saying “Nuh-uh!” to previously “Okay, that’s fine” law, then it’s especially important that the legislative branch be in charge of drafting the new/revised laws that forge into this heretofore relatively unexplored legal territory.
Brian, you’re a little off there. The *least* activist choice is to snip off whatever makes the law unconstitutional and leave it otherwise intact.
You might also note that equality before the law between men and women “was not even considered” at the time the marriage laws were drafted. Ready to go back to couverture?
If we’re going to go back to what the tradition was when the laws were written, we’ll have to undo quite a bit of our legal system. No more emancipation for African-Americans, no more voting for women, etc. One thing that makes our country great is the flexibility to amend our laws to embrace new ideas; to fix the system if it proves to not work the way it should.
Mythago:
Duly granted. If the California law said something like “blah blah blah, only one man and one woman,” and that statement was excised as unconstitutional, then they can rock on proper with their bad legal selves. However, my:
still stands – if the legislature wants the law to stand in its original form, it has the power of amendment at its disposal.
Regarding the second point, yes, you’re correct. However, my point was not that all historical laws are good/bad and should be embraced/reviled, merely that historical precedent plays a role in the language and interpretation of law. If most states hadn’t had laws granting the right to vote only to white males, the respective race- and sex-related language in the 15th and 19th Amendments would have been rather meaningless.
Perhaps I mis-emphasized my point… I’m not trying to say that historical marriage (and other) laws are what we should go by. I’m merely arguing that it’s not correct in this instance for Judge Kramer to say that laws or practices restricting marriage to heterosexual relationships became traditional, since there was never a point when (to the best of my understanding) homosexual marriage was embraced or actively supported by law. <shrug> Mayhap I’m splitting the hairs finer than they’re worth. :-)
John H.:
Amen to the amending. It’s just important that the legislature do the amending, and that the judiciary stick to judging.
merely that historical precedent plays a role in the language and interpretation of law
Read the opinion, please. It “plays a role”; it is not a trump card.
Throwing out the entire marriage law, so that California had none, would have been overreaching. Kramer didn’t do that. He merely said that the law slapping an unconstitutional restriction on marriage (i.e. gender-biased) was a no go.
Mythago, I’m not entirely sure what part of my statement you’re arguing against… it seems to me that we’re in agreement: historical precedent plays a role in judicial decisions and tends to affect the language thereof; and in this instance the judge was justified in ruling the law unconstitutional based on the text of the law and the CA Constitution.
(As another aside… are all legal opinions printed double-space in Courier like that? Wouldn’t a smaller, proportional font serve just as well and also save paper?)
“As another aside… are all legal opinions printed double-space in Courier like that? Wouldn’t a smaller, proportional font serve just as well and also save paper?”
It’s harder to read quickly and clearly with dense, proportional text (this is also why book and magazine submissions are generally specified to be double-spaced 12-type Courier font).
It’s also a draft opinion. (The little ‘Gordon Park-Li’ stamp on the top right corner decorates approximately 3,293 other pieces of paper in my office.)
Ken: That was the funniest thing I’ve read all week. May I pass it on, and if so, what attribution would you like?
Steve: Thanks. Pass it on to your heart’s content. Attribute it to a poster on Whatever so more people will enjoy this fine site. (And if they read it here and follow to where I posted it on my blog, that’s fine as well). Or treat it as open source. Up to you.