Breaking: California Supreme Court legalizes gay marriage; Update: Opinion-skimming analysis added!

posted at 1:11 pm on May 15, 2008 by Allahpundit

An election-year bombshell, just across the wires. Rove, you magnificent bastard. Stand by for updates.

Update: Here’s the opinion. How does 172 pages sound?

Update: The AP story is thin on specifics since it’ll take awhile to digest the holding. Read this useful bullet-point background from the Journal to get up to speed on the legal posture. Note that six of the seven justices on the court are Republicans. Will the ruling stick?

“Pro-family” organizations have submitted more than 1.1 million signatures for an initiative that would amend the state Constitution to outlaw same-sex marriage. If at least 694,354 signatures are found to be valid, the measure would go on the November ballot and, if approved by voters, would override any court ruling in favor of same-sex marriage.

Proposition 22, the California ballot initiative that defined marriage in the state as between one man and one woman (even if the marriage was entered into in another state that allows same-sex marriage), passed in 2000 by a margin of 1.7 million votes.

Update: Sounds like a major win:

Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, the justices said the state’s ban on same-sex marriage violates the “fundamental constitutional right to form a family relationship.” The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

The ruling set off a celebration at San Francisco City Hall.

Update: A quick skim reveals that the opinion’s fairly straightforward. They start out by noting that California’s different from other states that have dealt with this insofar as it already has a robust domestic partnership law. All this is about, really, is whether gays should be allowed to “marry” the way straights do or whether they’re stuck with those partnership agreements that leave them married in effect but not in name. Conservatives like partnership schemes and/or civil unions as an alternative to gay marriage, but I’ve always thought that argument’s self-defeating since it leaves you with no substantive reason for drawing any distinction in the first place. Yes, (some) conservatives seem to be saying, gays can go ahead and have civil unions that grant them all the benefits married couples have — but for god’s sake, don’t let them call themselves “married.” To which a court can only reply, “Why not?” The right’s strategy, in other words, has been to concede 99 yards and then stand on the one-yard line and say “no further,” but that’s not how discrimination jurisprudence works. If you’re going to discriminate you need a good reason, and depending upon whom you’re discriminating against, you may need a very, very good reason.

That’s actually the key ruling here: The court holds on page 95 that because sexual orientation is (1) immutable, (2) unrelated to one’s ability to function in society, and (3) a target of prejudice, it should be treated as a “suspect classification” for purposes of the state constitution’s equal protection clause. Once it’s deemed a suspect classification then the state needs a very compelling reason to justify discriminating on the basis of it — and since, as I say, it’s already conceded those 99 yards, there’s no such reason to be had. (If you want to bore yourself with the vagaries of equal protection jurisprudence, read this old post about New Jersey’s gay marriage ruling.) All they’re doing is denying gays the label of marriage to preserve a sense of stigma, which is almost a paradigm case of what equal protection is meant to prevent. I have no problem with the ruling as long as other states aren’t compelled to recognize Cali marriages per full faith and credit, which, needless to say, is the battleground on which this decision’s going to be fought in the presidential race. Taking the federalist approach and letting each state decide for itself is an easy call for Maverick; what about the Prince of Peace?

Exit question: Remember this golden oldie from the 2006 midterms?

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Gay marriage would discourage the promiscuous behavior that contributes to health problems in the homosexual community. Maybe a better way to put it – it would encourage stable, monogamous relationships. So that’s a public health benefit. ..

RightOFLeft on May 17, 2008 at 1:04 AM

Let’s see… homosexual sodomites and lesbian women rasing and teaching impressionable children and sending them out into the communities to teach other children… just like that old shampoo commercial, I told two friends, and they told two friends, and they told two friends, and so on and so on… ahem, RightOFLeft… I mean this in the most respectful way. Y’know, I don’t think you’re a bad guy. Really, I don’t. But, you need to stop doing drugs.

apacalyps on May 17, 2008 at 8:10 PM

If same-sex marriage is a “fundamental constitutional right to form a family relationship”, then is polygamy a “fundamental constitutional right to form a family relationship”?

