Why California Gay Marriage Ruling is Bad
by Big Dog on May 16, 2008 at 16:08 Opinion
A California Court overturned the state’s ban on gay marriage and it is a very bad thing for our society. I will not get into the debate on gay marriage. People who read this blog know that I am opposed to it. Part of my opposition is based upon my religious beliefs and part on the idea that government can overturn centuries of tradition and run counter to most religions. I have never understood why government is involved in the marriage business because it is a religious union and having government regulate it seems to run counter to keeping government out of religion. Despite my feelings, the ruling is bad for a much more sinister reason.
The court overturned the will of the people. Californians voted not to allow gay marriage. The people of the state voted on a referendum and the people determined they did not want to allow gay marriage and yet, a court has overturned this. The courts are in place to rule on matters of law. By overturning a law voted on by the people, the court overstepped its bounds and went counter to the people’s will.
There are procedures in place. The initiative was in place and people voted and in the end the gay marriage advocates lost. Instead of accepting the will of the people they turned to the courts thus leading to a court making law instead of interpreting it. Californians voted to make marriage a union between one man and one woman. The court decided it knew better than the people and, in effect, ignored centuries of precedent and tradition in order to give marriage a new meaning.
Our society has been on a downward spiral for about 100 years and the federal government is helping it along by following in the footsteps of other great civilizations that fell by the wayside. Gay marriage is one more item of decadence that helps keep the spiral turning.
But more insidious is the breakdown of our system of government where the judicial branch assumes legislative responsibility and, worse yet, thwarts the will of the people. The court was dominated by Republicans who demonstrated that our once great party is in its final stages of life. When the end finally arrives the country will be dominated by liberals in both parties and this can only mean the end will come even sooner.
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Tags: california, gay marriage, judicial activism, law
why have we empowered the judges so!!
Angels last blog post..Israel: World’s “HappiesT” Country
Who are you to question the authority of the black-robed ones? THEY know better than you.
Did you read the ruling? I did. They actually FOUND a “right to marry other faggots, frogs, trees, and anything else you want” in their Constitution. If you can’t see it, they claim it’s because it’s hidden inside the right to marriage. Oh, and if you can’t see that one, it’s because that’s hidden inside the right to privacy. Oh, and if you can’t see THAT one, it’s because they just made that one up, too.
What a load. This is NOT a government by the people in any way, shape, or form. And just think — Juan McCain wants more judges like this.
Big Dog said:
The court overturned the will of the people. Californians voted not to allow gay marriage. The people of the state voted on a referendum and the people determined they did not want to allow gay marriage and yet, a court has overturned this. The courts are in place to rule on matters of law. By overturning a law voted on by the people, the court overstepped its bounds and went counter to the people’s will.
yet the liberals complain about how the will of the people, our rights, have been tromped upon by Bush and company…here’s a perfect example of actual tromping that they are celebrating. Twisted. Totally twisted.
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Bingo!
The left never complains when it is their guy, just as I pointed out in my Obama Cross piece.
I agree with everything that you wrote, Big Dog. The CA Extreme Ct’s decision is absolutely shameful!
The night before the decision came out, I wrote this:
Speaking of pastors having the free speech right to state Bible verses – which state unequivocally that homosexual behavior is sinful – tomorrow the CA Supreme Court will hand down it’s decision on whether or not to overturn Proposition 22 (which was voted on by the people in 2000 to recognize that marriage is defined as the union of one man and one woman in CA) and allow homosexual “marriage.”
Knowing how liberal the members of the court are, I would not be a bit surprised if they decide to ignore and trump the votes of 60% of the people in order to push their own ideological agreement with those proponents of same-sex “marriage” on the public in this state.
I pray that Prop. 22 ISN’T overturned, but I fear that this liberal leftist court will not be able to resist the opportunity to do so.
If they do such a thing, it may be “legal” in CA to “marry” a person of the same sex; but it will NEVER BE MORALLY RIGHT IN THE EYES OF GOD. God’s laws DO NOT CHANGE!
May 14, 2008 10:33:00 PM PDT
I just knew that these four radicals in black robes would not be able to resist overturning the will of millions of people in CA who voted in favor of Proposition 22.
I would not call it a “ban on gay marriage” as many are doing. The Prop. 22 vote was to KEEP THE THOUSANDS OF YEARS OF HISTORY DEFINITION OF MARRIAGE INTACT! Marriage is DEFINED as the union of one man and one woman. The proposition stated: Marriage will be recognized as the union of one man and one woman in the state of California. Yet, four judges can overturn it eight years later? That’s insane!
How ironic is it that this Extreme Court has done exactly what John McCain warned about in his speech yesterday morning regarding radical judges “legislating from the bench.” This court has overturned the will of the people in California. It is evil and shameful!!
I have been sounding the alarm bells about this awful development happening in CA ever since Massachusetts’ loonie judges did the same thing.
I have also been sharing how biblical prophecy fits in with this issue. Jesus did say that the signs of the times would be “as in the days of Noah” and the “Days of Lot.”
