May 17, 2008
Arnold, even stronger
Posted by: Kevin
Governor Arnold Schwarzenegger (R) further clarified his stand on the California gay marriage ruling, in a meeting with the editorial board of the San Francisco Chronicle. And made his position a bit stronger yet:
"First, I have always said that for me, marriage is between a man and a woman," he told the newspaper. "But I don't want to make everyone else go in that direction."
In terms of nuance, and the direct political impact it will have, this puts Arnold a hair beyond Obama who compares himself to Dick Cheney about leaving it to the states, but has said he opposes gay marriage and adds that he "respects" those who feel civil unions are not actually equal to marriage (i.e., "tough shit"). It also puts Arnold way ahead of our last 'messiah', John Kerry, who backed a constitutional referendum in Missouri to ban gay marriage while campaigning for president in 2004.
It gets better:
"When the people vote, people are not legal experts, constitutional experts or any of that," he said. "I think that's why we have the courts. People may vote with good intentions, but then the court says, 'This is not constitutional.'"
Finally, a governor of either party that has the balls to say it, in so many words: "I don't care how many people voted for this referendum, because it's against the constitution. And that's why we have three branches." And what's more, by also saying he will oppose amending California's constitution to overrule the court -- indeed, he says he will "always be there to fight against that", and he said it before the ruling -- he is adding that it's wrong to ban gay marriage in the state he runs, however you slice it.
And this is the Republican governor of the largest state in the country who didn't say the "a" word: "activist" judges.
The extraordinary ripples of this ruling continue to break against the political tides. The question now is, what will Obama say about California, and what will McCain say? Will either of them match or do one better than what Arnold has done at this moment in history?
May 16, 2008
Concurring in part, dissenting in part
Posted by: Chris
That's how I would have voted if I were a justice on the California Supreme Court. (To channel Judy Tenuta for a sec, "It could happen!" OK, not.) Anyway, having had time to read and digest all 172 pages of opinions on the constitutionality of excluding gay couples from marriage, that's where I come down.
There's much to admire and respect about the majority opinion: the unflinching analysis, the clear-headed logic, and particularly the way Chief Justice Ronald George expresses the majority's views. He obviously "gets it," in the same way as Anthony Kennedy did in Lawrence vs. Texas and Margaret Marshall did in Goodridge, the Massachusetts marriage case from five years ago.
Take this passage from yesterday's decision, for instance:
California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity.
This state's current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals … and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.
That was written by someone who has an obvious familiarity with real lives of actual homosexuals, including their relationships and families. That so many men and women in black robes share that knowledge is a victory won not by lawyers and lobbying groups but by regular gay men and lesbians, willing to live their lives openly. There's no more powerful form of activism.
JUDICIAL ACTIVISM? WELL, YES.
The majority's opinion is most surprising for how far it goes. After concluding that existing law unconstitutionally infringes on the fundamental right of gay Californians to marry, the court could (and should) have stopped there; it didn't.
Instead, the majority went on to conclude that separate institutions for straight and gay couples also violate equal protection. Even in reaching that conclusion, the majority did more than it needed to. Having agreed with the plaintiffs that these separate institutions impacted a fundamental right (to marry), the majority could (and should) have moved on to apply a heightened standard of review; it didn't.
Instead, the majority also decided to consider an alternative argument by the plaintiffs (two of them, actually), and in doing so decided a quetion that was of first impression and enormous importance -- whether to treat an equal protection claim based on sexual orientation in the same way as race and gender.
If a law makes classifications based on race and gender, the burden is actually on the state to demonstrate (1) a "compelling interest" served by the law and (2) that the challenged classification is "necessary" to achieve that end. In suits challenging less "suspect" classifications, the plaintiffs bear the burden of proving there's not a single legitimate state interest at stake, whether or not the legislature was actually motivated by it. If one is identified, the classification must bear no rational relationship to said purpose.
The Lawrence and Goodridge decisions, along with most others in favor of gay rights challenges based on equal protection, sexual orientation is either deemed too different from race or gender to deserve "strict scrutiny," or the issue entirely is avoided entirely -- by concluding the challenged law fails even the more deferential analysis.
It was a clear exercise of judicial activism for the California Supreme Court to decide the case in three different ways, when one would do. It's not the type of "judicial activism" that so animates right-wing radio and Republicans politicians; they're outraged by the entire idea of "unelected" judges thwarting the "will of the majority" -- except when it decides a presidential election in their favor or affirms their right to bear arms.
But deciding unnecessary legal questions, especially enormously important ones of first impression, is activism of the type that rightly concerns scholars and jurists. And I say that even though I'm delighted with the conclusions the majority reached in all three of its alternative avenues to the same answer; but it shouldn't have even "gone there" in the first place.
This form of activism doesn't usurp the role of the legislature so much as it does that of the men and women who will sit on the California Supreme Court in the future. Now that these four justices have ruled on all these extra questions, future justices are now bound by the precedent or face the daunting prospect of overturning yesterday's decision. That's unlikely for conservative judges who practice true judicial restraint -- witness how Justices Kennedy and Sandra Day O'Connor eventually acquiesced to Roe vs. Wade despite their clear misgivings about it.
Kenji Yoshino, an openly gay Yale law professor, is thrilled with the majority's naked power grab, and lays out nicely the ripple effect (think tidal wave) of this legally superfluous decision sexual orientation is a "suspect class":
To my knowledge, California's is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in). For gays, this pronouncement is critical because it is portable—that is, gays can now challenge any California state policy that discriminates on the basis of sexual orientation; … in its own right is a signal advance for gay people.
The magisterial conviction of Thursday's opinion would be extraordinary no matter what court had delivered it. But its issuance from the high court of California is nothing short of revolutionary. Recent polls show that the California Supreme Court is the most respected state high court in the country. This suggests that other courts may borrow its strict scrutiny standard, under which most bans on same-sex marriage would fall.
