Who wins in the fallout of the California gay-marriage ruling?
posted at 8:00 am on May 16, 2008 by Ed Morrissey
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California became the second state in the nation to legalize gay marriage by judicial fiat yesterday, but the court ruling will only heighten the political ramifications of the issue. In an election year, the debate will bring voters to the polls, and a referendum to amend the California constitution will do so in droves. Who wins in the rather remarkable circumstance of having the court decision highlight the ballot initiative? Already we see the presidential candidates carefully plotting their positions:
Democratic Sens. Barack Obama (Ill.) and Hillary Rodham Clinton (N.Y.) issued careful and nearly identical statements saying they support civil unions to protect the rights of same-sex couples. Both avoided taking a position on same-sex marriage, saying states should make such decisions.
Sen. John McCain’s campaign said the Arizona Republican “supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman.”
McCain, who last week decried judicial activism, “doesn’t believe judges should be making these decisions,” a spokesman added.
A different reaction came from California’s Republican governor, Arnold Schwarzenegger, who has twice vetoed legislation that would have allowed same-sex marriages.
“I respect the Court’s decision and as Governor, I will uphold its ruling,” he said in a statement. “. . . I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”
Schwarzenegger takes an absurd position in this stance. In one breath, he has supported legislation by judicial diktat while opposing direct democracy. If the people of California want to amend their constitution to define how government recognizes marriage, then elected officials should at least support that process and uphold the will of the people. The governor should have more interest in protecting the process of representative democracy through the proper determination of policy in the legislature and through referendums, and protecting the very processes that allow him to be engaged in policy formation, than in cheerleading for judicial activism.
Government recognition of marriage is a policy decision that should remain in the purview of the people. After all, no one argues that relationships require government sanction; two people can cohabitate without permission, as long as they’re consenting, unrelated adults. They can form contractual partnerships just like any two adults can, as long as the purposes remain legal. The argument in this case is for government sanction of the relationship as marriage — and as such is a public policy decision.
Had the people of California chosen to recognize gay marriage through legislation, I’d accept it — and in truth, I’d consider that a more rational policy than civil unions, which basically reproduce marriage with a different label. Government stopped being in the sacrament business at the moment it offered no-fault divorces. A civil-union contract has more binding power than does marriage these days. States would do best to leave the term “marriage” as an exclusive province of the churches and have all couples sign civil-union contracts instead, and let the individuals determine whether they feel “married” or not.
The two Democrats can’t bring themselves to say any of this, instead offering support for civil unions while trying their best not to annoy those clinging bitterly to their Bibles. While John McCain has the same position on civil unions, at least he understands the much greater issue of judicial activism better than Barack Obama, Hillary Clinton, or Arnold Schwarzenegger. This comes at a perfect time for McCain; he just delivered a speech on that very issue and highlighted the differences between himself and Obama, and this serves as a concrete example.
Could it help him win California in the fall? It’s possible but not terribly likely. The referendum will bring conservatives out in force this November, but it will also face a huge amount of opposition throughout the state and the intelligentsia. In truth, constitutional amendments usually make for bad policy; they act as sledgehammers when scalpels do better, and they’re difficult to reverse when necessary. Unfortunately, the court forced opponents of gay marriage into this tactic, and all will depend on whether they can get enough people to the polls.
The extent to which they do will benefit McCain without a doubt, and it could force the Democrats to spend a lot more time and money on the presidential race in the Golden State. They cannot afford to lose the massive Electoral College votes if they plan on winning the presidency. The Supreme Court probably just put California in play for the first time in 20 years.
Update: The Anchoress has a thoughtful take on the issue.
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It didn’t help Kerry too much in ‘04.
Tony737 on May 16, 2008 at 8:09 AM
McCain and the GOP Hierarchy are going to play it safe. Play both sides. They’ll come out against gay marriage but thats about the extent of it. There are things that could be done but Repubs won’t do them.
Some employer who is being forced to give benefits to an employee’s same-sex-significant-other could refuse to do so and appeal it on up past the state level. Lets hope that some brave person will take that course and when they do, they’ll need our help.
Darvin Dowdy on May 16, 2008 at 8:10 AM
And don’t forget McCain’s appeal among Hispanics (A.K.A. “Shamnesty”). They’ll vote for the amendment and likely vote for him too so long as he’s careful not to step on toes when emphasizing “secure border first, then legalization.” As long as they believe him I think he’ll carry Bush percentages among them in November.
The Apologist on May 16, 2008 at 8:16 AM
It should, but this isn’t going to help the republicans or John McCain. The Democrats in polls are more trusted to deal with all the other issues. You can’t wedge when the other side is so much stronger. The desperately need policy innovation on all their week spots.
