California Supreme Court Refuses to Overturn Prop 8

Update: Here's the opinion (pdf. How Appealing has uploaded it here.

Update: "A divided California Supreme Court today let stand Proposition 8, continuing marriage discrimination in California. The Court refused to undo the 18,000 marriages that same-sex couples celebrated in 2008, so that those couples remain married even while other California couples are, for now, barred from joining in marriage." [More...]

Teddy at Firedoglake tells us what to expect from the Prop 8 decision. He says there are two questions and three possible scenarios.

The opinion will be released here at 10 am PT.

The Court's Prop 8 page (with prior rulings, briefs and background) is here.

From Teddy: Question One:

The first question is whether or not Proposition 8 is such a sweeping change to the California constitution that it should have been handled differently; fundamental rights of a minority should not be put to a vote. Because the Court previously ruled that marriage is a fundamental right, it's conceivable that they will rule that this right cannot be taken away from a minority of the citizenry by a popular vote.

Prop 8 is a sweeping revision to the California constitution, this logic goes, and therefore needs to be legislated and then presented to the electorate for a vote. Because Prop 8 was never voted on by the California Assembly and Senate, but made it onto the ballot via the signature-gathering referendum process, it short-circuited the proper mechanism and should be overturned.

Question two:

The second question, which really only comes into play if Proposition 8 is upheld, is what does California do with all the marriages -- perhaps as many as 18,000 even though no one kept track -- that happened after the Court ruled marriage was a fundamental right and couldn't be denied same-sex couples (May 2008) and before the voters narrowly approved Proposition 8 that November?

Presumably, if the Court overturns Proposition 8, these marriages will stand. But if they uphold Proposition 8, are these marriages valid?

45 minutes to go. I will update when the decision becomes available.

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  • Display: Sort:
    Deplorable Decision (5.00 / 2) (#9)
    by mudlark on Tue May 26, 2009 at 12:11:43 PM EST
    I'm one disgusted Californian.

    we are not a democracy (5.00 / 1) (#38)
    by CST on Tue May 26, 2009 at 01:15:48 PM EST
    we are a republic.  Precisely because the founding fathers did not trust the mob to rule.

    We also have 3 branches of government, and there is a reason judges are not elected.

    CA is (none / 0) (#59)
    by blueaura on Tue May 26, 2009 at 02:18:09 PM EST
    If you look at the trash that is the CA constitution, you'll see the state is closer to a democracy than a republic, and there is no check at all on the tyranny of the majority there.

    We are neither ... (none / 0) (#68)
    by Robot Porter on Tue May 26, 2009 at 02:53:59 PM EST
    a direct democracy nor a republic.

    The most apt term is:  Liberal democracy.

    A system which has democratic representation but also a series of checks and balances to protect the rights of individuals.


    I think it's just good to know that if (5.00 / 3) (#85)
    by of1000Kings on Tue May 26, 2009 at 06:41:34 PM EST
    we white people decide to not let certain people of other skin tones have certain rights then all we need to do is get enough votes....



    So what was the (none / 0) (#94)
    by Wile ECoyote on Wed May 27, 2009 at 05:55:32 AM EST
    percentage of blacks that voted for Prop 8?  About 80%.

    Around 60 percent, iirc (none / 0) (#96)
    by Spamlet on Wed May 27, 2009 at 10:25:43 AM EST
    but much lower among the younger folks.

    don't believe anyone's said (none / 0) (#97)
    by of1000Kings on Wed May 27, 2009 at 12:31:55 PM EST
    that minorities aren't capable of discrimination...

    with a higher percentage of churchgoing comes a higher percentage of discrimination...

    explainable easily enough...


    You should consider (5.00 / 2) (#87)
    by Steve M on Tue May 26, 2009 at 06:50:14 PM EST
    the reasons why the federal Constitution was specifically designed to have any number of countermajoritarian protections.

    Kudos to ;Justice Moreno (5.00 / 1) (#52)
    by oculus on Tue May 26, 2009 at 01:42:44 PM EST
    Especially in light of his being on some short lists for Scotus.

    I'm a Christian (5.00 / 1) (#103)
    by OPlo on Thu May 28, 2009 at 11:15:43 AM EST
    And don't really care about this issue. Seems like an inevitability anyway. I live in a very progressive area. My kids go to school with children on same sex parents. I will treat them the same as I always have - with kindness and love.