JUDICIAL ACTIVISM? AND HOW!
The other example of judicial activism in yesterday's decision is potentially even more dangerous, and may have even set up gay folks -- and the court itself -- for a devastating backlash. In the brief, three-page section that concludes their opinion, the majority decides "the proper remedy" for the unconstitutional wrong done by the separate institutions o marriage for heterosexual couples and domestic partnership for gays.
Without citing any precedent, the majority concludes it's left with only two options: extend marriage to gays or withhold both forms of recognition from everyone. Between the two, obviously, the former makes far more sense.
But of course there was a third option; and one with which the majority was clearly familiar -- since it's the remedy ordered by the supreme courts in Vermont, Massachusetts and New Jersey. Having laid out what the state constitution requires, those courts left it to the popular branches to decide how to implement their ruling.
Doing so wasn't just prudent politically, and a smart recognition that the popular branches have a legitimate role to play here, but was especially justified because of the range of ways to address the constitutional deficiency. Choosing among those ways ought to be left to the popular branches.
Chief Justice George himself acknowledged on two occasions that opening up marriage to gay couples wasn't the only way of satisfying the constitution. The state could "assign a name other than marriage as the official designation of the formal family relationship for all couples," perhaps in order to "emphasize and clarify that this civil institution is distinct from the religious institution of marriage." Doing so would also be a way to bypass the emotionally freight surrounding the word "marriage," while still treating everyone the same.
Maybe "civil unions" or "domestic partnerships" for all wouldn't fly politically, but maybe the legislative debate itself might reconcile more Californians to the idea that marriage for everyone makes the most sense. But these four justices robbed the public of that debate, as well as the democratic freedom of selecting which constitutionally acceptable form of legal recognition they wanted.
It's just so unfortunate that the court steered such a clear and, yes, "majestic" course through so many minefields in the first 119 pages of its decision, only to veer off into an abyss in the last three. But now their judicial activism has set two high-speed trains on a crash course: one with clerks handing out marriage licenses to ecstatic gay couples, and the other with enraged conservatives gearing up for a November ballot measure to overturn the court's ruling.
That's a recipe for more divisiveness of the sort of that has plagued the abortion debate for a quarter-century, and places in grave jeopardy the very fundamental right that the majority sought to vindicate.
May 15, 2008
My report on the Calif. decision
Posted by: Chris
NOTE: Here's the first draft of my report on today's California Supreme Court decision. I'll be revising and adding to it later, but it provides a nice summary of the ruling and the dissents, along with reaction and likely impacts.
The California Supreme Court handed down a landmark victory for gay rights today, ruling on a 4-3 vote that it was unconstitutional for the state to limit marriage to opposite-sex couples only. The impact of the decision will be swift and powerful.
Unlike Massachusetts, California has no residency requirement for marriage, meaning that in about 30 days, clerks will issue valid marriage licenses to gay couples from across the state and across the country.
Three of the four justices in the majority were appointed by Republican governors, including Chief Justice Ronald George, who wrote the 121-page opinion. They struck down a 1977 state law that defines marriage as limited to opposite-sex couples, as well as ballot measure approved by voters in 2000 that reiterated the point.
“In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation,” wrote Chief Justice George, “and, more generally, that an individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.”
As a result, the majority concluded, “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”
The case before the California court was very different from those decided elsewhere because state law already provides for “domestic partnerships” for gay couples that are the equivalent of “civil unions” in the Northeast, guaranteeing essentially all the rights of marriage except for the name. The court decided today that it was unconstitutional to designate the legal union of straight couples “marriage” and that of gay couples “domestic partnerships.”
For one thing, the majority opined, it’s unnecessary to exclude gay couples from “marriage” to protect all the rights associated with that institution for heterosexual couples. But it does do real harm to gay couples and their families, the justices concluded, because it “casts doubt on whether … same-sex couples enjoy dignity equal to that of opposite-sex couples” and “is likely to be viewed as reflecting an official view that their committed relationship are of lesser stature than the comparable relationships of opposite-sex couples.”
Even so, the justices left open the door to one alternative approach, suggesting the Legislature could change the name of the institution itself, perhaps to distinguish it from religious marriage, so long as the new name applies to straight and gay couples alike. Like the landmark 2004 ruling by the high court in Massachusetts, today’s decision was based entirely on the state constitution and cannot be appealed to the U.S. Supreme Court.
The decision also broke ground by being the first by a state supreme court holding that any type of legal classification based on sexual orientation, including separate institutions like marriage and domestic partnership, must be subjected to the same rigorous "strict scrutiny" as classifications based on race and gender. Even the Massachusetts Supreme Judicial Court didn't go so far, holding in its 2004 ruling the exclusion of gays from marriage lacked any "rational basis," a much more lenient standard.
Court exceeded authority, says dissent
Three justices dissented from the ruling, all Republican appointees. Writing for two of them, Justice Marvin Baxter said the majority overstepped their authority and should have left the decision of whether gays can marry to the Legislature and governor to decide.
“Nothing in our [state] Constution, express or implicit, compels the majority’s startling conclusion that the age-old undestanding of marriage – an understanding recently confirmed [by the ballot measure voters approved in 2000] – is no longer valid.”
The third dissenter, Justice Carol Corrigan, wrote separately to state her view that the California Constitution requires only that the state offer equal rights and benefits to straight and gay couples. The high courts in Vermont and New Jersey reached conclusions similar to Corrigan’s in their gay marriage decisions, and those states now recognize gay couples with “civil unions” – as do New Hampshire, Connecticut and Washington state.
Justice Corrigan noted that California domestic partnership already meet that standard and while she personally favors full marriage for gay couples, the issue should be left to the people to decide.
