Daily Archives: May 26, 2009

gay dads

The California Supremes have split the baby. Long story short: Prop 8 stands, and so do the marriages that took place before the election when the court ruled gay marriage valid.

This is where you’re supposed to say “Read it and weep.”

But I’m too fucking angry for tears. They’re a waste of time and energy that’s better spent girding up for the continuing, protracted battle before us.

On to “The Good Parts”

“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.”

Or in the immortal words of Carrie Prejean, “No offense. . .”

“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 4
initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. “

Therefore —

“Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples 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” (Marriage Cases, supra, 43 Cal.4th at p. 829). 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.”

Note: “entirely” and “fundamentally.”

“Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. “

IOW, since they don’t do THIS to us

Iran

we have nothing to complain about.

“As a quantitative matter, petitioners concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision. As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment. Contrary to petitioners’ claim in this regard, the measure does not transform or undermine the judicial function; this court will continue to exercise its traditional responsibility to faithfully enforce all of the provisions of the California Constitution, which now include the new section added through the voters’ approval of Proposition 8″

Love the “which adds but a single, simple section to the Constitution” bit.

“Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment — proposed and adopted by a majority of voters through the initiative process — cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision.”

IOW–

“Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples 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”

WE’RE “SEPARATE BUT EQUAL’ FOLKS! ISN’T THAT JUST SWELL?

“We shall discuss the majority opinion in the Marriage Cases in greater detail below in analyzing the scope and effect of Proposition 8 (see, post, at pp. 24-43), but at this juncture it is sufficient simply to point out that the majority concluded that (1) the constitutional “right to marry,” as embodied in the privacy and due process provisions of the California Constitution, is distinct from, and encompasses a much broader set of core elements than, the right to have one’s official family relationship designated as “marriage,” (2) same-sex couples, as well as opposite-sex couples, enjoy the full protection of, and all of the rights encompassed by, the state constitutional rights of privacy and due process, (3) statutes that treat persons differently on the basis of their sexual orientation, like statutes that accord differential treatment on the basis of race or gender, are constitutionally suspect and subject to “strict scrutiny” under the California equal protection clause, and (4) by affording access to the designation of “marriage” to opposite-sex couples but denying that access to same-sex couples, the California statutes limiting marriage to the union of a man and a woman impinged upon same-sex couples’ state constitutional rights of privacy and due process and violated such couples’ right to the equal protection of the laws as guaranteed by the state Constitution.”

We then get a review of previous cases leading up to last year’s granting of Marriage Equality by the California Supremes.

“The majority opinion further concluded that to remedy these constitutional violations, the California marriage statutes should be interpreted to grant both opposite-sex and same-sex couples access to the designation of marriage and to the rights inherent in that institution.
Disagreeing with these conclusions, Justice Baxter, in a concurring and dissenting opinion joined by Justice Chin, argued that the acceptance of same-sex marriage should be determined through the political process, and not by this court. By relegating to itself the authority to alter and recast the traditional definition of marriage, these justices urged, the majority had violated the separation of powers among the three branches of government.”

Which was a surprise.

But the fact that the court has now by letting Prop 8 stand, in effect reversing itself, should come as no surprise either.

“In specific response to the majority’s analysis, Justices Baxter and Chin asserted that (1) it was unnecessary to decide whether same-sex couples had a fundamental state constitutional right to form legal unions with the substantive rights and benefits of marriage, because the Domestic Partner Rights and Responsibilities Act of 2003 (Domestic Partner Act), adopted by the Legislature, already grants to those couples all of these substantive rights the state can provide; (2) because marriage universally has been defined and understood as a formal relationship between a man and a woman, the California Constitution could not be construed to afford same-sex couples a fundamental “right to marry” that requires official use of the name “marriage” for same-sex legal unions; and (3) use of the common term “marriage” for same-sex and opposite-sex legal unions was not required by the state Constitution’s equal protection clause.”

