SCOCA upholds Prop 8, 18000 marriages

[Surlethe]

LATimes has a breaking-news banner to this effect: "State Supreme Court upholds Prop. 8, 18,000 same-sex marriages". Also, I just heard a blurb on NPR about it. The CA supreme court's website is loading interminably, probably because it's swamped with hits.

Disappointing, but I understood that the legal argument of the No on 8 crowd was on shaky ground to begin with. Fortunately, demographic shift means it's probably only going to be another eight years or so before a new ballot measure overturns Prop 8 by a decent margin.

[Cecelia5578]

LATimes has a breaking-news banner to this effect: "State Supreme Court upholds Prop. 8, 18,000 same-sex marriages". Also, I just heard a blurb on NPR about it. The CA supreme court's website is loading interminably, probably because it's swamped with hits.

Disappointing, but I understood that the legal argument of the No on 8 crowd was on shaky ground to begin with. Fortunately, demographic shift means it's probably only going to be another eight years or so before a new ballot measure overturns Prop 8 by a decent margin.

I think it'll be a lot sooner than eight years for SSM to be legal in CA.

[Darth Wong]

I find that article confusing. It says that the court elevated sexual orientation to a protected class for the purposes of outlawing discrimination, but that the argument to overturn a gay marriage ban is "shaky". But no doubt there's a shitload of confusing legalese to explain that.

[ray245]

LATimes has a breaking-news banner to this effect: "State Supreme Court upholds Prop. 8, 18,000 same-sex marriages". Also, I just heard a blurb on NPR about it. The CA supreme court's website is loading interminably, probably because it's swamped with hits.

Disappointing, but I understood that the legal argument of the No on 8 crowd was on shaky ground to begin with. Fortunately, demographic shift means it's probably only going to be another eight years or so before a new ballot measure overturns Prop 8 by a decent margin.

Unless there is a federal ruling legalising Homosexual marriages. Which is kinda unlikely in my opinion.

[RedImperator]

I find that article confusing. It says that the court elevated sexual orientation to a protected class for the purposes of outlawing discrimination, but that the argument to overturn a gay marriage ban is "shaky". But no doubt there's a shitload of confusing legalese to explain that.

The legal argument to overturn Prop 8 was based on procedure, not discrimination. Essentially, the plaintiffs were arguing that Prop 8 constituted a revision of the California state constitution, rather than just an amendment, and revisions require a supermajority of voters to pass. The defendants argued that the California constitution defines "revision" as changes made directly to the structure of the state government, and since Prop 8 didn't do that, it wasn't a revision and hence only needed a simple majority.

SCOCA legalized gay marriage initially on anti-discrimination grounds (based on the California state constitution). However, Prop 8 legalized that discrimination, and so plaintiffs suing to have it overturned couldn't take that route a second time.

[Cecelia5578]

For all the right wing bullshit about California being a bastion of left wing nuttery, 6 out of the 7 justices were appointed by Republicans, with the exception being the dissenter in today's ruling, Carlos Moreno, who was appointed by Gray Davis. In addition to being a damning indictment of the California Constitution, today also is a stark reminder that the GOP has dominated the governorship in CA for a very long time.

[Darth Wong]

Is the Governator laying low on this issue? The news articles don't seem to contain any statements from his office.

[Cecelia5578]

Here is a link (PDF warning) to the opinion

http://www.courtinfo.ca.gov/opinions/do ... 168047.PDF

The biggest loser today: The Equal Protection Clause of the California Constitution.

[Pint0 Xtreme]

Is the Governator laying low on this issue? The news articles don't seem to contain any statements from his office.

The Governator has done squat for this issue or for gay rights. The only thing he's ever done was voice his opinion against Prop 8. He also vetoed a same-sex marriage bill that was passed by the legislature TWICE. One of the very few good things this fucked up legislature has produced was vetoed two times. I doubt he's going to make any statements regarding the court's decision.

[CaptainChewbacca]

Is the Governator laying low on this issue? The news articles don't seem to contain any statements from his office.

Generally, he just says its a matter for the courts/people/legislature. Anyone but him.

[CmdrWilkens]

I find that article confusing. It says that the court elevated sexual orientation to a protected class for the purposes of outlawing discrimination, but that the argument to overturn a gay marriage ban is "shaky". But no doubt there's a shitload of confusing legalese to explain that.

The legal argument to overturn Prop 8 was based on procedure, not discrimination. Essentially, the plaintiffs were arguing that Prop 8 constituted a revision of the California state constitution, rather than just an amendment, and revisions require a supermajority of voters to pass. The defendants argued that the California constitution defines "revision" as changes made directly to the structure of the state government, and since Prop 8 didn't do that, it wasn't a revision and hence only needed a simple majority.

