Calif. court declares Prop 8 unconstitutional; Update: No ruling on fundamental marriage right
posted at 1:20 pm on February 7, 2012 by Jazz Shaw
News just began coming out a little after noon on the east coast. A California appeals court has struck down Proposition 8, which banned same sex marriage in the state.
A federal appeals court Tuesday struck down California’s ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.
The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.
The ruling was narrow and likely to be limited to California.
“Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court said.
The ruling upheld a decision by retired Chief U.S. District Judge Vaughn R. Walker, who struck down the ballot measure in 2010 after holding an unprecedented trial on the nature of sexual orientation and the history of marriage.
The ruling backs up the previous decision by the now retired Judge Vaughn Walker who gave it a thumbs down in 2010. His case drew national attention for being more of a social circus weighing the value of marriage as a whole rather than the specifics of the law.
Speaking of Walker, in a separate but related ruling, the court refused to kill off Walker’s original findings, which some opponents had decried, saying he should have disclosed that he was both gay and in a long term relationship himself.
This is a lengthy ruling and I’m still looking for a copy of the entire decision, which we’ll link as soon as we have it. (See Update 2 below)
UPDATE: (Jazz) The AP is noting that, even with today’s ruling, it is unlikely that gay marriages will resume any time soon, since further appeals will probably keep things tied up for months to come.
Even if the panel upholds the lower court ruling, it could be a while before same-sex couples can resume marrying in the state. Proposition 8′s backers plan to appeal to a bigger 9th Circuit panel and then the U.S. Supreme Court if they lose in the intermediate court, which would likely put its ruling on hold while that process plays out.
UPDATE 2: (Jazz) Link to the full decision for your perusal.
UPDATE 3: (Jazz) For an ongoing analysis of this decision and what it portends, keep up with updates from law professor William Jacobson at Legal Insurrection. His initial analysis is that this is a “bootstrap decision” but he will do a far better job than I of getting into the legal eagle technicalities here.
UPDATE 4: (Allahpundit) I can’t copy/paste the key part for some reason, so scroll down to the bottom of page 46 of the majority opinion and read from there to the bottom of page 48. The Ninth Circuit could have gone four ways here: (1) They could have found a fundamental right to marry whomever you wish regardless of gender; (2) they could have found that gays are a historically persecuted “suspect class” and therefore laws discriminating against them are invalid unless there’s a very compelling state interest at stake; (3) they could have found more narrowly that Prop 8 serves no rational purpose in advancing any state interest, in which case they wouldn’t have to reach any of the big questions about gays or marriage to find the law unconstitutional; (4) they could have upheld the law.
Number four was never going to happen with a court this liberal, but numbers one and two were possibilities. Instead, they went the third route, which was the tamest possible way to strike Prop 8 down as a violation of the Equal Protection Clause. The key Supreme Court precedent here, and the subject of most of the jousting between the majority and the dissent, is the 1996 case Romer v. Evans, in which Anthony Kennedy wrote for a majority of six in striking down a Colorado law that expressly barred any “special rights” from being granted to gays. Kennedy also took the tame option in that case, passing on the issue of whether gays are a “suspect class” and finding instead that Colorado’s law was invalid because there was no rational purpose to its discrimination. The question before the Ninth Circuit was whether there’s a rational purpose to discriminating against gays specifically in the context of marriage; read the opinions yourself for the back and forth about marriage and procreation on that. I’m intrigued, though, as to why the famously liberal Stephen Reinhardt wasn’t more aggressive in his majority opinion. Did he want to find that gays are a “suspect class” under the Equal Protection Clause, which would therefore have warranted strict judicial scrutiny of Prop 8, but couldn’t get the other judge in the majority to go along? Or was this a strategic decision, figuring that if he followed Kennedy’s logic in Romer v. Evans closely, this ruling would have a better shot of being upheld by the Ninth Circuit en banc and, eventually, by the Supremes themselves? If the goal was to force the High Court to rule on it, then the strategy should have been to be as bold as possible and create a circuit split on the core constitutional issues at stake. Reinhardt didn’t do that. Curious.
Question for con law junkies: How does this affect the likelihood of the Supreme Court granting cert? Since the Ninth stuck with Romer, there’s no pressing need to intervene. I’m not even sure offhand if this ruling creates a circuit split. If not, though, and the Court ends up passing on cert, then an en banc Ninth Circuit hearing is the last hope for gay-marriage opponents in California.
Update 5: (Allahpundit) The other key passage, I think, starts on page 39 of Reinhardt’s opinion and runs through page 40. He notes that Prop 8 did nothing to deny gays the rights traditionally associated with marriage, which are granted under California’s domestic partnership law, but merely the designation of “marriage” itself. That’s key to the ultimate ruling that Prop 8 served no rational purpose in advancing a legitimate state interest. If all you’re doing is denying gays the label and not the attendant benefits of marriage, then what is there to the law except pure stigma?
Update 6: (Jazz) Analysis from our non-resident attorney at Outside the Beltway, Doug Mataconis, largely agrees with what Allahpundit notes, with a few exceptions. First, the short term impact and rationale.
Perhaps the most significant thing about the Court of Appeals decision here, both legally and politically, is the manner in which it is narrowly tailored. To a large degree, the Court’s decision is limited to the specific situation of Proposition 8 itself and the issue of the Constitutionality of taking away a right that had been previously been granted. The decision also relies heavily on the fact that California law already grants same-sex couples and individuals a number of legal rights such as the right to adopt children that mirror a family but that Proposition 8 was enacted for the specific purpose of denying those same couples the right to obtain a marriage license and call themselves married under state law. As the Court held, there is no rational basis for this distinction
Here’s where he sees it going from here:
There are several paths forward from here. For practical purposes, it’s unlikely that the injunction on Judge Walker’s ruling allowing same-sex marriages in California will be lifted until all appeals have been exhausted so it will still be awhile before same-sex couples will again be allowed to marry in California. On the legal side of ledger, the proponents have two choices from here. They can appeal directly to the Supreme Court, or they could ask for an en banc hearing before the entire 9th Circuit on the hope that the full Court would reverse or limit the scope of the panel’s ruling. Both of those are within the discretion of the respective Courts, of course, so there’s no guarantee either request would be granted. In the case of the Supreme Court, for example, there may be a desire to avoid this topic given the other high profile cases the Court has accepted this term, and the manner in which this decision is limited largely to California may be one factor that allows them to do decline to hear the case. This issue will make it to the Supreme Court some day, of course, but that doesn’t necessarily have to happen immediately.
