Whiffleball
05-26-2009, 11:17 AM
http://www.nytimes.com/2009/05/27/us/27marriage.html?em
The California Supreme Court upheld a ban on same-sex marriage (http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html?inline=nyt-classifier) today, ratifying a decision made by voters last year at a time when several state governments have moved in an opposite direction.
The decision, however, preserves the 18,000 marriages performed between the court’s decision last May that same-sex marriage was lawful and the passage by voters in November of Proposition 8, which banned it. Supporters of the proposition argued that the marriages should no longer be recognized.
Today’s opinion (http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF), written by Chief Justice Ronald M. George for a 6-to-1 majority, said that same-sex couples still have the right to civil unions, which gives them the ability to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” But the justices said that the voters had clearly expressed their will to limit the formality of marriage to opposite-sex couples.
Justice George wrote that Proposition 8 did not “entirely repeal or abrogate” the right to such a protected relationship, but argued that it “carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.”
The 18,000 existing marriages can stand, he wrote, because Proposition 8 did not include language specifically saying it was retroactive.
Heated reaction to the decision began immediately, with protestors blocking traffic near the Supreme Court, and advocates for same-sex marriage beginning plans for another election. In Los Angeles, Jennifer Pizer, the Marriage Project Director for Lambda Legal, said that the decision “puts it to us to repair the damage at the ballot box.” One of the state’s largest gay rights groups, Equality California, sent an e-mail message to supporters pleading for contributions to raise $500,000 toward “a massive campaign to put an initiative on the ballot and win.”
Shannon Minter, the legal director for the National Center for Lesbian Rights (http://www.nclrights.org/), called the decision “a terrible blow to the thousands of gay and lesbian Californians who woke up this morning hoping and praying their status as equal citizens of this state would be restored.”
Those who backed Proposition 8 were elated. Andrew P. Pugno, general counsel for ProtectMarriage.com (http://protectmarriage.com/), the leading group behind last year’s initiative, said he and his allies were “very gratified” by the decision. “This is the culmination of years of hard work to preserve marriage in California,” he said in an e-mail message.
Kenneth W. Starr (http://topics.nytimes.com/top/reference/timestopics/people/s/kenneth_w_starr/index.html?inline=nyt-per), dean of the Pepperdine University (http://topics.nytimes.com/top/reference/timestopics/organizations/p/pepperdine_university/index.html?inline=nyt-org) School of Law and the lawyer who argued the case in favor of Proposition 8, said that the ruling “represents a ringing judicial affirmation of the right of the people of California to amend the state constitution at the ballot box.” The same court had ruled in May (http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF) that same-sex couples enjoyed the same fundamental “right to marry” as opposite-sex couples. That sweeping 4-3 decision provoked a backlash from opponents that led to Proposition 8, which garnered 52 percent of the vote last November after a bitter electoral fight.
The opinion marks a new round in the long-running battle in California over the issue, and will almost certainly lead to a counter-initiative intended to overturn Proposition 8, which changed the state constitution, as early as next year.
The opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the proposition, argued that the change to the state’s constitution was so fundamental that the initiative was not an amendment to the constitution but a “revision,” a term for measures that rework core constitutional principles.
Revisions, under California law, cannot be decided through a simple signature drive and majority vote, which is what led to Proposition 8; they can only be placed on the ballot with a two-thirds vote by the legislature.
But the justices said the proposition was an amendment, not a revision. It has historically been rare for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars deemed the challenge against Proposition 8 a long shot.
The question of whether Proposition 8 was an amendment or revision was the centerpiece of the oral arguments before the State Supreme Court during its hearing on March 5.
The justices who had issued the ringing support of same-sex marriage in 2008 presented a far less supportive front during the three-hour hearing. A number of justices who had voted in the majority in the 2008 case, particularly Joyce L. Kennard, strongly suggested in their questions from the bench that they were reluctant to overturn the will of the voters or to undercut the initiative process.
In questions that clearly anticipated the logic of today’s majority opinion, the justices had seemed to be seeking a middle ground that would allow the rights they had affirmed the year before to be preserved in the form of civil unions, which would be different from marriage in name only. Justice Kennard suggested that the substantive rights of gays were the same after the proposition, and all that had changed was “the label of marriage.”
That distinction was deeply dissatisfying to Mr. Minter, representing the plaintiffs, who argued that without the right to the word “marriage,” same-sex couples would find “our outsider status enshrined in our Constitution.”
Chief Justice George’s opinion dealt directly with that point, stating that the court understood the importance of the word marriage and was not trying to diminish it. However, he wrote, the legal right of people to call themselves married is only one of the rights granted to same-sex couples in the decision last May, and so “it is only the designation of marriage -- albeit significant--that has been removed by this initiative measure.”
