Just got the note on my phone — the Northern District denied the proponents’ motion in the Prop. 8 case to vacate the ruling striking down Prop. 8. I have not read the ruling itself; I’m making a quick post between rounds of a mediation and need to get back to work. But that’s good news, not just for advocates of same-sex marriage but for the judicial system as a whole.
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I don’t know how to feel about this (despite supporting gay marriage).
I don’t understand how Prop 8 was obviously Unconstitutional to the point where a State Constitutional Amendment could be ruled Unconstitutional.
To be honest, it feels like it happened this way (and, please, correct me if I am wrong):
Citizenry vote in a particular law.
Law is deemed unconstitutional according to the state constitution.
Citizenry vote in a particular constitutional amendment.
Constitutional amendment is deemed unconstitutional according to the constitution.
This feels like goalpost raising… and if it had been done in the service of keeping marijuana illegal, say, we’d see exactly how much the courts were meddling.
I like the outcome, mind… but I’m pretty sure that I’m going to *HATE* the next 20 outcomes that follow this one. Maybe even more than I like gay marriage.
So if enough citizens voted to make slavery legal in Iowa, would that be OK? If they amended the state constitution to remove the right to jury trial, would that be OK?
And I’m not being snarky, I guess I just asume there are certain things that are so embedded as fundamental as to be above the will of the majority.
I think that I could easily make the case that slavery violates the 13th Amendment.
Given California’s “Civil Union” laws, I don’t know that there is sufficient ground to claim that the absence of “marriage” automatically creates a situation analogous to slavery or denial of trial by jury.
I used to think this way too, Jaybird, but changed my mind about it. A “civil union” or a “domestic partnership” is not marriage even if it provides all the legal rights of a marriage (and while California’s domestic partnership law comes close, it does not do even that much, and then there’s all those Federal legal issues that the California law cannot reach).
The word “marriage” carries cultural and social significance that the other more neutral phrases do not, and since the government has inserted itself into the business of that nomenclature, it should do so even-handedly.
It may not be akin to slavery or denial of jury trial, but it is kind of like the ability to acquire and hold property. If a straight person is an “owner” of real property but a homosexual person was an “interim title holder,” those may get at the same legal concept (after all, we all own property on an “interim” basis since we can’t continue to own the property after we die) but the one carries a different sense of meaning, import, and permanence. Particularly given that marriage is such a social institution, those connotations are part of what you get when you marry.
The word “marriage” carries cultural and social significance that the other more neutral phrases do not, and since the government has inserted itself into the business of that nomenclature, it should do so even-handedly.
To what extent ought the culture and social significance of marriage be left up to, for lack of a better term, “the people”?
Yeah, I didn’t want to come off equating the inability to marry someone of the same gender with slavery but was simply trying to figure out what a majority can vote on in terms of what rights and privileges you and I enjoy, especially when it comes down to certain classes of people being able to enjoy a privilege or right extended to all other classes of people.
And isn’t there a sizable difference between what society can deem the social and cultural significance of something and the ability to grant or restrict legal access to it?
what a majority can vote on in terms of what rights and privileges you and I enjoy
Of all the places to draw a line… why this one?
And isn’t there a sizable difference between what society can deem the social and cultural significance of something and the ability to grant or restrict legal access to it?
It seems to me that if something has great social and cultural significance, then changing said thing against the wishes of the society/culture is going to be, at the very least, troublesome. Certainly if one takes the attitude that “we should do this because we, as a society, have the responsibility to do this” as opposed to “we should stop doing this because we, as a society, have areas that are none of our collective business.”
Ideally, the government would be out of the marriage business altogether. There would be no such thing as marriage licenses; people could pair-bond, or tri-bond, or stay single, as they chose.
