While buried by the news of the Sotomayor nomination, yesterday was a disappointing day for many of us who favor same-sex marriage. The California Supreme Court voted 6-1 to uphold Proposition 8, which banned same-sex marriage. The only good news for couples is that the Court ruled that the 18,000 unions licensed before the proposition would not be invalidated.
The ruling was no surprise. As noted in an earlier entry, the oral arguments showed a lack of support for striking down Proposition 8 despite the 4-3 vote in May 2008 finding that a law restricting marriage to a man and a woman was discriminatory and invalid.
Frankly, it would have been viewed as judicial activism for the Court to reject such a public vote. This was the first point that the justices raised in their decision:
In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
It is nevertheless a blow to see California of all states fall back into its prior status as a state rejecting same-sex marriages. It was particularly shocking to see so many Obama voters flock to the support of this proposition. It shows that this is a hard struggle that crosses political and social lines.
It will create a curious situation with thousands of recognized gay and lesbian couples living in the state while other couples are denied the same status. There will also be lingering questions under the full faith and credit clause as such couples (as well as couples from states like Iowa, Massachusetts, Connecticut, Maine and possibly D.C.) seek recognition in other states.
I have long supported doing away with the term “marriage” in favor of a uniform civil union standard for all couples regardless of gender. However, we are faced with a long struggle over same-sex marriage. I remain convinced that the law and society trends naturally towards greater pluralism and acceptance. Unless this trend is halted by a constitutional amendment, I believe that a majority of states will recognize same-sex marriage in our lifetime. For a prior column, click here.
For a copy of the opinion, click here.
For the full story, click here.
Tom, the fallacy in your argument is in the premise that rights are created or eliminated at the ballot box. We need neither the constitution nor the courts under your view of government. We could simply permit the majority to dictate the terms of existence by referendum. Fortunately, that’s not the way this deal was set up.
Bron,
You’re tending to forget that the way families were structured through most of human history is different than the system we have now. Is our system better? Probably with some parts, probably not with others.
Also, wouldn’t the individual be the elemental unit in a society?
GWLSM:
“She can also teach he son to stand at the toilet and point his wee-wee at the water and to leave the seat down when he is finished.”
There in lies my point a dad will teach the son to leave the seat up!
Seriously though as a child of a single parent house (mother only) I speak with some authority on this subject and I dont think children are capably raised by one parent of either sex. Something gets missed in the childs upbringing, I know it did in mine. Now is it harmful, in my case I dont think it was (although I am very conservative probably from having to do everything on my own so some may disagree on it being harmful). 2 parents of the same sex may offer everything a child needs, I dont know never having had 2 of any combination. But my intuition tells me that it would be the same feeling of missing something. I havent really sat down and thought about this in depth so these thoughts are very basic at best.
Not having a father left a void in my life, I assume that not having a mother leaves a void in someones life too. An effeminate father is not a mother nor is a masculine woman a father. Is it harmful probably not as long as the chilren are loved and cared for, is it optimal probably not.
If I was an adoption agent I would try and place chidren with male/female parents and then move on from there with single parents being the bottom of the list. So I dont disagree with 2 mommies or 2 daddies but they would be my second tier candidates all things being equal. Single parents either male or female would be at the bottom. My opinions on this are heavily influenced by my own experiences.
Another case of asking the courts to ignore the voting booth in favor of a particular outcome.
GWLSMOM:
Good points.
Bron
You wrote:
But 2 women or 2 men are not the optimal parents all things being equal. Children need both male and female input (at least in my mind).
What makes you think that children reared in a Lesbian home don’t have sufficient or appropriate male contact? What is so special about a mommy and a daddy that makes kids develop optimally, as you put it?
Mommy can teach her son to throw a ball and to fish as easily as daddy. She can also teach he son to stand at the toilet and point his wee-wee at the water and to leave the seat down when he is finished.
Gay couples can teach their daughters to cook and sew and put on lipstick.
No one questions single parent homes where one parent or the other has died or divorced or abandoned the spouse and children with regard to how appropriate that style of parenting is or what the kids may be missing as long as the single parent is heterosexual.
Buddha
You Wrote: Enjoy your self-defeating discrimination, California. You earned it the old fashioned way – by letting lobbyists make your decisions for you instead of thinking for yourselves. Sad, really, that the American state with a reputation for being educated and progressive has proven to be Alabama is drag.
CA may be a really really Blue state but the majority of Californians are pretty conservative. LIke everything east of I-5. They bought tons of airtime, out of state lobbyists, carpet-bombing our airwaves, legally, with O Fortuna blasting in the background while actors put the fear of red death in the minds of the vast majority convincing them that
“The Gay” was out to get them and their children.