Although California Supreme Court Justices are appointed by the governor, they are required to win re-election from the voters. All seven current justices have been approved by voters subsequent to their appointment.
Celebrations followed announcement
Gays across the state held impromptu and organized celebrations, and among those gleeful at the decision were the legendary lesbian couple Phyllis Lyon, 83 and Del Martin, 87, who were plaintiffs in one of the lawsuits decided today.
“We have waited more than 50 years for the opportunity to marry,” said Lyon, “We are thrilled that this day has finally come.”
Shannon Prince Minter, the transgender Legal Director of the National Center for Lesbian Rights, argued the case before the court and said, “This is a historic and landmark day for those who value fairness and opportunity. The court’s decision today upheld the highest ideals of equality that are embodied in the California Constitution.”
Opponents move to delay, overturn ruling
The conservative groups that had defended the existing definition marriage quickly announced that they would ask the court to delay the implementation of its decision until November, since a ballot proposition that would amend the state’s constitution so as to oveturn today’s ruling may be on the ballot then.
“It benefits no one to redefine marriage for three to four months,” Folsom attorney Andrew P. Pugno of ProtectMarriage.com told the Sacramento Bee.
The Secretary of State’s office has not yet certified the petition signatures submitted for the ballot measure, but expect a huge battle for votes if the proposition does go forward.
One of those who will speak out against changing the constitution is Republican Gov. Arnold Schwarzenegger, who has twice vetoed bills that extended marriage to same-sex couples.
“I respect the Court’s decision and as governor, I will uphold its ruling,” he said in a statement. “Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”
Presidential hopefuls tred lightly
The three remaining presidential candidates all issued cautiously worded statements about today’s decision. None of them supports marriage for gay couples, although Democrat Barack Obama favors full repeal of the Defense of Marriage Act, which blocks federal recognition of marriages entered into by gay couples and allows each state to refuse to recognize them as well.
Obama reiterated his support for civil unions with full federal recognition as well, and indicated he “respects the court’s decision.”
New York Sen. Hillary Clinton’s views are similar except she supports repealing only the portion of DOMA concerning federal recognition. Her statement mirrored Obama’s but offered no opinion at all about today’s ruling itself.
The gay marriage issue puts Republican John McCain in a political bind. Social conservatives are angry that he voted against and spoke in opposition to a federal marriage amendment, though his reason was that the issue should be left to the states. One prominent conservative website, Belief.net, argued that the California decision offered McCain “an opportunity to make common cause with the Christian Right,” by reversing his position on a federal amendment.
McCain’s position on the amendment has Log Cabin Republicans, the gay GOP group, optimistic about him as the party’s nominee, but his campaign reaction steered clear of the issue.
“John McCain supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona,” said spokesman Tucker Bounds. “John McCain doesn’t believe judges should be making these decisions.”
Bounds’ reference to Arizona was McCain’s vocal support for a ballot measure two years ago that would have amended the state’s constitution to ban not only gay marriage but civil unions and even limited domestic partnerships as well. The amendment remains the only gay marriage ban ever rejected by voters.
The marriage ban expected on the November ballot in California, along with another in the crucial swing state of Florida, may offer the McCain and Republicans with a vehicle to motivate turnout among dispirited conservatives, much as President Bush and his chief strategist Karl Rove used the issue as a “wedge” in Ohio and other states in 2004.
(Photo of lesbian couples in San Francisco City Hall today, making appointments for marriage licenses, via Associated Press)
California gay marriage reax
Posted by: Chris
Last updated: Friday May 16, 3:09 a.m. ET
Reaction has run the gamut to today's landmark ruling by the California
Supreme Court decision ordering the state to marry same-sex couples.
From a strongly supportive statement by Republican Gov. Arnold
Schwarzenegger, to somewhat surprisingly tepid reactions from the three
remaining presidential candidates. This post will be continuosly
updated, so check back for more.
For analysis of the opinion itself, click here).
* The photo above, including my pal Robin Tyler (in black) and her partner (soon to be wife!) Robin Olson and other victorious plaintiffs in the California lawsuit (as well as the Gavin Newsom photo, below), is among those compiled by Steve Rothaus of the Miami Herald.
"Essentially, this boils down to love. We love each other. We now have equal rights under the law," AP reports Robin as saying. "We're going to get married. No Tupperware, please."
* Go Arnold!
Gov. Arnold Schwarzenegger released a statement immediately after the opinion was issued saying he would uphold the ruling.
"I respect the Court’s decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling," he added.
Contrast this with Mitt Romney, then-governor of Massachusetts. The California governor deserves real credit here.
* Unlike Massachusetts, California has no residency requirement for marriage, so same-sex couples from across the country can go west, get married, and return home to legal limbo.
* The high court's ruling will be effective in 30 days, so unless there's some intervening order, marriage licenses should be available for same-sex couples at that time. Expect huge media attention (of the good kind, may I add, since I think it's always good to show real gay couples joyful at the prospect of marrying).
* Expect gay marriage opponents to ask the court to postpone the effective date of its order until after November, so that they can put the question to voters:
"It benefits no one to redefine marriage for three to four months," said Folsom attorney Andrew P. Pugno of ProtectMarriage.com, who said he would seek a stay while pursuing an initiative to amend the state constitution to ban same-sex marriage.
* Barack Obama campaign statement (Via Politico), represents real progress John Kerry, the party's nominee in 2004, who threw his support behind state constitutional amendments banning gay marriage (a position Kerry himself has now abandoned):
Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.
* Nothing yet from John McCain, but remember he's on record opposing a federal marriage amendment as antithetical to Republican values -- not because it's anti-gay, mind you, but because it violates states' rights. He has hinted of late, however, that he might support a federal amendment if judges in more states push the gay marriage button. He already supports state-level constitutional amendments that either preempt or overturn judicial rulings like today's in California.
