California Supreme Court Appears Ready to Uphold Proposition 8 And Ban on Same-Sex Marriage

flag-rainbow1In another blow for same-sex marriage advocates, the oral arguments before the California Supreme Court yesterday indicated that the majority will uphold controversial Proposition 8 and its ban on same-sex marriage.

Two justices who previously voted in favor of same-sex marriage under the state constitution indicated that they would reluctantly vote to uphold the new law. Chief Justice Ronald George and Justice Joyce Kennard, who were part of the 4-3 majority that vote for same-sex marriage in 2008, stated that they would have to yield to the will of the people. Kennard stated “Our task is quite limited. The people are those who have created the Constitution and what you are overlooking is the people’s broad power to amend the Constitution.”

The decision is likely to spur similar legislation in other states and may reduce the calls for a U.S. constitutional amendment. In the meantime, it is not clear what will happen to all of the couples who were married during the period between the two rulings. This could make for some interesting fights and a U.S. Supreme Court challenge. Those couples have already been married and have a claim to that prior status that would raise viable federal questions — even if it did not raise the core equal protection issue of same-sex marriage generally.

For the full story, click here.

49 thoughts on “California Supreme Court Appears Ready to Uphold Proposition 8 And Ban on Same-Sex Marriage”

  1. Buddha,
    Enjoyed the link, though you lead me into “off track” sinning.
    In that vein, though aimed at a 100 years later: Have your read Neal Stephenson’s Baroque Cycle. He presents a history of the Enlightenment, Natural Philosophy and the rise of our modern financial system. In the process presents exciting, well defined main characters swash buckling in and around Newton, Descarte, Leibniz, Hooke, Louis XIV and the entire known world of the time. Its a combination of historical novel,SF and Swords & Fantasy. Among the absolute best pieces of literature written in the past 50 years.

  2. Thank you for the replies to “Government in the marriage business.”

    BIL, I appreciate you connecting the dots. The U. S. spent 17 % of GDP on health care in 2008. It’s projection to 20 % by 2017 is ruinous. Health care in Germany, Canada and France are closer to 10 % of GDP or less. Churchill’s quote is genus.

    We the people have to enforce separation of church and state in order to provide civil liberties for all.

  3. Mike,

    Mr. Cotton is quite a guy. That really impressed me too. Actually, I was impressed by how they all handled it after science verified Mr. Cotton’s innocence, but none more so than the actions of the man himself. That’s true character.

  4. Buddha,
    I agree with you that federal intervention is needed to trump individual States in this. On a State level it is too easy to allow money and propaganda to block good policy.

    Secondly, I did see 60 minutes last night and commissioner Bair showed intelligence and good sense. Yes too, Geithner is to of the culture to be able to see beyond it and that is a big problem. I hated his appointment, was willing to give him a chance, but his solutions don’t impress me and I’ve never liked Larry Summers.

    Third, the other piece on 60 Minutes I found inspirational and although off thread, certainly is not inimical to this blog site and JT’s career accomplishments. I was struck by and moved by the NC detective who not only admitted he goofed but seemed so willing to learn from it. This is unusual behavior by public officials in DNA release cases. The reconciliation and acceptance of the woman who had been raped and her joining with Mr. Cotton to inform on the false ID issue brought tears to my eyes and choking in my throat. Those two people, so instrumental in this wrongful imprisonment, showed true humanity in atoning for their error.
    Mr. Cotton’s willingness to forgive far exceeds my own and shows him the better man for it.

  5. Bob,

    Interesting article. I like the multi-pronged approach she suggests vis a vis access and insurance as separate issues.

  6. Mike,

    Your point about this being a culture war issue is spot on, but really I think that just highlights the pending issues we have with State’s Rights. Since culture like politics is local, does the Federal Government have a right and role to dictate your state’s culture by dictating it’s laws when the national consensus is that they are correcting a wrong, but the local consensus is contrary? Well the answer has to be yes in light of the precedent(s) created during the Civil Rights movement of the 50’s and 60’s. And when universal health care comes about and local culture threatens to interfere with providing equal services and care, the last legal domino will fall or be positioned to fall. The social division will still linger. But I ask you, is there any way to correct that other than education? Getting Civil Unions to become reality still won’t overcome that battle. However, just like racism, I think it’d be hard to argue that the effect of a Federal ban on discrimination has not helped in the fight against racism – especially in the generations since. Early intervention by the Feds on the Civil Union issue could avoid some future litigation over refusal of service issues, but then again, it may be those every suits that force the Feds hand. Let’s not forget the whole Full Faith and Credit issues created by disparate states recognizing same sex unions. Can you rightfully deny access to someone based on relation when one state recognizes the relation but the other doesn’t? So to be, and I hate this word, proactive or not to me seems a valid question. As a practical matter, I know it will come to a fight before it’s resolved to the point the Feds step in – thinking ahead isn’t their strong suit and especially if it means angering a voting segment (no matter how troubled they may be). Naturally reflexive. It would be nice to see the Feds get out in front a problem for a change though.