Those who support the amendment in California need to do their best to keep the rancor down. I hope it passes, but I bet it fails with a vote total in the high 4-%.
Schwarzenegger actually supported direct democracy with the vetos and deferring to the courts. Now that direct democracy will have another shot, he is going with gay marriage. I don’t think he’ll try to spot it getting put up for a vote though.
ninjapirate on May 16, 2008 at 8:18 AM
Yup. It is not up to government to redefine the word, especially when it has rendered it legally meaningless. When it is what it originated as, a religious construct, the definition is immutable. The government has a place in determining how it treats family structures. Let it end there.
That already happened in MA. Companies that offered domestic partnership benefits to cohabitating, unmarried gay couples had no choice to terminate them once gay marriage was imposed. Otherwise, they’d be forced to extend them to straight unmarrieds, or they’d be discriminating against them. The thinking was that the gay couples should get benefits without marriage because marriage wasn’t available to them. So, once it was available, you had to get married or lose your benefits.
Pablo on May 16, 2008 at 8:23 AM
Why is it, in any way, any business of the government’s what constitutes a marriage? Oh. Because they are also in the other unconstitutional business of redistributing wealth via benefits? Wow. Big, Nanny-state government begets bigger, more obtrusive Nanny-state government. Who would have thought.
King of the Britons on May 16, 2008 at 8:23 AM
RE: Who wins?
The followers of Islam who keep multiple wives.
rockhauler on May 16, 2008 at 8:24 AM
Who wins? Nobody
Who loses? Government by the people, for the people
Side note: The governator has turned out to be one hell of a dumb ass.
Keemo on May 16, 2008 at 8:29 AM
Mike Huckabee
Red Pill on May 16, 2008 at 8:35 AM
The Governator has been a dumbass since the moment he was elected. He was the prelude to Bloomberg. Look to more of these in the future. The Republicans allow themselves to be destroyed from within.
davod on May 16, 2008 at 8:39 AM
Wishful thinking. California will go Democrat this fall, regardless of the fallout if for no other reason than the disparity between the number of registered Republicans and Democrats in the state. To call that difference vast would be an understatement.
Physics Geek on May 16, 2008 at 8:39 AM
Hes not saying he will not support the process, just that he does not beive in amending the constitution. Direct ballot amendments are insane, here in Florida we have an amendment which restricts the size of pig crates for G-ds sake!
Squid Shark on May 16, 2008 at 8:44 AM
How, exactly, is this judicial activism? I only read the first few pages of the decision, and it seems clear the decision decides whether it’s legal under the California Constitution to designate “civil unions” for opposite-sex couple as marriage and ones for same-sex couples as “domestic partnerships.”
I think everyone needs to take a step back. the decision does not “legalize” gay marriage in that is explicitly says the state of California must allow gay marriage, it says that creating different designations for same and different sex couples in unconstitutional.
Now, I won’t have time to read more for a while, but has anyone read the entire or at least the important parts, of the decision? And if you think it’s judicial activism, make a case for that citing the legal reasoning behind the case?
Tom_Shipley on May 16, 2008 at 8:44 AM
For all the talk about separation of church and state, marriage is entwined with both, as both an institution under God and as a legal contract between couples. But as long as the majority of Americans sees marriage as more an institution of the church than of the state, and as long as the vast majority of churches see marriage as the union of a man and a woman, being on the state side of the issue is going to be problematic for gay marriage supporters in California this fall.
Will it carry McCain to the presidency by letting him win California? It’s unlikely to make so much of a difference that people who vote for the marriage amendment will uniformly go with McCain, but the Democrats are fully capable of doing something stupid like putting support of Thursday’s court ruling into their party platform in Denver, and forcing Obama to spend the next two months rationalizing it. But I would think even the Obama people would know enough to keep this issue buried as much as possible.
jon1979 on May 16, 2008 at 8:45 AM
Why, so he can finally have that cream wedding with McCain?
Squid Shark on May 16, 2008 at 8:48 AM
I agree, govt needs to be out of the marriage business. If two people wish to enter a legal contract, that is one thing. I know the thought in Judaism is that there is a contract (ketubah) which is signed before the actual ceremony, this takes care of the temporal aspect, leaving the sacred separate.
Squid Shark on May 16, 2008 at 8:51 AM
Sorry. That came out all disgusting.
Squid Shark on May 16, 2008 at 8:52 AM
I’m a Federalist Society guy myself, so my natural inclination is to be opposed to judicial activism — and to see this ruling precisely as judicial activism. But more importantly, this is a major issue on which strong majorities of the public have a clear position (hint: it’s not the Cali S. Ct’s.) The GOP should come out unequivocally and condemn this ruling and use it to (1) paint Obama as liberal and (2) emphasize that Obama’s judicial philosophy leads to these kinds of results.