Karl Manheim, a professor at Loyola Law School in Los Angeles, called the decision a “safe” position written by justices who can be recalled by voters. The change wrought by Proposition 8 was anything but narrow, he said, and claiming that the word marriage was essentially symbolic was like telling black people that sitting in the back of the bus was not important as long as the front and back of the bus arrive at the same time.In the months since the case was argued, three other states have legalized same-sex marriage. On April 3, Iowa’s supreme court struck down a state statute that limited civil marriage to a union between a man and a woman — and cited California’s 2008 decision repeatedly in support of its ruling. Less than a week later, the Vermont Legislature narrowly overrode a veto by Gov. Jim Douglas of a bill that allowed same-sex couples to marry. Then on May 6, Maine’s legislature, too, passed a bill allowing same-sex marriage, and Gov. John Baldacci signed it.
Initiatives are also moving forward in New York and New Jersey; a similar measure has stalled in the New Hampshire legislature by a slim margin this month, but could come up for a new vote next month.
At the same time, attitudes of Americans toward same-sex marriage favor liberalization of the practice. In an April CBS/New York Times poll, 42 percent of those surveyed favored same-sex marriage, up from 21 percent at election time in 2004, when it was a wedge issue during the presidential campaign. That poll suggests the trend will continue into the future: 57 percent of the respondents favored legal recognition for same-sex marriage, compared with 31 percent of respondents over the age of 40.
The sole dissenting vote in Tuesday’s decision came from the court’s only Democrat, Justice Carlos R. Moreno (http://topics.nytimes.com/top/reference/timestopics/people/m/carlos_r_moreno/index.html?inline=nyt-per), who had been mentioned as possible choice by President Obama (http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per) for the United States Supreme Court (http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org). He wrote that Proposition 8 means “requiring discrimination,” which he said “strikes at the core of the promise of equality that underlies our California Constitution” -- and, he added, “places at risk the state constitutional rights of all disfavored minorities.”
Chief Justice George wrote that the court was bound to uphold the right of California voters to amend the constitution, whatever the merits of the claim that it is too easy to do so. And so, he wrote, if there is to be a constitutional challenge to Proposition 8, it must “find its expression at the ballot box.”
The language of Justice George’s decision seemed almost regretful, as he wrote that “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.” Instead, he wrote, “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.”I fucking love denying equal protection under law and basic humanity and compassion to our fabulous brethren.
An amendment can't be unconstitutional, and that's really all it comes down to. Upheld. The court can't help that the people of California are homophobic.
The California Supreme Court upheld a ban on same-sex marriage (http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html?inline=nyt-classifier) today, ratifying a decision made by voters last year at a time when several state governments have moved in an opposite direction.
The decision, however, preserves the 18,000 marriages performed between the court’s decision last May that same-sex marriage was lawful and the passage by voters in November of Proposition 8, which banned it. Supporters of the proposition argued that the marriages should no longer be recognized.
Today’s opinion (http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF), written by Chief Justice Ronald M. George for a 6-to-1 majority, said that same-sex couples still have the right to civil unions, which gives them the ability to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” But the justices said that the voters had clearly expressed their will to limit the formality of marriage to opposite-sex couples.
Justice George wrote that Proposition 8 did not “entirely repeal or abrogate” the right to such a protected relationship, but argued that it “carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.”
The 18,000 existing marriages can stand, he wrote, because Proposition 8 did not include language specifically saying it was retroactive.
Heated reaction to the decision began immediately, with protestors blocking traffic near the Supreme Court, and advocates for same-sex marriage beginning plans for another election. In Los Angeles, Jennifer Pizer, the Marriage Project Director for Lambda Legal, said that the decision “puts it to us to repair the damage at the ballot box.” One of the state’s largest gay rights groups, Equality California, sent an e-mail message to supporters pleading for contributions to raise $500,000 toward “a massive campaign to put an initiative on the ballot and win.”
Shannon Minter, the legal director for the National Center for Lesbian Rights (http://www.nclrights.org/), called the decision “a terrible blow to the thousands of gay and lesbian Californians who woke up this morning hoping and praying their status as equal citizens of this state would be restored.”
Those who backed Proposition 8 were elated. Andrew P. Pugno, general counsel for ProtectMarriage.com (http://protectmarriage.com/), the leading group behind last year’s initiative, said he and his allies were “very gratified” by the decision. “This is the culmination of years of hard work to preserve marriage in California,” he said in an e-mail message.
Kenneth W. Starr (http://topics.nytimes.com/top/reference/timestopics/people/s/kenneth_w_starr/index.html?inline=nyt-per), dean of the Pepperdine University (http://topics.nytimes.com/top/reference/timestopics/organizations/p/pepperdine_university/index.html?inline=nyt-org) School of Law and the lawyer who argued the case in favor of Proposition 8, said that the ruling “represents a ringing judicial affirmation of the right of the people of California to amend the state constitution at the ballot box.” The same court had ruled in May (http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF) that same-sex couples enjoyed the same fundamental “right to marry” as opposite-sex couples. That sweeping 4-3 decision provoked a backlash from opponents that led to Proposition 8, which garnered 52 percent of the vote last November after a bitter electoral fight.