    Speaking of which, did you catch FDIC Chair Sheila Bair on 60 Minutes last night? No wonder Geithner tried to knock her out last December after what I saw last night – her offer a practical solution for the big banks issue that he’ll never float because he’s too tied to the problem. She’s a sharp gal. No nonsense either. Obama should be asking her advice.

  7. CCD, Buddha & LarryE,
    Civil Unions for all would be an effective and logical solution to the entire marriage question so I agree with your points of view. Having said that I must say that the use of Civil Unions is too my mind far away. My reason for that belief has nothing to do with their logic, but with the fact that the Gay Marriage opposition is more a reflection of the broad based Fundamentalist Culture War, than it is reflective of a governmental policy discussion.

    The Fundamentalists need to believe that society is “going to hell in a hand basket” to use another of my favorite cliches.
    They see any encroachment in tradition as a threat to their personal beliefs and further evidence of destruction to society. This immunizes them to seeing other points of view, especially because their own is so based on fear. Most annoyingly, this represents the condition of the followers.

    The leaders of these Fundamentalist campaigns are for the most part calculating, hypocritical bastards, who seek power, wealth and possibly even sex for their ego gratification. They hold their flocks together by fear and by the common human false belief that things were better in “the old days” which was a “purer and simpler” time. They need these cultural battles to maintain their control, raise money and continue to wield power over “the sheep being sheared.”

  8. CCD –

    Instead of a municipality or the county issuing a marriage certificate, they would issue a civil union certificate…. Is this to simplistic?

    No. In fact one of the justices of the CA Supreme Court suggested the possibility of requiring the state “to employ non-marriage terminology” so that the state would deal only in “civil unions” and “domestic partnerships” rather than “marriages.”

    At least in the short term, the problem with having both “civil unions” and “marriages,” as I see it, is that it still suggests a difference, invites a judgment of superiority: “Oh, well, we’re married, y’see. You just have one of those civil union things.”

    In a similar way, it wasn’t that long ago that there was a general sense that being married by a JP or a judge somehow wasn’t as “real” a marriage as one performed in a religious setting. Being “married by the judge” carried an implication of a marriage that was done in haste or otherwise suggested a lesser commitment.

    On the other hand, that is a difference about which few people bother today. So maybe in time the difference between “civil unions” and “marriages” would fade, too.

  9. BIL –

    Since you like clarity and asked specific questions, I’ll give you a clear answer.

    I went back to my original comment on the Anderson case just to be sure about what ad hominems I may have employed.

    These are the critical terms I used:
    – presumption
    – thin gruel
    – utterly ridiculous
    – sheer speculation
    – jumping to conclusions
    – thin evidence

    Every one of them was applied to the arguments and logic I was criticizing. The language may have been harsh, but no harsher than deserved by the level of presumption they addressed. More to the point, not one of them is an ad hominem, which refers to going after the person instead of the argument.

    The rest of my comment consisted of suggesting a couple a ways the whole incident could have arisen from a misunderstanding.

    Your response was filled with ad hominems against Prof. Anderson and in at least one case directly misrepresented my argument; in fact, you had made personal attacks against Anderson, her judgment, and her motives before I said anything. Bluntly, I was not the one who introduced personal attacks into the matter.

    you come unhinged on me, I poke you a couple of times, you still act as you acted

    Curious how someone who supposedly is so tough that they feel a need to warn of “scarring” me if I don’t behave the way they want, regards stiff dissent as being “unhinged.” You’re really got that “I’m the victim!” routine down, haven’t you?

    Where’s your proof I’m wrong

    Point One: You are thus acknowledging you drew conclusions and made judgments about Anderson.