    My primary responsibility is to receive God's love and then pass it on.

    Just realize that "no belief/faith" is a belief system in and of itself. And that not all Christians are rampant bible thumping, holier than though, intolerant, brain washed crazy people.

    "divided" court? (1.00 / 1) (#78)
    by diogenes on Tue May 26, 2009 at 05:51:04 PM EST
    The vote was 6-1, so the law was obviously on the side of the majority.  Justice Moreno is ust buffing his record for a possible future Supreme Court appointment.

    Moreno (5.00 / 1) (#80)
    by mudlark on Tue May 26, 2009 at 06:02:43 PM EST
    I don't think Moreno was "buffing his record." I think he was sincere and correct in his opinion. What an insulting and cynical thing to write.

    cynical (none / 0) (#104)
    by diogenes on Thu May 28, 2009 at 10:00:43 PM EST
    It's my job to be cynical--hence, the name.  

    And let's not forget (none / 0) (#82)
    by Steve M on Tue May 26, 2009 at 06:27:31 PM EST
    Roe v. Wade was a 7-2 decision, so the law was obviously on the side of the majority.  Right?

    The silence, Steve M (none / 0) (#89)
    by kmblue on Tue May 26, 2009 at 08:15:26 PM EST
    is deafening.  (snicker)

    here I thought the decision (none / 0) (#93)
    by of1000Kings on Tue May 26, 2009 at 09:23:14 PM EST
    was based upon an interpretation of the constitution, not just because something was popular...

    then again, I'm wrong a lot...


    I Hope The Court Finds Against Prop 8 (none / 0) (#1)
    by tokin librul on Tue May 26, 2009 at 11:54:46 AM EST
    and that gay marriage becomes the "Afghanistan" for the Mormon Church, pouring millions upon millions of dollars into a futile effort that ends in bankrupting the goddam "church" for EVER...

    well, (none / 0) (#40)
    by bocajeff on Tue May 26, 2009 at 01:17:44 PM EST
    I just hate it when those damn Mormons hold guns to peoples heads and make them vote a certain way. Especially a large, dominant religion like theirs...

    60 M worldwide...not exactly a small number... (none / 0) (#43)
    by of1000Kings on Tue May 26, 2009 at 01:25:46 PM EST
    might even be higher than evangelicals, who even though they only have about 30M in America are one of the most powerful groups in the country...

    "The church really does not see that it has an institutional role in public life as such"

    ---statement made by Elder Lance Wickman when asked whether the church 'governs'...

    hmmmmm.....guess things have changed...


    a different statement by a member of the (none / 0) (#46)
    by of1000Kings on Tue May 26, 2009 at 01:30:27 PM EST

    "We feel that as we maintain the integrity of our religious institutions and preserve tolerance of each other's sacred beliefs, we can preserve the strength of pluralistic society. We can promote tolerance and understanding."

    guess all religions are capable of hypocrisy and simony....


    I'm wondering how do we get... (none / 0) (#54)
    by kdog on Tue May 26, 2009 at 01:51:57 PM EST
    the Mormons and their fellow holy-rollers, and the gay community to realize that they want the same thing...the government out of how they define marriage.

    Let the mormons be free to marry, or deny marriage, based on their beliefs...and the same for gay Americans.  Winner winner chicken dinner all around.

    Or put it this way, how do we get everybody to realize that imposing personal views on everybody is a road to hell that always comes back to bite you in the arse?


    You Don't (5.00 / 2) (#62)
    by tokin librul on Tue May 26, 2009 at 02:28:04 PM EST
    compromise with fascists or fundamentalists.

    They cannot simply live and let live because they cherish the notion that they, having faith, are superior and they have the right to attempt to compel anyone who disagrees with them either to flee or to convert.

    Treat your faith like your pecker: keep it zipped til somebody you like asks about it...


    Perhaps... (none / 0) (#65)
    by kdog on Tue May 26, 2009 at 02:39:53 PM EST
    they are all jackboot wearing fascists for the lord...though I wonder if all we have here is a failure to communicate...getting government out of the marriage business is good for fundies and the rest of us alike.  They are free to make their churches and marriages as exclusive as they like, just as we would be free to make it as inclusive as we like...provided we get the state the hell out of it.