There’s a good bit more of Doug’s analysis, and like some of the other links, he’s a lawyer and I’m not. So, the usual disclaimer… read the whole thing.
Related Posts:
Breaking on Hot Air
Organizing for Action gathers a whopping three people for gun-control rally in California
Videos: What do Americans think about the IRS and DOJ scandals?
Blowback
Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.
Trackbacks/Pings
Trackback URL
Comments
Comment pages: « Previous 1 … 5 6 7 8 Next »
Ignorance: Now in color!
mythicknight on February 7, 2012 at 7:26 PM
I wonder if this means that I can now marry my son and leave my estate to him tax-free, and also my social security spouse benefits.
jaime on February 7, 2012 at 7:31 PM
You can already leave your estate tax-free to anyone without a marriage. Social Security is going bankrupt thanks to Republican and Democrats.
SC.Charlie on February 7, 2012 at 7:44 PM
Never has a concept so simple been so confusing to so many. All you need to know about the definition of marriage is right there in plain spoken, easy to understand English and has been for hundreds of years.
I’ve never been able to understand why people want to change it. It’s like trying to redefine what the color black is. It is what it is. Period.
I have no problem with Gay folk shacking up. I totally get the psychological need to feel normal in such an abnormal situation. Trying to redefine marriage is the wrong track in my opinion.
Adopt some other name for the relationship. Maybe a nice Frenchy sounding foo-foo name. Whatever. I just really wish folks would stop trying to redefine what marriage is and always has been.
HotAirian on February 7, 2012 at 7:44 PM
I think you missed my point. The physical differences between men and women are obvious, the fact of marriage is not. When two people become married, they are not physically different than they were before. They do not suddenly become physically linked by some visible tangible thing. The connection implied by the word marriage is a non-tangible construct of humanity. In other words, humans have defined what is and is not marriage through arbitrary standards of culture, not because there is a physical difference between married and not married.
For example, to go back to the gold and copper argument, I don;t need the gold to hand me a legal piece of paper to show that it is gold, nor does copper need a piece of paper defining it as copper. Gold is gold and copper is copper because of it’s physical properties. I can not look at a couple on the street and determine that they are married, an unmarried couple, friends, etc.
Then there would be no reason for government to recognize marriage of a woman and man either. Although, as long as government does give benefits to married couples, there is a legal reason for government to recognize marriage. And if they recognize one type of marriage, then they should recognize the other. If not, there is an inherent lack of equal protection.
As for using two different words, I have already pointed out the fallacy of using that argument. It creates a clear opportunity for “separate but equal” which is never equal, as out country has already seen.
That is a failure of the law, not of same-sex couples.
Why should a man be required to support a child for the rest of his life because his partner gets drunk and falls off the marriage wagon?
Also, same-sex marriage is not a new phenomenon. In fact the Romans recognized same sex marriage until around the 4th century when they enacted the Theodosian Code of laws. And the church itself has redefined marriage numerous times. It used to be that you did not even need a priest to recognize the marriage, you only had to say the words to each other, and the church would recognize it. And for much of man’s early history polygamy was a well accepted marriage practice, even in the western world. Granted, that the church has always recognized a man and woman marriage, but the point is that marriage, it’s practices, it’s recognition, and it’s ceremonies have been redefined many many times.
gravityman on February 7, 2012 at 7:44 PM
Gay marriage has been legal in NY for quite a few months now, and yet, no locusts…..
DBear on February 7, 2012 at 7:47 PM
yup, Prop. 8 is the new Jim Crow
DBear on February 7, 2012 at 7:49 PM
A vote for Romney is no guarantee he would select an original intent, constructionist to the SCOTUS. John Sununu, Sr. is one of Romney’s advisers, as he was to George H.G. Bush. Sununu was the behind-the-scenes advocate for the appointment of David Souter to the high court.
Jurisprudence on February 7, 2012 at 7:57 PM
9th Circuit is a bunch of idiots. They have the highest reversal rate of any Circuit. Basically, they’re the “special needs” judges of the federal bench.
They’d probably vote to have a stuffed animal as their spouse if they got the chance.
So, go judges! Yeeaarggh!!!!!!!!!
Herald of Woe on February 7, 2012 at 7:59 PM
I agree that a large part of this is to “force” the culture to accept the gays as mainstream and as acceptable to everyone. That is where the gay community jumps the shark. But, PastorJon, what happens to the effort if we take government out of schools? What if we stop the nonsense of “public airwaves” and let the airwaves belong to those who put them to use, as it should be?
If schools are brought back to the private sector, as it should be, then who has the right to tell the school’s owner what they should teach? No one, the curriculum will likely be shaped in part by market demand. All those who appreciate “gay studies” will go to the schools who’s owners consider it a value and the same with other topics and cultural interests. The same would go for broadcast TV.
In recognizing and putting into action the proper role of government, politically correct nonsense is neutralized. Free, law abiding people can go about the business of making a life for themselves which includes living among those we choose to live around and, in so doing, minimizing our exposure to the ideas we each decide are not in our best interest.
beselfish on February 7, 2012 at 8:01 PM
The 9th Circuit made the right call, even if those of us who may be social cons disagree with the decision. They did not legislate from the bench. In fact, I was surprised with how much restraint the Court showed in limiting the scope of their argument.