    Point Two: The burden of proof is on the claimant. It’s not for me to prove you’re wrong, it’s for you to prove you’re right. Which you have not even attempted to do.

    Point Three: If you wish to maintain, as you have, that the topic alone is what provoked the response, you must explain why only Wahlberg was questioned. An inability to do so is evidence that you are wrong.

    neither you nor I have the 411 on her thought process

    Oh, for…. That was the point! We don’t know what she was thinking. Nor do we know what Walhberg said, nor what went on during the class. Despite that self-professed ignorance, you made cracks about “brain police” and you and others asserted that the “threat” she perceived was the topic itself. By your own words, you have confessed that you accused Anderson of wrongful conduct without having the facts necessary to back it up. You have not rebutted or deflected my argument, you’ve confirmed it!

    why doesn’t she explain it in public

    Already asked, already answered. But to summarize:

    She did state a rationale: She perceived a threat. You’re demanding not that she state a rationale but that she defend it in detail. But to judge that detailed defense you must know the context, which means you must also demand that Wahlberg recreate his entire presentation – plus examining witnesses to see if his recreation accurately reflected the original. That is, you’re actually demanding a full-scale investigation at a time when all concerned seem prepared to drop the matter.

    you’re not worth seriously addressing any further

    I fully expect we can and will have mutually-civil exchanges in the future. But on this topic, you can rest assured the feeling is quite mutual.

  10. CCD,

    Simplicity is the best solution in any situation. And honestly, most of the homosexuals I know would not care what it’s called as long as they can see their loved ones when they fall ill and be afforded the chance to help them by getting them under their insurance umbrella. That’s also a reason I think this is going to be a State’s Rights issue now. Single payer health care is coming as a matter of national security and sound fiscal practice whether you like it or not. There are a lot off parasites in the health system that make profit and not care their motive and it’s time for you to be leaving now. Spend away on your lobbyists. There is a very real reason so many of our allies have socialized health care. Churchill said that, “Healthy citizens are the greatest asset any country can have.” It’s simpler. Less moving parts to break. More efficient. Less ways to skim money away from patients and facilities expenditures. And then this inevitability finally hits, you won’t be able to discriminate any more. Civil Unions compliment this and let the “purists” (meh) keep their precious word while not committing the most egregious sin of keeping the dying from their loved ones.

    Simply, I love simple.

  11. Why is government in the marriage business to begin with? It’s been suggested on this site, forgive me I don’t recall who or where, that civil unions would legally satisfy all the contracts of matrimony. Then adults who desire a religious ceremony could get married together in their respective faith.

    Instead of a municipality or the county issuing a marriage certificate, they would issue a civil union certificate, which would legally join a couple irrespective of their sex. This would honor the legal rights of all couples. Is this to simplistic?

  12. “You’re a bit off…at best on your facts. The Mormon church gave no money to Prop 8. Moreover, the anti-Prop 8 supporters actually had MORE money than their counterparts. To thus conclude that the Mormon Church waged “well-funded propaganda campaigns” is either naivety, disingenuous…or both.

    It is you who doesn’t have the facts, or are being disingenuous as shown by the following which just took me a few minutes to google, with far much more related material to link to that disproves your contention. The LDS on its’ own news site admits to around $190,000 in in-kind contributions.
    However, LDS organized a fund raising campaign for Mormons to give between $22 million and $39 million in cash.

    LDS was significantly in the fight against Gay Marriage in California, even by their own admission and statements. Do they have a right to express what they feel, of course they do. however, once doing so then they also must suffer the consequences of their actions. I’m not particularly against
    LDS except on three grounds.

    1. It bothers me when a religion runs a State in that it threatens Church/State separation and LDS runs Utah. It is therefore disconcerting when LDS begins to venture out into running other States.

    2. As a Jew the missionary work of LDS, Baptists and Catholics also offends me. I get very annoyed when approached on the street by bright-eyed pimply faced teenagers who are going to tell me how to be saved.

    3. That LDS has had the effrontery to “baptize” Jewish Holocaust victims posthumously is highly insulting to other Jews and myself. Although it has been claimed to be stopped rumor has it that it continues in secrecy. Posthumous Baptism is actually an unwarranted continuation of the Shoah. Also please to those Mormons out there, I know more about Jews than did Joseph Smith. There were no legions of Jews in North America in 600 BCE, it is only your way of trying to usurp the history of Judaism to your own benefit.