    CA SC site crashed (none / 0) (#2)
    by andgarden on Tue May 26, 2009 at 12:02:03 PM EST
    No surprise there.

    Apparently the court does not understand (5.00 / 2) (#10)
    by andgarden on Tue May 26, 2009 at 12:12:14 PM EST
    the purpose of constitutional government:

    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.
    In other words, they think they have no authority to check mob rule. I think this is clearly wrong as a matter of history.

    The court continues (5.00 / 1) (#15)
    by andgarden on Tue May 26, 2009 at 12:16:55 PM EST

    The Attorney General, in his briefing before this court, has advanced an alternative theory -- not raised by petitioners in their initial petitions -- under which he claims that even if Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, that initiative measure nonetheless should be found invalid under the California Constitution on the ground that the "inalienable rights" embodied in article I, section 1 of that Constitution are not subject to "abrogation" by constitutional amendment without a compelling state interest. The Attorney General's contention is flawed, however, in part because, like petitioners' claims, it rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7.  As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term "marriage," but not to any other of "the core set of basic substantive legal rights and attributes traditionally associated with marriage . . ."
    This is the argument that should have won the day. In order to justify not blocking the mob, the court minimizes the impact of prop 8.

    So... (none / 0) (#56)
    by blueaura on Tue May 26, 2009 at 02:02:23 PM EST
    Basically they're saying separate but "equal" is A-OK in their book.

    The word "marriage" apparently isn't (none / 0) (#57)
    by andgarden on Tue May 26, 2009 at 02:05:33 PM EST
    important enough for them to find this argument persuasive. I think they want to have their cake and eat it too.

    Perhaps... (none / 0) (#61)
    by blueaura on Tue May 26, 2009 at 02:24:27 PM EST
    they're trying to assuage their own guilt by convincing themselves that there's something else out there that's "good enough".

    And here is where you have to watch (5.00 / 1) (#17)
    by andgarden on Tue May 26, 2009 at 12:19:09 PM EST
    your wallet:

    [N]o decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as "inalienable"), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary.

    Again, that's wrong as a matter of history. That is pretty much the entire foundation of the unwritten English Constitution.

    How long (none / 0) (#12)
    by The Addams Family on Tue May 26, 2009 at 12:14:42 PM EST
    till that perception is tested--again?

    they think they have no authority to check mob rule

    I think (5.00 / 1) (#32)
    by andgarden on Tue May 26, 2009 at 01:06:36 PM EST
    Moreno gets it right in his dissent:
    [I]t is not so much a discrete constitutional right as it is a basic constitutional principle that guides all legislation and compels the will of the majority to be tempered by justice.

    He goes on: (5.00 / 1) (#36)
    by andgarden on Tue May 26, 2009 at 01:08:43 PM EST
    The majority upholds Proposition 8 by reasoning that it does not "fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated" in the Marriage Cases, because it merely "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 . . . ."  (Maj. opn., ante, at p. 7.)  The majority protests that it does not mean to "diminish or minimize the significance that the official designation of `marriage' holds" (ibid.), but that is exactly the effect of its decision.

    Denying the designation of marriage to same-sex couples cannot fairly be described as a "narrow" or "limited" exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description.


    CNN reporting that, as expected (none / 0) (#5)
    by andgarden on Tue May 26, 2009 at 12:04:45 PM EST
    the baby is split.

    More splitting: (none / 0) (#23)
    by andgarden on Tue May 26, 2009 at 12:36:34 PM EST
    [A]lthough Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated "marriage," in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, "the core set of basic substantive legal rights and attributes traditionally associated with marriage," including, "most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage." (Marriage Cases, supra, 43 Cal.4th 757, 781.)  Like opposite-sex couples, same- sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.

    I'm reading on to figure out WTF that means in practice.

    It seems to say (none / 0) (#27)
    by Steve M on Tue May 26, 2009 at 12:46:21 PM EST
    that there is a constitutional right to a civil union, Prop 8 notwithstanding.

    I think they call it a (none / 0) (#49)
    by sarcastic unnamed one on Tue May 26, 2009 at 01:34:13 PM EST
    I'm here it's upheld (none / 0) (#3)
    by lilburro on Tue May 26, 2009 at 12:04:37 PM EST
    but the marriages stand at Pam's.

    oops...hearing not here (none / 0) (#6)
    by lilburro on Tue May 26, 2009 at 12:04:49 PM EST
    #@$#$%!! CSC upholds the ban (none / 0) (#4)
    by Cream City on Tue May 26, 2009 at 12:04:41 PM EST
    says CNN.  Expected, but deplorable.