* Click on the jump to this post for a peak at an ad featuring McCain in 2006 backing an Arizona ballot measure that would have amended that state's constitution by banning not just gay marriage but civil unions and even domestic partnerships. This extreme measure supported by McCain is the only one ever nationwide to be rejected by voters.
* A statement from McCain spokesman Tucker Bounds, very mild considering his Arizona history (above):
John McCain supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona. John McCain doesn’t believe judges should be making these decisions.
* This in from Howard Dean, chair of the Democratic Party:
The Supreme Court of California today took a step forward in the long march toward protecting equal rights under the law for every American. This should not be a matter of politics or partisanship; it is a matter of protecting the rights and dignity of all American families.
Dean has come a long way, baby, since going on Pat Robertson's "700 Club" and reassuring viewers that Democrats opposed gay marriage. The former Vermont governor said recently (in his deposition in a lawsuit claiming gay bias in his firing of a party staffer) that he now personally supports gay marriage.
* Gay activist-blogger Michael Petrelis, reacting to Howard Dean (above), is "damn pissed the Donkey Party failed to say the word gay once" in its statement. Point well taken, Michael, but you're always damn pissed, right?
* From the victors:
"This is a historic and landmark day for those who value fairness and opportunity," said Shannon Price Minter, Legal Director of the National Center for Lesbian Rights, who argued the case on behalf of 14 same-sex couples and two organizations, Equality California and Our Family Coalition. "The court's decision today upheld the highest ideals of equality that are embodied in the California Constitution."
"There is no more important and deeply personal decision than whether to take on the commitment of marriage," he added. "With today's ruling, the California Supreme Court declared that lesbians and gay men have an equal right to make that cherished commitment."
For you LGBT kumbayah'ers out there, I'll note that longtime legal advocate Shannon Minter wasn't always a "he," meaning this tremendous victory for "GLB" rights was argued by a "T."
* Legendary lesbians Phyllis Lyon, 83, and Del Martin, 87, were among the plaintiffs who won today in California and even received special notice in the majority opinion:
"We have waited more than 50 years for the opportunity to marry," said Phyllis Lyon, on behalf of herself and Del Martin, who are plaintiffs in the case. Lyon, 83, and Martin, 87, have been together 56 years. "We are thrilled that this day has finally come."
* Former GOP Congressman Bob Barr, author of the Defense of Marriage Act and recently-announced Libertarian candidate for president, has a hands-off reactions likely to please those he's now courting:
Regardless of whether one supports or opposes same sex marriage, the decision to recognize such unions or not ought to be a power each state exercises on its own, rather than imposition of a one-size-fits-all mandate by the federal government (as would be required by a Federal Marriage Amendment which has been previously proposed and considered by the Congress). The decision today by the Supreme Court of California properly reflects this fundamental principle of federalism on which our nation was founded.
For the record, I'm not buying this "new and improved" Barr. His DOMA went far beyond simply "ensur[ing] that each state remained free to determine for its citizens the basis on which marriage would be recognized within its borders, and not be forced to adopt a definition of marriage contrary to its views by another state," as he claimed in today's statement. First of all, the U.S. Constitution already does that in the Full Faith & Credit Clause (or doesn't, as the case may be), so a federal statute doesn't change that reality. But DOMA did go much further, prohibiting any federal recognition for those states that do decide to marry same-sex couples. Where is the respect for states' rights there? It's bullshit, just like Bob Barr.
* Conservative Christians are already goading McCain to use the California ruling as his justification for reversing position on a federal marriage amendment:
If John McCain wanted an opportunity to make common cause with the Christian Right, he's just been handed it: the California Supreme Court's decision to overturn the state's gay marriage ban. One of the Christian Right's biggest grievances against McCain is his steadfast refusal to get behind a constitutional amendment to ban gay marriage. This is a moment when McCain can reverse that opposition and make a plausible case that circumstance, rather than raw political calculus, forced his hand.
Given McCain's tepid response so far (above), the Christian right may well be further alienated. I predict it will take about a campaign nano-second for strategists at the Straight Talk Express to realize the California ballot measure (along with another expected in the key swing state of Florida) are like gifts from Karl Rove to drum up dispirited conservative turnout.
* Now this in from Hillary Clinton (h/t: Queerty):
Hillary Clinton believes that gay and lesbian couples in committed relationships should have the same rights and responsibilities as all Americans and believes that civil unions are the best way to achieve this goal.
As president, Hillary Clinton will work to ensure that same sex couples have access to these rights and responsibilities at the federal level. She has said and continues to believe that the issue of marriage should be left to the states.
She mostly follows the same wary line as Obama, with the one important difference that she manages to make any explicit reference to the California ruling itself. At least Obama said he "respects the decision." Heck, even Arnold said that! But not our gay rights champion, Hillary.
* San Francisco Mayor Gavin Newsom, who had been earlier rebuffed politically and by the state's Supreme Court for ordering his city clerk to marry gay couples in February 2004, is now vindicated by today's decision, which agrees with him that state law limiting marriage to opposite-sex couples is unconstitutional:
As San Franciscans, we have taken an irrevocable step toward resolving one of the most important civil rights issues of our generation, and the state's highest court has done the right thing with their ruling.
San Francisco is the first government entity in American history to challenge the constitutionality of state marriage laws that discriminate against gay and lesbian couples. I believe that the path San Francisco pursued was not merely right – it was inevitable. It is America’s path – the road to true freedom and equality.
* Familiar "shock and appall" from the anti-gay Concerned Women for America:
Today the California Supreme Court imposed, through judicial fiat, so-called "same-sex marriage" on Californians, thus totally disregarding the sanctity of marriage and the will of the people.
