The California Supreme Court resisted the urge to legislate from the bench today, and upheld the propriety of the amendment process that has declared marriage to be one man-one woman in the Golden State. According to AP:
The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.
The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California constitution‘s equal protection clause to such a dramatic degree that it first needed the Legislature‘s approval.
The court said the people have a right, through the ballot box, to change their constitution.
“In a sense, petitioners’ and the attorney general’s complaint is that it is just too easy to amend the California constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it,” the ruling said.
When the suit against Prop 8 was filed, I thought that the arguments it presented were a real stretch, and I think it’s safe to say that I was right, given that 6 of 7 members of one of the nation’s most liberal supreme courts not only wouldn’t buy them, but said:
Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit.
The only dissent came from a justice who thinks his vote on the court outweighs that of California voters. According to the San Francisco Chronicle:
Justice Carlos Moreno, in a lone dissent, said a majority should not be allowed to deprive a minority of fundamental rights by passing an initiative.
Which means, essentially, that he voted to uphold the challenge to Prop 8, not because the arguments had merit, but because he doesn’t like the proposition. That’s a legitimate political position, but if the petitioners had thought that a legitimate legal argument, they would have made it. Sounds like Justice Moreno needs to resign from the court and run for the state legislature.
At the same time that they upheld Prop 8, the justices also allowed the 18,000 gay marriages contracted before the referendum was passed to stand. That was the only fair thing to do. The justices had committed a horrendous blunder last June when they ordered the state to register same-sex marriages at the same time they let Prop 8 go to the voters. It was a blatant move to change the facts on the ground judicially to try to force the political result the court wanted. It was a misuse of judicial power for them to do so, but that doesn’t mean the 18,000 couples who acted in accordance with the law as the court re-wrote it should be forced to pay the price. The justices who voted to let those marriages proceed should do so, instead, in the form of recall elections for every one who voted to abuse their power. But at least they got it right today.
UPDATE: With absolute predictability, Americans United for Separation of Church and State weighed in with disapproval of the California Supreme Court’s refusal to buy a bogus argument and legislate on behalf of its preferred policy position. But you’ve got to love how the Rev. Barry Lynn manages to insult and dismiss the majority of Californians who don’t happen to agree with him:
“Today’s ruling is unfortunate, but it’s not the end of the fight,” Lynn said. “I’m confident that Californians will rise up and reject the divisive agenda of the Religious Right.”
Which now apparently consists of just over 52% of all California voters, including large majorities of its Hispanic and African-American communities.
May 26, 2009 at 2:11 pm
Its an odd decision in that they argue that Prop 8 only reserves the use of the term “marriage” for opposite-sex couples. So, domestic partnership legislation in California is completely unaffected by this ruling, and civil unions are just fine and are, in fact, protected by previous rulings. Yet, if it’s just about the word “marriage” as the Justices argue, then it’s odd that they let the 18,000 marriages stand, since those folks would still be “civil-unioned”.
May 27, 2009 at 9:54 am
I have never really understood why the “civil union” concept hasn’t found more acceptance as a middle ground compromise. Prop 8 opponents list things like hospital visitation and survivorship issues as reasons not to limit legal marriage to heterosexuals. But properly written wills and durable power of attorney for health care covenants can provide those benefits.
The one current difference is a marriage certificate takes care of all those things, while there is no equivalent civil union certificate. Suppose the state were to create a similarly easy to use way of establishing a civil union agreement — or require heterosexuals to take more direct action to establish the legal ramifications of marriage. Wouldn’t that take care of the equal protection issues?
It would have the side benefit of avoiding deeper church-state entanglements. Prop 8 was heading to defeat until people started asking “Is this want I want my children to learn about marriage?” People feared the state being able to say, “we don’t care what faith heritage you’re trying to pass on to your children; this is what marriage is.” But if the state left the definition of marriage to religious communities and kept its focus on civil contracts and covenants, everybody could live peacefully.