I agree with the previous commenters who say that this ruling may put California into play. (That, and the fact that McCain is mavericky enough to where it’s possible he could draw some cross-over voters.) As they say, the best defense is a strong offense, so the more we keep Obama distracted defending his “turf” in California, the less time Obama has to add more blue to the “purple” states of Virginia and Colorado…
Outlander on May 16, 2008 at 9:07 AM
If McCain is the judicial conservative you suppose he is, Ed, he will make a big issue of this, nationally. But I’m not at all sure that he is, or will.
james23 on May 16, 2008 at 9:08 AM
If there were two people I’d like to kick out of the Republican Party it would be Arnold and McCain. The GOP could do well without them.
Ernest on May 16, 2008 at 9:10 AM
Just on a related note as far as mixing politics and religion goes — It would be nice if some enterprising reporter in the Chicagoland area would query the current and former pastors of Trinity United Church of Christ on their opinions of the California court ruling. My guess is, based on past statements on homosexuality, the media could probably get at least a week’s worth of copy out of that and the ensuing reaction from the Church’s best-known parishioner, trying to square the circle with his ministers and his far left supporters.
jon1979 on May 16, 2008 at 9:19 AM
LOL
freevillage on May 16, 2008 at 9:21 AM
So if the people of California want to get rid of the Civi Rights act, should the Governor “support the process”?
freevillage on May 16, 2008 at 9:23 AM
What will be the likely dynamic that comes from this Judicial nightmare in California; families will say “I’ve had enough of this, I’m taking my family and moving out of this state”…. Gays from around the country will say “yippie yea yahoo, let’s move to California”… Net result, many leave while many come; the real change will not be to the population, but rather to the culture.
Keemo on May 16, 2008 at 9:33 AM
If he had said (wonder if he would)that he supports the right of California voters to define marriage any way they want, would you go along?
JiangxiDad on May 16, 2008 at 9:36 AM
anyone who equates civil rights with gay rights is living proof of Orwell’s statement:
“One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.”
right4life on May 16, 2008 at 9:37 AM
given Kalifornications’s craziness, do they need any other reason?
right4life on May 16, 2008 at 9:38 AM
Lawyers!
TheSitRep on May 16, 2008 at 9:39 AM
there’s no gay agenda. haven’t you been told that?
JiangxiDad on May 16, 2008 at 9:42 AM
The Democrats believe in letting the states decide…
Hmmm…when did “states rights” stop being codeword for bigotry? Let me guess…the very second Democrats started using it to avoid taking a stance on gay marriage.
What do I win, Don Pardo?
ynot4tony2 on May 16, 2008 at 9:46 AM
thats like saying the democrats really do care about you!
right4life on May 16, 2008 at 9:46 AM
Nice straw man there. The Civil Rights Act is federal law and cannot be overturned by any state.
Most of us thought California’s constitution did allow pretty much anything to be added or subtracted to the state constitution via referendum, until the state Supreme Court ruled that Proposition 187 was invalid because it conflicted with superior rights granted elsewhere in the constitution. People need to take a long look at that ruling, because this court will do the same thing if this referendum on marriage passes in November. They will rule that the voters cannot enact a constitutional amendment that enshrines discrimination against a protected class.
This Court is an abomination. I have never understood why the people of California tolerate its naked activism and tyrannical rulings.
rockmom on May 16, 2008 at 9:51 AM
Yes, this ruling could be used to seriously damage Obama’s prospects. If ever there were potential for widespread public outrage over judicial overreach, this is it. Activist judges have stuck their fingers deep into the eyes of mainstream America, just in time for the 2008 election campaign.
My doubt regards not the potential advantage of the fall-out, but whether our spineless, stand-for-nothing politicians will take the initiative in pursuing it.
petefrt on May 16, 2008 at 9:54 AM
+1
brtex on May 16, 2008 at 9:59 AM
This thing is just one more piece of evidence the people have lost control of their government. The constitution? Well, that’s just some nice words on a nice old piece of paper. Stick a fork in us, we’re done.
abcurtis on May 16, 2008 at 10:06 AM
I was thinking the same thing yesterday. This helps draw out conservatives, and the very catholic Hispanic vote. Thanks!
How big is this for McCain? Prop 22 passed with 60%. A margin of 1.6 million votes! (as reported by Rodger Hedgecock)The petition for the constitutional amendment needed 657,000 signatures, 1.1 million were submitted.