A few nits with that statement. The court didn't create "so-called 'same-sex marriage,'" it ruled that gay and straight couples should be treated equally under the same institution. If Californians want to limit the word "marriage" to a religious context, they can (and should, in my view) enact "civil unions" or "civil partnerships" for gay and straight couples alike. The state just can't create one water fountain for the whites and another for the coloreds, even if the water tastes the same.
* The venom from Matt Barber, the CWA's Policy Director for Cultural Issues, was particularly poisonous:
So-called 'same-sex marriage' is a ridiculous and oxymoronic notion that has been forced into popular lexicon by homosexual activists and their extremist left-wing allies.
If people who engage in homosexual behavior want to dress up and play house, that's their prerogative, but we shouldn't destroy the institutions of legitimate marriage and family in order to help facilitate a counterfeit.
Anyone wondering whether those opposing marriage for gays are actually motivated by hate, and a desire to treat us as second-class citizens, need look no further than Barber's statement for proof.
* President Bush, who responded to the 2004 Massachusetts decision by throwing his support behind a federal marriage amendment, reacted similarly to the outcome in California:
“President Bush has always believed marriage is a sacred institution between a man and a woman,” said Dana Perino, the White House press secretary. “Today’s decision by the California Supreme Court illustrates that a federal constitutional amendment is the best way for the people to decide what marriage means.”
* VoteYesMarriage.com, the oxymoronically named group that wants to overturn the California decision, chose to fear-monger instead. "This is what the California Supreme Court has said: Children have a new role model — homosexual marriage, aspire to it," said the group's Randy Thomasson. "This is a disaster."
* Gay Republicans appear split in their reaction. Patrick Sammon, who heads up Log Cabin Republicans, defended the decision. "This ruling is a conservative one. The justices have ensured that the law treats all Californians fairly and equally. Two people in a loving and committed relationship deserve the support and dignity that come with marriage."
B. Daniel Platt, better known as Gay Patriot West for those who know the GayPatriot blog, was less complimentary:
To some degree, I am grateful that this issue has received the attention it is getting, but I’m also troubled by the decision. To be sure, the court makes some valuable arguments about the merits of recognizing same-sex unions, but I believe those arguments should be made to the citizens of the Golden State, 62% of whom voted in 2000 to define marriage as the union of one man and one woman. …
It’s not just the court’s bypassing the people’s will that troubles me, it’s also some things the court said about marriage. The court refuses to rely upon the “historical” understanding of marriage, noting that “prohibitions on interracial marriage” are also part of the historical record. What it neglects to mention is that those laws were statutory creations, while the historical understanding of marriage as a union between one man and one woman goes back for millennia.
The California ruling's 'money quote'
Posted by: Andoni
Here's the "money quote" (as Andrew Sullivan would say), from today's California Supreme Court decision on marriage:
Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation—like a person’s race or gender—does not constitute a legitimate basis upon which to deny or withhold legal rights.
My partner and I are in Hawaii. When I watched the news on TV, I began to cry. Finally a court clearly, succinctly, and oh so beautifully recognizes our equality.
(Photo of reaction outside San Francisco courthouse via Associated Press)
Calif. supremes order gay marriage now
Posted by: Chris
NOTE: This post includes analysis of the court opinion itself. For reactions to the ruling, click here.
So much for splitting the baby. The California Supreme Court by a 4-3 vote struck down Proposition 22, passed in 2000, that defined marriage for opposite-sex only, and basically ordered clerks across the state to start marrying gay couples. Three of the four justices in the majority were appointed by Republican governors, including Chief Justice Ronald George, who wrote the opinion.
Their decision did not offer the Legislature or Gov. Arnold Schwarzenegger the opportunity to change the law in accordance with their ruling, in the way the high courts in Vermont and New Jersey did:
Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union "between a man and a woman" is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 [Proposition 22] can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.
Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs.
Full opinion here.
More initial observations:
* The majority pointed out that since the state's domestic partner law includes all the rights and responsibilities of marriage except the name, then really the only question before the court was whether it's constitutional to reserve the name itself to opposite-sex couples.
* Even though marriage becomes open to everyone with this decision, the majority did leave open "whether the name 'marriage' is invariably a core element of the state constitutional right to marry so that the state would violate a couple's constitutional right even if -- perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage -- the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples."
That was the wiggle room I had hoped for in my post earlier today, allowing the Legislature to compromise if it wants and call the institution some other name -- "civil unions" or "civil partnerships" -- if the pushback on "marriage" is too strong.
* Chief Justice George (pictured) also wrote on behalf of the majority that the state appeals court was wrong in refusing to apply a rigorous "strict scrutiny" to whether the state was justified in treating couples differently based upon their sexual orientation. The appeals court had said the exclusion of gays from marriage need only have a "rational basis."
That's a big victory since most courts have (inexplicably) concluded that sexual orientation, unlike race or gender or other classifications, isn't the type of official discrimination that courts should take seriously. Those other courts -- even the Massachusetts Supreme Judicial Court -- have said that a law that discriminates against gays need only have a "rational basis" to pass constitutional muster.
"Strict scrutiny" means the state must have a "compelling interest" for treating gays differently and its classification must be "necessary" to serve that interest.
* Applying "strict scrutiny," the majority reaches four conclusions:
- Excluding gay couples from marriage isn't necessary to preserve all the rights of marriage for opposite-sex couples.
- Using "marriage" for straight couples and something else for gay couples "is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."
- Given the history of anti-gay disparagement, separate designations is "likely to be viewed as reflecting an official view that their committed relationships are of lesser stature."
- Separate institutions for gay and straight couples perpetuates the notion that gays are "second-class citizens."