Hostile Gospel on February 7, 2012 at 8:06 PM
Leave it to the conservative community to be baffled by the easiest layup of a civil rights case in recent memory. The sheer weight of stupidity in this thread (over 600 comments!) may send Hot Air crashing through the floorboards into the basement of the internet.
Constantine on February 7, 2012 at 8:09 PM
Are you insane?
They declared a constitutional amendment “unconstitutional” on the basis of they didn’t think that the amendment (proposition 8) served any “rational” purpose. In other words, they invented a judicial power to throw out laws for poor taste. How can that be viewed as “restraint”, much less “the right call”?
joe_doufu on February 7, 2012 at 8:16 PM
This one looks like sticking. If anything, it is prudent and restrained.
lexhamfox on February 7, 2012 at 8:17 PM
Well accept that certain people will be a bit cranky about it. The thinking population will be just fine.
libfreeordie on February 7, 2012 at 8:18 PM
The amendment targeted one section of public for a downgrade by popular plebiscite. It’s disgraceful and spiteful.
lexhamfox on February 7, 2012 at 8:21 PM
It was very restrained decision. Read Update 4 up above at the top of the page.
ZachV on February 7, 2012 at 8:22 PM
Rolling my eyes at the social con rage over this. How, exactly, does this matter to any of you? You’re not being forced into a gay marriage. The law doesn’t outlaw your religion. Hell, the law didn’t even really keep gays from getting married, just in name only. So….why the rage? Normally I’m the last person to hint at racism/sexism/homophobia/whatever when this kinda stuff comes up but the amount of vehement opposition to this and things like it makes me wonder. If this is really a religious thing and not a “using my religion to justify my own prejudices” thing then why not the same amount of rage over people who shave their beards or have pre marital sex or lie (that last being one of the Big Ten)? All things that the bible gives the same amount of time, or more, to as homosexuality being “wrong” yet none of them gets the same amount of moral whinging as gay marriage. Weird that.
But as a conservative I’m happy with the decision. Regardless of whether or not you “like” gays or “approve” of the “lifestyle” you should still be against any law that targets a specific segment of the population with more or less restriction than the rest. Not if we can only get rid of those stupid hate crime laws too….
Cyhort on February 7, 2012 at 8:25 PM
You read it.
While it may appear to you and Allahpundit that it is “restraint” to arrogate a power to declare state Constitutions unconstitutional on the basis of “serves no rational purpose”, it is far from it. Find me the text in the Constitution that says that the judicial branch gets to throw out laws that it thinks are in poor taste.
joe_doufu on February 7, 2012 at 8:28 PM
Yes, but there is established precedent for a federal court to overturn a state constitutional amendment if that amendment is seen to violate the Constitution of the United States, which supersedes as the law of the land.
9th Circuit could have gone out on a limb and declared homosexual marriage a fundamental right, i.e. how Loving v. Virginia declared marriage, even interracial marriage, a fundamental right, but they didn’t. Romer is the correct controlling case here, not Crawford. Legally, the Court was spot on. Morally/ethically…that’s a different concern.
Hostile Gospel on February 7, 2012 at 8:29 PM
Who’s who of reprobates in here.
See ya later America. Judgement has come.
tom daschle concerned on February 7, 2012 at 8:30 PM
Have you told me yet which part of the Constitution makes it unconstitutional for a state Constitution to be in poor taste?
joe_doufu on February 7, 2012 at 8:34 PM
Where in the opinion are the words poor taste located. I’m seriously going through the opinion to see if you’re actually quoting them verbatim.
Hostile Gospel on February 7, 2012 at 8:38 PM
No really, I didn’t. There is a real physical requirement of marriage and that is that the man and the women come together physically . Failure to consummate a marriage is automatic grounds for annulment. This requirement is also consistent throughout history. There are physically linked through sex. Sex which can produce children. Any other type of sex does not constitute consummation. The fact that there is not an obvious physical change does not mean no change has occurred. There are clear differences in many areas between married and single people as studies have shown. These are not just some magical transformation brought on by signing a license.
You can determine gold is gold simply by looking at it? I wonder what all the assaying laws throughout history were ever passed for. The fact is you do need to have a paper from someone certifying what you have is gold to ever be completely sure. Gold is determined by a test of it’s properties. Marriage also can be tested. Is it a man and woman? That is a test. Same with consummation.
No, there is reason for the government to recognize marriages legally. In fact most states did not even issue marriage license until the 20th century. But you are putting the horse before the cart. Governments gave benefits for marriage BECAUSE they wanted to be involved. Not because these benefits were inherent to marriage itself. Mainly they did this to protect women and children who were getting short shafted when marriages ended. This is not a concern of same sex marriages. So it makes little sense to say benefits need be extended to unions besides a man and a woman. There is no need for equal protection because marriages and same sex unions are not equal. Same sex unions can not produce children naturally and the idea of one spouse working exclusively in the home is rare in same sex unions while common in marriage.
Merely the opportunity is not justification for not having separate names for something. It would need be likely based on history. As the state has never recognized a same sex union you can’t really suggest it’s likely they would give unequal treatment simply because it’s possible. That being based on the idea there is some legal requirement for governments to treat all unions equally when it’s not at all clear that is even true. Governments now treat many other things which are very similar quite unequally.
Chiefly because this is often not found out till many years later. States have that requirement in marriage to avoid children ending up being cared for by the state. Doing away with it raises the cost to government and they are unlikely to ever change it. Men do not have to get married legally if this is a requirement they can’t live with as far as the state is concerned.