They lobbied hardest in the African-American and Latino communities where homosexuality is not as acceptable. They went to Black and Latino churches. They rallied the tens of thousands of mega-churchgoers and issued voters guides. They used the bible. They used any means possible and they won.
This time.
Yeah. The Left screwed up. They forgot to mobilize with gay marriage as a civil rights issue. They forgot alot of things. They won’t forget next time and there will be a next time.
Bron
You wrote: as a conservative I have mixed emotions on this. Personally I think marriage is between a man and a woman and that family is the elemental unit of society and that children do better with a mother and father because that appears to be the natural order of things.
Me: Marriage, for centuries, was a contractual relationship between families of means. Poor people, without land or money, did not marry, but instead pretty much hooked up for lack of a better term, hoping to improve their prospects through arrangements that might be offered to a son who managed to finda good apprenticeship or a daughter with exceptional beauty, thusly creating that we think of as upward mobility which was very very rare.
Marriages were arranged for the purposes of consolidating wealth and land ownership, not for the purpose of rearing children that would do better or worse because there were parents of two genders in the home. What we recognize as marriage today is a recent invention. when one considers the timeline of modernity, the most common families were blended families, due to shortened life expectancy. Men who lost wives to death in childbirth or to disease had to take other wives who then produced other children, often via her marriage contract, eliminating the children of her predecessor from the line of inheritance. Large families were necessary in the American rural age prior to the Civil War and the flight to cities in the Industrial revolution, because large farms needed many hands in order to function.
Children today do better when they are reared with love and consistently good parenting and that can come from any union of adults who have a commitment to giving their kids the best that they can offer. That said, many couples I know have chosen to remain childless and an astonishing percentage of my childhood friends have never married. Whatever has led to their situation is none of my business — I just want them to be happy and to live the lives that they have chosen for themselves.
You wrote: How do you reconcile that with the natural desire of people to pair and bond, whatever their sexual orientation? And how do you not allow them the same legal privileges as a married man and woman?
Me: easily. Not everyone has that natural desire as you put it. Personally I believe that any couple who chooses to marry should marry and should be permitted to do so without restraint from the government.
YOu wrote: More disturbing is the possibility of a plurality of people able to vote for something that may be unconstitutional and have it upheld. I think the voters in CA did not see far enough into the future and may live to regret their vote on prop 8.
Me: well, yeah. as a CA resident, I was saddened but not surprised by yesterday’s decision. What this does is create two classes of same sex marriage, those 18,000 or so couples who married before Prop 8 and those who did not. Should those who did not be penalized for not rushing to the altar? How does one couple prove that their marriage is valid while another cannot? To answer you directly, does this mean that voters can decide to segregate public toilets and water fountains and schools again? Make prayer in public schools mandatory?
I am not an attorney and have no real background in constitutional law so I have no idea how this will all end and how future litigation will answer these questions but what I do have is hope that marriage is made universally available to any couple who wishes to marry.
bUDDHA:
“This would be self-evident if theocrats weren’t trying to force their beliefs not just upon individual citizens, but upon the system”
They do seem to want to do that. I am very much opposed to the philosophy of most organized religions, especially the evangelical free church types. Some of the ideas they espouse are spooky (no allusion to the Holy Ghost implied).
Mike A.,
That was an excellent analysis. I do think these rulings henge on church-state entwinement and agree that the best way to resolve them is as you state. Eventually, social mores will change as well. Many young people, even fundamentalist young people, do not see being lesbian or gay as the moral crime that the older generations do. I hope this will help the movement for legal equality.
Bron,
I think on the homosexual side, you’d hear few if any quibbles about over what it’s called, marriage or union. To that side, it’s more about personal, contractual and property rights than about nomenclature. Marriage, after all, as far as the state is ultimately concerned is a contractual relationship not a theocratic relationship. Contracts and obligations is what this whole argument falls to legally once the religious language is dropped. This would be self-evident if theocrats weren’t trying to force their beliefs not just upon individual citizens, but upon the system. Systemic discrimination is the worst kind of discrimination – it’s hateful as well as lazy.
MikeA:
good thougths as always, I am in favor of civil unions and see no conflict with religion (although I am not particulary religious in the common parlance). I would think that civil unions would be an acceptable compromise for all parties involved.
Although the fanatics on both sides would probably disagree.
Much of the disappointment over the California decision springs from the fact that we have come to perceive that state as a progressive leader on social issues. Although I know nothing about the California constitution, my gut feeling is that the opinion was probably legally correct. But it doesn’t resolve anything in the long run because the issue of “gay marriage” remains ill defined, rendering intelligent debate virtually impossible.