SCOCA legalized gay marriage initially on anti-discrimination grounds (based on the California state constitution). However, Prop 8 legalized that discrimination, and so plaintiffs suing to have it overturned couldn't take that route a second time.

Slight amendment to your point but a "revision" doens't actually require a super majority of voters rather it can happen one of two ways:

- A duly appointed constitutional convention OR
- A 2/3rds majority vote of the state legislautre followed by a majority vote of the state


Anyway the reason everyone kept saying that the battle to overturn Prop 8 was "shaky" relates to how you define revision and CA state law has rather consistently held that a revision is only a change which materially affects the structure or intent of the government. The anti-8 forces essentially had to argue that marriage is so fundamental a right that it intereferes with the application of the equal protection clause.

Now I would agree that Prop 8 shits all over that clause but on the technical merits, as it were, there is no change in how the government is structured or run. The equal protection clause in virtually every state (and the Federal) copnstitution already has a host of extenuating circumstances. The judicial test for whether they are legal tends to be very high (any exception to an equal protection clause must usually have a critical government benefit and be highly targeted) but they do exist. Since exceptions exist enshrining one into the state constitution woudl certainly seem to indicate it is an amendment not a revision.



As an aside I get that anger and emotion will be needed in the fight to overturn Prop 8, probably via ballot initiative either in 2010 or 2012 (were I strategizing I'd go for 2012 because the Presidential election should motivate a lot more folks to get to the poll and would lend a lot of organizational support to the general progressive/liberal voters so anti-8 forces could target their outreach better) so anyway I get that emotion is needed but I just hate retarded anger. I get anger that the judges didn't overturn Prop 8 becaus it is a stain on civil liberties but I just get rubbed the wrong way by folks saying the judges were "playing politics" or trying to "throw a bone" to one side or the other. its just as retarded as the Yes on 8 forces who decride the May ruling last year which allowed for gay marriage as being judicial overreach or some such malarky.

While there are always exceptions I think in both cases the judges reviewed the case before them and did their level best to apply the law to the question at hand. Last May they were confronted by an equal protection violation and they dug back to the overturning of anti-miscegenation laws to point out that prohibition on gay marriage is an equal protection violation which no valid state purpose existed to restrain. Today they were confronted with a quesiton regarding the mechanics of constitutional alteration and looked back through precedent to hold that regardless of what social ills may flow from it the voters do have the ability to so constrain the state and one another. In the quesiton today whether or not voters SHOULD be able to do so isn't dealt with near as I can tell. I know its easy to expect judges to correct deficiencies in the system but it ill serves us all to expect that all the time, if there are ills which can stem from the process then it is up to citizens, in the classic sense, to act to correct this flaw and I can only hope this happens in California.

[Cecelia5578]

Anyway the reason everyone kept saying that the battle to overturn Prop 8 was "shaky" relates to how you define revision and CA state law has rather consistently held that a revision is only a change which materially affects the structure or intent of the government. The anti-8 forces essentially had to argue that marriage is so fundamental a right that it intereferes with the application of the equal protection clause.

The CA Supreme Court held that In Re Marriage Cases, sexual orientation was to be protected, for equal protection purposes, under strict scrutiny. Which means that (for both Federal and State purposes) that any law affecting such a group must satisfy a compelling governmental interest, be narrowly tailored, and be the least restrictive means possible for achieving that end. At the Federal level, only race/lineage/national origin is so treated, with the consequence that laws that affect those groups will probably be overturned; the burden of proof is on the government in that case. Regardless of the revision vs. amendment argument, the justices seemed to apply a rather weak rational basis argument here, rather than strict scrutiny.

Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure 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, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Which, (insert legalese handwavium here) basically means that six judges just took a messy shit all over the equal protection clause of the CA Constitution.

[LMSx]

Upholding the 18,000 gay marriages seems like a very big deal. Every day for the next several years until a repeal of Prop 8 hits the ballot, advocates are going to be pointing to A) ordinary, normal married citizens who are gay and B) civilization's continued existence. I find it hard to believe that's not going to have an impact on a critical 1-3% of the population next time this comes around.

[CmdrWilkens]

Anyway the reason everyone kept saying that the battle to overturn Prop 8 was "shaky" relates to how you define revision and CA state law has rather consistently held that a revision is only a change which materially affects the structure or intent of the government. The anti-8 forces essentially had to argue that marriage is so fundamental a right that it intereferes with the application of the equal protection clause.

The CA Supreme Court held that In Re Marriage Cases, sexual orientation was to be protected, for equal protection purposes, under strict scrutiny. Which means that (for both Federal and State purposes) that any law affecting such a group must satisfy a compelling governmental interest, be narrowly tailored, and be the least restrictive means possible for achieving that end. At the Federal level, only race/lineage/national origin is so treated, with the consequence that laws that affect those groups will probably be overturned; the burden of proof is on the government in that case. Regardless of the revision vs. amendment argument, the justices seemed to apply a rather weak rational basis argument here, rather than strict scrutiny.