Jesus likened the days of his return unto the days of Lot. What do we know about the days of Lot other than the rampant homosexuality that marked it? Isn’t it odd that we do not know much more about it? I do not think so. In fact, I believe that it is exactly what Jesus was referring to.
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Will of the people? This is the way our system works. The people voted to allow the law 8 years ago. Appeals were made to the courts, the courts overturned the law. Now people can create a new law and vote on that and the court can review that later too. I didn’t see any conservatives complaining when it was the will of the people to ban guns in San Francisco which was later overturned in the courts…
Sorry folks, the judicial branch is pretty important to this country. That’s why they have been empowered with such authority.
It seems like you only like the parts of the constitution that set up devices which work in your favor. Courts? Screw ’em. All you need is the 2nd amendment, right? Shoot them judges…
Furthermore, I love how after 8 years of President George W. Bush and his administration, the gays and their unions are still high on your list of reasons this country is going to hell. What a joke…
Adam,
Banning guns is far different from re-defining marriage.
With that said, our government is supposed to be “of the people, by the people, for the people,” not “of the judges, by the judges and for the judges.”
These four judges clearly overstepped their boundaries for interpreting the law. They MADE UP A NEW LAW. That is wrong!
No one is advocating “shooting” the judges so don’t get all shrill about it.
The free speech, freedom of association, and freedom of religion rights of millions of people in CA who voted for Proposition 22 have been usurped by four people who have abused their so-called “power” and “authority.” They have failed in their proper role. They have used their own political clout to bring disorder and confusion into the original meaning of marriage. In the absence of any cohesive principle, they created a new law to fit their worldview. Doing this has caused the thousands of years of common standard and purpose for marriage to be overturned.
Yes. They overstepped their boundaries big time!
Christinewjcs last blog post..The FARCe That Is Obama
The actual difference is rather clear.
It IS unconstitutional to ban firearms. That right is clearly, openly written in the US Constitution (what used to be the law of the land). To attempt to pass a law that contradicts with that plain English is wrong — and that’s what courts are supposed to overturn.
In this case, there is nothing in the Constitution that says gays can marry. Therefore, in order for the judges to overturn the law, they had to actually make up that gay marriage IS in the Constitution.
Do you see the difference, Adam? The judges are supposed to read the Constitution and rule on what is there — not make up new crap that clearly is not there.
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We are used to this here in cali. Back in the day we voted in prop 187 to deny public services to illegals.
The courts overturned that one too.
The people no longer have a voice.
kenders last blog post..Religious Fervor and Barack Hussein Obama
Adam,
Your emotional outbursts are lacking logic. The people voted on the law and the judges decided that the law was invalid but upon what did they base this? As Ogre stated, the Second Amendment is in the Constitution and therefore any law to ban guns is unconstitutional.
There is nothing in our Constitution allowing gay marriage and I would bet, that there is nothing in the California Constitution either, thus the referendum. The judges had nothing to look at for legal guidance because it did not exist, the only thing that existed was the law the people voted on (which is a Constitutional method to get a law).
As Ogre stated, judges have no option accept to overturn gun bans because there is something in the Constitution that will not allow them.
If the state made a law banning free speech or shutting down all newspapers then judges would have to overturn that as well because of the First Amendment.
Just like there is no right to abortion there is no right to gay marriage and since marriage is a religious institution the state should not be performing them.
Big Dogs last blog post..Why California Gay Marriage Ruling is Bad
I disagree.
All Americans should be treated and seen as equals under the law. Gender, race, religion, sexual orientation, etc. should not play any part in changing that equality.
As for the fact that the people of California voted to ban gay marriage: Democracy should not be used as a tool to reduce the freedoms and equalities granted to us by our constitution.
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Hi Charles,
The right to gay marriage is not in the Constitution. Might help for people to read that thing.
Though you might be onto something. How about we have the court strike down affirmative action so that minorities don’t get treated better and have an advantage in school admission and jobs? That would be where equality comes in.
I will say it again, marriage is a religious institution. The government regulates it for some reason (money). However, we are allowed to define marriage as a union between one man and one woman.
What next, allowing people to marry their pets?
Big Dogs last blog post..Why California Gay Marriage Ruling is Bad
Adam you are a flaming idiot.
When that gun ban was proposed myself and many many other conservatives fought it, yelled about it and wrote about it. Get your facts straight ya flippin maroon…
kenders last blog post..Religious Fervor and Barack Hussein Obama
Kender, I think he meant that Conservatives did not complain about the will of the people being overturned when the gun ban was thrown out. The sentence structure leaves the thought unclear but I am sure that is what he meant.
However, we have already schooled some folks on the difference between Constitutional rights and things not in the Constitution.
BTW, there is nothing in the US Constitution allowing gay marriage as a right. If there is nothing in California’s then the judges made an unconstitutional ruling.
Our Constitution says anything not delineated in the document is relegated to the states or to the people. The PEOPLE made the decision with their vote. The judges violated the Constitution by overturning it.
Big Dogs last blog post..Why California Gay Marriage Ruling is Bad
One dissenting judge’s opinion:
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.