Red Pill on May 19, 2008 at 2:31 AM

I just can’t help myself. After all of these days, returning to this thread, I must comment.

Someone who shall remain nameless has either intentionally or un-intentionally mis-taken my meaning on a couple of posts, but I am not surprised, as it appears that they do this with Scripture too, so I feel that I am in good company.

I showed that the word “converted” is not a good translation of the Hebrew word shuwb. I also said that the meaning of the English word “converted” is not the same as it was in 1611 (in reference to “converting a soul.”) I never said that the Word of God changed, I said that the English language did.

I was told that the KJV was a great translation compared to the NIV, but any Biblical scholar worth his salt will tell you that this is not true. It was interpreted by a small number of scholars (47, divided into 6 committees, each committee taking a “chunk” of the Bible), all with pretty much the same theology (all from the Church of England and all of whom had been instructed to keep it “in line” with the teachings of the Church of England) from a rather small number of recent manuscripts and the Vulgate.

My critic quoted a number of verses from different Bibles and compared them to the NIV translation (which was the one I used simply from expediency, I cut and paste it from, but he didn’t quote the verse in question from any version of the Bible. Do you want to know why? It’s because the KJV is the only Bible out there that mis-translates the verse in question. The rest have it pretty much the same way the NIV does.

This is a tactic used by people who see the Bible as a source of authority to back-up convictions that they already hold. When someone who truely loves the Bible and wants to know God more comes across a piece of Scripture that doesn’t agree with what they believe, they change what they believe, they don’t pick out another translation that says what they want it to say.

What the KJV is really best for is misinterpretation because it’s so easy to interpret many of the archaic words and phrases to mean something that even the translators never thought they meant. This is what happened on this comment thread.

29Victor on May 19, 2008 at 9:22 PM

If same-sex marriage is a “fundamental constitutional right to form a family relationship”, then is polygamy a “fundamental constitutional right to form a family relationship”?

Red Pill on May 19, 2008 at 2:31 AM


29Victor on May 19, 2008 at 9:22 PM

I think a lot of people assume that someone who sticks to the KJV after over 100 new translations over a period of about 130 years is a little like a 9/11 truther — a conspiracy theorist.

Ironically, the biggest problem with most of the new translations is that they’re based on something very like a conspiracy theory: that the manuscripts used by the vast majority of Christians during the first few hundred years after Christ were actually bad manuscripts, because some nameless people held back the good manuscripts and substituted their own.

The truth is that the manuscripts used in the Textus Receptus and King James, and essentially all English Bibles before the Revised Version of 1889, were what is called the Majority Text. They were called the Majority Text because they were so much more widely used than any other. Very close to 99.5% of the texts lined up with each other.

The new translations are based on the Westcott and Hort theory, which is that a sharply limited number of even older manuscripts were better, because the majority text only existed because the “better” manuscripts were suppressed.

Newer is not necessarily better.

theregoestheneighborhood on May 19, 2008 at 11:51 PM

is polygamy a “fundamental constitutional right to form a family relationship”?

Red Pill on May 19, 2008 at 2:31 AM


29Victor on May 19, 2008 at 9:22 PM

29Victor, are you a polygamist?

Red Pill on May 20, 2008 at 6:41 PM

Yesterday’s stunning and outrageous ruling of the California Supreme Court adds to the demand for a national Constitutional amendment that affirms that marriage is the relationship of one man/one woman. Traditional marriage is not only being attacked by runaway divorce rates from within the institution, but the California ruling, the Massachusetts same sex marriage law, and the polygamist camp in Texas remind us that not everyone seems to have gotten the memo on marriage.

This is not a time to be angry, but broken hearted. We should not hurl insults, but get on our knees and pray that we will have moral courage to stand for truth and what’s right, but the Master’s compassion to do so without rancor. It should be another wake up call as we as a culture keep hitting the snooze alarm.

Mike Huckabee, May 16, 2008 – 01:13 PM

Red Pill on May 20, 2008 at 11:56 PM