Same Sex Marriage in California

It’s on its way:

The California Supreme Court ruled today that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory.

But note:

The state high court’s ruling was unlikely to end the debate over gay matrimony in California. A group has circulated petitions for a November ballot initiative that would amend the state Constitution to block same-sex marriage, and the Legislature has twice passed bills to authorize gay marriage. Gov. Arnold Schwarzenegger vetoed both.

Basically, if you’re wanting to have a same-sex marriage in California, sooner would be better than later.

That said, a good day for basic human rights in my native state.

Update: From the ruling:

“Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and more generally, that an individual’s sexual orientation like a person’s race or gender does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental consitutional right to form a family relationship, the California constitution properly must be interpreted to guarantee this basic civil right to all Californians whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.”

Rock on.

109 Comments on “Same Sex Marriage in California”

  1. AFAIK, sooner or later won’t matter if the constitutional amendment goes through; it’s worded to nullify all existing state same-sex marriages.

    Today is a good day for Californians to rejoice, and start going door-to-door to encourage voters to reject the bigots’ amendment in November.

  2. The good news is that Schwarzenegger apparently opposes any constitutional amendment to ban same-sex marriage and has previously indicated that he intends to abide by the California Supreme Court’s decision on this issue.

  3. See, that’s one of the few things that annoys me about Arnold.
    (I live in NY, support gay marriage, and btw am a big new fan of your books, John).
    Republicans for years have said “Don’t let activist JUDGES decide this issue, let the people decide”. So the state legislature votes on it, and Arnold VETOES IT ??? Aren’t those state representatives saying “I think my constituency wants this passed, and if I’m wrong they will choose a different guy to represent them” ?
    I didn’t check to see how close that vote was, but it was a tremendous opportunity to tell the usual anti-gay bigots that “hey, here is the people making the choice…and they say YES”

  4. Passing a constitutional amendment takes a lot of work. The idiots who’ve tried to do so in Massachusetts a couple of times now haven’t made any progress. Of course, we’re a little more liberal in Massachusetts than in California, but still, it’s much harder to pass than something that simply takes a vote.

  5. This is a huge victory for McCain — same-sex marriage is the only big issue the GOP can still rely on to rally the masses.

    Perhaps I’m too cynical.

  6. Sean Eric Fagan:

    It’s possible. The question is whether people are more concerned about the war and the economy. When people are feeling unsure about their own position economically, stuff like this takes a back seat.

  7. They’ll get the Constitutional amendment on the ballot; getting it voted in is a different thing. Prop 22 passed eight years ago, not yesterday.

    That said, if you’re going to get married to someone of your own gender in California, sooner is good.

  8. Also, the more people who get married as soon as the decision comes into effect (30 days) the harder, politically, it will be to repeal – its one thing to rationalise preventing a particular group of people from being married, its harder to say “yes, I’m ok with de-marrying all these people that are legally married.” Its not that difference in substance, but taking AWAY rights is feels more unpalatable.

    Also, whoever said it’d help McCain… he is on record as saying he thinks the definition of marriage is a state issue, so he’d be a bit hypocritical to bring it up… not that that has stopped politicians of all hues in the past!

  9. and start going door-to-door to encourage voters to reject the bigots’ amendment in November.

    I object to the notion that taking a moral stand on a particular item is equal to bigotry.

  10. Taking a moral stand on a nebulous “particular item” may not be bigotry, Pete, but objecting to two consenting adults getting married, just because they happen to be of the same sex, seems like bigotry to me.

  11. @Pete

    Why is it morally wrong for somebody to marry the person they love and want to spend their life with? What difference does gender make?

  12. Marriage (heretosexual or homosexual) is not a basic human right. Personally, I’d like to see the state stop serving as a marriage registrar altogether.

  13. Taking a moral stand = refusing to ever become part of a gay marriage yourself, regardless of your orientation.

    Being a bigot = refusing to ever allow anyone else to ever become part of a gay marriage as well.

    Isn’t Pete a so-called ‘libertarian’? This should be basic Libertarianism 101, no? The only “defense” at this point is to claim that gay marriage causes some sort of extra-personal harm to even uninvolved people in near proximity. You know, like second-hand smoke or something.

  14. Every time I want to write something snarky about this, I just think about my friends Owen and Greg. They got married in SF during that brief window, and they threw a hell of a party afterwards. If their marriage gets the same status as mine, that’s a big bucket of awesome.

  15. Well since I live in California I can bring up getting married to my boyfriend .. and watch him freak out about it. Yeah, I get to do the same things as straight people do in there relationships. Seriously though, I would aim to have a better relationship with my BF before I get hitched to him. gay marriage is tricky, but gay divorce is a frakking nightmare.

  16. I’m not terribly interested in being drawn into a debate here. It is clear that we are arguing from a different set of basic assumptions and that there is never going to be a meeting of the minds. I shan’t waste my time or yours.

    John is a great host; I would prefer not to degrade his topic with a discussion that only serves to be divisive.

  17. Marriage (heretosexual or homosexual) is not a basic human right. Personally, I’d like to see the state stop serving as a marriage registrar altogether.

    Of course it’s a basic human right. Freedom of association, freedom to pursue happiness, freedom of religion, etc etc, all tied up in it.

    But you’re right about the state. Keeping public records of marriages and divorces is a valid state function. Deciding what marriage is, and who’s eligible for it, isn’t.

  18. Frankly, this is a great birthday present. It doesn’t really affect me directly or even indirectly. But, as the TV once said, “it’s the right thing to do.”

  19. The courtinfo.ca.gov server is getting slammed, so I hosted a copy of the opinion here if anyone is having trouble reading it.

    I think the new ballot initiative will be closer than the last one. But even if it passes, it’s going to be tough to put the genie back in the bottle for social conservatives.

  20. JS Bangs:

    “Marriage (heretosexual or homosexual) is not a basic human right.”

    I disagree. And whether it’s a basic human right is a separate argument from whether the government should be a registrar.