Undeterred by the strong weight of state and federal law and authority,4 the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.
In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly.
I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power.
The majority (referring to the judges) has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality
and justice.
The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex.
Written by BAXTER, J
Christinewjcs last blog post..The FARCe That Is Obama
The previous comment is incomplete. Here is the entire statement by Judge Baxter, J. –
One CA dissenting judge’s written opinion about the four rogue judges and their homosexual pseudo-marriage decision:
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.
Undeterred by the strong weight of state and federal law and authority,4 the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.
In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly.
I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power.
The majority (referring to the judges) has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.
The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex.
Written by BAXTER, J
Christinewjcs last blog post..CA Rogue Judges & Their Judicial Fiat
[…] Why California Gay Marriage Ruling is Bad – – – A California Court overturned the state’s ban on gay marriage and it is a very bad thing for our society. More specifically, the courts overturned the will of the people. […]
Halleluia! for California.
I’m Canadian. I’m a heterosexual female and I fought for same sex marriage rights in Canada. I entirely support the right of any two consenting adults who choose to enter into a life long union being able to contract do so.
It is immoral and unconstitutional for democratic nations to deprive same sex citizens of the equal right to obtain a marriage license.
It is invasive when governments and religious organizations try to control such a basic human need as to love and to be loved in return and to be acknowledged as good citizens for choosing to take care of one another. In fact, I do not believe for one single moment that the government or any of the tarnished religious organizations have any legitimate role to play in the bedrooms and broom closets of their citizens.
For a country like America that purports to be “free” to deprive a class its citizens of the basic human right to contract in such a way as to be able to dispose their possessions appropriately upon the demise of one or the other is nothing short of outrageous hypocrisy.
I’m so proud of California for leading the way on this issue. I cannot wait for the other Americans states to read their constitution, stop all the BS-ing and face the truth. This is a human rights issue [full stop]. This mean spirited and hypocritical sanctioned discrimination that interferes with the right to contract by creating a dis-entitled class of citizens that has endured for so long in a democracy is unconstitutional and intolerable and it must end.
No matter what excuses may be offered to mask homophobia, hatred and systemic discrimination the fact remains that one either believes that it’s reasonable that every citizen be entitled to equal rights and equal access to all government services and that the courts uphold that right or not.
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So time thief, seems you are also a thief of law and order and the will of the people too since you agree with the judges erroneous ruling. They created a right out of whole cloth and directly went against the will of the people, as they did with prop 187. Freedom is dead, long live the socialist government of the divided states of america.
I give us 30 years before we devolve into an outright dictatorship
kenders last blog post..Religious Fervor and Barack Hussein Obama
P.S. I just found out that the quote by Baxter J. is just a summary of his written opinion. HT to Stacy Harp for the summary.
Christinewjcs last blog post..CA Rogue Judges & Their Judicial Fiat
Wonderful dissenting opinion (thanks Christinewjc). That judge truly understands the difference between interpreting law and making it. I cannot understand how anyone can still see not allowing gay marriage as “unconstitutional.” I think it’s been made very clear that there is no mention of that in the Constitution at all. Strange.
I really don’t care what people do in their private lives – God is the one to judge them and not me. But for anyone to be so hell bent to make everyone conform to their belief system and lifestyle is very unnerving. Marriage should remain between a man and a woman. There are other ways for homosexual couples to commit themselves to each other. Why do we have to change an age-old and sacred definition to appease a small portion of our society?
Adam – I believe the judiciary branch is important as well. But isn’t their job to interpret and enforce laws and the legislative branch to make them (via legal methods)? Judges are given so much power in their own house (the courtrooms) that they are starting to see themselves as the all powerful and knowing. Very Scary.
Timethief, let me help you out because you are obviously uninformed. There is no Constitutional right to gay marriage therefore it is impossible for any denial to be unconstitutional. It is not a right, God given or otherwise for people of the same sex to get married.
Our Constitution says that anything that is not delineated for the federal government is left to the states or the people. Since our Constitution and the state Constitution do not address it the people dis (TO THE PEOPLE). The court violated the Constitution when it overturned the will of the people without any legal basis to do so.
Marriage has been an institution that was between one man and one woman for centuries and it should be left alone.
Other arguments about rights and property are false because the law provides for this and people can make powers of attorney and wills to cover them and their property.
Since marriage is not a government service there is no denial of access. This is also not a human rights issue. It is nothing more than tinkering with society and making it more deviant.
Read about Sodom and Gomorrah and see what happens to societies that become perverse.
Most of you obviously have no idea how the law works, in the context of the provisions of the California Constitution.
Glenn Greenwald will explain it to you.
http://www.salon.com/opinion/greenwald/2008/05/15/california/index.html
Thomass last blog post..So Over
Thomas, I agree with the dissenting judge. What would you expect a piece in Salon to say?
I think there are a number of people who understand the law and the definitions in the law. The people decided what the definition is and the court overturned it. There was no previous definition so the judges struck something down without precedent. The real precedent is what was written in the dissenting position and that is marriage has ben defined as a man and a woman for centuries and that si certainly what it meant when the California Constitution was written.