The thing is they didn't apply strict scrutiny or rational basis because they weren't discussing the legality of a STATUTE to ban gay marriage. In Re Marriage Cases already struck those down as violating the equal proteciton clause. What they were talking about here was an AMENDMENT to the constituition. Since a valid amendment, by definition, is an equal part of the state constitution along with the qual protection clause they both have co-equal weight and in turn within the scope of the amendment's authority it cannot be challenged under equal proteciton grounds within the bounds of the state constitution (it could be challeneged on federal equal protection grounds but see my statement here in an earlier thread as to why that may not be smart.

Again the argument here was ONLY about whether or not Prop 8 was an amendment (in which case see above) or a revision (in which case it was not validly applied). I'm going to quote from the decision itself, bolding mine:

...

Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

...

In explaining and relying upon the circumstance that Proposition 8 exclusively affects access to the designation of "marriage" and leaves intact all of the other very significant constitutional protections afforded same-sex couples under the majority opinion in the Marriage Cases, we emphasize that we are not in any way suggesting that the change embodied in Proposition 8 is unimportant or insignificant. In considering the amendment/revision distinction embodied in the California Constitution, however, it is crucial to understand that the amendment process never has been reserved only for minor or unimportant changes to the state Constitution. In this regard, it is useful to keep in mind that (1) the right of women to vote in California, (2) the initiative, referendum, and recall powers, (3) the reinstatement of the death penalty, (4) an explicit right of privacy, (5) a substantial modification of the statewide real property tax system, and (6) legislative term limits — to list only a very few examples — all became part of the California Constitution by constitutional amendment, not by constitutional revision.

Thus, it is clear that the distinction drawn by the California Constitution between an amendment and a revision does not turn on the relative importance of the measure but rather upon the measure’s scope: as we have explained, only if a measure embodies a constitutional change that is so far reaching and extensive that the framers of the 1849 and 1879 Constitutions would have intended that the type of change could be proposed only by a constitutional convention, and not by the normal amendment process, can the measure properly be characterized as a constitutional revision rather than as a constitutional amendment.

I've bolded some portions but I highly recommend reading larger portions because the judges take great pains to point out, repeatedly in fact, that they are not judging the validity or character of Prop 8 itself but rather the soel subject of whether it was a valid amendment to the state constitution. Every bit of evidence that they drew on leads to the inevitable conclusion that the scope of Prop 8 was NOT broad enough to be considered a revision which means it is a valid part of the state constitution (in turn baring gay marraige in CA cannot be unconstitutional since the bar is written into the constitution itself). They do make the point elsewhere that they are also not judging, as I do, the wisdom of having citizen referrendum with such a low threshold as the standard for constitutional amendment.

Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure 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, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Which, (insert legalese handwavium here) basically means that six judges just took a messy shit all over the equal protection clause of the CA Constitution.

Ya know I was just gonna dismiss this part here but again you clearly are just reacting in the gut to the decision without bothering to read into the decision at all. Again as before I have no issue with emotion because it will be neccessarry to fuel the fight to overturn Prop 8 BUT blaming the judges for working with the laws as they exist and not how you want them to be is just juvenile.

[CmdrWilkens]

here

There is the actual link since I fubared it above.

[erik_t]

I unfortunately have to agree with Wilkins. The CA Supreme Court made the (ultimately) wrong decision, but for the right reasons. I am somewhat saddened that this proposition wasn't found to be an amendment vs a revision, but I trust the CACT to be better scholars of the state constitution than I. I am upset at the ramifications of the decision, but I am not upset at the decision itself, if that makes any sense.

[The Spartan]

I'm having trouble with the legal... stuff surrounding this case. Wouldn't the fact that there are 18000 marriages (give or take) still legal present a problem of equality, discrimination and so forth? "Well, their marriage is legal but sorry your's isn't!" Something like that?

[CmdrWilkens]

I'm having trouble with the legal... stuff surrounding this case. Wouldn't the fact that there are 18000 marriages (give or take) still legal present a problem of equality, discrimination and so forth? "Well, their marriage is legal but sorry your's isn't!" Something like that?

Yes and no, the marriages are essentially grandfathered in. What the court said, to paraphrase, is that the constitution prior to Nov 4th allowed for gay marriage so up until that point any person who was married did so legally. Since Prop 8 did not act retroactively (which would violate the prohibition on ex post facto acts) they are legal. From that point forward the state has to create some sort of civil union type classification which is the equivalent of marriage without the phrase. This is the point I think a lot of folks are overlooking, the judges actually came out and said that basically half the reason Prop 8 is okay is because the rest of the In Re Marriage ruling (homosexual couples must be afforded all the rights of heterosexual couples) stands only the word marriage is taken away.