  21. Agree. Marriage may not be a basic human right. Framing it as if that is the only issue is deeply misleading, though. Marriage carries with it a number of benefits that are very difficult (and inconvenient, and expensive) to replicate in other ways. It also implies a general state validation of the relationship that is being accorded the status of marriage. Given that the government offers this legal and social validation to committed opposite-sex couples but not committed same-sex couples, there is a strong argument that restricting marriage to opposite-sex couples violates equal protection guarantees. To quote Art 1 sec 7(b) of the Cali state constitution “(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”

    So yes, JS Bangs – marriage isn’t necessarily a fundamental human right (I would note the universal declaration of human rights DOES include a right for men and women to marry – that’s a whole nother kettle of fish though), but equal treatment before the law IS. So unless the state can find a rational basis to deny gay couples the right to marry (Heterosexual marriage and heterosexual marriage only as fundamental unit of society? Complementarity of genders? Gays can’t have kids? Gays are child molesters? Heard them all, none of them is rational.), they either have to let gay couples marry or stop marrying straight ones.

  22. I was trying to point out article 16 (1) of the Universal Declaration of Human Rights (“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.”) but apparently I couldn’t comment.

  23. Yes, we are truly a bunch of whack jobs out here in CA, but you have to savor the occasional outburst of good sense when it happens. Today is one of those times.

    Of course, I think it’d prudent to stay off the roads this week. You don’t want to get run over by some straight married couple racing to the divorce attorney to deal with the implosion of their marriage.

  24. Giacomo:

    Sorry about that. I think your “.it” address tripped my spam filter. It should be fixed now.

  25. JS Bangs:

    “Marriage (heretosexual or homosexual) is not a basic human right.”

    I disagree, but this misses the point. The fundamental right at issue isn’t marriage, but equal treatment under the law.

    Even assuming that marriage isn’t a right, you cannot dispute that it carries with it numerous privileges recognized by the state, from the various tax advantages to the ability to share health insurance. (There’s also the marital communication privilege, an evidentiary rule that actually contains the words “marital” and “privilege” right there in its name.) Obviously, the state has the right to decide whether it wants to offer these privileges–including marriage itself–to its citizens. What it cannot do is offer those privileges to some citizens and not others, based on someone’s race, gender, religion, or sexual orientation. That’s a violation of equal protection.

    Here’s an easier example for you: having a driver’s license is also a privilege, rather than a fundamental right. The state can deny you a driver’s license on any neutral ground it likes, such as the fact that you are a crappy driver. But if the state denied driver’s licenses to all African-Americans, or all Muslims, or all homosexuals, then that would be a violation of their fundamental right to equal treatment under the law. The same is true of marriage.

  26. Evan and Scalzi:

    Of course it’s a basic human right. Freedom of association, freedom to pursue happiness, freedom of religion, etc etc, all tied up in it.

    Freedom to associate, etc. are basic rights. What’s not a basic right is having the state ratify my association by giving me a special piece of paper and a whole bundle of associated beneficts.

  27. Evan’s argument is not my argument, JS Bangs.

    Again, I believe marriage is a basic right. Again, whether the state has business defining marriage for its own purposes is a separate argument.

  28. Tom G @ 5

    Republicans for years have said “Don’t let activist JUDGES decide this issue, let the people decide”. So the state legislature votes on it, and Arnold VETOES IT ??? Aren’t those state representatives saying “I think my constituency wants this passed, and if I’m wrong they will choose a different guy to represent them” ?

    That’s all part of the legislative process.

    The Supreme Court subverting the Legislative Process is Judicial Activism by definition and flies in the face of Separation of Powers.

    People need to convince a majority of people of the correctness of their position.

  29. #30 …What’s not a basic right is having the state ratify my association by giving me a special piece of paper and a whole bundle of associated beneficts. [emphasis in original]

    If the state had no machinery for ratifying any couple’s association with said special piece of paper and bundle of benefits, that would be fine.

    However, if the state is in the habit of ratifying the association of some, but not all, couples, that’s not okay. That’s an equal protection of the laws violation. (Which seems to be the California Supreme Court’s take, too.)

  30. Frank:

    “The Supreme Court subverting the Legislative Process is Judicial Activism by definition and flies in the face of Separation of Powers.”

    Alternately, the Supreme Court noting when something that passes the legislative process is patently unconstitutional is what the courts are actually supposed to do.

    The actual definition of “Judicial Activism” is “any judicial ruling conservatives hate.” Which is why Bush v. Gore, a deliriously overreaching ruling if there ever was one, don’t get tagged with the appellation.

    In any event, let’s not proceed here with the fiction that the term “Judicial Activism” has any meaning outside of its function as a right-wing propaganda buzzword. Thanks.

  31. On Constitutional grounds, I think that Zack and Love Rhino are correct. But I think there’s a conflict, namely: for many people marriage is a religious category as well as a legal one, and these people rightly object to the state changing the definition of marriage on them. Others rightly object to a religious concern determining the state’s definition of marriage in the first place.

    In this case, it seems like the obvious thing to do is for the state to stop trying to regulate marriage in the first place, which was the second half of my original post.

  32. That’s all part of the legislative process.

    Perhaps, but when Arnold’s justification for vetoing it is roughly, “I personally think this is a good idea, but it’s the kind of thing that should be left up to the courts to decide,” something very silly is going on.

  33. @John Scalzi: your spam filter was tripped by the “.it” top level domain?
    That’s shameful, I urge you to obtain the Italian citizenship as soon as possible, so that you could justly be deprived of it for indignity.

    PS. by the way, are you eligible for the dual citizenship? Italian citizenship follows the ius sanguinis, so it’s possible that you (and Athena, automatically) could obtain it easily. It would give you the privilege of voting in the Italian elections (by mail) and to travel (and work) in the EU without passport, visas or work permits.

  34. Does anyone know how the legislators that voted for and against the legalization bills have fared in subsequent elections? Does the idea of legal same-sex marriage still have a majority in the CA legislature?

  35. Scalzi @34

    Alternately, the Supreme Court noting when something that passes the legislative process is patently unconstitutional is what the courts are actually supposed to do.

    Oh yeah? Where in the Constitution does it say that? Let’s never forget that this is a role the Supreme Court invented for itself in Marbury v. Madison.

    Since I think it’s a role that needed to be filled, it’s a bit of an aside, but still…

    Second, to claim that the idea of marriage is a right defined by the Constitution is a stretch. I see it no where in the US Constitution, nor do I see it in the California Constitution.

    That the CSC decided that the current legislation abrogates equal protection is also a stretch: I don’t see how you ever stop adding to the list of “protected” categories. And that is ultimately the problem.

    The actual definition of “Judicial Activism” is “any judicial ruling conservatives hate.” Which is why Bush v. Gore, a deliriously overreaching ruling if there ever was one, don’t get tagged with the appellation.