* The majority rejected the argument by the gay plaintiffs that Proposition 22 -- the ballot measure passed in 2000 that reads, "Only marriage between a man and a woman is valid and recognized in California" -- only applies to out-of-state marriages by gay couples and not those in California itself. That finding is important because it means the two gay marriage laws passed by the Legislature (though vetoed by Schwarzenegger) -- would have had to be submitted to voters to take effect.
The other reason that interpretation is important is the new ballot measure, which would amend the California Constitution, uses the same language -- meaning it would overturn the court's opinion today if the Secretary of State validates the petition signatures already submitted and voters approve it in November.
* The majority also rejected the Court of Appeals decision below, which had argued rather circularly that the plaintiffs sought not a "fundamental right to marry," which all agree exists, but "a fundamental right to same-sex marriage.'" That sort of circular reasoning dates back to the U.S. Supreme Court's infamous decision in Bowers vs. Hardwick that there's no "fundamental right to sodomy." The Court in Lawrence vs. Texas rejected that offensive claim, accepting that gays sought the fundamental right to sexual intimacy with the partner of their choosing.
The California court majority noted that history and concluded similarly:
The right to marry represents the right of an individual to establish a legally recognized family with the person of one's choice, and, as such, is of fundamental significance both to society and to the individual. …
In light of the fundamental nature of the substantive rights embodied in the right to marry -- and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society -- the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.
The majority also dispensed nicely with the reasoning relied upon recently by other state supreme courts rejecting gay marriage challenges, including in New York and Washington state. Those courts claimed that limiting marriage to straight couples was reasonably related to the goal of "responsible procreation," meaning that heterosexual couples can accidentally have children so society is better off encouraging them to marry so the unexpected babies are raised in established homes. Gay couples, it's been noted, can't have accidental children, so excluding them is justified. The California in effect noted the novelty of this defense of hetero-only marriage betrayed it as a pretext:
None of the past cases discussing the right to marry -- and identifying that right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution, contains any suggestion that the constitutional right to marry is posssessed only by individuals who are at risk of producing children accidentally, or implies that this constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood.
THE DISSENTS
* Three justices dissented from the ruling, all Republican appointees. Writing for two of them, Justice Marvin Baxter said the majority overstepped their authority and should have left the decision of whether gays can marry to the Legislature and governor to decide:
Nothing in our [state] Constution, express or implicit, compels the majority’s startling conclusion that the age-old undestanding of marriage – an understanding recently confirmed [by the ballot measure voters approved in 2000] – is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea-change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.
* The third dissenter, Justice Carol Corrigan, wrote separately to state her view that the California Constitution requires only that the state offer equal rights and benefits to straight and gay couples. The high courts in Vermont and New Jersey reached conclusions similar to Corrigan’s in their gay marriage decisions, and those states now recognize gay couples with “civil unions” – as do New Hampshire, Connecticut and Washington state. She added, on a more personal note:
In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the [state] Constitution compels us to do so. Here, the [state] Constitution does not. Therefore, I must dissent.
California here we come
Posted by: Chris
I noted late Tuesday that the California Supreme Court will issue its long-awaited decision later today on gay marriage, and -- as Andoni pointed out earlier -- the impact will likely be huge.
I've been closely following lawsuits challenging the constitutionality of hetero-only marriage laws since the mid-90s, when the Hawaii and Alaska high courts were set to strike them down until the voters preempted them with amendments to the constitutions in those states.
Since those early days, it's been crystal clear to me that laws that limit marriage to opposite-sex couples are unconstitutional -- on federal and state grounds -- based on the same principles of equality under the law established by the U.S. Supreme Court in Loving vs. Virginia, the landmark 1967 case striking down laws limiting marriage to those of the same race. In a decade of subsequent litigation, conservatives have yet to offer any convincing state interest for excluding same-sex couples from such a fundamental right as the freedom to marry. Whatever justifications they offer -- child-bearing, child-rearing, "traditional values," etc. -- either make no logical sense or boil down to moral disapproval of homosexuality, which is invidious and unconstitutional discrimination.
All that said, we cannot blind ourselves to the horrific backlash on gay marriage in the last decade. Dozens of states have written gay marriage bans into their constitutions and for a while there was a genuine risk that the Congress might do so as well. That's unthinkable since the Democrats took over the House and Senate and will solidify their control in November. But already in California, conservatives are perilously close to putting an amendment initiative on the ballot that would overrule whatever good the state's high court may do later today.
That's why, in one of my first posts on this blog, I applauded the attempt by the New Jersey Supreme Court to split the baby: requiring that gay and straight couples be afforded all the same legal rights and responsibilities, but leaving it up to the popularly elected branches to devise exactly how.
I'm hoping that's what we see later today. The California Supreme Court could strike down the ballot measure passed in 2000 -- Proposition 22 -- which defined marriage in state law as between a man and a woman, but then leave it to the the Legislature to determine how best to define the identical rights to be extended to straight and gay couples alike.
Unlike New Jersey, which had a weak domestic partnership law, California's D.P. rights are already the equivalent to marriage. But the California court could one-up the New Jersey court and affirm that "separate is never equal." Straight and gay couples are entitled to access the same institution with the same name, whether it's "marriage," "civil unions," "domestic partnerships," or "civil partnerships" like they have in the U.K.
The California Legislature has already twice passed legislation that would open marriage up to gay couples, only to be vetoed by Gov. Arnold Schwarzenegger, who said he wanted to defer to the court ruling expected today. If the Legislature again passes a law opening marriage up to everyone, it'll be in the hands of the Governator. Should he veto, then the only alternative would be to create a new institution, called whatever, for gay and straight couples both.
My bet is that he would sign the gay marriage law, and that democratic process would give the result more legitimacy than if the court simply rules it so.
May 13, 2008
Big news Thursday morning?