The opinion marks a new round in the long-running battle in California over the issue, and will almost certainly lead to a counter-initiative intended to overturn Proposition 8, which changed the state constitution, as early as next year.
The opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the proposition, argued that the change to the state’s constitution was so fundamental that the initiative was not an amendment to the constitution but a “revision,” a term for measures that rework core constitutional principles.
Revisions, under California law, cannot be decided through a simple signature drive and majority vote, which is what led to Proposition 8; they can only be placed on the ballot with a two-thirds vote by the legislature.
But the justices said the proposition was an amendment, not a revision. It has historically been rare for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars deemed the challenge against Proposition 8 a long shot.
The question of whether Proposition 8 was an amendment or revision was the centerpiece of the oral arguments before the State Supreme Court during its hearing on March 5.
The justices who had issued the ringing support of same-sex marriage in 2008 presented a far less supportive front during the three-hour hearing. A number of justices who had voted in the majority in the 2008 case, particularly Joyce L. Kennard, strongly suggested in their questions from the bench that they were reluctant to overturn the will of the voters or to undercut the initiative process.
In questions that clearly anticipated the logic of today’s majority opinion, the justices had seemed to be seeking a middle ground that would allow the rights they had affirmed the year before to be preserved in the form of civil unions, which would be different from marriage in name only. Justice Kennard suggested that the substantive rights of gays were the same after the proposition, and all that had changed was “the label of marriage.”
That distinction was deeply dissatisfying to Mr. Minter, representing the plaintiffs, who argued that without the right to the word “marriage,” same-sex couples would find “our outsider status enshrined in our Constitution.”
Chief Justice George’s opinion dealt directly with that point, stating that the court understood the importance of the word marriage and was not trying to diminish it. However, he wrote, the legal right of people to call themselves married is only one of the rights granted to same-sex couples in the decision last May, and so “it is only the designation of marriage -- albeit significant--that has been removed by this initiative measure.”
Karl Manheim, a professor at Loyola Law School in Los Angeles, called the decision a “safe” position written by justices who can be recalled by voters. The change wrought by Proposition 8 was anything but narrow, he said, and claiming that the word marriage was essentially symbolic was like telling black people that sitting in the back of the bus was not important as long as the front and back of the bus arrive at the same time.In the months since the case was argued, three other states have legalized same-sex marriage. On April 3, Iowa’s supreme court struck down a state statute that limited civil marriage to a union between a man and a woman — and cited California’s 2008 decision repeatedly in support of its ruling. Less than a week later, the Vermont Legislature narrowly overrode a veto by Gov. Jim Douglas of a bill that allowed same-sex couples to marry. Then on May 6, Maine’s legislature, too, passed a bill allowing same-sex marriage, and Gov. John Baldacci signed it.
Initiatives are also moving forward in New York and New Jersey; a similar measure has stalled in the New Hampshire legislature by a slim margin this month, but could come up for a new vote next month.
At the same time, attitudes of Americans toward same-sex marriage favor liberalization of the practice. In an April CBS/New York Times poll, 42 percent of those surveyed favored same-sex marriage, up from 21 percent at election time in 2004, when it was a wedge issue during the presidential campaign. That poll suggests the trend will continue into the future: 57 percent of the respondents favored legal recognition for same-sex marriage, compared with 31 percent of respondents over the age of 40.
The sole dissenting vote in Tuesday’s decision came from the court’s only Democrat, Justice Carlos R. Moreno (http://topics.nytimes.com/top/reference/timestopics/people/m/carlos_r_moreno/index.html?inline=nyt-per), who had been mentioned as possible choice by President Obama (http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per) for the United States Supreme Court (http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org). He wrote that Proposition 8 means “requiring discrimination,” which he said “strikes at the core of the promise of equality that underlies our California Constitution” -- and, he added, “places at risk the state constitutional rights of all disfavored minorities.”
Chief Justice George wrote that the court was bound to uphold the right of California voters to amend the constitution, whatever the merits of the claim that it is too easy to do so. And so, he wrote, if there is to be a constitutional challenge to Proposition 8, it must “find its expression at the ballot box.”
The language of Justice George’s decision seemed almost regretful, as he wrote that “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.” Instead, he wrote, “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.”I fucking love denying equal protection under law and basic humanity and compassion to our fabulous brethren.
An amendment can't be unconstitutional, and that's really all it comes down to. Upheld. The court can't help that the people of California are homophobic.