    Perhaps. But your used the wrong example. The Constitution clearly states that the representatives to the Electoral College are selected by the State Legislature in a manner which they, and they alone, define. In Florida of 2000, the manner was defined by the Legislature and the Florida Supreme Court tried to redefine it.

    So it wasn’t Bush v Gore that was activist, it was the Florida Supreme Court which allowed processes that were extra-legislative.

  36. I might be persuaded to support a reform that abolished state recognition of marriage; but I’m going to be a Chestertonian small-c conservative about it, and insist that your proposal (a) enumerate the positive benefits of state recognition of marriage, and (b) for each such benefit, either argue for its superfluity or propose a replacement.

    Note that in this instance, I consider arguments based on reducing the size or intrusiveness of the state to be without merit, because the marriage bureaucracy is a negligible fraction of the total; if you want to swing that particular ax, there are much bigger trees you should be going after first.

  37. I think gay men wanting to marry each other pretty much proves that gay men are BORN gaym, to wit: straight men generally avoid getting married like they would getting the Plague. If gay men want to get married so badly (and they seem to), that seems to be a pretty good indicator that there is a genetic difference between straight and gay men.

    I’m just sayin’…

    Did I use ‘to wit’ correctly there? I don’t even know, but it sounded good.

  38. Is it wrong for me to sit up here in Canuckistan feeling all smug about how progressive we are? Even in the small, rural village I live in, at least one local church has decided it’s ok for the minister to perform gay marriages.

  39. Frank @ 38:

    The issue of when to stop ‘adding’ protected categories is avoided by, well, not relying on categorical analysis. The whole core of rights theory is that the dignity and autonomy of the individual should be respected. Thus when the state wishes to restrict autonomy, it has to show a justification for such restriciton (most commonly – using one’s autonomy to do Thing X infringes on the autonomy of others). I think its very hard to argue that allowing those who wish to marry to marry, providing there are no bizzare consent problems (this throws out the straw men of marrying kiddies / animals etc), infringes on the autonomy of others. If that’s not the way you want your country to run, well be my guest and change it, but just watch out when those in charge of the country don’t have the same prejudices as you and try to impose them without respecting YOUR autonomy.

  40. One thing that’s happened in Massachusetts is that people realized that allowing everyone the right to marry did not bring about the End of Civilization as We Know It. I hope that the same will happen in California. Will enough people realize in time for the November referendum? I hope so.

  41. Scalzi:
    Just to echo Frank… I think you’d have a hard time citing Bush v. Gore as a sea change, seeing as how it has never since been cited in any case in Federal Court. It might more charitably be defined as Unconstitutional because the House of Representatives is the Constitutionally empowered body for resolving a contested presidency. However, I think the result would have been the same, since the Republicans were in the majority both before and after that election.

    That said, I believe the state has no damn business defining which pairs (or groups) of consenting adults get spousal benefits. Which is what marriage does from the perspective of the state. The legal advantages are substantial.

  42. Frank:

    “So it wasn’t Bush v Gore that was activist, it was the Florida Supreme Court which allowed processes that were extra-legislative.”

    This would be a lovely argument if six out of the nine Supreme Court justices hadn’t ruled that actually, no, the Florida Supreme Court did not act contrary to the intent of the Florida legislature. The ruling was decided on other grounds.

    “Second, to claim that the idea of marriage is a right defined by the Constitution is a stretch.”

    I’m not aware of making such a claim, although as noted earlier, I think it’s a basic human right. Nor am I aware of the California Supreme Court saying it’s a constitutional right, although as I understand it they did say the denying it to same sex couples is a violation of the California constitution.

    Brett L:

    I didn’t say B v. G was a sea change; I said it was massively overreaching. If it had gone the other way, it’d be describe as the most egregious example of “Judicial Activism” ever; but since it went the way conservatives wanted, they think it’s just peachy. Which exposes the basic nonsense of the phrase.

  43. Yea for California! Now we need it to be nation-wide, and to get rid of that ridiculous “don’t ask don’t tell” nonsense in the military.

    Of course, you can kiss it all goodbye if Mr McCain gets elected in November. He has promised to appoint Supreme Court justices who will adhere to the “conservative vision” of the constitution.

    That does not bode well for anyone who wants to have full control of their reproductive rights, marriage rights, or separation of church and state.

    It’s not OK to legislate from the bench—-unless it meets the conservative smell-test.

  44. The LA Times is running a non-scientific poll, asking if the court’s decision was correct or not.

    So far, it’s running more than 80 percent ‘correct’.

    This is reassuring.
    So is the word that the proposed amendment doesn’t involve the equal-protection clause. They’ll have to find a way to sell it to the voters that doesn’t look like ‘oh, gee, we really intend to legalize discrimination against everyone who isn’t a white heterosexual’.

  45. I’ve honestly never understood why this is such a big deal in the USA. It seems so silly now at days to refuse a group of people their basic human rights. In my country we’ve even legalized gay and lesbian right to adopt. But then again marriage hasn’t been a big deal in my sinful country ;)
    N.B. We do call it other than marriage and religious organizations decide on their own whether they marry people of them same sex (most here do) and you can always be married by the state in a civil ceremony.

    But in regards to you guys it seems so weird when you look at your history and the plethora of civil rights movement that this basic human right isn’t regarded as such seems weird.

    Well I’ve got the advantage of living in the middle of the Atlantic geographically in America and politically in Europe. So We don’t get the Euro’s either for the most part.. :)

  46. LA Times is running a non-scientific poll, asking if the court’s decision was correct or not.

    So far, it’s running more than 80 percent ‘correct’.

    This is reassuring.
    So is the word that the proposed amendment doesn’t involve the equal-protection clause.

  47. Taking a moral stand on a nebulous “particular item” may not be bigotry, Pete, but objecting to two consenting adults getting married, just because they happen to be of the same sex, seems like bigotry to me.

    Interesting. Is it bigotry to object to three consenting adults getting married? How about thirty? One wonders where basic human right stops and the bigotry begins.

    Being a libertarian, I couldn’t care less how the U.S. government wants to recognize human relationships; legally redefining a fish as a frog doesn’t actually change the substance of the fish. And people should be able to write legal contracts defining the nature of their idiosyncratic relationships however they like. It is neither my business nor yours.

    However, no thinking individual should celebrate the California court’s decision to create law ex nihilo. Even if you like today’s dictate, you may not like tomorrow’s. Regardless, you have little say in the matter.