    When it comes to religious belief I’m a live and let live kind of person. However, many people of varying religious stripes fail to recognize the insults that other people, with strong though differing beliefs have to suffer, because of these zealot’s need to make others believers in their visions of the Creator. I’ll worry about my own salvation, thank you.

  13. Mike,

    You’re a bit off…at best on your facts. The Mormon church gave no money to Prop 8. Moreover, the anti-Prop 8 supporters actually had MORE money than their counterparts. To thus conclude that the Mormon Church waged “well-funded propaganda campaigns” is either naivety, disingenuous…or both.

    “They actually interfere with the democratic process rather than support it.”

    That’s actually an interesting comment which I agree with. Special interests are generally more motivated and push for change en mass. With apathy in the general populace, those movements gain considerable and magnified traction. But take out special interests to rid churches of political forces, and you also remove most civil rights organizations. I don’t know if that’s a hill you’re willing to go down.


    I believe the Court screwed up in addressing Prop 22, and now we’re in for a hairy ride. The issue before the court was what is the “official family relationship,” which excluded gays. But leaving that alone, the CA Ct. went after marriage? Boy…they’ve got themselves into an unnecessary pickle. I agree that there’s a substantive civil rights issue, but that the court simply treated the wrong one.


  14. It’s useful for boor hunting as well as troll killing.

    But I’ll be clear once again.

    Once you read something you didn’t like you came in rude and insulting, you continued rude when prodded. And then you attempt to paint me in with the same brush? Well, there’s a problem with that tactic, Karl. I admit to using the tactic for the aforementioned reason. I don’t fight fair. This isn’t court, there are no rules except one – this is JT’s playground. That’s why I’m playing nice. He asked. Let’s trace this, shall we? You come unhinged on me, I poke you a couple of times, you still act as you acted and here we are. You don’t like what I said about Professor Anderson? Where’s your proof I’m wrong? You don’t have any, just ad hominem hot air. That’s the last refuge of the desperate and poor tactics. The truth of the matter is unless you’re Professor Anderson, which would REALLY be pathetic, neither you nor I have the 411 on her thought process. So why doesn’t she explain it in public? Explain how a student performing the assignment as assigned has created a “perception of threat”? It must not have been too threatening as none of the other students called the cops or fled the building in terror. And “perception” created by one’s own ineptness in giving an assignment still narrows down to her being the causal error.

    Either way, boor or troll (and I’ll let others come to their conclusions), you’re not worth seriously addressing any further.

  15. Clarity is all I ask for

    You had it the first time. You were just too eager to rush to judgment to see it.

    On the other hand, I could have expected something from you along the lines of “Ah, I misunderstood, sorry.” or “I guess I read too quickly.” Or something. It was a good thing I didn’t.

    you’d better lay off the ad hominem, sport

    After the vituperation you heaped on Prof. Anderson (without factual basis) in that other thread, along with calling me a half-wit and a douche and now “a troll or just a rude ass,” I really don’t think you’re in a position to gripe about anyone else’s supposed ad hominems.

    I will say that in this case if you’re by chance referring to “dodo,” the truth is I was so frustrated by your failing to see what seemed to me a quite obvious point of agreement that I wanted to call you something but didn’t want to be nasty so I chose a word that I figured would come across as sufficiently silly to indicate it was meant to be taken as teasing, not insult. If it did come across as nasty, for that I will apologize.

    But at the end of the day, it may well be true that you’re more skilled at sniping and insult than I am. I’ve just never understood why that is a skill about which anyone would brag.

  16. “Larry
    …A “right” that can be taken away by a simple majority vote is not a right at all but a mere privilege dependent on current political winds.”

    Exactly. That’s why Federal involvement will have to eventually come into play. If racial minorities and women had to rely on States alone Black Americans would again be in chains and women would again be legally recognized as chattel in many States. States can not be allowed to control civil rights issues.

    IMO the upcoming battle over ‘Don’t ask, don’t tell’ is going to be a test drive for addressing sexual preference as a civil rights issue from the Federal pov.

  17. But you’d better lay off the ad hominem, sport. Last guy who did that walked got scarred. Ask him. He’s still here. I’ve been playing nice so far because I wasn’t sure if you were a troll or just a rude ass. I think I’m satisfied now.

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