What the people need is a referendum making it part of the Constitution and then the judges cannot over rule it.
Thomas, greenwald is an ass…..wager you don’t have a sensible rebuttal from a respectable source do you?
kenders last blog post..Religious Fervor and Barack Hussein Obama
Why is Greenwald wrong? Is it merely because he’s Glenn Greenwald or merely because he’s writing in a Salon Blog? I could dig up any number of other sources that say the exact same thing.
You do all know that the US form of government is not a democracy, right? It’s a constitutional republic. There’s a big difference.
This is directly analogous to anti-miscongeniation laws. In 1948, the law barring inter-racial marriage was struck down by the CA supreme court. Over 90% of the state’s citizens were opposed to inter-racial marriage. Was that court “activist” and “over turning the will of the people”?
How about when the US Supreme Court struck down anti-miscongeniation laws nationwide in 1958? Over 70% of the citizens of the United States were opposed to inter-racial marriage. Was that ruling “activist”?
There was no more “Constitutional right” to inter-racial marriage as there is to same-sex marriage. The Constitution does not have to specify each individual right, as that is what the 14th Ammendment is for. It demands that laws treat everyone the same. And please spare me the “it does treat everyone the same, gay people can get married… to people of the opposite sex.” That’s just a silly argument.
The reason the founders established a Constitutional Republic was to protect the minority from the majority. However, it doesn’t really matter if you understand how the law works. The trends in acceptance of same-sex marriage are clear. It’s as inevitable in the US as it was in Europe and Canada. Consequently, it really doesn’t matter what you think.
Thomass last blog post..Frothing Insanity
I am pretty sure many of us understand the laws quite well and are as intelligent as you Thomas. Marriage is a religious institution and therefore the government does not belong in it. The 14th Amendment, flawed as it is and as misinterpreted as it has been, is not designed to give a blanket of coverage for everything people want to do.
The law in question defined marriage as one man and one woman. Therefore, there is equal protection issue because gays do not meet the definition.
And don’t give me any crap about equality. The 14th does not stop affirmative action which is anything but equal treatment.
It is simple, California defined what marriage was under its Constitution and the court changed that definition. I guess now 18 year old kids will be able to sue to be allowed to run for president because they do not get equal protection under the age requirement. The court’s actions, just as in this case, is extreme and thwars the will of the people.
As for blacks and whites, the one man one woman definition would be met so there would be equal protection. When that all took place the commonly accepted definition of marriage was one man one woman.
The trends in acceptance of same sex marriage are one more reason that western society will perish. Sodom and Gomorrah and all the ancient civilizations gone.
Homosexuality is abnormal and will help end the west as we know it.
The fact that courts exercise judicial activism, regardless of what you and Greenwald call it, is only hastening that demise.
Thomas, I am not even going to continue this argument with you. You obviously don’t understand the over reaching actions of the courts, or the fact that the feds have been overstepping their bounds for years.
The people are supposed to be in charge of this country. We have lost that and you can’t see it, so to continue this argument with you is simply arguing with an idiot, and I don’t want to be seen as being as moronic as your seem to be.
kenders last blog post..Religious Fervor and Barack Hussein Obama
Big Dog.. you comment was wonderfully ironic. In one sentence, you claim to understand the laws “quite well”. In another, you ponder 18 year old kids suing the government under the provisions of the 14th ammendment for the right to run for president.
I can see what the issue is here. You don’t understand the difference between a law and a constitution (state or federal).
See.. the reason a person must be 35 to run for president is because it’s stipulated as such in the federal Constitution. Therefore, there is no “law” as such to contest via a lawsuit since it’s the Constitution which describes the qualifications. It’s also not possible to sue on the basis the 14th ammendment because the age requirement is described in the very same Constitution.
I’m sorry you feel as you do, but far more sorry that you base your view on, as Greenwald calls is, ignorance of the fundamental principles of government that we are all subject to.
Kender, argue or not. It makes no difference to me. You can claim “over reaching” all you want, that doesn’t mean they are, indeed, over reaching. It is a requirement for state and federal courts to review the constitutionality of legislation. They are required.
As Alexander Hamilton put it in Federalist No. 78, regarding the duties of the federal judiciary: “wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”
This is exactly the principles the courts used in striking down anti-miscongeniation laws. It’s exactly the same. The subject of the legislation is irrelevant, and it’s the checks and balances required by the Constitution that is important.
Whining that “the people are supposed to be in charge of this country” does not make it so. As I pointed out, quite clearly I might add, time after time the courts have held legislation unconstitutional even when it opposed popular opinion.
You want a pure democracy where the popular vote determines the law? That’s not the United States. You’ll have to move if you want that, but I’m not sure there is a country in the world that uses that system.
Again – the US is governed as a Constitutional Republic, and calling me an “idiot” isn’t going to change that.
All it shows is that you lack the basic understanding of our system of government, and all things considered, that’s rather sad.
