California Supreme Court Overturns Gay Marriage Ban

[MdKnightR]

Well, California is now the second state to legally support same-sex marriage. How do you feel about it?

 

http://www.nytimes.com/2008/05/16/us/16marriage.html?hp

[Ravnas]

I have no opinion. The controversy is long gone by now. People can say they'll continue to fight to stop the amendment to the law but it won't matter. In actuality though, This is more of a response to those who consider homosexuals an abomination. I'm actually pleased for the victorious couples.

[Emperor Devon]

There is no reason one person should be allowed to violate the rights of another. Whether it's done on an individual level (murder) or decided by thousands of voters in a democratic process is irrelevant.

 

Good for California's Supreme Court. The issue was not one for the people to decide to begin with.

[Ravnas]

I'm not saying that it wasn't, I'm trying to say that it was an issue that in my book had long been resolved, like dominoes, when one falls then the others will follow suit.

[Achilles]

There is no reason one person should be allowed to violate the rights of another. Whether it's done on an individual level (murder) or decided by thousands of voters in a democratic process is irrelevant.

 

Good for California's Supreme Court. The issue was not one for the people to decide to begin with.

QFT.

[Jae Onasi]

Set aside the same-sex issue for a moment and consider this--has the CA supreme court now legislated from the bench, and if so are they going to do this in the future on other issues? They've effectively turned over an initiative that a large majority had voted for. Is this giving the judicial branch more power than it should have?

[Achilles]

My understanding of checks and balances is that the supreme court is suppose to determine whether laws are constitutional or not (i.e. judicial review). In this case, the ruling was that the law that was passed via popular vote was not constitutional and therefore it was overturned. Therefore the court did precisely what it was supposed to do with the power that that is granted in the Constitution.

 

To answer your questions directly: Yes, I am sure they will continue to perform judicial review on other issues in the future. No, this is not giving the judicial branch more power than it should have (as it is the court exercising power that it had already).

 

EDIT: Just in case it comes up, the Constitution does not make any reference to marriage (however many people have called for an amendment that would change this). Without reading the 120 page ruling, I'm going to go out on a limb and guess that this is why the court felt comfortable calling this the way that they did. Considering that marriage is a religious institution (unlike civil unions), I cannot see how such an amendment would get past the Establishment Clause, therefore I don't know what grounds there will be for appellate review for this particular case.

[jonathan7]

Well, California is now the second state to legally support same-sex marriage. How do you feel about it?

 

http://www.nytimes.com/2008/05/16/us/16marriage.html?hp

 

I'm not an American, but we had Civil Partnerships come in a few years ago. Personally my opinion is that marriage is a religious thing, and for whatever reason very few religions agree with same sex unions, so to avoid a controversy the government passed Civil PArtnerships into being.

 

Personally I'm not too bothered by the whole thing;

 

In this case I would agree with ED;

 

There is no reason one person should be allowed to violate the rights of another. Whether it's done on an individual level (murder) or decided by thousands of voters in a democratic process is irrelevant.

 

Good for California's Supreme Court. The issue was not one for the people to decide to begin with.

 

However, I think that sometimes peoples right have to be violated e.g. Pedophiles for example, shouldn't be allowed to abuse children (lets not start a debate here about that, there are other threads for it).

 

The Christian right in America can often concern me, the treatment of gay people I think is especially a bad point. Jesus (well of the Gospels before anyone says anything ) took love to the masses, the downtrodden, the unloved and the oppressed. When gay people were being victimixed why were so few Christians taking a message of love to them?

 

“I like your Christ, but not your Christians, they are unlike your Christ”. – Ghandi

 

"The Bible tells us to love our neighbors, and also to love our enemies; probably because they are generally the same people." -- GK Chesterton

 

Should gay people be allowed to be married? Personally I'm not fussed, I don't feel I have any authority over telling non-Christians how to behave. I think though, to avoid the fuss, like our government you should have just brought in Civil Partnerships.

 

Just my 2 cents

[Prime]

Set aside the same-sex issue for a moment and consider this--has the CA supreme court now legislated from the bench, and if so are they going to do this in the future on other issues? They've effectively turned over an initiative that a large majority had voted for. Is this giving the judicial branch more power than it should have?