  48. tyty does not appear to be a spambot.

    VD, my views on polygamy are here. And since the California Supreme Court did not create law, merely applied it, thinking people can rightly celebrate the decision.

  49. @VD

    The major motivating factor behind outlawing polygamy was anti-mormonism. As practiced by a lot of the LDS splinter groups today it’s a fairly horrible practice. But there are other laws, mainly having to do with pedophilia, that would prevent those abuses in wider society. Why do you think that a polygamous marriage between any number of truly consenting adults would present a problem?

  50. JS Bangs, actually many religions refuse to recognize marriages that are okayed by the State already. I don’t see where this would be any different. You know, except for religions needing to coming out to specifically ban gays from their Congregations.

    The State has a supreme need to regulate and register marriage. The first concern of the State (but not the only one) would be the proper inheritance and transfer of property. This is also why the State now requires birth-certificates and the register of parents.

    Religions bless marriages and officiate for the State in the modern age (however, they aren’t needed actors in marriages, you can go down to the Courthouse and be married). Ask anyone who has seen divorce proceedings if marriage, according to the State, is anything but a contract. I’m not sure I want religions negotiating, registering, and enforcing contracts, that’s the purview of the State.

  51. VD @ 50 said, “And people should be able to write legal contracts defining the nature of their idiosyncratic relationships however they like. It is neither my business nor yours.”

    Exactly. That is, hopefully, where this decision will help our society go in the future. The problem now is that “marriage benefits” such as inheritance, medical decision making, child custody, tax benefits, survivor benefits, pension benefits, medical insurance………..depend on being “married” (in many places.) The state gives privileges to “married” folks.

    If the government got out of marriage all together, and allowed and consenting adults (in whatever gender and number configuration) to register as significant other/partner/spouse/whatever for the purpose of what we now see as “marriage benefits” then the point would be moot.

  52. Just as a point of note— the state does have an interest in marriage, specifically marriage benefits, because those benefits influence society. Reward what you want, and don’t reward what you don’t.

    Therefore there are tax breaks for children, because propagation benefits society (there will be future workers for society— for example, take how Social Security is set up.) There are tax breaks for married couples because stable relationships are a net benefit to society while unstable relationships tend to cost in terms of assistance.

    This is not meant to say anything about the ruling, or about any other definition of marriage. This is merely to point out that the state does have a fundamental interest in marriage.

    Personally, I wouldn’t mind if state marriage went completely over to the side of contract law. “This is your contract with the state; here are your responsibilities and here are your benefits.” Evil Rob’s also suggested the “one person becomes family” idea— you can have ANYONE assume that role and get the healthcare bennies, hospital visitation rights, etc. But you can’t change that person too quickly or easily. And it doesn’t matter what your relationship actually is, caretaker, friend, “special friend”, whatever. It’s just a legal definition like power of attorney.

  53. What’s not a basic right is having the state ratify my association by giving me a special piece of paper and a whole bundle of associated beneficts.

    You clearly understand the concept of “basic human right” very differently from me.

    Let’s try it this way: Friendship is a basic human right. Do you disagree? If not, then we’re on the same page.

    I don’t want the government to decide who can be friends, or issue friendship licenses. I want the government to stay out of it because it’s a basic human right. Get me?

    Similarly, I don’t want the state to decide who can get married, or issue marriage licenses. However, given the unfortunate reality that they do in fact do these things, I want everyone to have equal access, and applaud any court decision that advances that goal.

  54. In my country we’ve even legalized gay and lesbian right to adopt.

    Actually, in the US, going jurisdiction by jurisdiction, it’s rather more likely that gay couples can adopt than that they can get legally married. In Europe it seems to be the other way around. I have no idea why this is.

  55. Just to be clear on the “religious” elements of marriage: There are, in a sense, two kinds of marriage: religious marriage, and state marriage. And all that this decision had to do with is the latter.

    Here’s the thing about religious marriage: Whether your RELIGION wants to marry you and your intended in the eyes of God is between you and your religion. Some religious leaders up and down California have ALREADY been marrying homosexuals (in the eyes of their faith) and the state has nothing to say about that one way or the other.

    What we’re talking about here is state marriage — the big fat bundle of rights that come along with a marriage recognized by the State.

    Often people get a little bit confused about the difference between these two things, since they think priests and rabbis are the people actually performing state marriages. Religious leaders don’t perform state marriages. They “solemnize” them. There’s a whole list of people authorized to solemnize marriages — depending on where you are, this could include religious leaders, justices of the peace, judges, county clerks, random people who get a special license for a day, and John Scalzi.

    My point is, though, excepting for this small overlapping area in which religious leaders CAN solemnize state marriages (but only if that’s what the spouses-to-be and the religious leader want) — there’s really nothing that state marriage and religious marriage have to do with each other.

    To sum up: before this ruling, religious leaders could perform whatever marriages they wanted, and to decline to perform whatever marriages they wanted. After this ruling, religious leaders could perform whatever marriages they wanted, and to decline to perform whatever marriages they wanted.

    To the extent that, as JS Bangs suggests, “for many people marriage is a religious category as well as a legal one, and these people rightly object to the state changing the definition of marriage on them” — those people are simply confused. The state isn’t doing anything to the religious definition of marriage (however any religion defines it). This is simply to do with state marriage.

  56. Marriage is a state-sanctioned promise from one person to another (or many if polygamy was not illegal).

    How anyone can morally stop two (or more) consenting adults from making that promise is beyond me.

    Personally, I think if gays marry, the religious right will hardly be able to point to gay promiscuity as part of the reason gays are immoral, and they hate to lose the moral high ground.

  57. [Deleted due to hilariously foamy bigotry. Ironically, I found it in my spam trap and decided to release it, so I could delete it — JS]

  58. (applauding) Thank you, Adara. I hate that red herring and you smacked it down quite politely. :-)

  59. However, no thinking individual should celebrate the California court’s decision to create law ex nihilo.

    People who blather about the Court ‘creating law’ betray their extremely poor understanding of how the judicial system works. Also, they haven’t read the Court’s opinion. (Cf. John’s post about reviewers dissing his column while freely admitting they haven’t read it.)

    The Court compared the existing law to the state Constitution. It found that the marriage law as written did not withstand Constitutional scrutiny. The dictates of the State Constitution trump lesser laws. The End.