Posted by: Chris
UPDATE: The California Supreme Court has now confirmed that its decision on gay marriage will be released tomorrow at 10 a.m. PDT (1 p.m. EDT). Hold on tight, folks. It's going to be a bumpy ride.
To update Don's post from earlier this week on the all-out war over gay marriage expected in California, that state's Supreme Court will announce a new round of decisions on Thursday morning (10 a.m. PDT, 1 p.m. EDT). My understanding is that the marriage decision is expected in the the next several weeks and that the court announces rulings on a weekly basis each Thursday. Rumor has run rampant that the gay marriage decision is imminent.
Lambda Legal is already planning its reaction, whether the news be good or bad:
The California Supreme Court is nearing a decision that will affect all of our lives.
As we're sure you're aware, the California Supreme Court is preparing to issue a ruling on marriage that will change our lives and the course of our fight for full equality for years to come. Sometime within the next few weeks, the justices will decide whether California's thousands of gay and lesbian families should have the same rights and benefits through civil marriage as their straight friends, family members and neighbors. The ruling will have national implications and will attract international attention. Bring your convictions and a Californian flag.
Come join us -- tell your friends to join us -- at 7:00 the evening the ruling is announced, to find out directly from community leaders what the decision -- whatever it is -- means to you, and what happens next.
WHEN: At 7:00 the night of the decision, win or lose
WHERE: At the intersection of San Vicente and Santa Monica Boulevards
For more information contact Jason Howe at Lambda Legal: (213)382-7600, ext. 247
Via Rex Wockner
May 11, 2008
Coming soon, the mother of all battles
Posted by: Andoni
UPDATE: Lorri Jean, CEO of the L.A. Gay & Lesbian Center, notes that the California ballot measure is actually sponsored by the National Organization for Marriage and its California arm.
“I think there is a good chance we are about to face what could well be the single most important battle we have ever seen in the LGBT rights movement.”
That’s how Matt Coles, Director of the ACLU LGBT Project describes the epic battle we will face should the California Supreme Court decide in our favor on the same sex marriage case later this month. This major conflict will result from the confluence of two events:
- The California Supreme Court strikes down state law limiting marriage to opposite-sex couples.
- Almost simultaneously, voters will weigh in on a ballot initiative sponsored by VoteYesMarriage.com to amend the state's constitution to outlaw same sex marriage -- undoing the Supreme Court decision.
Many astute observers think there is a very good chance the court will approve gay marriage. Matt was initially concerned about our chances, but after hearing the oral arguments and weighing the justices’ reactions, Matt is now cautiously optimistic. You can listen to the oral arguments and decide for yourself if there is a good chance we’ll win.
It appears that VoteYesMarriage.com has collected enough signatures to place on the November ballot the amendment to negate the court’s decision, but we won’t know for sure until June, after the signatures have been authenticated.
A victory for gay marriage in the California Supreme Court would be an earth-shaking event because:
- The California Supreme Court is one of the most respected in the country. The New York Times recently ran a story saying it is easily the most influential state court in the country. If we win in California, things will be quite favorable for us in other states going forward on this issue. The California Supreme Court was most instrumental in ending this nation's anti-miscegenation laws by ruling them unconstitutional in 1948 and the rest of the nation soon followed. Let's hope a same sex marriage ruling follows a similar trajectory.
- California alone represents the 8th largest economy in the world and over 12% of the U.S. population. In short, what happens in California has tremendous influence economically, politically, socially and culturally. California has a long history of starting new ideas in the United States.
Our opponents know all this, so it will be a do-or-die situation for them. They will want to punish the court if they rule our way to send a message to other state courts not to do the same. If they lose the ballot initiative in California, they know the same sex marriage war is all but over.
Our side knows that if we sustain a court victory by the people in a ballot initiative, it will be a short time before gay rights victories spread across the country. So in a sense, the California battle will as crucial as the Battle of the Bulge in WWII. Both sides will throw everything they have at it because they know that the ultimate outcome of the gay rights war will turn on this battle.
Matt told me he sees the California battle this way:
If we win the case and the initiative qualifies, we’ll be in the largest, most expensive, highest stakes political fight we’ve ever seen or are ever likely to see. Our opponents will understand that if they lose, and the voters in effect ratify the court’s decision, their fight against marriage in America will ultimately be unwinnable. They’ll put everything they have into the election.
So get ready for World War-like battle for gay rights that we have no choice but to fight as if our lives depended on it. Certainly our future does. It will involve the LGBT community throughout the nation. We can argue about whether marriage was the right issue at the right time. But we’re here now, and we have no choice but to fight as hard as we can. This isn’t just about marriage -- it's about ending legal discrimination against gay people on any issue you can think of.
Matt sums it up:
The prospect of a ballot initiative is scary. But we have no choice but to face it. And in facing it, we should keep one thing in mind. A win at the California Supreme Court, confirmed by the voters, followed up with a smart strategy building on the wins and persuading the public, would put in our grasp an end to legal discrimination (against gays) in less than a generation.
April 22, 2008
Tough times for Brazilian friends
Posted by: Chris
My friend Marcos Costa, who blogs at Carioca Virtual, has been drawing attention to an outrageous case of mistreatment inflicted on Jose Ávila, days after the death of Fabio, his partner of 10 years. That's Jose and Fabio in the photo; Jose's on the right.
Days after Fabio's death, his family met Jose in the street and unceremoniously informed him that since the apartment was in Fabio's name and he died without a will, Jose was no longer welcome. All the belongings inside, accumulated over a decade together, were sealed away as well.
Jose sued and, to the credit of gay-friendly legal treatment in the state of Rio Grande do Sul, won a temporary order that restored him in the apartment and made him executor of Fabio's estate. But the family fights on, demanding a trial to test Jose's claim of a long-term relationship.