Californians knew exactly what they were doing when they passed Prop 22. The vote this fall will be no different. And it highlights McCain’s attitude toward judges. A nice contrast to Barack “We need judges that know what it’s like to be a single mom” Obama…
Theworldisnotenough on May 16, 2008 at 10:06 AM
Marriage has been a mockery in this country for a long time, and gay “marriage” just adds to the farce. Our divorce rate is, what, something like 50%? So by all means, let’s continue to mock God and His institution of marriage.
At the same time, I have to agree with Ed on this one. if the people of California want this, and approve it through the legislature, then fine with me, that’s their business. I dont have to live in California. I certainly disagree with an unaccountable court forcing this down the throats of the people of California.
abcurtis on May 16, 2008 at 10:12 AM
Ed,
Gay marriage or no, California is not in play for McCain. Sometimes I wonder about your judgment.
paul006 on May 16, 2008 at 10:14 AM
And we know they wont because McCain covets the gay vote. That’s fine, a gay guy can vote for McCain in my place because I wont be voting for McCain.
abcurtis on May 16, 2008 at 10:15 AM
Nah – McCain is the embodiment of the GOP – Grumpy Old Poops.
abcurtis on May 16, 2008 at 10:19 AM
Oh, pig sh*t! I am SOO tired of that being trotted out to prove how ridiculous amendments to state constitutions can be. This one was an end run around industrial hogs farms who CANNOT (and that is the IMPORTANT word) set up operation with that restriction. I welcome you to read a little background on pig poopie and the effects of, say, a 25 MILLION gallon pig poopie lagoon breach.
I knew EXACTLY what that amendment was trying to do and voted it for it with as dark a mark as I could make, having experienced the joy of a porcine powered economy:
As for the post subject:
Amen, Capt. Ed. Let the civil contracts be for everyone and churches SHOULD be the arbiters of “marriage”. We were married in the Santa Ana courthouse by the lovely Clerk of Courts and were reminded at every step of Ebola’s Catholic education that we needed to “remedy” that. As it should be.
However, once everyone is accorded the chance to legalize their union, then I believe they also need to seek legal rememdy to dissolve the same and that all the ‘domestic partner’ benefits become null and void because what’s the point? You’re married!
tree hugging sister on May 16, 2008 at 10:22 AM
Good article Ed, might I suggest you say the “California Supreme Court” in your last sentence, otherwise some will get confused.
Maxx on May 16, 2008 at 10:38 AM
Obama will still probably win CA, however, it will force him to spend more money there, where he could have used it else where
ConservativePartyNow on May 16, 2008 at 10:42 AM
In other words, McCain understands the underlying issue better than Larry, Curly, and Moe.
Richard Romano on May 16, 2008 at 10:43 AM
6 of the 7 justices on the court were Republicans.
Chakra Hammer on May 16, 2008 at 10:43 AM
“After all, no one argues that relationships require government sanction; two people can cohabitate without permission, as long as they’re consenting, unrelated adults. They can form contractual partnerships just like any two adults can, as long as the purposes remain legal.”
Ed–you are wrong on these points:
1). The “one man, one woman” marriage laws or state constitutional amendments passed in some states actually could invalidate contractual civil unions or “marriage-like” rights between two same sex partners. Here, as an example, is the Kansas statute: “The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex. All other marriages are declared to be contrary to the public policy of this state and are void.” and the Michigan constitution: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Courts in Michigan have used the “or similar union for any purpose” to question whether same sex partner benefits or contract rights are legally possible.
2). Five or six states still have laws on their books prohibiting cohabition, as do some cities. In addition, many states still have laws on their books criminalizing fornication and adultery, which could be used against a cohabitating couple. While these laws are generally not enforced (and may not be enforcable under the Lawrence Supreme Court decision), eager sheriffs could make use of them in situations they deem appropriate.
jim m on May 16, 2008 at 10:46 AM
By the way, for all of you who think that the citizens of California will again vote against gay marriage, take a look at this language from yesterday’s Gallup poll:
“While the California and Massachusetts laws are out of step with national cultural norms on gay marriage, these states represent the two regions of the country — the West and East — that show the greatest support for legalizing gay marriage. [NOTE: The West thinks same sex marriage should be legal by 51% to 43% against.] Solid majorities of residents of the Midwest and South oppose it.”
jim m on May 16, 2008 at 10:51 AM
thats for sure…we’ve become the USSA (united socialist states of amerika)
next 4 years will be a disaster for freedom in this country, no matter who is elected.
but all civilizations come to an end…..its just hard and sad watching what has become of us…
right4life on May 16, 2008 at 10:53 AM
So you think that crap belongs in the CONSTITUTION?
OK, We also have an amendment that REQUIRES a high speed rail system. So are we “unconsitutional”?
Pig poop indeed.