    By the way, throwing in what you think are really cool legal terms like ‘ex nihilo’ doesn’t actually indicate that you have a grasp of how the law works. It just makes you sound like a blatherer with a dictionary.

  60. Two points to consider …

    #1
    The Court partially based this on the Court’s landmark ruling many decades ago that people in California could marry anyone they wanted to. What such ruling? The one that legalized interratial marriage.

    #2
    People unhappy with the current ruling talk a lot about respecting the sanctity of marriage.

    Four years when San Francisco started marrying same sex couples, the first couple married was an 80 year old woman and an 82 year old woman who had been in a committed ralationship for 50 years.

    At virtually the same time, a certain blond twit got married in Nevada as “a joke that got out of hand.” Perfectly legal since between them they had the only legal requirements for marriage in Nevada. One unmarried vagina and one unmarried penis. That marriage lasted 53 hours.

    Vicki

  61. As Adara states clearly there are in essence two basic types of marriage, the state or civil one and the religious one.

    As I can best see this is the problem for most Americans as they don’t seem to be able to distinguish between those two and generalize their religion to the entire country even if your constitution guarantees the freedom of religion. The majority (protestants) seems to have taken over your view of things. I’m not sure if I’m making any sense. But there needs to be a discussion that highlights this difference and shows the religious right that “their” marriage is safe if they choose not to marry gays and lesbians.

    But this doesn’t change the fact that I think that this is a basic human right and the whole issue of allowing people this or that is silly.

    @ Matt
    It’s true about Europe that adoption is a rather difficult process here overall. And the fact that gays and lesbians where having a hard time was mostly because they where filed as “single” instead of a “couple” today here in Iceland we’ve gone further than simply legalizing gay marriage, invitro fertilization, and adoption but also given single people the chance of adopting if the country (small country, mostly adopt from abroad) allows it (China for example requires a couple).

  62. By the way, throwing in what you think are really cool legal terms like ‘ex nihilo’ doesn’t actually indicate that you have a grasp of how the law works.

    I don’t recall ex nihilo being a legal term so much as a Biblical one. But you do have a point, as the magic “emanations and penumbras” that create hitherto unrecognized rights and form the basis for legal interpretations don’t actually come out of nothing, they come out of the imaginations of small groups of nine or fewer individuals. And while this new “right” was created, the relevant law was actually negated. So, thank you for honing the point.

    John, I know your position on polygyny. It is perfectly reasonable, although I suspect some form of it will be legalized much faster than you think; the Muslim population is rapidly approaching the size of the gay population and decisions such as the CA Supreme Court’s clearly pave the way for this. We’ll see.

    But that wasn’t the question. To put it in more straightforward terms: if opposition to redefining marriage as one woman and one woman is bigotry, is opposition to redefining marriage as one man and two women also bigotry? Or if you prefer, if opposition to redefining marriage as one man and one man is bigotry, is opposition to redefining marriage as one man and two men also bigotry?

  63. VD:

    If the reason you’re opposed to polygamy boils down to “that just ain’t right” or, alternately “my Gods tell me that just ain’t right,” then, yeah, it’s bigotry.

    I think at this point in time one could come up with practical reasons to oppose legalizing polygamy, possibly relating to the fact that US law is generally not designed to handle the practical legal aspects of multi-partner marriages — for example, how one deal with legal power of attorney over multiple spouses regarding another spouses incapacitation, or legal spousal privilege against testifying, or in the case of one spouse divorcing others, child custody and visitation. Wanting to have a robust legal framework for such a situation is separate from just not wanting three or more people to marry (although such an objection could also be used as cover for underlying bigotry).

    Personally, my greatest concern would be what happens to children in the case of partial or total polygamous marital dissolution; kids are the ones with the fewest legal options in cases like that, and I don’t envy the judge who has to untie that particular knot. This is not me saying I would oppose polygamous marriage on that grounds, but I think it’s a genuine concern. If I were a judge, I would want to know how such situations were handled in ad hoc poly marriages, and whether the partners in the marriage had any prenuptial agreement on the issue.

    In the case of same sex couples, the current legal framework for marriage works fine; there’s no practical legal difference between two members of different sexes being partners and two members of the same sex being so, and many of the other objections to same sex couples being married or partnered (particular relating to how it affects children in the family) don’t hold up to study. At this point, the major objections to same-sex marriage boil down to “it ain’t right,” or “my God says it ain’t right.” Which means it’s bigotry, as far as I can see.

  64. Get the government out of the marriage business altogether. Let it be a church sacrament instead.

    The state already enforces partnership contracts, real and implied (Palimony & child support come to mind).

    And let social security work like other insurance plans.

  65. If the reason you’re opposed to polygamy boils down to “that just ain’t right” or, alternately “my Gods tell me that just ain’t right,” then, yeah, it’s bigotry.

    Good answer. However, I suggest you can expect the CA courts to create a similar “right” to polygyny pretty soon, given their flimsy rationale for excluding it and incest in their decision.

    From footnote 52 of the decision justifying the court’s distinction between modifying the nouns and modifying the numbers: “our nation’s culture has considered [polygamous and incestuous] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”

    The problem is that this cultural reasoning applies equally well to the concept of single-sex “marriage”, as will no doubt be demonstrated by the inevitable referendum to come. Logically speaking, either you support an individual’s right to “marry” anyone and anything he wants, or you support limiting that somehow. Everything in between is simply a matter of personal squeamishness. Both the Dutch and British have already begun to tacitly recognize polygyny, so once the concept of redefining marriage is accepted in the USA, don’t be surprised if the concept is extended well beyond the current debate.

    Personally, I can’t wait to watch the feminist heads exploding when polygamy is deemed to be a basic human right… it’s certainly been around a lot longer than homogamy. And who are we to place limits on those with love to spare, right?

  66. @John…

    So you’re OK with denying someone a “fundamental right” (to marry whoever they want, i.e. more than one person), because it would be *inconvenient* to the state?

    And where is the data to show that a polygamous breakup would be worse for a kid than a monogamous breakup?

    I’m just saying… “it’s ain’t right” is a lousy reason… but your reasons sound even worse to me.

  67. WATYF @ 72: It seems to me that he’s saying quite clearly that polygamy would be just fine if the state ironed out how to deal with the added complexity. Which, as a feminist (hi there, VD), is also my position. My only problem with polygamy is that it has a tendency to be implemented in ways that hurt women. I like to think that state involvement would make that less prevalent, though I don’t know if that’s true. But seeing as monogamy can also be used by abusive families and we allow it anyway, I’d rather err on the side of letting polyamorous groups marry in whatever combinations they’d like. Provided, of course, that the state has figured out how to arrange the marriage benefits fairly.