I have probably commented on this before, but I remain mystified by the widespread misunderstanding of the respective roles of the state and religion on the institution of marriage. The state’s interest relates to the bundle of legal rights and responsibilities created by marriage. Accordingly, each state has adopted by statute and litigation a detailed legal framework through which it issues licenses, maintains records of vital statistics, regulates the acquisition and disposition of assets, provides rules for the custody and support of children and determines the legal consequences of death and dissolution. The role of the state, then, is in the creation and regulation of legal relations arising from civil unions.
The interest of religion in marriage is scriptural and sacramental. Each religious body determines its own eligibility requirements and adopts its own rules and rituals within a specific doctrinal framework. The religious ceremony does not create the legal relationship; it confers a sacramental blessing. Thus the right to terminate the legal relationship remains regardless of the religion’s views on the permissibility of divorce.
Unfortunately, the word “marriage” is used interchangeably to describe separate and distinct relationships. As a result, people of strong religious views treat the interests of the state and religion in marital relationships as indistinguishable. When anyone proposes expanding the class of people whose relationships should receive legal recognition by the state, religion regards the proposal as an attack on the religious institution. In biblical terms, the resulting debate calls to mind the story of the Tower of Babel.
Although they would deny it, and the denial of many would be in good faith, the arguments of opponents of gay marriage (or civil unions between gay persons) are essentially theocratic. The controversy will never be resolved until we recognize and restore to its rightful place the doctrine of separation of church and state.
lol,
Pardon, my slip was showing.
Alabama IS a drag, but what I meant was “Alabama in drag.”
What would Roy Rogers and Dale Evans do?
RCampbell:
“Certainly you recognize that a) not all hetero couples have or even want children (my brother and brother-in-law as examples have each been married over 25 years and both couple chose to forego children) and b) thousands, if not tens of thousands, of children have been and are being raised as heterosexuals by gay couples.”
most assuredly, I do. However I hope you admit that there is a biological imperative to reproduce. As rational animals we can overcome this imperative and choose to live as we wish. I also hope you understand that children recieve different things from male and female parents. I am not suggesting that gay couples would not make fine parents, most gay people I know are very affectionate and kind people. But 2 women or 2 men are not the optimal parents all things being equal. Children need both male and female input (at least in my mind).
I certainly believe that gays have every right to adopt or have children, that is none of my business and none of the states business. I would never even suggest a law to preclude gays from being able to adopt or have children.
Yes, love really isn’t THAT important in this miserable craptastic world and deserves no legal protection because a substantial part of your population lacks proper toilet training in addition to an actual education, is that it California?
PSSSSSST! Hey half-wits! This is just like an electrical problem. The compatibility of the plugs is a secondary issue to whether the current flows at the proper amperage and voltage. What’s your next step backward? Banning interracial marriage? Keeping those “god-less homos” out of the movie industry just like those “filthy commies”?
You stand a better chance of legislating earthquakes than you do legislating human sexuality.
Enjoy your self-defeating discrimination, California. You earned it the old fashioned way – by letting lobbyists make your decisions for you instead of thinking for yourselves. Sad, really, that the American state with a reputation for being educated and progressive has proven to be Alabama is drag.
In the land of fruits and nuts, the nuts won this round.
Bron
“Personally I think marriage is between a man and a woman and that family is the elemental unit of society and that children do better with a mother and father because that appears to be the natural order of things”.
Certainly you recognize that a) not all hetero couples have or even want children (my brother and brother-in-law as examples have each been married over 25 years and both couple chose to forego children) and b) thousands, if not tens of thousands, of children have been and are being raised as heterosexuals by gay couples.
“More disturbing is the possibility of a plurality of people able to vote for something that may be unconstitutional and have it upheld”.
Heartily agreed. Mob rule is very distubing. One doesn’t have to wonder for very long to see where our society would be (or wouldn’t be) if such issues as slavery, inter-racial marriage, women’s sufferage, seat belts or a host of other issues were put on a ballot.
as a conservative I have mixed emotions on this. Personally I think marriage is between a man and a woman and that family is the elemental unit of society and that children do better with a mother and father because that appears to be the natural order of things.
How do you reconcile that with the natural desire of people to pair and bond, whatever their sexual orientation? And how do you not allow them the same legal privileges as a married man and woman?
More disturbing is the possibility of a plurality of people able to vote for something that may be unconstitutional and have it upheld. I think the voters in CA did not see far enough into the future and may live to regret their vote on prop 8.
Dont like property rights, put prop 23 on the ballot; dont like dogs and cats how about prop 45; dont like Chevys-prop 369.
It is ironic that some “Religions” will not recognize a marriage if not with the anointed faith. But then again it was one of the first way to keep track of people. And Taxes flowed naturally.
Union, Marriage, whatever it all boils down to what is in the heart and soul.