This is mostly silliness. The Greeks and Romans certainly did not outlaw homosexual practices but nothing indicates they ever enshrined recognition of a same sex union into law. As far as the Church is concerned it involved itself in marriage the same way as the state did and for the same reasons mostly. As you point out it was not required before and wasn’t really after that. We didn’t get Common Law Marriages for nothing. One thing has been constant however, regardless of changes by the Church or State to it’s practices, it’s recognition, and it’s ceremonies, marriage has always been a man and a woman.
Polygamy on the other hand is simply serial marriage. If a man chooses to marry a 2nd woman it is only the man and the woman who are married. The 1st wife is not considered to be married to the 2nd wife. Marriage itself is the same, a man and a woman.
Rocks on February 7, 2012 at 8:41 PM
I think people are grossly misreading this opinion. The opinion has little to do with gay marriage and everything to do with Proposition 8. The two are not synonymous. The Court took severe pains to point out that they’re not ruling on gay marriage, but on the validity of the Proposition itself.
Hostile Gospel on February 7, 2012 at 8:46 PM
The only thing that federal law “supercedes” is one/all of the 18 enumerated powers granted to it by the US Constitution, that’s it. Whatever is powers are not enumerated are left to the states, which is almost anything you can imagine.
Here’s some homework: Find me one part of the US Constitution that governs marriage.
Will_Hal on February 7, 2012 at 8:47 PM
Many private company pensions have survivor benefits as well for spouses.
slickwillie2001 on February 7, 2012 at 8:48 PM
Sighh. I’m in a tough place being a social con AND defending the 9th Circuit here, but let me try and spell this out.
Proposition 8 has been destined for failure from the beginning due to its wording from the get-go. The Amendment did not simply declare marriage to be between a man and a woman. IF that was the extent of it, the 9th Circuit would have been out of line and I’d be in outrageous outrage right now. But it wasn’t. Prop 8, due to the earlier CA Supreme Court ruling, had to be worded in such a way to ‘eliminate the rights of same-sex couples to marry.’ Eliminate being the key word.
The Court rightly uses Romer as its controlling argument. It’s a long case, but I suggest you read it from trial court up to appeals for context. The central question here is whether eliminating a ‘right’ which the proposition itself recognized violated the 14th Amendment. That’s the central issue in contention here. If that right did not exist, Prop 8 would have been kosher. With it, 14th Amendment is the controlling authority.
Hostile Gospel on February 7, 2012 at 8:54 PM
Maybe not the best thing for Obama eh?
Weird how so many just don’t get it. Public schools are my guess.
CW on February 7, 2012 at 8:55 PM
Which makes your argument particularly funny.
The proposition exists because the California Supreme Court “found” a “right” to gay-sex marriage and ordered the state to start issuing gay-sex marriage licenses.
The people followed exact procedure; they amended their constitution to make it clear that it included no such right.
Now the judges, stymied by the people, insist that the people do not have any right to amend their own constitution if it reverses the decision of another judge.
The people followed the law. Romer deals with a case in which there was a clear constitutional violation of due process in preventing ANY law from being passed, a right which IS explicitly spelled out in the Constitution.
This is straight-up judicial tyranny. This is as if the Supreme Court had struck down the laws that sprung up after Kelo using the logic that the “right” of eminent domain that they had created could not be removed.
Now, answer this basic question: at what point will you accept the peoples’ right to amend their own Constitution? Or will you take the tack that the Ninth Circuit does and say that the people have no right whatsoever to amend their constitution?
northdallasthirty on February 7, 2012 at 9:01 PM
Will you apply the same outrage to laws banning child, incestuous, or plural marriage?
After all, having all those legalized doesn’t force you into such a marriage or outlaw your religion.
So you oppose laws banning plural, pedophile, incestuous, and bestial marriage — given that those target a specific segment of the population with more restriction than the rest?
Also note you said ANY law.
northdallasthirty on February 7, 2012 at 9:04 PM
So the slippery slope is proven to be true. Domestic partnerships, which were enacted as a compromise, reduced the distance to marriage to the point that the courts decided it was pointless to make the distinction.
Next time we’ll know: Don’t give an inch unless you want to give the whole package. And don’t believe
liberalsprogressives when they say slippery slopes don’t exist and they just want a little bit more.Socratease on February 7, 2012 at 9:04 PM
Hostile Gospel on February 7, 2012 at 8:54 PM
What a ridiculous argument. So now courts can 1st invent a right and then having done so determine such a right can never be taken away regardless of the actions or the people or the legislature. This is the kind of lunacy that led to State Supreme Courts determining that they can set education budgets based on the Right to a “decent” Education in a state constitution.
Rocks on February 7, 2012 at 9:05 PM
You’re confusing consensual adult relationships with criminal activity. Unsurprisingly.
Constantine on February 7, 2012 at 9:07 PM
What “rational” basis is there to limit any kind of “marriage” for anyone?
After this ruling, none.
profitsbeard on February 7, 2012 at 9:08 PM
People have the right to amend their State Constitution, provided it does not contradict the Constitution of the United States. This particular Proposition violates the 14th Amendment, as it expressly ‘eliminates’ a right found by the CA Supreme Court. In other states that ban gay marriage, where the supreme court of that state has not found such a right, there’s no issue. I’d support such an amendment stating marriage is between a man and a woman in my own home state, as the high court of my state has not made such a ruling otherwise.
Hostile Gospel on February 7, 2012 at 9:09 PM
It’s a horrible position to be in. But at such a juncture, legal creativity is required to bring the case to the Supreme Court again, albeit in a different light. Simply placing a Proposition on the Ballot does not negate precedent set by the bench, regardless of how awful that precedent is.
Hostile Gospel on February 7, 2012 at 9:11 PM
Either way, I’m interested in how people view this, on either side. I don’t like the decision, but legally, I think it’s sound. If you quote me and I don’t respond…dinner calls ;-).
Hostile Gospel on February 7, 2012 at 9:13 PM
Funny, that’s what people said about homosexuality back in the 1950s.