    But CSC allows existing marriages to stand. (none / 0) (#7)
    by Cream City on Tue May 26, 2009 at 12:05:11 PM EST

    Correct decision (none / 0) (#8)
    by DaveOinSF on Tue May 26, 2009 at 12:08:21 PM EST
    The supreme court decided correctly today.  Today is the first day in making a new case to the voters of California.  Here's hoping we don't blow it, again.

    Not surprised (none / 0) (#11)
    by jbindc on Tue May 26, 2009 at 12:13:50 PM EST
    This will now go to the 9th Circuit, which will overturn it, thereby setting it up for the Supremes.  Which will now embolden conservatives against Sotomayer.


    Probably a question of state law (none / 0) (#13)
    by andgarden on Tue May 26, 2009 at 12:16:01 PM EST
    so I don't see what the basis for such an appeal would be.

    Will not go to federal court (none / 0) (#14)
    by caseyOR on Tue May 26, 2009 at 12:16:14 PM EST
    This will ever go to a federal court. This is a strictly state matter. The California Supremes were the court of last resort.

    Inter racial marriage (5.00 / 2) (#24)
    by Carolyn in Baltimore on Tue May 26, 2009 at 12:37:54 PM EST
    Virginia thought their aw was a state matter but the Supremes found that marriage was an unalienable right that states could not take away and Loving v Virginia made inter racial marriage legal country-wide.
    Not that the current Supreme Court would do that for us now - but I don' think denying civil rights is a state matter at all.

    Seems to me (none / 0) (#22)
    by jbindc on Tue May 26, 2009 at 12:33:26 PM EST
    this is wide open for an Equal Protection claim - SOME gay people are allowed to be married and some aren't?

    No more waiting (5.00 / 1) (#72)
    by Carolyn in Baltimore on Tue May 26, 2009 at 03:22:20 PM EST
    Justice delayed is justice denied.

    I do not want to wait for health insurance, for tax treatment, for family recognition, for rights. Period.

    I waited through a 20 year 'marriage' to another woman where we had to create legal protections as best we could raising 2 children. Had to go through 'divorce' with no legal framework too.

    No more waiting.


    This is a decision that should (none / 0) (#73)
    by andgarden on Tue May 26, 2009 at 03:33:21 PM EST
    be overturned by the U.S. Supreme Court.  But it will not be--yet.

    Well (none / 0) (#39)
    by eric on Tue May 26, 2009 at 01:15:49 PM EST
    some WERE allowed to get married.

    "Conservatives" (none / 0) (#16)
    by The Addams Family on Tue May 26, 2009 at 12:17:54 PM EST
    (aka rabid Christianist reactionaries) don't need gay marriage as a pretext to fulminate against Sotomayor. They're going to do that anyway. The Ninth Circuit's overturning of this terrible decision would be an unalloyed good, imo.

    No ninth circuit or SCOTUS review (none / 0) (#18)
    by Michael Masinter on Tue May 26, 2009 at 12:19:57 PM EST
    There is no mechanism by which a case can go from the supreme court of California to the Ninth Circuit, and since the supreme court of California decided the case solely on the basis of state law, it cannot go to the Supreme Court either.  It's over for now; it's time to focus on repealing prop 8.

    Before criticizing the California court's decision, consider whether delegitimizing court decisions with which we do not agree is wise (that's what the social conservatives have been doing for years, from Roe to Goodridge).  The reality is that voters have a right to amend a state constitution, and that as long as they do so in the manner provided by state law and in ways that do not violate the U.S. constitution (an issue not presented in this case), their actions, whether wise or foolish, are lawful.  For the California supreme court to have held otherwise would have been an enormous overreach.

    We have momentum, justice, and demographics on our side; we can win and will win by repealing prop 8.  


    I'm taking you and the court (none / 0) (#20)
    by andgarden on Tue May 26, 2009 at 12:23:00 PM EST
    to task on that point. The history of constitutional government suggests that courts can and should prevent the mob from infringing on minority rights.  