[The Spartan]

This is the point I think a lot of folks are overlooking, the judges actually came out and said that basically half the reason Prop 8 is okay is because the rest of the In Re Marriage ruling (homosexual couples must be afforded all the rights of heterosexual couples) stands only the word marriage is taken away.

Yes, I did miss that. That, changes quite a bit to my way of thinking. I don't think it's right; seperate but equal is not afterall. That said, it's still better than the alternative and very much a step in the right direction.

[Jalinth]

Anyway the reason everyone kept saying that the battle to overturn Prop 8 was "shaky" relates to how you define revision and CA state law has rather consistently held that a revision is only a change which materially affects the structure or intent of the government. The anti-8 forces essentially had to argue that marriage is so fundamental a right that it intereferes with the application of the equal protection clause.

Now I would agree that Prop 8 shits all over that clause but on the technical merits, as it were, there is no change in how the government is structured or run. The equal protection clause in virtually every state (and the Federal) copnstitution already has a host of extenuating circumstances. The judicial test for whether they are legal tends to be very high (any exception to an equal protection clause must usually have a critical government benefit and be highly targeted) but they do exist. Since exceptions exist enshrining one into the state constitution woudl certainly seem to indicate it is an amendment not a revision.

I ended up reading the whole thing. One of the core comments by the majority is that the Proposition doesn't really change that much substantively. The vast majority of the legal consequences of "marriage" (divorce, children, finances, etc...) are preserved ( I believe California has some type of common law/same sex couple law) but same sex couples can no longer call themselves "married". That, coupled with the revision vs amendment distinction that Wilkens highlights allowed Prop 8 to hold the day.

More importantly, what the court highlighted was that in California the "people" can change any damn part of the Constitution they want. No limits, no limitations (for California purposes - US Constitutional law might impose some limitations) but two different paths depending on how fundamental the change might be but the whole thing is open to change. The court did state that almost all other states do have limitations - often by placing sections like the bill of rights off limits to anything other than a constitutional convention.

So in this case, blame the California voters and the California constitution for allowing these type of whimsical changes. The court ruling was made as narrow as possible and hinted that California needs to review their constitution amendment process but the court can't do a damn thing about it.

[CaptainChewbacca]

On a somewhat related note, I'm attending a wedding in Sacramento on Friday. Its two dear friends and it will be a small, simple ceremony... on the steps of the Capitol Building. They picked the venue months ago, because its a scenic and inexpensive place. So now, the schedule looks:

Wednsday: Protest for No on Prop 8.
Thursday: Protest for No on Prop 8.
Friday: Heterosexual wedding.

Needless to say, there's going to be a LOT of police protection there. Its one of those things that just makes you shake your head.

[CmdrWilkens]

This is the point I think a lot of folks are overlooking, the judges actually came out and said that basically half the reason Prop 8 is okay is because the rest of the In Re Marriage ruling (homosexual couples must be afforded all the rights of heterosexual couples) stands only the word marriage is taken away.

Yes, I did miss that. That, changes quite a bit to my way of thinking. I don't think it's right; seperate but equal is not afterall. That said, it's still better than the alternative and very much a step in the right direction.

I completely agree, it is a rather weak-knee'd version of seperate but equal (they are at least honest enough to admit that in essence by pointing out that In re Marriage cases held that the term itself holds special significance) but the reasoning to get there is, unfortunately sound. Since the substanative inequality does not alter the character of the Proposal sufficiently to make it a revision then it is a valid amendment.

I think the judges walked a very fine line and there are a LOT of juicy tidbits to be used elsewhere for those arguing the anti-8 line in Califronia and other states.

[jcow79]

Couldn't it be argued that although the legal definition of marriage in California has been narrowed to a man and a woman as established by Prop 8, that denying marriages to same sex couples STILL amounts to discrimination as the courts had previously stated? Therefore marriage licenses can no longer be granted to ANY couples in California as it now would be discriminatory?

[CmdrWilkens]

Couldn't it be argued that although the legal definition of marriage in California has been narrowed to a man and a woman as established by Prop 8, that denying marriages to same sex couples STILL amounts to discrimination as the courts had previously stated? Therefore marriage licenses can no longer be granted to ANY couples in California as it now would be discriminatory?

What the court seemed to indicate is that the state civil union legislation is sufficient to pre-empt that so long as it contains literally every protection of marriage except for the word.

[Alyeska]

Couldn't it be argued that although the legal definition of marriage in California has been narrowed to a man and a woman as established by Prop 8, that denying marriages to same sex couples STILL amounts to discrimination as the courts had previously stated? Therefore marriage licenses can no longer be granted to ANY couples in California as it now would be discriminatory?

What the court seemed to indicate is that the state civil union legislation is sufficient to pre-empt that so long as it contains literally every protection of marriage except for the word.

Which still flies flat in the face of Separate But Equal.