Squid Shark on May 16, 2008 at 10:57 AM
Well, actually yes, when that’s how FLORIDA voters have chosen to decide things. And if the time comes that they choose to do it a different way (say, like a proposition system), then bravo ~ that’s how it’ll be done. But for NOW, that’s how things get decided in this state. In the perfect world, the voters are informed and make carefully considered decisions about what they vote for. (Like, knowing that Disney and the juggernaut that is Orlando is the money and impetus behind the high speed rail thing.) But that’s a perfect world and the way we’re REQUIRED to do things here is far from that. You work with what you have.
So poopie right back at you.
tree hugging sister on May 16, 2008 at 11:11 AM
Let me add this disclaimer as well: We’re in the Panhandle, which might as well be Myanmar, as far as the rest of the state goes. We know how to vote and how to put up water in case of a hurricane and lots of self-reliant type stuff that would seem incomprehensible to the coddled and often addlepated Southern denizens of our great state. Those pesky constitutional add-ons, for instance. I’ll actually read a St. Pete or Miami paper to see what they’re saying about a particular one.
tree hugging sister on May 16, 2008 at 11:21 AM
Six of the seven justices were appointed by Republican governors. We don’t know whether the justices themselves are Republicans.
paul006 on May 16, 2008 at 11:30 AM
Missing the point, why is the Florida and Cal constitution so damn easy to amend, that is how we end up with this kind of crap.
Squid Shark on May 16, 2008 at 12:06 PM
BTW, I live in N Fla now too, and I would not give up the panhandle for anything, even though I am convinced everyone here in N Fla is crazy and the crazy get worse the further west you go.
I am one of those “Southern denizens” by birth, I was raised in the SW part of the state.
Squid Shark on May 16, 2008 at 12:09 PM
How is this judicial activism???????
This is a conservative bench not a liberal one. Six of the seven judges were Republican appointees.
The ruling clearly shows that the judges were basing their judgment on on the constitution.
Equal means equal. It’s very simple.
lexhamfox on May 16, 2008 at 12:14 PM
Squid Shark on May 16, 2008 at 12:17 PM
You, I forgive. {8^P It’s the damn Northern carpet baggers moving south. And yeah, we thought the way FL does things was completely WHACK when we moved here (Bangla-cola, as I refer to it), but at least something CAN get done. In N.C., the citizenry had no remedy other than vote the bastards out, but that STILL left you stuck with the ‘crap’ they’d foisted on you (pig poopie, for one).
We may wrangle and brangle here, but it’s nice to have a voice, chaotic as it is.
tree hugging sister on May 16, 2008 at 12:18 PM
Indeed, sister. I wish we could do a sort of Convention system.
Squid Shark on May 16, 2008 at 12:30 PM
Just because a judge is a Republican appointee, or even a self-identified Republican, does not mean the judge has a restrained, originalist or textualist judicial philosophy. Remember, Earl Warren (who competes with Brennan as the most liberal justice in modern American history) was a Republican attorney general and governor prior to his appointment to the Supreme Court (by a Republican). Souter was a Republican, too.
Outlander on May 16, 2008 at 12:35 PM
yeah sure… except when it comes to the gays, some pigs are more equal than others.
right4life on May 16, 2008 at 12:39 PM
The one who wins is the first to say; Don’t even think about filing a joint tax return.
meci on May 16, 2008 at 12:48 PM
Alot of people think Warren went a little tipsy with guilt after being the prime mover in the Japanese Detention Camps.
Squid Shark on May 16, 2008 at 12:50 PM
Its judicial activism because the ruling strikes down a proposition approved by the majority of California voters. Whenever a court acts to counter the will of the majority in a democracy, they are engaging in judicial acitivism. In some instances people may agree with them and in others they may disagree, but the bottom line is that its a very small group of people who end up ruling over the rest of us by fiat – something that is known as an oligarchy in direct violation of the U.S. Constitutions requirement that the indvidual states provide their citizens with a Republican form of government.
But, then again, the U.S. is no longer a “free” country and hasn’t been one for a number of years now. We humbly submit to the dictates of a very few individuals whose entire “power” is dependant upon the people acceeding to their decrees. Someday I hope that enough people will come to the realization that they’ve given away their freedom and refuse to abide by these judicial decrees, but I doubt it will ever happen.
Fatal on May 16, 2008 at 12:52 PM
Schwarzenegger is such an ass hat.
BallisticBob on May 16, 2008 at 12:55 PM
bingo!! because people want the government to take care of them. they don’t want to be free and independent.
not until after we collapse. and perhaps not even then. the desire for government to ‘play god’ is so strong across the world.
right4life on May 16, 2008 at 12:55 PM
right4life – So sadly true.
By the time I hit 50, it is about certain America at best will almost surely end up a shell of its former self (militarily and economically), and quite likely balkanized to some degree.