    In the meantime, I’ll just celebrate with my gay friends who, one state at a time, are getting their rights.

  68. Why should polygamists have less rights than homosexuals? (You would never guess it was Scalia who essentially said that out in his Lawrence vs. Texas dissent.)

  69. John, your logic on the term “judicial activism” is flawed. The fact that the term is generally applied only by conservatives to decisions they dislike does not render it meaningless. Liberals tend not to complain about judicial activism because they assume that activist judges will continue to make rulings they favor.

    This is an invalid assumption. Once judicial activism is firmly entrenched, there is nothing to prevent a conservative, activist Supreme Court from making rulings such as: (i) the Constitution forbids abortion; (ii) the Constitution forbids affirmative action; (iii) progressive income tax rates are unconstitutional; etc.

    I fear that folks on the left of the political spectrum will come to regret that they ever voiced approval of this dangerous judicial philosophy.

  70. WATYF:

    “So you’re OK with denying someone a “fundamental right” (to marry whoever they want, i.e. more than one person), because it would be *inconvenient* to the state?”

    That wasn’t the question I was asked. The question is whether is automatically bigoted to have an opposition to polygamy. I don’t think it’s automatically so. Now, whether one thinks the state’s ability to handle the legal ramification of multi-partner marriages is sufficient reason to hold off (or whether I think that) are other issues entirely. I’m already on record as saying I wouldn’t personally have an issue with polygamous marriages in a theoretical sense (in a real-word sense, as Suzanne M notes, there are issues about how polygamy has been implemented, which are worrying and would have to be addressed).

    VD:

    “I suggest you can expect the CA courts to create a similar ‘right’ to polygyny pretty soon, given their flimsy rationale for excluding it and incest in their decision.”

    Just polygyny? Not polyandry as well?

    I’m less convinced than you are, personally. But I suppose we’ll find out.

    Aaron:

    “Once judicial activism is firmly entrenched, there is nothing to prevent a conservative, activist Supreme Court from making rulings such as: (i) the Constitution forbids abortion; (ii) the Constitution forbids affirmative action; (iii) progressive income tax rates are unconstitutional; etc.”

    This is neither here nor there to the issue that the phrase “Judicial Activism” is a conservative rhetorical device, used to cloak their frustration with a court’s ruling that reads the law differently than the way they want it to.

    A future Supreme Court may indeed do all those things, but interpreting the law is not in itself “activist” in the sense that “activist” is understood as “overreaching.” What would matter in those cases is both the new, original reasoning and how it interacts to previous Supreme Court rulings and the then-current state of the law and the US Constitution. I suspect

  71. Dear John please and asking kindly to reinstate my post at #63 it is pro civil rights for gays imho…I am merely pointing out the oppositions bigotry not my own with reference to the BaptistBoard. I just want the people to know how the intolerant are thinking and honestly just exposing them to gain knowledge…and to turn that knowledge into trying to oppose them. No intention what so ever for spam sorry if I messed up…it would be great if people would oppose them on their own board and get the message out that gays are born gay and not what they(BaptistBoard) dream up in there intolerant netherworld.

    Thanks
    Aslanspal

  72. Aslanspal:

    I can’t reinstate it, I’ve already deleted it, and in any event, my read of it didn’t make it clear that you were quoting others, which is why it got pulled.

    If you want to repost the link to the particular boards, you’re welcome to do it, but I don’t necessarily think you need to reproduce the actual quotes here.

  73. Sure, some conservatives use “judicial activism” as a rhetorical device to describe any decision they dislike. And once a future Supreme Court does what I’ve described, liberals will use the term “judicial activism” as a rhetorical device to describe decisions they dislike.

    More to the point, many of us denounce judicial activism even if we are pleased with the outcome of particular activist decisions, because we realize that it is a very dangerous, antidemocratic judicial philosophy. Case in point, I strongly believe same-sex couples should be able to marry, yet that does not blind me to how dreadful the California Supreme Court’s decision is.

  74. Aaron:

    “And once a future Supreme Court does what I’ve described, liberals will use the term ‘judicial activism’ as a rhetorical device to describe decisions they dislike.”

    Given how inexorably tied to the Right the phrase is, I suspect not.

    Beyond this, having read the ruling, I don’t see anything about it that overreaches, as far as California law is concerned; I have a number of lawyer friends in California who don’t characterize it as such, either. I do suspect there is a fair chunk of the population who either misunderstands the role of the judiciary in interpreting law or simply believes the judiciary is best as a minor appendage to the legislative and executive branches of government, rather than a co-equal branch, with its own bailiwick in terms of governmental and legal responsibilities. But their miscomprehension or wishful thinking as regard the judiciary’s role is no reason for the judiciary not to do its job.

  75. As a practicing lawyer for 18 years who has argued before the United States Supreme Court, I don’t believe my views proceed from an ignorant misundersanding of the judiciary’s job.

    But different judges and justices have very different concepts of what that job is. Some feel honor bound to uphold the law as written in the Constitution and applicable statutes, even when they disagree with it. Others feel very free to broadly reinterpret the Constitution and statutes however necessary so that the law becomes whatever they think it ought to be.

  76. Alternately, Aaron, they may believe that they are upholding the law as written in the Constitution, even if others who disagree with their decisions feel otherwise. But you are of course free to hold any opinion of them that you like.

    In a larger sense, I don’t think you and I disagree that judges may sometimes overreach, whether they be conservative or liberal (or whatever). I’m just not necessarily convinced this particular ruling constitutes overreaching. Again, you’re free to disagree.

  77. Re polygyny/polyandry:

    In the aftermath of the horrific Triple Alliance war, there were less than 1 man for 5 women in Paraguay, and for decades, polygyny was socially (and legally, in some areas) enforced in the nominally Catholic country.

    With the girl shortage in China, I wouldn’t be completely supprised to see some varient on Tibetan polyandry (where two or more brothers marry one woman) become established there. It would certainly make more sense than going to war with their next-door-neighbors, which is traditionally what happens when a country is short on women.

  78. And here I’ve thought that gays did have the same right as I do to marry anyone of the opposite sex.

    Just a joke…

    What should be of more concern is will other states recognize these marriages.