    The Wall Street Journal says otherwise (none / 0) (#71)
    by MyLeftMind on Tue May 26, 2009 at 03:21:51 PM EST
    OF COURSE It's a Federal Case (none / 0) (#64)
    by tokin librul on Tue May 26, 2009 at 02:34:07 PM EST
    Prohibitions against gay marriage are offensses against both the First and 14th Amendments.

    The First, because there is no possibly defensible argument against it that does not fall back on sectarian "scripture," thereby violating the separation principle.

    The 14th, because such prohibitions are, prima facie, violations of both the (substantive) due process clause and the equal protection clause.


    I really think... (none / 0) (#19)
    by Dadler on Tue May 26, 2009 at 12:20:57 PM EST
    ...this court is simply cowardly.  I think they were afraid and made their ruling on fear and not law.  They would've gotten death threats had they upheld this law, you can be sure of that, and lots of them.

    Fear rules the day, the rule of law is a pile of steaming dung.

    The same thing Justice Stevens said (none / 0) (#21)
    by The Addams Family on Tue May 26, 2009 at 12:31:27 PM EST
    in his dissent from the ruling in Michigan v. Jackson--this decision by the California Supreme Court "can only diminish the public's confidence in the reliability and fairness of our system of justice."

    Though of course that depends on how you define "the public." Members of the California "public" who oppose marriage equality will see no reason to question the system's reliability and fairness.

    As for me, I married my partner five years ago in Vancouver, B.C., just because we didn't want to subject our marriage to the demeaning machinations of the bigoted mob. So I guess we were married here in California for a little while, thanks to full faith and credit. But what now? Are we presumed to be unmarried again? Do we send out an announcement?

    FF&C (none / 0) (#25)
    by Carolyn in Baltimore on Tue May 26, 2009 at 12:40:34 PM EST
    Since they are upholding marriage contracts that were made when legally possible I could see a good argument that your contract was legal for those 3 months in CA also and could not be taken away either.

    Footnote 48 on page 135 (5.00 / 1) (#30)
    by andgarden on Tue May 26, 2009 at 12:57:33 PM EST
    We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time.  None of the petitioners before us in these cases falls within this category, and in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings.  

    sounds like (none / 0) (#31)
    by Carolyn in Baltimore on Tue May 26, 2009 at 01:03:24 PM EST
    I think some Canada or Massachussetts married couples who got health insurance or other benefits in CA based on their marriage should sue to keep theirs. Possible since CA SC thinks marriage is unalienable (except when the voters say not) it really does beg the question if other states laws are to be upheld.

    Well (none / 0) (#28)
    by jbindc on Tue May 26, 2009 at 12:52:11 PM EST
    The people who married in San Fransisco when Gavin Newman started this whole thing had their marriages struck down by the courts.

    If you say you're married (none / 0) (#26)
    by kdog on Tue May 26, 2009 at 12:42:38 PM EST
    thats all I need to know...to hell with the piece of paper.

    As for the full rights of a married person...like all rights, you only have the ones you can defend.  Sad honest truth...may as well get used to it.  Be ready to (sun god forbid) barge through a hospital door if you're loved one gets ill...and I don't know what you do about spousal benefits, except be ready to fight and not take no for an answer.  


    And hope (5.00 / 1) (#29)
    by jbindc on Tue May 26, 2009 at 12:53:05 PM EST
    you are never forced to testify against each other.

    No court can open your mouth... (none / 0) (#33)
    by kdog on Tue May 26, 2009 at 01:07:23 PM EST
    they can only cage ya...no one said livin' free in spite of the state was easy, it is much easier whan the law has your free american back...but in this case and many others, it just don't.

    It's the other way around for me. (5.00 / 1) (#79)
    by MyLeftMind on Tue May 26, 2009 at 05:57:01 PM EST
    I don't give a d@mn about the word marriage or the piece of paper. I've already taken on the legal, ethical and financial responsibilities for my family. Now I need the legal protections and the associated rights to protect my family, especially our kids.

    agree (none / 0) (#41)
    by bocajeff on Tue May 26, 2009 at 01:22:25 PM EST
    this issue is about freedom, not gay rights, equal rights or anything else. Freedom to do whatever you want without harming anyone else...

    This IS an issue of equal rights (none / 0) (#88)
    by The Addams Family on Tue May 26, 2009 at 07:46:53 PM EST
    and civil rights. How can you possibly have the "freedom to do whatever you want" when your rights are systematically denied and abridged?