Actually, probably not, but for the life of me I don’t know why not…
May 27, 2009 at 10:44 am
I think it depends on who you ask, PJ. My impression (and I don’t have numbers to back this up, it’s an opinion based on anecdotal evidence only) is that civil unions actually have quite wide acceptance in the LGBT community. I can’t say how that acceptance compares to full marriage equity, but my impression is that civil unions, while not a majority preference are not only a small minority preference either.
My own feeling is that, if one does not object to the state sanctioning a civil union that includes all the rights and responsibilities of marriage, but is simply a name change, then I don’t really get what the big deal is either. It seems difficult to make the argument that it is *really* all about the Webster’s Definition of one word (which ironically isn’t even the Webster’s definition any more.) At the same time, I don’t think most people today would think that it is appropriate to have the word marriage applied only to white couples and not black couples, so there’s a separate but equal issue there. Finally there’s the matter of legally equal vs. actually equal. While many enlightened and informed folks around the country might understand that a civil union certificate means that LGBT folks have all the rights and responsibilities of a “married” straight couple, there have been enough incidents of people blatantly ignoring the law to cause serious concern about anything that isn’t specifically labeled marriage. (For example, a recent Florida case in which a woman was forced to die alone in the hospital because the staff refused to recognize her partner’s legal & medical power of attorney rights, even when presented with the documents. This is not a rare occurrence, unfortunately.)
But, if you’re suggesting that the state offer *everyone* civil union papers, and the word “marriage” ends up being strictly a religious one used by communities of faith as they see fit, then I have absolutely no problem with that, and such suggestions have broad support in the LGBT community. Most people I’ve talked to are extremely skeptical that such suggestions would ever win any sort of support from the far right, however. I highly doubt that the far right is going to allow anyone to take away their marriages (for surely that’s how such proposals would be spun.) In addition, actually solving this issue would mean the lost of a significant money raiser for the far right, and I don’t think they’re going to let that cash cow out of the barn any time soon.
On this point, “But properly written wills and durable power of attorney for health care covenants can provide those benefits.”
See above. They can provide such benefits provided that they are actually recognized by hospital staff, etc. And, though it has never been tested in court, the anti-gay marriage law in my home state of Michigan (and probably others as well) is so broad that it probably makes such documents for same sex couples meaningless. Also, those aren’t the only rights we’re talking about. According to the GAO here are over 1000 special rights reserved for heterosexual married couples granted solely on the basis of their lifestyle choice to get married, and estate and power of attorney rights are only a fraction of them. (And I wonder why I should have to spend almost $5000 on our legal documents securing rights that straight people get for free.)
http://en.wikipedia.org/wiki/Rights_and_responsibilities_of_marriages_in_the_United_States
May 27, 2009 at 11:54 am
I see no reason for “civil union” legislation when the states already have a plethora of “partnership” statutes covering all sorts of arrangements.
If two people want to form a partnership let them reduce their agreement to writing and have the contract enforced under the partnership statutes of any state.
May 27, 2009 at 12:23 pm
The problem, Larry, is that there is no “plethora” of partnership statutes. Most states do not have partnership statutes of any kind, and in fact many states specifically outlaw any sort of civil union or partnership of any kind whatsoever. As I said above, Michigan (as well as several other states) have anti-gay laws that are so broadly written as to possibly render any contract between same-sex partners completely meaningless.
In addition, there are federal laws, and then there are state laws. The few states that do offer marriage or civil unions only offer state rights/responsibilities/benefits for those unions, but those laws have absolutely no impact on federal statutes in any way (those over 1000 federal benefits I mentioned above.) So a state sanctioned civil union, for example, does not allow one partner to receive social security benefits upon the death of the other partner, like marriage automatically allows, because social security benefits are a federal benefit, not a state one. The federal Defense of Marriage Act says that the federal government will not recognize any sort of partnership, regardless of the laws of the particular state in which the couple resides.
May 27, 2009 at 5:04 pm
Some Social Security benefits do not automatically go to the spouse. In some cases, it depends on the sex of the person who earned the SS benefit (i.e. if a male earned the benefit, the female may collect however it the female earned the benefit, the male may not be able to collect).
May 28, 2009 at 7:40 am
Well, Rich, I can guarantee you that it *never* goes to the same-sex spouse. So, nitpicking aside, there’s still a difference there.