At worst, a flaming liberal government that quickly turns socialist/communist and turns Old Glory into Old Terror.
Dark-Star on May 16, 2008 at 12:59 PM
late january of next year after the new messiah (obama) is sworn in??? not that mccain would be much better…..
I think we’ll end up as vassals of the new european socialist superstate..
very sad, its not the country I grew up in anymore.
right4life on May 16, 2008 at 1:02 PM
It helps McCain because it draws attention to how important judges are. It makes Obama tweak into a pretzel, on the one hand having to bow to his lefties, and on the other trying to get the Evangelicals, Catholics, and religious voters on board. It will be interesting to watch.
Entelechy on May 16, 2008 at 1:04 PM
Question of the thread:
When has Herr Dumkopf not taken an absurd position?
I can think of about six billion of them …
corona on May 16, 2008 at 1:21 PM
Its judicial activism because the ruling strikes down a proposition approved by the majority of California voters. Whenever a court acts to counter the will of the majority in a democracy, they are engaging in judicial acitivism.
OK, so if a majority of voters in a state approve something, then no court should be able to strike that measure or proposition down? Judges should have no say in the matter?
Tom_Shipley on May 16, 2008 at 1:22 PM
The rights are “granted” to people, not to relationships. That people wish to enter relationships does not make them members of a protected class. This is a strawman and the courts have bought into it.
njcommuter on May 16, 2008 at 1:39 PM
This probably helps McCain overall. It may have made a difference for Bush in Ohio in 2004. I believe the GOP should make a big issue out of it. The people who support this crap are going to show up to vote anyway. The bible/gun clinging crowd may not be as energized this year and the issue may entice some of them out to the polls to vote for McCain.
JonRoss on May 16, 2008 at 2:01 PM
If McCain and the GOP do try to make this an issue as a way to put California in play, he does need to frame the issue in a way favorable to his campaign and Republicans in general, before the media and Democrats frame it for him. That means coming out and saying he’s against the California Supreme Court overruling California’s voters on the issue, and supporting the voters’ right to decide whether they want to sanction or ban gay marriage through a proposition on the November ballot.
Frame it like that, and you leave those in favor of the court’s ruling with the choice of either going along with the ballot initiative, or saying the voters of California shouldn’t have the right to decide on the legality of gay marriage. That’s a better position for McCain to be, as far as moderate voters go, in than to just directly come out against gay marriage and then to allow the left and the media to spin it as the senator being in favor of discrimination against gays. Better to make the case so that the media and the left can’t attack you directly and has to attack both you and the state’s voters in order to make their own case.
jon1979 on May 16, 2008 at 2:26 PM
It gets a little tiring, when the leg. don’t want to upset the status quo, so instead of supporting or trying to defeat, they go to the judicial to do their job.
Look at Prop 13 in Cal. read what transpired there and you get the general idea of how the leg. handles “hot potatoes”. Overwhelmingly passed by the voters and still the judicial activists denied it, then it went to the supreme court and it was confirmed.
The 9th circuit is the most overturned court in the country, in fact all of the “wrong” decisions are more then all the other states combined (all other 56 states).
Right or wrong, judicial activist judges are the biggest threat to conservatives. What the liberals can’t get done with popular vote, they take to the judges. They keep probing till they find some judge or minority of judges to rule their way.
I am sorry you support such actions.
right2bright on May 16, 2008 at 2:41 PM
Uhm, I didn’t say that, I said they would be engaging in judicial activism. Whether you believe this is a good thing and the court’s should lead the country, or you believe this is a bad thing and the “people” should lead the country, is up to each individual.
In a “Republican” form of government, however, it is the people (or their representatives) who get to make the laws, not the courts. It wasn’t until the U.S. Supreme Court usurped that authority for itself (without any actual basis in the U.S. Constitution) under the ruberic of “interpreting the Constitution”, that this country has allowed the court’s to rule it. Which is the system we live under today, an oligarchy of the court, not a republican democracy.
Fatal on May 16, 2008 at 2:56 PM
It is a constitutional democracy. A republic or democracy isn’t worth much without a constitution that protects individuals from legislatures.
dedalus on May 16, 2008 at 3:23 PM
Now you’re learning something.
The judiciary’s perview involves opinion, not making law. Go read the Constitution.
fossten on May 16, 2008 at 3:26 PM
There is a real problem with this logic. It’s not the year 2000 anymore. Looking at the trend in the polls in California, the gay groups were already wondering what year they should put gay marriage on the ballot. They weren’t quite ready yet, but they were planning to do it within the decade. It’s going to be a close vote. Neither side will get more than 45%.
thuja on May 16, 2008 at 3:29 PM
Exactly! ….*claps hands*
Nice work, Ed.