Thomass last blog post..Frothing Insanity
To Timethief – thank goodness for people like you. You give me faith in humanity and hope that America can become as open and all encompassing as my own Country. As an English lady in a Civil Partnership for nearly two years with my partner of 10 years I applaud the California ruling. Love and care for other human beings is in very short supply these days so I think we should celebrate and embrace all relationships equally. I honestly thought I would never see the day when a part of USA gave their gay citizens the same rights that we have. It’s a great day for Gay people everywhere. This is the 21st century!!
Personally I could care less what two consenting adults want to do in the privacy of their own home or that of their friends. Not my place to judge in the least.
However since there are already legal vehicles in existence for same sex couples to enjoy the same rights as those granted by the legal institution of marriage its kind of moot point in my mind. Why so hung up on the word “marriage” anyway? CivilEnglish mentions her Civil Partnership, doesn’t that give you the same rights to a messy legal proceeding in order to end it as a marriage?
I think it is a case of the homosexual minority using the law to force something down the throat of the heterosexual majority. That something is the redefining of the word “marriage”, a definition that has consisted of a union between a man and a woman across numerous cultures and thousands of years.
What is more important here? The “rights” afforded to a spouse/partner by the union in question or the word used to describe that union?
Another point of why the definition “marriage” should be left alone is that barring any infertility issues offspring are usually a result of marriage. Not all but most. It is physically impossible for two (human)members of the same sex to produce offspring. I mean what married couple hasn’t heard the question “So when are you having kids?” A homosexual couple will never hear that question.
I agree with BigDog, marriage really isn’t the province of government is the province of the religion you believe in and this really should never be up for the courts to decide.
Thomas, the people in California voted to amend their Constitution to define Marriage as between one man and one woman. There is no discrimination if this is the definition as voted by the citizens.
This is why I made the age argument. It is clearly written that a person has to be a certain age to be president so the equal protection clause does not change it. The California law defines marriage and gay couples do not meet the definition so the equal protection clause has no bearing.
Additionally, there is no further law in the Constitution for the judges to have used to overturn the law. They could only use the equal protection clause, which we have now established does not apply because gays did not meet the definition of people who can get married there.
The military says women cannot be in the infantry (and other combat arms positions). There is no such requirement in the Constitution but lawsuits have been lost over this. Is it because Congress has the authority to regulate the military? Of course it is just as California has the right to define (or regulate) what marriage is.
What will happen now is there will be a Constitutional amendment in California banning gay marriage and no judge will be able to overturn that. I think the reason they went with a voter initiative first was to avoid writing it into the Constitution because that is hard to undo. Unfortunately, the people who have been ignored are going to now do this.
I understand the law though I am no lawyer and I also understand what a republic vs a democracy is. That is why we should never go to the popular vote for a presidential election. If we lived in a democracy Al Gore would have been president based on the population of one tenth of the country.
However, the majority determines the laws. The majority wrote the California Constitution and the majority have a right to say what goes in it. This is how their process works. They vote on a referendum and if the MAJORITY approve then it becomes the law. The minority has no say and that is the process regardless of what kind of government we have.
So while it is nice of you to explain, let us not forget that this is how the process works and let us not forget that they court and ther gays who were not satisfied will now get a Constitutional amendment that will bar them forever.
Scott, the Court did not rule that California must allow same-sex couples the right to enter into “marriage.” It merely ruled that if the state allows opposite-sex couples to do so, then same-sex couples must be treated equally. The Court explicitly left open the possibility that the state could distinguish between “marriage” (as a religious institution) and “civil unions” (as a secular institution) — i.e., that California law could leave the definition of “marriage” to religious institutions and only offer and recognize “civil unions” for legal purposes — provided that it treated opposite-sex and same-sex couples equally. The key legal issue is equal treatment by the State as a secular matter, not defining “marriage” for religious purposes.
In other words, the court said that “seperate but equal” violated the state Constitution.
The fertility issue is meaningless, unless you bar infertile couples from marrying. My father got married at age 73 and he’s not having any more kids.
Big Dog, this comment is factually incorrect;
“Thomas, the people in California voted to amend their Constitution to define Marriage as between one man and one woman.”
The Califonia State Constitution contains no such prohibition. There may be a referendum on the ballot to do just that this fall, but as of now there is not. If there were, then the case would not have been decided as it has been.
I’d also point out that twice, the elected representatives of California passed new legislation that included same-sex couples in the state’s civil marriage laws exactly the same as opposite gender couples. Both times the Governor vetoed the legislation.
It’s also worth noting that if California does include barring same-sex couples from it’s marriage law (via Constitutional ammendment), that does not mean it will not be over-turned by the US Supreme Court because no such prohibition exists in the US Constitution (despite efforts by some to insert one). This is exactly how Loving vs. Virginia was decided by the court. California may have the “right” to define their laws however they wish, but if they don’t pass Constitutional muster by the US SC standards, they will be struck down.
This is just how “checks and balances” works. Have you read the Califonia ruling? This is what they wrote at the out-set.
[O]ur task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership, but instead only to determine whether the difference in official names of the relationships violates the California Constitution.
