Gay Marriage in California

[fredv3b]

For the benefit of those who have not already heard..

The Supreme Court of California has ruled that Proposition 8 was indeed valid. Proposition 8 amended the State Constitution to define marriage as only being between one man and one woman, the Court having previously found that the ordinary statue law so defining marriage was contary to the State Consitution and struck it down. Proposition 8 did not affect the very extensive domestic partnership laws within California which give gay couples most (but not quite all) the rights of heterosexual couples. It appears that the fact that few specific practical rights (as opposed to the word marriage) were removed, was important in the Court's thinking.

On the other hand the court did rule that the marriages of the 18,000 or so couples that tied the not between the court legalising gay marriage and the people of California 'delegalising' it should remain valid.

For those of you who are interested you can read the ruling here. (I have to admit I have yet to summon the enthusiasm to read such a long document.)

[marshlander]

So now California has a two-tier marriage system. How sustainable is that? I believe there is a further appeal to come?

[72jay]

I'm not from California but the newspaper where i live has had a few articles
on this...
------------
While the court ruled that Proposition 8 was valid, they also ruled that all the
same-sex marriages that were done before Prop 8 passed were also
valid and would be allowed to stand.
------------
An appeal to the federal level is already being worked on.

[fjp999]

[COLOR="Purple"]There certainly will be appeals as well as new initiatives on the ballet of California (if the state survives).

I am not sure how many states over here have a similar constitution as CA but many believe that is the reason the state is in such a mess right now... to give the voter so much power over EVERYTHING.

I remember voting in San Francisco. There would be about 20 pages of issues to vote on. I am not exaggerating! There was always good coverage on the issues if you were interested in studying up on it all but... I was in the state when they decided to go with new voting machines. The ballets were enormous... nearly newspaper size. No one took into account where they would store the ballets and there was a real mess with locked boxes placed in every gov building... chaos.

In comparison, Pennsylvania and the county I am in might have 5 or less initiatives on a couple pages...

I probably wont get the correct numbers but the constitution of the USA has been changed like 25 times in its history but in the shorter history of the CA constitution it has been changed over 250 times.

In the current issue of The Advocate Dustin Lance Black (the oscar winning screenwriter of Milk ) is starting a new group for a change in this marriage strategy and I totally agree. He feels it is too slow to do a state by state but a federal amendment is necessary and this is the time to start this movement [/COLOR]

[fredv3b]

So now California has a two-tier marriage system. How sustainable is that?

I am not sure that gay marriage for couples who married within a certain window of time but not those who missed it is particularly less sustainable than marriage for straight couples, nearly marriage for gay couples.

Proposition 8 stated that 'only marriage between a man and a woman is valid or recognized in California', to me that seems pretty clear to be in the present tense and not to be specific to new marriages. If the court felt that it was so wrong (legally speaking) to essentially dissolve these marriages perhaps they should have rejected the amendment and allow the people to pass a more limited one, rather than effectively amending the amendment themselves to read 'only marriage between a man and a woman is valid or recognized in California, except for those marriages already recognised'?

An appeal to the federal level is already being worked on.

This is essentially an appeal that the newly amended Constitution of California violates the Equal Protection of Minorities clause of the United States Federal Constitution. Therefore, practically speaking, the case would have to go all the way the the US Supreme Court, a process of being heard in inferior courts that would take some time, possibly a year or two, unless it was thrown out along the way. If it were to succeed and the Court were to rule that the Constitution of California, which allows for so many gay rights, were contrary to the US Constitution, then I don't see how any State Constitution or Statute that denied gay marriage could survive, nor could the Federal Defence of Marriage Act. Therefore if the case were to succeed it would effectively mandate gay marriage in every State of the Union and force the Federal Government to recognise it, the Court would be exceedingly cautious before making such a step.

I probably wont get the correct numbers but the constitution of the USA has been changed like 25 times in its history but in the shorter history of the CA constitution it has been changed over 250 times.

I apologise for being a nerd, but just for your interest, the Constitution of the United States has been amended 27 times, including the Bill of Rights, which certain states demanded before they would sign up to it, whereas the Constitution of California has been amended over 500 times.

In the current issue of The Advocate Dustin Lance Black (the oscar winning screenwriter of Milk ) is starting a new group for a change in this marriage strategy and I totally agree. He feels it is too slow to do a state by state but a federal amendment is necessary and this is the time to start this movement

Much as I respect his abilities as a writer if he thinks that State by State process is slow, I wonder what he would make of trying to get two thirds of both Houses of Congress or two thirds of the States to ask for a Constitutional Amendment and then three quarters of the States to ratify it. Bearing in mind that getting a State's request or ratification requires a majority in both houses of its State Legislature (apart from unicameral Nebraska). As Frank rightly points out the US Federal Constitution has seldom been amended, this is a testament to the difficulty of doing so.

[fredv3b]

That legal challenge as to whether Prop. 8 (and effectively all other anti-gay marriage laws) breaches the Equal Protection of Minorities clause of the US constitution, will shortly be getting its first proper hearing in California. This is clearly a well funded challenge headed by a pair of 'superstar lawyers' which seems near certain to go all the way to the Supreme Court of the United States.

Here are a couple of very interesting articles on the subject that I recommend, first from the New Yorker, and second, an article by one of the two lawyers leading the challenge.