The Ugly American on May 16, 2008 at 3:53 PM
Please remember that the CA legislature has passed bills to legalize gay marriage TWICE. Arnold vetoed them because he was waiting for the court to rule. Now it has done so.
The CA constitution is very specific in granting full and equal rights to gay people. Sexual orientation is considered immutable, like race. So, even if this proposed amendment passes, it can itself be thrown out because it specifically contradicts other parts of the existing consitution.
And even if it were upheld, it would do nothing to domestic partnerships here. The amendment addresses “marriage” and domestic partnerships are not “marriages”. That’s how they got around Prop 22 to permit them in the first place, also upheld by the state supreme court.
This is a losing battle for the religious right. This fight will do nothing except alienate millions of younger voters who couldn’t care less about sexual orientation. The GOP is already a joke here in CA among younger people, as it perceived to be anti-gay, anti-immigrant, anti-worker etc.
The Right is not going to win this fight. Pick a new battle and move on.
sdillard on May 16, 2008 at 4:23 PM
McCain.
Lawrence on May 16, 2008 at 4:25 PM
Uhm, don’t you mean a constitution that protects individuals from the entire government, not just the legislature? Since the “people” can pretty much protect themselves from the “legislature” by replacing representatives and senators, the only real protection we need is from those who sit in absolute authority for life without recourse to being removed by the will of the people, the justices of the Supreme Court.
I also think it was pretty obvious that I was fully cognizant of the founding document that established our government since I not only referenced it in my post, but also pointed out where it had been co-opted by the Supreme Court. So, unless you can show me in the original constitution where the authority to “interpret” that document was specifically assigned to the Supreme Court, I will continue to believe that, in a republican democracy, that power should have been reserved to the people or the people’s representatives.
Since that “power” has been surrendered to the Supreme Court on its own say so, that precious “protection” from the government rests in the hands of only 9 individuals, instead of in the hands of the people. Therefore, as I already stated, we do not live in a democracy of any kind, be it Constitutional, Republic, Pure or any other sort, we live in a oligarchy where the people’s representatives are allowed to pass laws only when it doesn’t offend those 9 rulers of our nation.
Thus the true emphasis in this election is not who the president will be, or what legislation he will sign or veto, but really revolves only around which individuals will get elevated to the ruling council via appointment to the Supreme Court.
Fatal on May 16, 2008 at 4:30 PM
I like the way some people (especially liberals), in the interest of freedom, are always telling me exactly how to think and how to vote.
As far as “Equal”: A Gay man has the same right to marry a woman as does a Hetero man. And a Hetero man has the same restrictions in marrying another man as does a Gay man. Vise versa for women.
Changing the rules to say that sex doesn’t matter when getting married doesn’t make things more equal, it just changes the definition of marriage.
Ironically, changing the definition of marriage means that the “marriage right” that Gay people want doesn’t mean anything anymore.
So, in reality, everyone loses. So, great win guys. You can’t win so you make everyone else lose.
Equal? Yeah.
Progress? Not hardly.
Lawrence on May 16, 2008 at 4:35 PM
If you would be so kind, please explain the “immutable” racial equivalent to bisexuality? Please explain how a person could remain abstinate from one’s race? To insist that “sexual orientation” is somehow just like race, is to belittle all of the progress on behalf of those who had a true immutability that was evident everytime they stepped out into public.
Oh, and the existance of bisexuality itself puts the lie to the claim that sexual orientation is immutable.
Fatal on May 16, 2008 at 4:37 PM
Isn’t Barack that, a black father and a white mother?
right2bright on May 16, 2008 at 4:42 PM
Um… No. We have a Constitutional Republic. Within this republic we have a variety of democratic forms of government.
And… under our constitution the legislature is the individual, via our democratic process. So what you are really saying is that a democracy isn’t worth much without a constitution that protects individuals from themselves.
Lawrence on May 16, 2008 at 4:49 PM
Considered so, yes. But race is based on the science of genetics wereas sexual orientation is based on personal opinion.
Lawrence on May 16, 2008 at 4:52 PM
Well that’s it then, the smallest percentage voting block doesn’t agree, well then why fight it?
When has the GOP been in favor with the kids in Ca?
By definition, because the youth have no moral compass, and nothing to lose as far as assets, won’t they always be liberal?
right2bright on May 16, 2008 at 4:59 PM
This recognition of gay rights plus the plans of California gay rights groups to put gay marriage before the public within ten years makes it hard to argue that the California decision was much in the way of judicial activism. It seems more like the California Supreme looked at the trends in polling data, realized gay marriage was inevitable anyway, and decided that they could get away with following the California Constitution into a new area and safely navigate the resulting political controversy.