You are correct Thomas, it was a legislative issue not Constitutional which are actually both the same process in CA it just depends on what they call it.
The issue is that CA defined marriage and they may legally do so. They did not make a law that said gay people could not wed, they made one that defined what marriage is.
I think it would be difficult to overturn at the federal level because nothing in the US Constitution addresses the issue and any issue not relegated to the Federal Government is left to the state or to the people. Since the founders did not address it it is therefore left to the states or to the people. It should be shot down based upon that though they screwed up Roe v Wade (which should be a state issue not a federal one) so anything could happen. The whole thing boils down to whether the SCOTUS will follow the dictate of our founders and leave it to the states or if they will find something in the Constitution that does not exist.
The governor vetoed it because the will of the people was usurped by the legislature.
I’m not sure what you mean it’s a “legislative issue not Constitutional”. Does California have a different system where legislation is not subject to review by the judicial (via lawsuit) to determine if it conforms to the Constitution?
California law (until very recently) did define the qualifications of their marriage law and the court found it violated the state Constitution. Is that not a function of the state Supreme Court, or is California using some system the rest of the country is not? I’m very curious what that system is.
As for the founders intent, I did quote Hamiliton;
As Alexander Hamilton put it in Federalist No. 78, regarding the duties of the federal judiciary: “wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”
Does that mean something other than striking down legislation that “contravenes the Constitution”?
The US SC has a long history of doing just that. Are you familiar with Loving vs. Virginia? This is a direct analogy.
Clearly, the issue appears to be that you believe that legislation (either state or federal) should be beyond the pervue of the Supreme Court? Is that your meaning?
Or differently stated.. if for some reason the state legislature of California passed a law (signed by the Governor) that held that people with green eyes cannot get married, that would not be a law eligible to be striken down by the court? If it is eleigible, how do you determine which laws are within the pervue of the court and which are not?
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My belief is that the state has no right to decide who may or may not get married since marriage is a religious institution. However, since the government has injected itself in this argument then it has a right to define marriage.
Suppose a brother and sister want to get married. Are they now able to get a court to rule that this is OK based upon the open definition of marriage and this concept that to disallow it would be unfair treatment.
California has two methods. One is to make a law and the other is to make a Constitutional amendment. Both procedures are basically the same it just depends on what they call it when they put it on the ballot (at least that is how I read it).
Was Alexander talking about federal statutes or state? My contention is that the federal government may overturn if the issue is clearly enumerated in the federal Constitution but has no jurisdiction on matters that are not clearly enumerated. That is why the items not defined are left to the states or the people.
Hamilton was talking about “checks and balances” in a Constitutional Republic – whether state or federal makes no difference.
Your “brother/sister” analogy is a good one. They can sue the state, and can take their case all the way to the United States Supreme Court if they want. I’m sure you’re familiar with the term “rational basis”? The court would have to find a rational basis to determine the merits of the suit. There is, in fact, a “rational basis” for denying incestual marriages that have nothing to do with tradition.
I’m going to ask this again, because you were unresponsive. I just want to make sure I understand when you think it’s okay for courts to review legislation for Constitutional compliance, and when it’s not.
If the legislature of California passes a law, and the Governor signs it, restricting “marriage” to right handed people, would that be beyond the pervue of the California Supreme Court? Because that is the “will of the people”, there is no recourse for left handed people at all?
Again, I understand that you have an issue with the law (and Constitution) as it exists in California right now. I just want to know how far you’ll take “mob rule”. Think through the implications of what that means.
I’m starting to think your entire issue with this is with “marriage” explicitly – because you think the civil marriage laws in California have something to do with religion. If that is the case, then perhaps you think other laws are subject to judicial scrutiny, but laws that you think are “religious” are not.
Is that right? I’m asking you, specifically, in your opinion… which laws are subject to judicial scrutiny and which ones are not. How do you come to that conclusion?
The CA SC specifically stated that the state is quite welcome to rewrite their marriage laws and call it a “civil union”, so long as everyone is subject to the same law. Would that statisfy you? That’s simply changing the name, and perhaps the term is what is so aggrevating to people.
Finally, the 14th ammendment affords broad “enumeration” for review of any law when it makes distinctions on which citizens it affects. Yes, that means that “affirmative action” laws are also subject to court review, and they have been.
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I thought I addressed this but to be clear, I think it is OK for the courts to review for Constitutional compliance on any law. I also believe and the founders intended for some things to be left to the states. It is up to the states and federal Constitution does not apply if it is not enumerated there. The 14th is only broad in its application but that does not give it the right to review cases in states if the Constitution does not specifically address an issue. The 10th Amendment makes that abundantly clear. There are no powers with regard to this issue.
Marriage has been a religious institution long before we had a country. If the left is so hell bent on keeping government and religion separated then why are they allowing a government to decide a religious issue.
What happens if a private business will not recognize same sex marriages? Maybe a photographer refuses to work the “wedding” will that be cause for discrimination and if so why? Do people have to tolerate being forced to accept something they find unacceptable.