“See? We gave the ‘Domestic Partnership.” Don’t these people know their place?

“Although the constitutional right to marry clearly does not obligate the state to afford specific tax or other governmental benefits on the basis of a couple’s family relationship, the right to marry does obligate the state to take affirmative action to grant official, public recognition to the couple’s relationship as a family [citations], as well as to protect the core elements of the family relationship from at least some types of improper interference by others. [Citation.] This constitutional right also has the additional affirmative substantive effect of providing assurance to each member of the relationship that the government will enforce the mutual obligations between the partners (and to their children) that are an important aspect of the commitments upon which the relationship rests.” (Marriage Cases, supra, 43 Cal.4th at pp. 819-820, fn. omitted.)”

“See? ‘Domestic Partnership’ is Affirmative Action. Isn’t that enough? Don’t these people know their place ?”

“The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.” (Marriage Cases, supra, 43 Cal.4th at pp. 830-831, italics added.) “

That’s our argument (in part) to which they say–

“Because in common speech the term “right to marry” is most often used and understood to refer to an individual’s right to enter into the official relationship designated “marriage,” and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as “the constitutional right to marry,” hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases — namely, the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice).

Or as “Dr.” Laura would call it “Shacking up.”

“Proposition 8 would eliminate only the right of same-sex couples to enter into the relationship bearing the designation of “marriage.” Nothing in the Attorney General’s title or summary suggests that Proposition 8 would eliminate the constitutional right of same-sex couples to enter into an officially recognized family relationship bearing a designation other than “marriage.” “

IOW “See? It’s just a label — why are you getting so shrill about it?”

Yadda, yadda, yadda ( a lengthy discussion of the legal technicalities involved, citing precedents to declare there’s nothing constitutionally wrong with Prop 8) then —

“As demonstrated, Proposition 8 does not eliminate the substantial substantive protections afforded to same-sex couples by the state constitutional rights of privacy and due process as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. Rather, same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples — including the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses — with the sole, albeit significant, exception that the designation of “marriage” is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples. Similarly, Proposition 8 does not by any means “repeal” or “strip” gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of “marriage” to describe their relationship. Thus, except with respect to the designation of “marriage,” any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally “suspect” under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion. Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse (cf. Romer v. Evans (1996) 517 U.S. 620), would constitute a constitutional revision under the provisions of the California Constitution. A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California 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, supra, 43 Cal.4th 757, we emphasize that we are not in any way suggesting that the change embodied in Proposition 8 is unimportant or insignificant.”

But you know that it is, you lying motherfuckers! You have not ONE WORD to say in this ruling about the HUMUNGOUS differences between “Domestic Partnership” and Marriage, the enormous cost required for same-sex coupes to legally bring their relationships up to the standards of mariage, or the fact that outside parties (evil parents or relatives) can have the contracts same-sex couples have spent time and money creating destoryed in a trice.

“Finally, the very recent decision of the Iowa Supreme Court in Varnum v. Brien, supra, 763 N.W.2d 862, is also instructive in this regard. In that case, the Iowa Supreme Court held that the Iowa statute limiting marriage to a union between a man and a woman violated the equal protection clause of the Iowa Constitution. Nonetheless, in the course of its unanimous opinion, the Iowa high court took care to point out explicitly that “it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. See Iowa Const., art. I, § 2 (‘All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.’).[41 ] While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time. See Iowa Const. art. X (‘Amendments to the Constitution’).” (763 N.W.2d at p. 876, italics added.) Thus, even as the Iowa high court emphatically declared in Varnum v. Brien that a statute limiting power of the people to alter the content of the state Constitution through a constitutional amendment.

IOW the California Supremes are signalling to Maggie Gallagher “Pack your bags darling –and Godspeed!”

Happily in Iowa Marriage Equality will be a lot more difficult to undo — if not impossible.

We shall have MUCH MORE to say of this masquerade. For now —

Sing us out, Bette