I have known both Jose and Fabio socially -- a genuine, happy, fun-loving couple like so many I've had the honor to know in my time here. Jose is trying an unusual tactic to prove the relationship: a petition available at Foch clothing stores popular with gay men in Rio, São Paulo and Curitiba. Those who knew the couple are encouraged to sign, providing additional evidence of the legitimacy of their relationship.
I've never understood how the families of gay men could be so heartless in the treatment of long-term partners, no matter how they felt about the morality of their relationship. Whatever biblical passages they might use to condemn, they violate countless more by acting in such a vicious, mean-spirited manner.
I'm not sure many readers of this blog can help out in Jose's case, but it's a reminder of why gay couples everywhere need and deserve legal recognition. It's also a reminder why all of us need to take the time to draw up the necessary legal docs to protect our partners, should the unthinkable happen.
April 21, 2008
Accessing those 1,200 federal benefits (III)
Posted by: Andoni
CLARIFICATION: The first portion of this post has been edited to clarify that Marc was not suggesting a change in Matt's suggested language; but rather that they had a broader scope than I interpreted them.
Marc raised a great point in a comment on my last post about accessing those 1,200 federal benefits of marriage. Basically, he observed that if we passed a federal law to recognize civil unions for federal benefits, it would actually open up federal benefits for civil unions to the whole country, allowing a couple from Georgia (a state with no civil unions) to go to Vermont (a civil unions state) to get united and return to Georgia and be eligible for those federal benefits.
Matt Coles, the director of ACLU's Lesbian & Gay Rights Project, had suggested a new federal law that includes this simple statement:
"The term ‘marriage’ in all federal laws includes civil unions and domestic partnerships created by states that have substantially the same definition, obligations and rights as a marriage in the state does."
Marc noticed that legislating using Matt's language actually tied federal benefits to getting a legal piece of paper, not to geography. That would be great news for all of us.
For some reason, I initially assumed that someone could go to a civil union state to get united but that to get those benefits you would have to choose to reside there. Matt realized the full effect of his language when he proposed it; Marc picked up on it, and I didn’t.
In fact, Matt’s language would open up federal benefits for all LGBT people in the country as long as they were willing to go to a civil union state and legally get united.
If people move back to their original non-civil union state, they would be in the strange position of receiving federal recognition and benefits, but no state recognition or state benefits. I believe I could live with that because it is the federal benefits I want most. Of course, if you decide to stay in the civil union state, you get the entire package, both state and federal benefits.
April 15, 2008
Civil unions, then marriage
Posted by: Chris
Don't miss Don's post from earlier tonight laying out how at least one gay rights leader -- Matt Coles of the ALCU -- sees things playing out in federal legislation recognizing gay couples. Most of what Matt says makes perfect sense -- although it's fairly shocking that our national groups have shared so little (done so little?) on how we'll bring it to effect.
I do have one major question about Matt's rundown, however. I don't understand why repealing part 3 of DOMA should come before extennding of the 1,200 benefits to couples in civil unions and domestic partnerships. For one thing, just touching DOMA means dealing with the "M word" -- marriage -- which remains such a hot button for so many.
Why not go with federal recognition of civil unions and domestic partnerships first? Extend the 1,200 rights and benefits of marriage under federal law to same-sex couples in state-issued civil unions and domestic partnerships -- deferring for the time being to the public support for "marriage by another name."
In fact, that statute could even do an end-run around DOMA, simply by treating gay couples married by states as included in the definition of "civil unions." DOMA wouldn't be in the way. Part 3 provides:
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
`Sec. 7. Definition of `marriage' and `spouse'`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'.
Yes, doing so degrades gay marriage in the states where we've gotten it, but it's better than no federal recognition at all for gay marriages, if as I'm guessing repeal of DOMA "part 3" will be a very hard sell. What's more, the more the federal government sets up a separate system of recognition for gay couples and straight couples, the more the stage is set for a federal constitutional challenge.
Accessing those 1,200 federal benefits (II)
Posted by: Andoni
If you remember, I was delighted to learn that both Democratic candidates, Hillary Clinton and Barack Obama, advocate extending the 1,200 federal benefits of marriage to gay couples who are in civil unions -- even though neither supports gay marriage per se.
But I wondered why we haven’t heard any follow-up on this or seen any action from our national organizations, especially since the two candidates themselves gave us an opening. I also wondered what the best way to implement those 1,200 federal benefits would be.
After e-mailing my questions to all our national organizations, I heard back from my friend Matt Coles, Director of the Lesbian & Gay Rights Project of the ACLU. He told me to stop fretting; they are prepared.
He said the best way to start the ball rolling is for
Congress to repeal "part 3" of DOMA, which prohibits the federal
government from recognizing state sanctioned same-sex marriages. That would
immediately make the gays married in Massachusetts (and those New Yorkers who
married in Canada) eligible for those federal benefits --- everything from filing
joint tax returns, to inheriting property better treatment under the estate tax, to obtaining surviving spouse social security benefits,
to immigration rights, etc. -- all 1,200 of them.
Matt also feels that soon there will be two to four more states that will recognize gay marriage, so we're talking about a significant number of people here who would benefit.
Repealing DOMA "part 3" will not help those gays in states that have civil unions, however. For these people to gain federal benefits, a relatively simple (but not as easily passed) federal law would say: the term “marriage” in all federal laws includes civil unions and domestic partnerships created by states that have substantially the same definition, obligations and rights as a marriage in that state does. That would do it for states with civil unions and their equivalent domestic partnerships, as their called in California, Washington state and Washington, D.C.
So there you have it.
Unfortunately, all those (including your's truly) who live in states that don't have civil unions or even enacted constitutional amendments that prohibit same sex marriage, are basically out of luck . It would take a massive overhaul of federal law to cover us. The federal government would have to get into the civil union business; heretofore marriage and civil unions have been a state