There are some legal implications to that universe that we’d need to get sorted out — community property and pension or insurance benefits and such. Joint ownership of property would still be a legal pain in the butt to sort out because people would make arrangements that were understood differently on both sides. Sorting out stuff like that is a big part of what I do for a living, so I know it can be done — and I know it can be done more efficiently than it is in an economy that incorporates the concept of currency. But there’s no logical reason we couldn’t figure those things out in a reasonable and equitable way.
Point is, if you think marriage is something your church gets to describe and dispense, bully for you. Get married in your church and it’ll be between you, your spouse, and God. Or if you want to have a private ceremony of your own devising with your opposite-sex partner, your same-sex partner, or whatever — again, bully for you; invite your friends and have a good time. The government stays out of it altogether.
But if there is a Constitutional Amendment to keep things the way they have been for the last couple hundred of years, we get to overturn that Constitutional Amendment for being Unconstitutional without having a discussion of the unintended consequences without it being a case of religious busybodies telling other people how to live?
Funny, that’s how I feel about paying for other people’s health care…
Let me try this less crazy:
Sorting out stuff like that is a big part of what I do for a living, so I know it can be done — and I know it can be done more efficiently than it is in an economy that incorporates the concept of currency. But there’s no logical reason we couldn’t figure those things out in a reasonable and equitable way.
Is this the justification given by the courts?
Because, again, it seems to me that the following happened:
Citizenry vote in a particular law.
Law is deemed unconstitutional according to the state constitution.
Citizenry vote in a particular constitutional amendment.
Constitutional amendment is deemed unconstitutional according to the constitution.
My main argument is this:
This feels like shenanigans and if it weren’t for the fact that we like gay marriage, we’d notice the shenanigans going on.
I thought you were soliciting my opinion on the policy issue. No, that is not a justification given by courts. Courts have not confronted the question of whether states may issue marriage licenses at all and would not address the question of whether they should.
The detail you left out of your chronology is that these are state voters, state laws, and amendments to state constitutions. The Federal Constitution trumps them all because the Federal Constitution is the supreme law of the land.
That does not mean that what is going on is counter-democratic. It is. So were a lot of cases from the civil rights era. The Federal constitution had to be invoked to redress state-level activities that were both discriminatory and immensely popular with the voters of those states. I agree that the counter-democratic power of the courts should be invoked only sparingly and only for a good reason, and that courts should normally be deferential to the political wishes of the majority. But “sparingly and only for a good reason” does not mean “never.”
I can appreciate that “sparingly and only for a good reason” does not mean “never”, I do. But what worries me is that it is not obvious that this decision would have been reached were it any other topic but gay marriage… yet the legal justification will be there for other, future, disputes.
A precedent was created.
Now, I have as much contempt for stare decisis as anybody… but this precedent, once upheld, will become the new stare decisis for all of us to hold in contempt… and I think that the legal justification will sour quite quickly even though we all love the ends that the means were used for this time around.
what a majority can vote on in terms of what rights and privileges you and I enjoy
Of all the places to draw a line… why this one? – Jaybird, 6/15/11
First, I guess the line has to be drawn somewhere. Second, it seems that voting that the lines on the street should be white rather than yellow is rather innocuous and relatively non-restrictive to others in their day to day living. Voting into law things that explicitly prohibit you from doing something that other people could legally do seems a bit restrictive to me, not to mention inequitable. That’s about where my line-drawing instinct starts to kick in.
First, I guess the line has to be drawn somewhere.
Fair enough. Was there no line last week? I suspect that there was. I also suspect that the line has moved.
Is that a good thing?
Voting into law things that explicitly prohibit you from doing something that other people could legally do seems a bit restrictive to me, not to mention inequitable.
What, exactly, was being prohibited here?
Could two guys have a marriage ceremony?
Could they call themselves married?
Could they leave each other their property and still have the state protect their contract to the degree that a heterosexual couple would be protected?