    Being gay is not about adopting an "alternative lifestyle." This is not a "lifestyle" issue.

    Personally, I think the government should either get the hell out of the marriage business or confer equal rights of domestic partnership (i.e., civil unions) on whoever wants to be civilly united. Let the churches keep marriage, and let the churches exercise marriage bigotry to their evil hearts' content.

    But if the federal government is handing out hundreds and hundreds of legal and economic rights based on the choice of a heterosexual domestic partner (talk about "special rights"), then it's time to even things up. I'll take some of those rights, too, thank you very much, and I want them recognized at the federal level.

    Or else I might have to get busy on a proposition that has us all voting on who gets to use Viagra.


    It is absolutely in the state's interest (none / 0) (#98)
    by MyLeftMind on Wed May 27, 2009 at 12:39:50 PM EST
    to regulate domestic relationships because the contractual side of marriage needs structure and rules. Marital agreements are clearly spelled out in advance so that the rights and responsibilities of all parties are known and can be enforced. If you have kids, society has parental expectations; if you get divorced, there are specific rules to allocate resources. It's in the public's interest for the state to do things like require tests for venereal disease before marriage and demand child support after divorce.

    What creates a problem today is that religions are confusing religious marriage with the legal contract regulated and enforced by the state. Perhaps we should start referring to religious marriage by that name in order to draw a clear distinction between what society and the state should have control over, and what the church's domain needs to be limited to.


    Not much of a silver lining, at this point, (none / 0) (#35)
    by KeysDan on Tue May 26, 2009 at 01:08:33 PM EST
    but the 18,000 pre-prop marriages facilitate the repeal of the "narrow" ban, sooner rathe than later.

    I'm "banging" on the court (none / 0) (#37)
    by andgarden on Tue May 26, 2009 at 01:10:10 PM EST
    for failing to recognize basic constitutional principles. I think Hamilton and Madison would have laughed at the reasoning in the majority opinion.

    What is the recourse? (none / 0) (#42)
    by Steve M on Tue May 26, 2009 at 01:23:16 PM EST
    Is there any way to overturn the outcome of Prop 8 at this point other than holding another referendum?  Should we expect to see the issue on the ballot every year from this point forward?

    The court refused to restrain the mob (none / 0) (#44)
    by andgarden on Tue May 26, 2009 at 01:26:24 PM EST
    My hope is that eventually the U.S. Supreme Court will find a Constitutional right to marry. But that day seems a long way off.

    Recent polling on a potential repeal of Prop 8 shows us starting about 10 points behind. It would probably be unwinnable, and another loss would just be insult to injury. Personally, I'm predisposed to boycotting another attempt to put fundamental rights up for majority vote.


    I don't understand (none / 0) (#45)
    by Steve M on Tue May 26, 2009 at 01:30:02 PM EST
    why would a rerun of Prop 8 turn out even worse than the first time?  Wouldn't it stand to reason that things should only improve?

    Look at the difference (none / 0) (#47)
    by andgarden on Tue May 26, 2009 at 01:32:44 PM EST
    Well (none / 0) (#50)
    by Steve M on Tue May 26, 2009 at 01:37:29 PM EST
    I'm not particularly persuaded that these poll results should cause me to put common sense aside.  I think the actual results of Prop 8 should provide a pretty clear baseline for the next referendum.

    That's foolish (none / 0) (#51)
    by andgarden on Tue May 26, 2009 at 01:38:43 PM EST
    It's historically been much harder to get people to vote yes than no.

    Well then (none / 0) (#53)
    by Steve M on Tue May 26, 2009 at 01:51:18 PM EST
    I'd suggest writing the followup referendum so that our side still gets the "no" side of the proposition.  Is there a reason that can't be done?

    Regardless, you can't explain the difference between the Prop 8 results and the poll you cited by pointing out that people tend to vote no in California.  That tendency has nothing to do with polling.

    I find it very, very hard to believe that a rerun of Prop 8 is "unwinnable."  I have faith in the power of additional education and a better campaign.


    Ahem (5.00 / 1) (#55)
    by andgarden on Tue May 26, 2009 at 01:59:18 PM EST
    you can't explain the difference between the Prop 8 results and the poll you cited by pointing out that people tend to vote no in California.  That tendency has nothing to do with polling.
    Yes I can and of course it does. Polling is the best non-voting analogy we have to voting.