You’ve already stated that laws banning or restricting sexual behaviors are unconstitutional violations of privacy. You’ve already stated that people should be allowed to marry whatever they “love”, and that no one else has the right to pass judgment on such things.
Your logic seems quite inconsistent. Why do you expect to be able to ban such behaviors as “criminal”, when you and your pet judges have already stated that such things can’t be banned?
northdallasthirty on February 7, 2012 at 9:28 PM
A “right” which no other court in the prior history of California had ever found, despite ample opportunity.
So your logic here is that the Constitution can never be amended, given that ANY changes rescind a “right” that previously existed, and that if you want to ban something, you have to think of it when you’re writing the constitution, never afterward.
In that case, I’m sure you’ll support striking down every other restriction created by amendment in the California constitution under “equal protection”, given that by definition any changes to a constitution rescind a “right” that was previously in existence.
northdallasthirty on February 7, 2012 at 9:32 PM
Um, yeah, that’s kind of the point of amending a constitution.
northdallasthirty on February 7, 2012 at 9:40 PM
Why do I even bother voting here in Kalifornia?
Decoski on February 7, 2012 at 9:45 PM
SCOTUS is all the rationale we need to make sure Obama is defeated.
This decision by the Ninth Circus ignores everything but their own whims and desires. The Emperor has pink clothes
DaMav on February 7, 2012 at 9:57 PM
All of you leftist pukes throw this ‘theocracy’ around like all of the debates haven’t been able public policy but rather on biblical canon. Yea, it sure is crazy that Thomas Aquinas had such a brain fart the other night. I sure like v 3 thru 10 of the lost book of Judith.
I am mega conservative with a huge libertarian bent. I emphatically believe in gays right to a civil union. I live in Lexington, KY and Kentucky Constitutional Amendment 1 (2004) or Kentucky Marriage Amendment was passed in the 2004 General Elections on November 2 with 75% of the vote making only marriage between a man and a woman valid and recognized with no other legal statuses similar to marriage for unmarried individuals considered valid or recognized.
I would 100% support the right for Gays to have the majority of the same rights that hetero couples have. I fear that there would be a lot of tax fraud, health insurance fraud, etc., with two buddies getting a union, etc., so I would have some of the rights phased in after 2 years of joint tax filings and so forth.
However, as many have stated in the comments prior to mine, marriage is a word with a specific definition. It is not the joining of “two people”, but of “1 man, 1 woman”. Redefining a word for redefinitions sake isn’t necessary when there is a perfect word available.
Gairage. ;) (civil-union if you aren’t into making up your own).
preallocated on February 7, 2012 at 9:59 PM
To your first argument – that’s how our judicial system is set up. It doesn’t matter what lower courts say. The highest state court is the final arbiter in state cases, in cases of federal question, diversity jurisdiction, etc, it’s SCOTUS.
In regards to the second question, constitutions are not designed to ‘ban’ things for this express reason. A law by the legislature can ban things. Constitutions outline the duties of government and, in some cases, the rights of its citizens. From this law, legislation is carved. There’s a reason why the 18th Amendment was repealed from the US Constitution. It banned an explicit item that did not have an overarching impact on how laws and regulation could be legislated.
I don’t have a vested interest in Prop 8 or its repeal. I don’t like the effect of the 9th Circuit’s decision, even if I think it’s legally sound. I do have an interest that constitutional amendments are as rare as humanly possible. Otherwise before you know it, a state constitution and a state’s statutes book will look exactly the same – long, confusing, and contradictory.
Hostile Gospel on February 7, 2012 at 10:08 PM
If Gaia came to me in my sleep and sprinkled some libbie dust on my nuts and I suddenly woke up with a brain and was somehow approached to become part of the “thinking population”, I would pull out my Glock and blow my spinal cord onto the wall to avoid the fate of being put into a crowd with pukes like you. Try and behave even remotely couth and there is a small chance that when people agree with you on the issues they may admit it instead of taking your snobby comments, (and general assault on everyone’s intelligence, as exactly what it is: an insult.
preallocated on February 7, 2012 at 10:08 PM
The Kentucky Constitutional Amendment 1 is a pretty good example of why Prop 8 failed. Amendment 1 simply states only marriage between one man and one woman is valid. It passed with overwhelming support. Prop 8 had to state that it was designed to eliminate the right of same sex couples to marry in CA. The difference in language is not insignificant. In California’s case, another legal challenge or a law by its legislature that circumvented the rationale of the high court were really the only feasible ways of getting it done. If SCOTUS doesn’t hear the case, and I really don’t think they will…as legal precedent is pretty clear here, proponents of the sanctity of marriage will have to do it the hard way through the legislature.
Hostile Gospel on February 7, 2012 at 10:18 PM
You, and all the idiot judges out there, please show me where in the Constitution it says anything about LIFE STYLE rights? Gay is a life style choice last time anyone checked, no medical study so far has been able to prove otherwise, and bets are no one could. Its a life style CHOICE, as is beastiality/polygamy/drug use/etc. I do not care what one does in the bedroom (or wherever), but forcing one’s life style choice upon general populace is more than idiotic.
Go read what a gay Supreme Court justice said recently about Constitution and gay marriages. But something tells me you’re still too stupid to comprehend what she said.
riddick on February 7, 2012 at 10:33 PM
How about passing a constitutional amendment that would outlaw getting a divorce for any reason other than adultery. You know,Jesus specifically said he hated divorce but I guess that was in the old testament so it doesn’t matter anymore. Maybe if you damn hypocrites spent more time trying to work on your own marriages instead of worrying about what gays are doing,the divorce rate wouldn’t be so high in America. Religious people seem to always need somebody to pick on to validate their beliefs. It used to be “witches” and now the target is “the gays”. After you religious zealots have finished attacking gay people, who’s next on the list? Fat people? Midgets? The handicapped?