As usual Jaybird, I’m not entirely sure what you’re asking here. As I understand it, there were far more hoops necessary for jumping through that a gay couple would be forced into to make the same contract that a hetero couple would have simply by obtaining the marriage license. I can call myself a corporation, but I don’t think that legally makes me a corporation or confers all the benefits or responsibilites of a corporation on me.
And no, this isn’t about whether you support gay marriage. You’ve made it abundantly clear that you do. I know you’re concerned about the process and the precedent. But your questions would seem to indicate that you think civil unions would have been fine, which I guess is okay other than that it strikes me as saying to one group of people, “Here, have a tree.” While saying to another group of people, “Hey, we’re gonna give you this thing that has bark and branches constitued of wood and has leaves, etc. but you can’t call it a tree, K?”
While saying to another group of people, “Hey, we’re gonna give you this thing that has bark and branches constitued of wood and has leaves, etc. but you can’t call it a tree, K?”
It seems to me that gay people, even if they “only” have a Civil Union in the eyes of city hall, have *EVERY* right to call what they have a marriage.
As a matter of fact, it seems to me that two guys who go through a marriage ceremony in any given Unitarian or otherwise suitably progressive Church have every right to call themselves married.
I daresay that Maribou and I were married before our ceremony at the City Hall.
Even if City Hall didn’t think so.
Even if you didn’t think so.
Yeah, but you claiming you were married in the sense of the idea you have between the two of you, and the actual legal implications according to the state are two different things, yes? There are obviously two different meanings of marriage at work in our dialogue. There is the “marriage” between two people that may (or may not) have any correlation to a piece of paper issued by the governing authorities of the state and we have the “marriage” that is strictly defined by the issuing of that paper.
I daresay you and Maribou could not have asserted the legal rights and responsibilities of marriage before your ceremony. Unless you managed some sort of common law deal and I’m not even sure what that entails. Regardless, I’m guessing two gay women would be able to claim common law marriage status in most states.
should read…”would not be able to claim common law marriage status…”
And, again, I support gay marriage.
It’s just that I deeply suspect that the next time that this case is cited as precedent, it will *NOT* be in the service of making sure that more people in aggregate have more liberty without costing others any of their own current liberty.
I’ve seen too many slopes less slippery than this one result in all kind of unintended consequences to not know that this one is going to take us places as well.
I think it would help if you elaborate on what bad precedent has been set, and by whom.
I think Jaybird is concerned by the fact that the courts can declare a publicly approved amendment to the constitution as unconstitutional. But he’s far smarter than I am, especially concerning his own thoughts, so if I’ve strayed from his position, he can certainly clarify.
If that is the case, then the Perry v. Schwarzenegger (now Perry v. Brown) lawsuit is hardly the first case in which the courts have used the Federal constitution to overturn an amendment to a state constitution adopted through referendum or popular initiative. That’s been going on since, at minimum, Romer v. Evans (1996) 517 U.S. 620 and probably before that.
It has to do with the notion of Constitutionality and Culture.
Let’s say that X is the societal norm. Most everybody believes X.
The lawmakers pass a law saying “X”.
The courts overturn X as being Unconstitutional according to the State Constitution.
Someone wants to codify a societal norm in the Constitution. (Seriously, I’m not a fan of this but we have an Amendment Process for a reason.)
They get the necessary signatures, it gets to ballot, it passes.
The Courts then overturn this codification because X is unconstitutional according to the National Constitution.
Remember: X is the way it had been for a long, long, long time.
To say “oh, we’ve just been living unConstitutionally for the last 200 years” strikes me as certainly *POSSIBLE*, but troublesome (even if I like the outcome). Even if I think that the legislature should *NOT* have passed the law and that the citizenry should *NOT* have Amended their state constitution.
Don’t get me wrong:
If I suspected that this was the point of the spear of a cultural attitude towards Libertarianism, Personal Privacy, and the importance of the State’s non-interference in the lives of citizens absent harm, then I’d be posting youtube videos of me dancing.
http://www.truereligions.in/