Not if the majority votes for things that go against the constitutional rights of a minority.

[Arcesious]

Well, we could easily go into deliberation of whther or not gay people can marry or not, but that's certianly not our choice. Christianity seems to be heavily against homosexuality (See the books of Leviticus and Romans), but even for them, it is not anyone's choice to decide what one does with his or her life. However, suicide is going to far, unless if the person is old, sick, in pain, and wants relief, IMO, but that is another subject entirely.

Gay marriage is 'unfruitful' besides the use of IFV, but people should be entitled to be happy. I don't see how marriage always has to be a religious thing. I know a lot of Athiests who are married, and most of them say all they had to do was hire another athiest for the marriage, and leave out all the parts about God, however some still did the religious version of marriage.

Either way, we should have never had the right to ban it from those who deserve just as much as we do.

I'd expect a few anti-gay protests marches, followed by some speeches for and against them. I'd expect things to heat up in the next few months...

[SilentScope001]

It was denounced by religious and conservative groups that promised to support an initiative proposed for the November ballot that would amend the California Constitution to ban same-sex marriages and overturn the decision.

 

Same-sex marriage has been a highly contentious issue in presidential and Congressional elections, but it was not immediately clear what role the ruling would have this year. The Democratic and Republican candidates for president have all said they believe marriage should be between a man and a woman, but Republicans could use a surge in same-sex marriages in the most populous state to invigorate conservative voters.

 

Uh...

 

How in the world is this historic if California may grant gay marriage to only a couple of months, assuming a consitutional amendment is passed? Yes, Massachetus' attempts to re-ban gay marriage failed miserably. But this may be different.

 

And while you guys trimpuh over gay marriage being legalized, Arizona is currently in the midst of a heated debate to ban gay marriage for a second time, just in case the first time somehow gets overturned. Now, that's historic.

 

A previous attempt in 2006 failed because of fear that non-married hetrosexual couples may not get beniefts (It was the only one I believed that failed in 2006). Now, these people are trying to fix the flaws and bring it back onto a vote.

 

And more to the point, while I firmly support the Judiciary ruling over the government, it does appear rather 'fiaty'. At least they should have quoted 'Brown v. Board of Education' or some sort of other Supreme Court descion.

 

...Well, alright. Keep that court ruling then. But don't be suprised if some fool tries to start a movement to legalize polymagy.

 

EDIT: ...Oh no. Oh no. Oh no.

 

I remember drug tourism, where someone crosses state or country lines so that they can take illegal drugs without getting caught. So, a couple can cross state lines to be married, then rush right back home and be married. I know those who hate same-sex marriage will prohibit those marriages from being recognized...

 

But it still leads to an interesting situation where you travel from Point A to Point B and you may be seen as married in one area and non-married in another area.

[tk102]

Considering that marriage is a religious institution (unlike civil unions), I cannot see how such an amendment would get past the Establishment Clause, therefore I don't know what grounds there will be for appellate review for this particular case.

Hmm, interesting point. I hadn't considered that. From a programmer's point of view, a workaround would be to replace the variable "marriage" with "civil union" and apply that across the board. This would completely secularize the issue and open it up for legislation. Not a chance in hell, but if the scenario you describe occurs where the judicial branch halts the amendment on the basis of establishing religion, I'm sure the "civil unions for everyone" idea will be put on the table.

 

Plus it's so romantic to drop to one knee and say "Will you union me?" Right Ray Jones?

 

But wouldn't an amendment defining marriage essentially secularize the term anyway?

[Samuel Dravis]

Hmm, interesting point. I hadn't considered that. From a programmer's point of view, a workaround would be to replace the variable "marriage" with "civil union" and apply that across the board. This would completely secularize the issue and open it up for legislation. Not a chance in hell, but if the scenario you describe occurs where the judicial branch halts the amendment on the basis of establishing religion, I'm sure the "civil unions for everyone" idea will be put on the table.

I agree with your suggestion, tk. Better to just get rid of emotionally charged wording and give everyone the civil unions. If they want to get "married" after that then it's up to them and their respective beliefs.