    If we reran prop 8, it would have to delete language that the CA SC has allowed into the constitution. I can't see a way to delete it without a "yes" vote. I think we can probably win that yes--in 5-10 years.

    It will probably take 20-30 years to get the U.S. Supreme Court where it needs to be to end this insanity.


    You will have to show me (5.00 / 1) (#58)
    by Steve M on Tue May 26, 2009 at 02:17:32 PM EST
    some authority, other than your own assertion that it's the best analogy, for the suggestion that polling in California (as opposed to referenda in California) has a built-in bias in favor of the "no" position.  I'd be surprised to find that pollsters are adjusting their findings by, say, adding 5 points to one side of a question because "people in California always answer no to our polls," but it wouldn't be the first time I've learned something.

    Once you've helped me on that point, you can show me how it has anything to do with a poll that didn't even ask a yes/no question in the first place.

    As for the framing of the next ballot proposal, unless there's some law that dictates which side gets the benefit of the "no" answer, I'm fairly confident that there's a way to phrase it such that the good guys get the "no."  Call me crazy, but if we can put a man on the moon, I think we can figure out a clever way to write a ballot proposal.


    Polling, so far as I am aware, (none / 0) (#67)
    by andgarden on Tue May 26, 2009 at 02:46:13 PM EST
    does not have a built in bias in favor of "no." Public opinion does. This is pretty well established: judges are almost always retained (often by 80/20 margins) and initiatives fail more often than not. The tendency to vote "no" is well reported, but I don't have the time to dig up the cites for you.

    The SUSA poll that I linked to shows that Californians are not predisposed to overturning prop 8. Indeed, they are more likely to support same sex marriage than doing so.


    My question was (none / 0) (#69)
    by Steve M on Tue May 26, 2009 at 03:05:25 PM EST
    why should the baseline for a rerun of Prop 8 be any worse than the results of the first referendum.

    Your only answer, correct me if I'm wrong, seems to be that we're going to be forced to take the "yes" position on the next referendum and that will hurt us.  For my part, I don't see why that would be the case.

    To the extent the poll reflects results that are far different from the outcome of the Prop 8 election, they strike me as contrary to common sense and I give them short shrift.


    Question 1 reasonably reflects (none / 0) (#70)
    by andgarden on Tue May 26, 2009 at 03:07:30 PM EST
    the results of last November. Question 2 reflects a different question: the one that we would likely have to pose to voters in a subsequent election.

    I am pretty sure that we would have to take the yes slot next time, though if you have any reason to think otherwise I would be happy to see it.


    Another SUSA poll (none / 0) (#76)
    by andgarden on Tue May 26, 2009 at 05:19:05 PM EST

    The news is not good.


    OKAY, Legal Beagles (none / 0) (#48)
    by tokin librul on Tue May 26, 2009 at 01:33:06 PM EST
    Is prohibiting "gay marriage" NOT a slam-dunk 14th Amendment violation, either on the 'substantive due process' clause or the 'equal protection' clause?

    and since the only 'textual' objections to it are scriptural, does such prophibitons not also offend against the First Amendment?

    And therefor, shouldn't the dabate on gay marriage be over?

    If not, how not?

    The CA court decision is disheartening (none / 0) (#63)
    by MyLeftMind on Tue May 26, 2009 at 02:28:40 PM EST
    but now it's even more necessary that we push for a federal solution. Same sex couples across the country are legally married but without federal benefits. That's a shameful situation that progressives can remedy.

    My Obama fantasy statement (replete with bipartisanship, support for opposing opinions, recognition of the complexity of this issue, and the need to "move forward") :

    "Look, this is an issue that should be decided by the people in each state. Now we have some states that have taken the position that same sex couples should be allowed to enter in domestic contracts. The federal government needs to accommodate those state-level civil unions with matching federal rights and responsibilities. Therefore, we are repealing the so called `Defense of Marriage Act' and modifying federal law, including IRS and Social Security rules, to recognize those domestic contracts that are available in some states throughout the country."

    Obama, can you hear me?