Mr. Neaux Nonsense on February 7, 2012 at 10:36 PM
Sooooo…All these gullible, superstitious religious fanatics believe homosexuality is a sin because a book that claims the earth is only 6000 years old says it is??? Deceive people into believing they can achieve everlasting life and they’ll do and believe ANYTHING.
Bandit13 on February 7, 2012 at 10:41 PM
satire? because no sentient creature can believe that you were honest in your representation of Christians.
And what is your prevailing perversity that you regularly engage in, that you must wage war on God?
tom daschle concerned on February 7, 2012 at 10:46 PM
As an ex-Christian of 25 years, his description sounds pretty close to the truth.
Of course he forgot to mention that the justification against homosexuality comes from the same book that demands disobedient children be put to death, among a host of other absurdities.
powerfactor on February 7, 2012 at 11:12 PM
I love it when northdallasthirty starts smacking heads around!
cptacek on February 7, 2012 at 11:17 PM
excellent post!Thank you- Rocks!
magone on February 7, 2012 at 11:17 PM
Go for it. Raise the ballot issue, do as you like. No one is going to argue that you can’t, but a lot of people will vote against you.
I always love it when antireligious bigots attempt to quote the Bible.
Gays and lesbians, when they marry, divorce at a much higher rate than heterosexuals, it appears.
So what do you have to say about that? I’ll bet you suddenly can come up with a reason for why divorce is good.
Furthermore, the hilarity is that, if you look at organizations like Focus on the Family and others, they DO speak out against divorce and actively promote counseling and other means to make for stable and sound marriages.
Show me the gay-sex marriage organizations that are against divorce and think society should reduce the number of divorces. You’ll find the exact opposite — the vast majority of so-called “marriage” organizations demand even more lax divorce laws.
Will you condemn divorce, hypocrite? Will you state that gays and lesbians are hypocrites for demanding marriage when they divorce at a much higher rate than heterosexuals?
No. You’re a hypocrite and a bigot, and you have no intention of holding gays and lesbians to an equal standard. That makes all your blabbering about “equality” nothing more than a transparent lie.
And isn’t it funny how bigots like yourself always hate and attack religious people in the process?
Why is that, bigot? Why do people like you so hate others having religious beliefs?
northdallasthirty on February 7, 2012 at 11:20 PM
That would be one solution. But you clearly have difficulty realizing that your behavior will cause problems for you.
When you want to do something but the law says no, then you have a problem. You think the law is the problem, but I think your behavior is the problem.
You can’t get married because you’re gay and the law prohibits that in virtually all states. Duh!
You will continue to have problems unless you change your behavior. If you can’t change your behavior, then you will be condemned by the majority of American society. That’s the breaks.
And you should be condemned.
Emperor Norton on February 7, 2012 at 11:24 PM
Actually, the Bible nowhere states specifically that the earth is only 6,000 years old.
Perhaps if you had actually read it instead of merely depending on repeating others’ prejudice and bigoted beliefs, you would know that.
The entertaining thing about that is that bigots like yourself are so completely terrified of it.
What does it matter to you if other people have religious beliefs? You must not be very staunch in your own if you’re so terrified that you have to openly attack, prosecute, and try to ban people from holding them.
northdallasthirty on February 7, 2012 at 11:24 PM
The really entertaining thing about that is how gays who are registered Republicans, such as myself, are demonized and attacked as self-loathing by the leadership and bulk of the gay and lesbian community.
Unless they need to drag us out for the “I have gay Republican friends” games. Just like they insist they’re not racist because they have black friends.
northdallasthirty on February 7, 2012 at 11:26 PM
What you’re missing is that straight society doesn’t want to know you, and doesn’t want to socialize with you. You could succumb to some “gay disease” and we just wouldn’t care.
The operative word is “Eeeew!”
Your behavior is that repulsive and that disgusting, and this should not be a surprise to you, except the Democrats have tried to cultivate you for 35 years.
This does not come from the book of Leviticus, in my case. I’m an atheist and I still think you gays are disgusting. You should accept the epithet of “queer.” That would save you a lot of time.
Eeeew!
Emperor Norton on February 7, 2012 at 11:34 PM
(shrug) And I’m supposed to care, why?
You’re entitled to your own opinion. And since I’m also in San Francisco, we’ve probably passed each other on the street, and managed to do so without you ever once thinking about, or even knowing, what I do in my bedroom. Heck, in a supreme irony, we may even have socialized at one point.
I wasn’t at the courthouse steps snarling traffic or dressed up in some outrageous outfit today. I was at work, came home, and am packing for a trip tomorrow.
I haven’t asked you for marriage. I gave nothing to Prop 8, either side. I pay my taxes, keep my nose clean, and consistently vote against Nancy Pelosi, the Obama Party, and everything for which they stand.
In short, I have no interest in shoving my sexuality in your face, or asking you to give me a cookie for being gay. And as far as I’m concerned, that’s just common politeness and reciprocity, because you’re not going around shoving yours in my face or demanding anything in particular for being straight.
Are we on the same page there?
northdallasthirty on February 7, 2012 at 11:40 PM
Voting in CA really is a waste of time isn’t it?
Dollayo on February 7, 2012 at 11:42 PM
It is so indeed!
magone on February 7, 2012 at 11:50 PM
Heck, in a supreme irony, we may even have socialized at one point.
Heh. It’s very unlikely. In San Franciso, the good thing is that the gays are out of the closet, so it would be easy to avoid you.
I go out of my way to avoid contact with gays, because in my experience they’re degenerates and comsummate liars and not worth knowing. They have had so many years of pretending they’re straight that they’re superb liars. Liars are not worth knowing even if they’re stright. But gays make lying into a new art form. I’ve had too many instances of queers pretending to be my friend, but turning out to be gay. . .to last a lifetime.