As was famously noted during the FDR administration, Supreme Courts do pay attention to majority opinion. The current California Supreme Justices know quite well what happened to Chief Justice Rose Bird in 1986 because of her opposition to the death penalty. The voters removed her from office. I bet none of the current California Justices are losing sleep over that possibility.
thuja on May 16, 2008 at 5:03 PM
Let’s be realistic here. The decision also opened the gates to polygamy, recognition of polygamy, and benefits including welfare benefits for each wife.
Now, I don’t know about you, but I figure most Californians would be happy to vote for a measure that denies polygamists (Muslim extremists, FLDS people) who are unpopular any recognition of their plural marriages. Much less government benefits, tax breaks, etc.
I think that measure does put California in play. It’s not JUST Gay Marriage. It’s polygamy and everything else too. People are sick and tired of social change being forced on them, this is one step too far, it benefits McCain.
[Probably most would support civil unions/partnerships, but restrict them to two people only -- no multiple unions.]
whiskey_199 on May 16, 2008 at 5:03 PM
Well I guess if he could chose to be fully white one day and fully black the next AND have all of his physical traits change to reflect those choices, then he might be, but I’m betting that even HE can’t do that.
; )
Fatal on May 16, 2008 at 5:04 PM
IN CALIFORNIA! Schwarzenegger swears HE’s a Republican. It’s CALIFORNIA!
S on May 16, 2008 at 5:06 PM
Doesn’t Gavin Newscom (I’m sure I spelled that wrong), Mayor of S.F., say HE’S a “Republican”? And Dianne Feinstein claims she’s a Conservative!
IT’S CALIFORNIA! The same terms that work somewhat, even barely, accurately in other areas of the nation are just thrown so far Left in CA as to make most there — certainly the CA State legislature — as Communist. I can’t easily distinguish between CA and China, is my point, nor CA and, say, Cuba.
S on May 16, 2008 at 5:12 PM
Identify for me and the general public, please, that “homosexual gene” (or, “gay” gene).
What CAN be identified as “immutable” are genes that convey racial type and other physiological, even psychological, aspects that individuals manifest, but, despite millions of dollars being invested in scientific research toward this end, NO ONE has EVER identified any gene that conveys homosexuality.
There is no “gay” gene. Thus, homosexuality remains not immutable, not inherited, in other words, is not bestowed upon one as they are conceived, but is behavioral and developmental.
It’s deceitful and inaccurate, academically, to encourage anyone to conclude (or to instruct as such) that “homosexuality is immutable, like race,” because that’s an unproven, utterly fanciful allegation that remains in the realm of imagination or wilful demand.
But it’s a necessary lie if the rest as to homosexual behavior is to be accepted and acceptable in, especially, the educational environment. It’s NEEDED to say, “homosexualit is immutable” (not true) to justify all the rest that is being insisted upon the public today about homosexuality.
It also supports, unnaturally, the wrong conclusions that people have no choice in the behaviors they engage in; however, I do think that with certain obsessive-compulsive behaviors (realm of the psychological, behavioral manifestations), there isn’t any easy “choice” for those beset with them, they really are driven to repeat the behaviors ad infinitum, without intervention.
It’s tough to redirect behaviors. Combine them with social roles and classes, stereotypes, and people get stuck in behaviors they then conclude (wrongly) they “have no choice” as to engaging in them.
S on May 16, 2008 at 5:23 PM
Supreme Court judges are supposed to state what goes against the Constitution. Sometimes laws conflict when the Constitution. When judges strike down unconstitutional laws it is not “activism;” complaining about it is akin to not wanting a judiciary branch at all.
Nonfactor on May 16, 2008 at 5:29 PM
The Constitution protects the individual’s rights against majority vote, since he is granted those unalienable rights by his Creator.
dedalus on May 16, 2008 at 5:38 PM
As I asked before, please show me where in the U.S. Constitution this is stated? Where exactly was this power granted to the Supreme Court by the document that established our very government?
Guess what? It’s not IN the U.S. Constitution and yet that Constitution set up a judicial branch – how bizarre? To set up a branch of government for the sole purpose of doing one thing and then NOT granting them the authority to do that thing.
Where exactly did that power to “say what the Constitution says” come from? Why, it came from the Supreme Court itself! See: Marbury vs. Madison, 1 Cranch 127 (1803).
They co-opted that power for themselves, the ONLY branch of the government NOT subject to the will of the people in the form of standing for election. WOW, imagine that – the ultimate say so belongs to a very small group of individuals appointed for life and NOT subject to election! Sounds a lot like a democratic form of government, huh? (That’s sarcasm just in case you didn’t recognize it.)
Fatal on May 16, 2008 at 5:43 PM
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