    There’s at least one case where a fundamental right isn’t recognized equally among the states. Here in Indiana, I can legally carry a firearm to protect myself, and the community at large. I can’t go to California and do that.

    On this issue, I’m of the mind that the definition of marriage should be struck from the law, and only civil unions be allowed. Of course, that would mean changing a whole lot of other laws to confer benefits onto civil unions.

  79. Keith_Indy:

    The Defense of Marriage Act states that other states are not obliged to recognize same sex marriages (if I recall correctly) and of course the Federal Government does not recognize them. Several states also have laws or constitutional amendments forbidding their recognition (and in some cases, the recognition of any other form of legal marriage-like union regardless of the sex of its constituents). So same-sex couples married in California, for example, will not be recognized as married in Ohio, where I live.

  80. That “larger sense” is what is important, John. It doesn’t bother me if we disagree on which decisions constitute overreaching, so long as we agree in principle that judges should apply the law not create it.

  81. We do agree on that principle. That’s the legislature’s job (mostly; in California they have voter initiatives as well).

  82. There is some question as to whether the DoMA is actually constitutional is probably why. But as far as I know no one has actually gotten a federal court to rule on the issue.

  83. Check out Justice Corrigan’s dissent. She starts out by saying that she personally believes same-sex couples should be able to marry, but then explains why she would not impose that view on the State:

    The principle of judicial restraint is a covenant between judges and the people from whom their power derives. It protects the people against judicial overreaching. It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.

  84. Tom G, in the Governor’s defense: in 2000, the voters adopted a statutory initiative banning gay marriage. Statutory initiatives may not be modified by the legislature, but they can be overturned as unconstitutional by the courts.

    So the Governor’s position, ridiculous as it seems, is more or less legally correct: the legislature doesn’t have the authority to overturn the initiative (something the court said in yesterday’s decision, btw), but the courts do, as do the voters.

  85. Ken: the good news is that the ballot initiative constitutional amendment which is likely to qualify has the identical wording as the old initiative statute, which means that if it passes, it will have no effect on domestic partnerships.

    JS Bangs: the state isn’t changing the definition of a religious marriage. A church is still free to sanctify those marriages it chooses to sanctify and not sanctify those it doesn’t choose to sanctify — and a law changing that would fail under the free exercise clause.

    Frank: courts regularly decide what to do when two laws conflict; why should they not also decide what to do when a statute and the constitution conflict?

    John, @46: the California Supreme Court *did* say that marriage is a right under the California constitution. “Although our state Constitution does not contain any explicit reference to a ‘right to marry’, past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution.” (page 49)

  86. Aaron, as a practicing lawyer, surely you’re aware that is it the Court’s job to interpret the law, and limit or reject laws that are in conflict with Constitutional mandates. Justice Corrigan’s dissent is a fancier way of saying “why do we have to deal with this issue? it’s a hot potato!”

    As a practicing lawyer, you’re of course aware that the People *have* expressed their will in the form of their state Constitution. So when the People later pass a lawthat conflicts with that Constitution, permitting such a law would, in fact, be imposing the will of the judiciary on the people.

    However, I suggest you can expect the CA courts to create a similar “right” to polygyny pretty soon, given their flimsy rationale for excluding it and incest in their decision.

    Cherry-picking footnotes out of context is a poor way to predict what the a court is going to do in the future. Read the whole decision, please.

    re polygyny – no, the courts would have to permit polyandry as well. Which is precisely why religious groups permitting polygyny aren’t pushing the issue legally. They don’t want the ladies to suddenly get the notion that they, too, can have legal threesomes.

  87. Mythago, the notion that the people of California expressed their desire for same-sex marriage by Constitutional mandate in 1849 strikes me as a bit silly.

    Incidentally, I don’t expect anyone to defer to me as a lawyer; I was merely responding to JS’s statement that many of those who criticize judicial activism are laypeople who don’t understand how the judiciary works.

  88. Gosh, I didn’t realize that the California constitution was frozen in time back in 1849 such that the People never amended it, nor that the concept of Constitutional supremacy is invalid because we didn’t have same-sex marriage in 1849. Or am I missing something in your comments?

    The “will of the voters” argument ignores the issue of state and federal Constitutions, because it has to. Otherwise you’re going down a path that suggests if White Sheet City, Georgia votes to re-institute slavery within the town limits, it would be judicial activism to hold that it violates the 13th Amendment because, duh, will of the voters.

  89. The difference is that the Thirteenth Amendment actually says something about slavery. It clearly and concisely prohibits slavery, so a statute that attempts to reinstitute slavery is invalid as unconstitutional.

    The California Constitution says bubkes about same-sex marriage. But along comes a group of four justices who manage to read between the lines and discover that all along the Constitution guaranteed same-sex couples the right to get married (and have it called a “marriage” by the State). The State’s marriage law has been unconstitutional since 1850, and nobody realized it.

    I believe gay couples should be able to marry, but to argue that the drafters of the Constitution mandated so is a transparent legal fiction. Applying such reasoning allows a Court to impose its will on pretty much anything. The next time your state’s Supreme Court is comprised of very conservative justices, will you want it to have that much power?

  90. The United States Constitution says bupkis about interrracial marriage. Does that mean Loving v. Virginia and Perez v. Sharp were wrongly decided?

    What you’re doing is trying to mash up two separate arguments: constitutionality vs. the will of the people. *If* a statute is constitutional, *then* the court should certainly respect the will of the voters who enacted it. That’s what judicial restraint means But the current debate ignores Constitutional issues, and whether or not the Court correctly applied them, in favor of stomping feet and shouting that goddamnit, we VOTED this law IN, so the court should STFU. That’s what the dissent is saying: this is a big scary issue and we musn’t let the Constitution get in the way.

    By the way, there’s a very long history of judicial activism by conservative judges in this country – if you don’t practice in areas that touch on civil forfeiture in drug cases, it makes for a very eye-opening study – and some of that activism is in the area of same-sex marriage. (There’s a big difference between “this law meets Constitutional scrutiny”, which is a legally appropriate argument, and “but marriage by definition means man and woman”, which is self-indulgent horse pucky.)

  91. Yeah, I’ve been on the wrong end of judicial activism by conservative justices, and I didn’t much like it.

  92. It’s a given that, when you bring up same sex marriage, which is a sincere movement of law abiding adult citizens, you’ll usually get some jerk who tries to derail the issue by crying incest.