[Jae Onasi]

Not if the majority votes for things that go against the constitutional rights of a minority.

Sexual orientation is not a constitutionally protected class in the US. I'm not arguing whether it -should- be oe not. It''s just not a protected class at this point. Homosexuals are technically not a minority in terms of the constitution, so the assertion that this violates constitutional rights is a long stretch given it's not currently part of the constitution. Note that I'm specifying the legality on this rather than the morality--I think gay marriage is an inevitability.

 

This ruling may have created sexual orientation as a class in spite of the public voting otherwise, and that indeed is legislating from the bench. I'm uncomfortable with 7 people overturning the will of millions just because they happen to wear black robes and have great political connections. If the judges were to limit their extension of power to this one issue I'd be a lot more comfortable, but I don''t trust any gov't official to relinquish power once they've used it.

[Achilles]

This ruling may have created sexual orientation as a class in spite of the public voting otherwise, and that indeed is legislating from the bench. I'm uncomfortable with 7 people overturning the will of millions just because they happen to wear black robes and have great political connections. If the judges were to limit their extension of power to this one issue I'd be a lot more comfortable, but I don''t trust any gov't official to relinquish power once they've used it.

How is what they did not covered by their judicial review powers? You seem to be arguing that they have somehow over-reached their powers, however their role within the Constitution is to do precisely what they did.

[Jae Onasi]

Creating a new protected class is a legislative function. If they were working with something already existing within law, then they would be well within their powers. In fact, if sexual orientatoion is considered a protected class in CA law, then the court ruled appropriately. Creating in effect a new law is outside the bounds of their powers, however.

[MdKnightR]

Creating a new protected class is a legislative function. If they were working with something already existing within law, then they would be well within their powers. In fact, if sexual orientatoion is considered a protected class in CA law, then the court ruled appropriately. Creating in effect a new law is outside the bounds of their powers, however.

 

I'm not sure that class has anything to do with the decision. As I understand it, they ruled on whether it was unconstitutional based on California's state constitution. Please correct me if I'm wrong.

 

As for the US Constitution, the courts could interpret (albeit loosely) the 14th Amendment - Section 1 to show that a ban infringes upon a persons right to liberty.

 

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[mimartin]

I don’t see it as creating a protected class. I see it as protecting individual rights. I believe everyone has the right to be joined with the one they love in a legal matter no matter what we decide to call it. This allows their spouse legal rights in the event of tragedy and the ability to make decisions as the next of kin. By hampering that ability the legislator is infringing on individual rights and the courts duty is to step in.

 

I see the current laws, as they exists infringing on these individual rights and the courts’ decision as being appropriate at striking down those infringements.

 

If the government’s role is to stay out of the religious union of marriage, then maybe the government should not recognize marriage as a union in the first place. If we are going to segregate who can and can’t marry the person they love, then maybe the government should just stay out of union of marriage completely. Hate to think of the legal and financial ramifications that would cause.

[Achilles]

Creating a new protected class is a legislative function.

Indeed it would, but that is not what they did. They simply ruled that banning same sex marriage is not constitutional. One does not lead to the other, a fact you seem to be willing to acknowledge by qualifying your comment in post 14.

 

If they were working with something already existing within law, then they would be well within their powers.

I don't see how this applies. Determining constitutionality of law is already within their power. If something is unconstitutional, then it does not need to "exist within the law" to be subject to their ruling.

 

In fact, if sexual orientatoion is considered a protected class in CA law, then the court ruled appropriately.

Again, I don't see how this applies.

 

Creating in effect a new law is outside the bounds of their powers, however.

But they didn't create a new law, they simply ruled that an existing law was unconstitutional (e.g. their job).

[tk102]

Perhaps the more pertinent question here is whether the precedent of Perez v. Sharp regarding interracial marriages is applicable to gay marriages. The term, "legislating from the bench", usually refers to judicial review where the arguments for the decision are tenuous. The assertion implies the judges crafted their opinion in such a way to support and yet hide their own personal bias.

 

Here's the Perez v. Sharp Majority Opinion for anyone interested investigating the matter further.