My issue is not with the marriage. Gay couples already had every right or access to every right that straight married ones do with regard to decisions and all they complain about. Lawyers make lots of money working those things out. My issue is with the court overturning what over 4 million people decided.
One could make as many arguments against gay marriage as for siblings. As for affirmative action, if it has been in court then it is obvious the courts are OK with certain forms of discrimination. I think if a state defines marriage as between a man and a woman then that is the definition.
I will personally never recognize a gay marriage. I don’t believe it is possible and will not tolerate it. And no court can make me do otherwise.
For historical purposes Section 1 of the 14th has been misinterpreted by courts and our legislators with regard to citizenship. The second part of it says that a state cannot make a law that would abridge privileges or immunities of citizens of all the states, then has the due process law and then says states cannot deny a person within its jurisdiction equal protection of the law.
If marriage is defined in the law then all citizens are equally protected by it. Your left handed analogy is irrelevant. That is a condition that one is born with that is not abnormal as is eye color.
Why would CA have to rewrite the law to call it a civil union. They defined marriage and that is all they need to do. Just like murder and rape are defined in the law, the law defined marriage. The court made a law that did not exist.
Ah.. there is it.. finally.. “abnormal”. Completely unsubstantiated of course. I think you’re abnormal as well, but I don’t deny your equality under the law.
The proof is in the pudding, so to speak, and you can read the court ruling for yourself. They correctly applied the laws and Contitution – as they are required to do. You think there is some different form of government in the United States. I get that. The professionals think otherwise.
The court made a law that did not exist.
No.. actually.. what they did was invalidate the marriage law in California. On the date the ruling goes into effect, California no longer has a marriage law and cannot sanction the civil marriages because there is no law.
If California wants to have a marriage law, they must create legislation that complies with the California state Constitution.
It’s really not that complicated.
You think this ruling somehow creates a law that prohibits people from being bigoted jerks, that hasn’t happened. People are always free to hate whoever they want, which is defiantely how it should be.
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Yes abnormal and that is not a new position for me. The purpose of mammals is to reproduce and two members of the same sex cannot so that is abnormal. Same sexes do not have complimentary sex organs where as males and females compliment each other. It is only unsubstantiated by people who practice it. Alcoholism is a disease and yet alcoholics deny it.
I do not hate gay people and as far as I am concerned they can do what they want. I just don’t think society should change to accommodate them.
Yes, the courts have spoken and they have been wrong before. Even if they are right this issue will be settled when Californians put it in their Constitution. There will be a clearly defined marriage law and then they cannot rule it unconstitutional.
Oh jeez.. reducing the sum total of human bonding to procreation. Lucky that criteria isn’t in marriage laws either, as that also violates the 14th ammendment. Lots of infertile couples would be upset.
Alcoholics deny it’s a disease? Since when? Ever been to an AA meeting?
It remains to be seen what happens with the CA Constitution. The state legislature is opposed. The governor is opposed.. and by the time it rolls around, thousands of people will have been legally married. I suspect your assumption on the mood of the Califonia population is off the mark.. especially in a year that’s going to see record Democratic turn-outs for the presidential election, as we saw in the primary.
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Thomas, alcoholism, regardless of what the left has gotten people to believe, is NOT a disease. A disease is something that happens to you beyond your control. Since people CHOOSE to drink (same with drug use BTW) alcoholism is not a disease but an affliction brought on my a weak will and low self control.
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I did not reduce the sum total to procreation. I pointed out what makes it abnormal. They are not made for each other.
I have heard of AA. Most people who go to AA are forced to but those who recognize their problem and seek help have taken an important first step. Surely you do not think that they became an alcoholic the instant they recognized the problem rather than having been one for a long time before seeing the light (which sadly, some never do).
Let us just agree to disagree and we will see how it plays out. No matter what happens neither of us will make any difference to that process (unless you are in CA). So we can wait and see how it turns out.
When we realize that just one vote if one judge turned the tide towards overturning the votes of 4 million plus citizens in CA, we see the tyranny involved. It was BIAS towards a certain worldview (for radical leftist liberalism) against the normal worldview of most citizens that caused the CA Extreme Court to rule as they did.
In an email that I received from Save California.com we find out the REAL reason why the CA Extreme Court ruled the way that it did.
HT: Save California.com
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Kender, when you claim that alcoholism is NOT a disease, you ought to phrase it such as.. “despite the conclusions of the entire medial community, I (and I’m not a medical doctor, nor am I in any way trained with any particular expertise in the medical field) think it’s not a disease.”
As the American Medical Association describes;
“a primary, chronic disease characterized by impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking.”
It’s not surprising that you completely ignore the science behind the condition.
It’s kind of like how you should phrase your opposition to the Court’s ruling in California. You should include the disclaimer that you have no particular training or expertise, and you are disagreeing with people who have made the study of law their life’s work.
BigDog, we can agree to disagree. My issue is with the mishcaracterization on the basic principles of government. You started out this whole thing by writing;
The courts are in place to rule on matters of law. By overturning a law voted on by the people, the court overstepped its bounds and went counter to the people’s will.