    Comparing LGBT people to incestuous people or child molesters has always been the blood libel of the conservative movement against LGBT people.

  93. Jeff Bailey, an expat Canadian living in California has an interesting blogpost about the whole Calif thing, from the prespective of someone from a country where same-sex marriage has been legal for several years now, country-wide.

    I can’t do any better than to re-quote (via Jeff’s blog) part of then-Prime Mininister Paul Martin’s speech, when he rose to introduce the bill that extended marriage rights:

    “The Charter was enshrined to ensure that the rights of minorities are not subjected, are never subjected, to the will of the majority. The rights of Canadians who belong to a minority group must always be protected by virtue of their status as citizens, regardless of their numbers. These rights must never be left vulnerable to the impulses of the majority.”

    Substitute Charter for Constitution, and surely the same principle would apply in California & the US generally?

    Note, for those arguing from a religious prespective, that PM Martin & his predecessor in office were/are both practicing Catholics, a church not known for a liberal attitude on this whole question…

  94. Calling this decision “judicial activism” is begging the question, in the most literal sense. If the court was correct, if discrimination on the basis of sexual orientation violates the California constitution, then this was just a matter of the court doing it’s ordinary job of reconciling statutes with the constitution, and it makes no sense to call it “activism” (except in the tautological sense that activity and action and activism share a root and that you can call any decision in any case “activism” by virtue of being an action).

    Since it only makes sense to say that this decision is “activism” if it’s wrong, it’s a circular argument to say that it’s wrong by virtue of being “activism”.

  95. My last attempt at beating my head against this particular wall: If the Supreme Court says the designated hitter rule is unconstitutional, it does not matter that the decision is “correct” in that all reasonable people detest the DH rule, and it does not matter how cleverly the Court in its opinion weaves together existing precedents with various Constitutional provisions to arrive at its result. What matters is that absolutely nobody, not even the justice who wrote the majority opinion, really believes that the framers of the Constitution intended any provision of that document to say anything at all about designated hitters, so the Supreme Court has no business deciding the issue.

  96. Aaron, the framers of the constitution smoked pot and owned slaves. They may or may not have thought that those two things would be illegal at one point, but they designed the Constitution to be applicable regardless. They don’t say you can’t smoke pot in the Constitution, but it’s illegal anyway. So is owning slaves, although if you’ve worked at Wal-Mart anytime recently you know that is just another kind of slavery.

    The point of the Constitution is that it is a living document that can be reviewed and changed as necessary due to societies changing ideals. In this case, the Constitution states that you cannot discriminate due to race or sex or age or whatever as long as whatever it is is does not impinge on another’s right to do their own thing – so the judicial is stating that not allowing gays to marry is discrimination, seeing as how it is between consenting adults and does not do any harm to the rest of us.

    This is not activism – it’s intelligence, and it is about time.

  97. My last attempt at beating my head against this particular wall

    “I’m going to gift you blockheads with my superior wisdom one more time, and then I’m out of here before I have to listen to your yapping. Last word’s mine. Ta.”

    I *know* you don’t try that one in court, Aaron.

    That said, for the viewing audience at home, Aaron’s pulling a little sleight-of-hand here. He’s proposing that the intent of the Framers is controlling; that is, we should try to figure out what the people who wrote the original words meant, and that’s all she wrote. The problem with that approach is that it limits jurisprudence for all time based on our interpretation of ‘how good were the original authors at figuring out the logical implications of what they said?’, and it also suggests that any Court rulings in the interim have no meaning whatsoever.

  98. In regards to my comment #5 –
    Like too many of the people disagreeing with the ruling, I hadn’t read ALL the history and legal rulings in the California situation. I owe Arnold an apology for what I said.
    Apparently Arnold vetoed those legislative bills because he HAD TO. The initiative of 2000 tied his hands. If I understand correctly, the only two ways to legalize gay marriage in CA is EITHER (1) have the SCOCA make a ruling (which they just did) or (2) get a new initiative passed by voters to un-do the legality of the first one.

  99. From footnote 52 of the decision justifying the court’s distinction between modifying the nouns and modifying the numbers: “our nation’s culture has considered [polygamous and incestuous] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”
    This is a truly poorly-written opinion.
    Gosh, I didn’t realize that the California constitution was frozen in time back in 1849 such that the People never amended it, nor that the concept of Constitutional supremacy is invalid because we didn’t have same-sex marriage in 1849. Or am I missing something in your comments?
    Then you can find the amendment where same-sex marriage was legalized.

  100. This is totally wrong.
    You all are wating your time trying to stop people from loving each other.
    I dont see the big deal in letting quote on quote “Gays” Marrie.Just because they both have the same parts.Most love personality not gender.This is a huge childish mess.You all need to stop waisting your time and get a life.Leave the fucking people to them self.We are all human!And “Fatherless children” are you kiddding me.If someone is “gay” then they wouldn’t have kids and if they did they would have addopted.And its not only “gay” guys.
    So stop wasting your time trying to fuck up everyone elses lives.Live your own damn life.!!!!

    SINCERLY.
    Shenoah.

  101. Shenoah – While I’m sure all of us on your side appreciate the conviction you give to this argument, I just thought I would politely point out that the kids section of your argument has a tinge of naivety.

    Many gay men married women, and still do, and have children with them while “trying” not to be gay, because they have, or at least had, no positive gay role models and thought they could just choose to be hetero and that’s what would happen. These men had plenty of children prior to the moments when they just accepted they actually were gay and they couldn’t change that. Some of them divorced their wives with dignity, and some spiraled downward and brought home diseases and ruined more than just their own lives. (All of this adds to the divorce rate that the right is always crowing about and has helped to destroy the “sanctity of marriage”.)

    Many of these men, at least the ones I know about, are wonderful fathers and love their children very much. And their kids love them as well.

    In addition, gay men and women have children all the time while still being gay. Lesbians get in-vitro fertilization, and gay men are sperm donors. So, yeah, they are becoming parents all the time.

    Now, I agree with the main message of your comment, I just know that some people here will harp on a couple of your points not anywhere as nicely as I did, so I thought I would beat them to the punch.

  102. From footnote 52 of the decision justifying the court’s distinction between modifying the nouns and modifying the numbers: “our nation’s culture has considered [polygamous and incestuous] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”
    In other words, cultural attitudes determine which minorities get which rights.

    Apparently the court forgot that legal protections exist to protect unpopular minorities despite cultural attitudes.