    DADT (5.00 / 1) (#74)
    by blueaura on Tue May 26, 2009 at 03:39:43 PM EST
    Obama refused to intervene in the dismissal of a gay Arabic translator from the armed forces, despite Obama's assertion during the election that he was against Don't Ask Don't Tell. While he's doing some good things for the country, I don't have any faith that he'll be doing anything to advance gay rights any time soon.

    Obama's not going to expend any political capital (none / 0) (#77)
    by MyLeftMind on Tue May 26, 2009 at 05:47:22 PM EST
    on this divisive issue. He made that very clear last year. But we can certainly pound the doors of Congress to fix this problem. Most progressives support equal rights, but don't understand that it'll take action in the form of political pressure to ensure equality. We need to convince our progressive organizations to take up the call, especially MoveOn, Democracy for America and TrueMajority among others. Heck, MoveOn has five million members. Image if only a percentage of them clicked on a link to email congress critters demanding federal recognition of legal same-sex marriages in states that allow them. But MoveOn and other orgs only work on issues that their members tell them to focus on. This could be a no-cost collaboration between big progressive organizations and gay rights orgs.

    Our opponents continually use anti-gay rhetoric as a Get Out The Vote strategy to rally their base and fundraise. For that very reason, Democrats need to be proactive with this. We are the civil rights Party, after all. This issue won't go away, and the religious right will continue to hit us over the head with it. Instead of taking a beating over this in 2010, we can pull the rug out from under the GOP's gay baiting. Progressives can demand that Congress act to align federal policy with state laws and the Constitution.  Step 1: repeal the Defense Of Marriage Act (DOMA) and eliminate the Don't Ask Don't Tell military policy (DODT).  Step 2: modify IRS code Social Security and all other applicable federal laws to accommodate states that now allow civil unions or same-sex marriage. Later on we can enforce the equal protection clause between states, but fixing this divisive issue NOW gives us two years to show the sky hasn't fallen, which mitigates the right wing's use of fear mongering as a midterm election strategy.


    I would really appreciate an explanation (none / 0) (#75)
    by shoephone on Tue May 26, 2009 at 03:53:23 PM EST
    from the lawyers here regarding the legality of allowing some gays to marry, but not others. It seems to me the court has been doubly cowardly:

    1. Not overturning Prop 8

    2. Trying to split the baby by sanctioning the existing gay marriages that took place in the few months before the election.

    How on earth is it constitutional for "Jenny" and "Julie" to reap all the benefits of a legal marriage, simply because they took their vows last year during the window of opportunity, but not for "Sam" and Stuart", who would like to get married this year?

    IANAL, but common sense tells me this part of the court's decision is constitutionally untenable.


    isn't it basically just a form (none / 0) (#83)
    by of1000Kings on Tue May 26, 2009 at 06:27:35 PM EST
    of a 'grandfather' clause?

    o'reilly chimed in with his twisted (none / 0) (#90)
    by kenosharick on Tue May 26, 2009 at 08:55:02 PM EST
    legal opinion, saying the court got it correct, because if they had overturned prop 8 "marriage between a man and a duck, or among 3 people would be legal."  He then called being gay a "behavior" rather than the orientation that it is. Thats when I went to the bathroom and threw up.

    Why would you watch that trash, anyway? (5.00 / 1) (#92)
    by andgarden on Tue May 26, 2009 at 09:10:06 PM EST
    I turn it on for (none / 0) (#95)
    by kenosharick on Wed May 27, 2009 at 07:44:31 AM EST
    a few minutes now and again- sort of like not being able to look away from an accident. Or maybe I'm punishing myself a bit.

    Question for Bill O'Reilly (none / 0) (#91)
    by Spamlet on Tue May 26, 2009 at 09:08:49 PM EST
    Why shouldn't I be able to marry a duck, or two other people? For that matter, why not the full Santorum?

    Actually, I hate it when people (none / 0) (#102)
    by MyLeftMind on Wed May 27, 2009 at 06:58:50 PM EST
    say things like that. It minimizes the pain families suffer because of these anti-gay policies, and it implies that two adults who love each other and are in a committed, financially dependent relationship are simply wanting access to marriage because no one should be able to tell them what to do. Not only that, this is one of the main anti-marriage equality talking points - the slippery slope.  If we let (those people) marry, what's next?  Polygamy? The right to marry a dog?

    It's a disgusting implication that responsible adult relationships are compared to bestiality or anything as silly as their slippery slope nonsense arguments.