Emperor Norton on February 7, 2012 at 11:53 PM
aww that special moment when the kapo thinks they are friends with the Germans.
Zekecorlain on February 7, 2012 at 11:56 PM
Nice link up there to Hillbuzz. There are some gay people who get it.
rockmom on February 8, 2012 at 12:10 AM
Of course they would because their hypocrites;Christian cherry pickers. Some sin is acceptable but homosexuality is a no no. Thanks for proving my point.
Seems like you have a problem with Jesus man. I’m sorry to burst your bubble but your savior did indeed hate divorce. The truth hurts huh?
So what. I never claimed that gays were better at marriage than heterosexuals. But I guess in your foolish mind the fact that gays struggle at marriage excuses the high divorce rate of straight couples. Your rationale is very impressive.
Excuse me. I happen to tolerate bigots very well. Just because I don’t agree with your bigoted religious beliefs doesn’t mean I’m going to try and prevent you from expressing them, unlike many of your Christian buddies. I’m not trying to get an amendment passed to ban Christianity.Why do I hate others having religious beliefs? If your religious beliefs are used to justify mistreating other people you deserve to be hated. Any other questions?
Mr. Neaux Nonsense on February 8, 2012 at 12:16 AM
No, due to the earlier CA supreme court ruling prop 22 “unconstitutional”, Prop 8 had to be re-voted as a constitutional amendment. It was. Look at the text and you will see there’s nothing in it that targets “same-sex couples” or any other type of couples.
joe_doufu on February 8, 2012 at 12:19 AM
Full Text of California Proposition 8:
Section I. Title
This measure shall be known and may be cited as the “California Marriage Protection Act.”
Section 2. Article I. Section 7.5 is added to the California Constitution, to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
That’s the full text. You are utterly and completely wrong.
joe_doufu on February 8, 2012 at 12:27 AM
I have a question. Do you support true marriage equality?
Do you support polygynous, polyandrous, and consanguineous marriage? Do you support lowering the age at which a person in love is allowed to consent to marriage? Do you support allowing non-verbal consent for marriage between a person and their would-be spouse?
blink on February 8, 2012 at 12:30 AM
I don’t care what consenting adults choose to do. If they freely decide to engage in self destructive behavior, that’s their right. If an adult wants to drink himself to death that’s his right. But that person does not have the right to destroy other people’s lives while he’s in the process of destroying his own life via drinking and driving. The same with smokers. You can smoke as much as you want but you can’t force nonsmokers to inhale those toxic fumes. That is the delicate balance of freedom that must be maintained. A person should be allowed to pursue happiness but not at the expense of preventing others from doing the same. You have to accept both the good and bad in regards to liberty or no one will be free.
Mr. Neaux Nonsense on February 8, 2012 at 1:03 AM
You didn’t answer the questions.
Do you support true marriage equality?
Do you support polygynous, polyandrous, and consanguineous marriage? Do you support lowering the age at which a person in love is allowed to consent to marriage? Do you support allowing non-verbal consent for marriage between a person and their would-be spouse?
blink on February 8, 2012 at 1:04 AM
Yes I support true marriage equality among consenting adults. Lol. Nice try though.
Mr. Neaux Nonsense on February 8, 2012 at 1:18 AM
Wait a minute. Do you have some bigoted definition of “consenting” and “adults”? Are you using some ancient chronological methodology to determine adulthood?
blink on February 8, 2012 at 1:33 AM
And the sad part is that I can’t say that’s not a fairly-accurate assessment of a lot of gay people.
But there are some that aren’t, myself included. Leave the possibility open.
northdallasthirty on February 8, 2012 at 1:51 AM
Not at all. I said a lot of people; nowhere did I stipulate their religious beliefs.
Who would vote against divorce? You? Unlikely. So there we have the hilarious phenomenon of you screaming and pissing about how awful divorce is……but then insisting that it’s a good thing and that we shouldn’t ban it.
If divorce negatively affects marriage, you have a point. But you’ve already stated, as we see here, that you don’t care about divorce.
And thus out comes the bigotry. Make up your mind and make a consistent argument. Is divorce bad, or isn’t it?
Meanwhile, consider this: organizations like Focus on the Family that oppose gay-sex marriage also oppose divorce. Gay-sex marriage organizations, on the other hand, champion, promote, and support divorce.
So hilariously, bigots like yourself who scream and piss about the divorce rate among heterosexuals insist that divorce rates are irrelevant when it comes to gays and lesbians.
northdallasthirty on February 8, 2012 at 1:56 AM
This is not a black and white issue dude. If only life were so simple. You approve of amputees driving,which means you support people with Alzheimer’s disease driving, which means you support blind people driving,which means you support letting anybody getting behind the wheel–kids,animals,robots, etc. God help us! Ha ha ha! I love how you guys try to distort an issue. It’s so clever.
Mr. Neaux Nonsense on February 8, 2012 at 1:59 AM
Of course he is.
And to use the Ninth Circuit’s reasoning, raising the age of consent, as has been done in numerous states since the 1920s, is taking away the right that people had previously to marry children — and taking away the right from children to marry.
And of course, you can also argue that children today are far better and more educated than the vast majority of children were back then, so they should be allowed to make their own decisions.
This is clearly a violation of “equal protection”. After all, the Fourteenth Amendment doesn’t say anything about being allowed to discriminate on the basis of age.
Especially hilarious: why is Mr. Neaux Nonsense so obsessed with the age of other peoples’ sex partners? How does that affect his relationship? Is he being forced to enter one – no. Is he being forced to give up his moral beliefs – no. So clearly his opposition to sex with and marriage to underage children and non-consenting adults is based solely on his personal animus and bigotry, and thus is invalid as a basis for law.
northdallasthirty on February 8, 2012 at 2:02 AM
But of course it is.
You have stated that marriage is an inalienable right, which means that it cannot be abrogated by law in any circumstance.