[KinchyB]

Alrighty...first post here so bear with me and be gentle

 

I'm not sure that class has anything to do with the decision. As I understand it, they ruled on whether it was unconstitutional based on California's state constitution. Please correct me if I'm wrong.

You appear to be correct...the case was to determine if the law was even legal based on California's Constitution. A link to the site if you are curious.... The Specific issue from that case is stated below...

 

Petitions for review after the Court of Appeal reversed and affirmed judgments in civil actions. This case includes the following issue: Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?

 

They've effectively turned over an initiative that a large majority had voted for.

Although the masses can vote for a law to be enacted it doesn't mean that they are right, imo. For the most part people are scared of what they don't understand or anything that goes against what their religion tells them is right.

 

Personally, as a society I believe we have a tendency to make poor decisions, or maybe more accurately, make decisions that a few profit from at the detriment of the greater good. I think this law is a good example of that as it took away rights from some people so that others good "feel" better about themselves.

 

This situation is a great example of why we have the state supreme courts to determine if laws voted on by individuals are indeed legal. In the end, the state Supreme Court has the semi-final say (can be overridden on the federal level) on any state law that is enacted. As such, if a case is heard and it is found that the law infringes on anyone’s rights they do have the right to strike down the law, which is what happened in this case.

 

Creating a new protected class is a legislative function.

I think this decision is a step away from creating a protected class myself. A "new protected class" is created when a group feels that their rights are being infringed upon and new laws/regulations are enacted to rectify the situation (like affirmative action). In this case they were actually creating a new class by removing their rights and saying a specific group of individuals cannot be married, creating in effect a second-class citizen (Unprotected class...? ). By throwing out this law (and not creating a new one) they are aiming at leveling the playing field so to speak, and giving everyone the same rights regardless of their sexual orientation. The excerpts below give a bit more detail as to how this law created a "second-class" citizen as they put it.

 

While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

Taken from the 120 Page document (Page 117 to 118, last paragraph on 117)

In the end, I think Cali did a good job and made the right decision. IMO, it's not for us to decide how other people live their lives, and certainly not our right to say they can or cannot have benefits (the root issue here IMO) due to how they live.

 

My 2 cents for the night.

[Jae Onasi]

But they didn't create a new law, they simply ruled that an existing law was unconstitutional (e.g. their job).

 

If they deemed that sexual orientation was a protected class outside of any legislative guidance in order to support their decision that banning gay marriage was thus discrimination and therefore unconstitutional, then they did create de facto legislation by saying sexual orientation is a protected class equivalent to gender or race. They have the right to determine if something is unconstitutional or not. The question is if they created de facto legislation and then used that to determine something was unconstitutional.

[Det. Bart Lasiter]

If they deemed that sexual orientation was a protected class outside of any legislative guidance in order to support their decision that banning gay marriage was thus discrimination and therefore unconstitutional, then they did create de facto legislation by saying sexual orientation is a protected class equivalent to gender or race. They have the right to determine if something is unconstitutional or not. The question is if they created de facto legislation and then used that to determine something was unconstitutional.

Article 1, section 1 of the California Constitution:

 

"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

 

 

I interpret that as saying the state has no right to restrict two consenting adults from getting married, as that would impede upon their rights to pursue happiness and privacy.

[Achilles]

If they deemed that sexual orientation was a protected class outside of any legislative guidance in order to support their decision that banning gay marriage was thus discrimination and therefore unconstitutional, then they did create de facto legislation by saying sexual orientation is a protected class equivalent to gender or race. They have the right to determine if something is unconstitutional or not. The question is if they created de facto legislation and then used that to determine something was unconstitutional.

I think you are correct to qualify this statement with "if".

 

However protected class vs. non-protected class isn't even an issue since they overturned the ban on the basis of individual rights (as opposed to the rights of a protected class). So again, I'm not sure how this applies.

[Jae Onasi]

If sexual orientation is a protected class and specifically homosexuality is considered a minority, then denying homosexuals the right to marry becomes an individual issue of discrimination. The question is did the courts have the right to put homosexuality on the same level as race in terms of _legal_ minority status if it wasn't in CA constitution, and if so, did something that rightly belonged to the legislative branch instead.

 

This isn't about a gay/straight rights issue for me--it's a concern about judicial power.