Despite the fact that state and federal courts have done exactly that innumerable times in the history of this nation. Their role is not to bow to popular will, but to follow the rule of law.
You should have included a disclaimer that you support the court in striking down laws that enjoy massive support of the populace (such as anti-miscongeniation laws), but you do not support the court in doing so when you are morally opposed to their decision.
In other words, the court is just in it’s action when you agree with the decision, but they are “creating law” when you don’t. That’s what it all boils down to.
I have absolutely no problem with your opinion of gays, same-sex marriage, or any other issue of “morality”. I may disagree with your view, but obviously everyone has their own opinion. I do have a problem when people are factually, willfully, wrong about basic principles of law.
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I have no problem with law and, as I stated, we have a difference of opinion. You think I am wrong and I think you are wrong. That does not mean that I misunderstand, it means I disagree. Unless you have a law degree you are stating what you believe to be true but you could be wrong, same with me.
Thomas, your attitude and acceptance of bullsh*t definitions of alcoholism is a major part of the problem in this country.
Alcoholics CHOOSE to drink. The booze does not jump into their throats. It is a matter of personal responsibility. Once we accept that drugs and alcohol use is not a choice we teach people that they are powerless creatures and victims of something they can’t control, when in reality we all choose how to treat our bodies. The same actually goes for smokers and people that practice unsafe sex.
Part of the left’s plan (check the commie manifesto) is to get drug users and alcoholics deemed diseased. It is people such as yourself that are ruining the country through your stupidity and gullibility, and your belief in a personal choice being a disease proves beyond a doubt that you have the reasoning capabilities of a lower order of fungi.
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Big Dog, I’m sorry, but I have to take exception to putting our respective positions on the same level of “could be wrong”-ness.
You started off by stating that a court had no business over-turning the “will of the people”. You started off with a completely false premise, and you don’t have to have a J.D. to understand that. Courts have ruled contrary to over-whelming public opinion over and over, and they will continue to do that.
So sorry.. when you get the basic, most fundamental concept of jurisprudence wrong, it’s not an “agree to disagree” argument. If you had merely suggested that there was a rational basis for the judges to allow for marriage laws to exclude same-sex couples, that’s completely different, but that was NOT your argument.
You argued that the courts view of Constitutional law is somehow linked to public opinion. If you’d like to retract that point, and merely argue rational basis, then fine.
Kender, you’re just being silly. It’s not “part of the left’s plan” to have people with alcoholism, and other assorted drug additions, “deemed diseased”. They already are. The entire – and I mean the entire, medical and scientific communites of the entire world already define it as a “disease” – and there’s Kender, thinking it’s a leftist plot to ruin America.
You do know there are physiological components to addiction, right? I mean, because you are contradicting the opinions of the entire medical community, I assume you have at least a Ph.D in biology and have written numerous papers documenting your findings, right?
Or.. can you point to 1.. just 1 single study which even claims that alcoholism is not a disease. Can you do that?
See.. this is the basic problem I have with conservatives. Here Kender is, calling me stupid and gulliable because I think Alcoholism is a disease.. when he is the one holding the far fringe viewpoint that it is not. The world’s bodies of experts call it is a disease, and there is Kender, railing with his insistence that it is not… thinking everyone else is stupid.. but not him.. noooo.. Kender has it all figured out.
Do you think the American Medical Association is some leftist conspiracy? How about the American Psychiatric Association?
How about your own government. The National Institute on Alcohol Abuse and Alcoholism.
http://www.niaaa.nih.gov/FAQs/General-English/default.htm#disease
This whole thing is just really bizzare. I’ve always considered that a majority of the right wing resents and denies scientific communities, but I’ve never seen it go this far before.
Honestly Kender.. how can you possibly call me “stupid” and “guiliable” when the entire – and I’m not talking about a couple of people – the entire medical community of the United States, as well as the rest of the world, classifies it as a diease? Do you think that if you are the one that has the extreme fringe viewpoint on this, maybe you are the stupid one? You think that’s even possible?
It’s weird the way you see conspiracies and agendas behind everything. Medical care doesn’t have a political agenda, it’s just a practical application of the best science available. I’m sorry you have such a problem with it.
But please.. you might be a little more careful throwing around the “stupid” and “guiliable” labels when you’re the one with the weird, fringe, completely out of touch, mis-informed, down right ignorant, view.
‘k?
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Thomas, it is your opinion that I started with a false premise. I do not believe it to be true and I have read different articles by lawyers who say the same thing though I have seen articles by lawyers who take your point of view. I could easily say your position is a false premise but since we will never change each other’s minds then we can agree to disagree.
As a medical professional I believe alcoholism to be a disease albeit one that is manifested by the actions of the people who consume it just as cancer is a disease manifested by people who smoke (yes i know other things cause the disease).
Thomas, are you sure you want to make the claim that since the medical body says it is so then it should be? Several decades ago the DSM classified homosexuality as a mental disorder. That was changed under pressure from homosexual advocacy groups and not based upon any new science. They just changed it. I am not saying there is not science one way or the other just that it was not the basis for the change.