But there’s the problem. Thus, laws restricting it to people of a given age, a certain number of people, or so forth are unconstitutional.
But then, if you adjust it and say that laws restricting it by majority vote are not inherently unconstitutional, you just blew your argument for removing Proposition 8.
Childish logic is easily defeated, and not persuasive. That is why childish bigots like yourself lost Proposition 8 in the first place.
northdallasthirty on February 8, 2012 at 2:06 AM
If you had a persuasive case, you wouldn’t need to make Nazi comparisons.
Bigots like yourself, though, invariably have nothing but their personal prejudices, which is why delusional bigots like yourself have nothing better than to scream that Republicans want to put gays in concentration camps.
northdallasthirty on February 8, 2012 at 2:08 AM
HG, I believe you didn’t go back far enough. Prop 22, passed by Calif voters, changed the law to add Section 308.5 of the Family Code, which read
The California supreme court overturned this act saying it violated the California Constitution. The normal recourse at this point is to (a) accept it or (b) amend the constitution, which the voters of California did with Proposition 8. Proposition 8′s title said it was to overturn the State Supreme court’s ruling (accurate) which itself overturned the people’s will. The actual change to the constitution did not say it overturned anything it just amended the constitution to add a new provision, Section 7.5 of the Declaration of Rights, which says that “only marriage between a man and a woman is valid or recognized in California.” To claim that the people of a state cannot amend their constitution to remove rights “found” by the court takes away a core foundation of constitutional democracies–the ability to clarify the people’s intent.
WhyNot on February 8, 2012 at 2:20 AM
Just logged on to say, I thoroughly enjoyed the legal analysis by folks whose background in constitutional law comes from watching glenn beck.
benny shakar on February 8, 2012 at 2:22 AM
And we thoroughly enjoyed your attempt to diagnose whether or not someone is qualified to discuss a topic based on whether you agreed with their conclusion.
It’s always the bigots who scream loudest about other peoples’ alleged bigotry, and you just proved that beautifully.
northdallasthirty on February 8, 2012 at 2:26 AM
Nope it’s not. But unlike you I respect your right to think otherwise. But according to your logic, anybody who doesn’t agree with your views is a “bigot”. Man,this feels good. I like pissing off bigots who don’t even realize that they’re bigots. But I get it dawg. Just admit it. You hate gays. And you have the right to do so. And that’s what’s behind all of this controversy over gay marriage. Hate. But hey god did say that homosexuals should… well you know what he said. But I know I’m taking that verse out of context or whatever you Christians say to excuse those repulsive words. You can’t reason with the unreasonable. But you are free to be as unreasonable as you’d like.
Mr. Neaux Nonsense on February 8, 2012 at 2:38 AM
Bad ruling. I want to see this go to the US Supreme Court.
netster007x on February 8, 2012 at 2:43 AM
Actually, it would be hard for me to hate gays, because I am one.
But fortunately, I’ve learned to recognize bigots like yourself who really DO hate gays — to the point where you’ll exploit them as an excuse to do your dirty work even as you harass and discriminate against them.
We know you’re a bigot, “dawg”. We know you hate gays, just like you hate other minorities, and see them as nothing more than your plantation slaves to use as a smokescreen for your own bigotry and hate.
northdallasthirty on February 8, 2012 at 2:47 AM
Yeah, we’ve heard that before.
Sort of like how gay-sex marriage supporters shriek and scream that you hate gay people if you don’t support them dressing up toddlers as sex slaves and taking them to a sex fair.
Isn’t it funny how that works, Neaux Nonsense? You either have to support everything gays do or you hate gays.
So which is it? Are you going to go with supporting child sexual exploitation, or would you rather be called a homophobe?
Oh, that’s right, I forgot. You prefer supporting child sexual exploitation.
northdallasthirty on February 8, 2012 at 2:56 AM
Dude,I am a black guy and I don’t like people being bullied because I was once bullied. And that’s exactly what many Christians are doing to gays. Using their power,as the majority in this country, to pick on a small minority.
Mr. Neaux Nonsense on February 8, 2012 at 3:10 AM
Remember the Good Old Days, when the only reason a judge would get involved was to prevent someone from cheating?
Now, they run to a judge to do the cheating.
It doesn’t matter how clearly a law is made following Constitutional processes, or how overwhelming the vote. Somewhere, there’s a judge ready to come up with any necessary interpretation of the Constitution to strike down any law they don’t like.
One absolute fact should be clear from a casual reading of the Constitution: it does not address gay marriage. To strike down a law against gay marriage is itself a violation of the Constitution, which gives no such role to judges.
There Goes The Neighborhood on February 8, 2012 at 3:55 AM
I like you. You’re funny.
rogerb on February 8, 2012 at 4:16 AM
Marriage was created as a device between a man and a woman as a method of protection, for the survival of the species. Homosexuality cannot make that claim as it is not intended for protection of anything except the deviant sexual behavior to engage in gay sex/lifestyle.
If one wants to do that as a fully rights protected citizen, go for it. But as a rationale to create a whole new set of “rights” for marriage ? I don’t think so. Marriage is not a right. It’s a privilege.
DISCLAIMER : My wife gave me permission to say all of the above.
DevilsPrinciple on February 8, 2012 at 4:51 AM
Why thank you sir. Somebody has got to bully the bullies. If pissing people off by criticizing them for mistreating others makes me a bully, oh well. I guess I’m abusive.
Mr. Neaux Nonsense on February 8, 2012 at 4:53 AM
I find it fascinating in this day and age of “enlightenment” that a black man would regard legal processes as the domain of bigots OR that because a person disagrees with someone else they are automatically labeled a bigot.
DevilsPrinciple on February 8, 2012 at 4:57 AM
So in addition to being abusive you’re also unprincipled. Check. Got it.
Makes perfect sense.
DevilsPrinciple on February 8, 2012 at 5:12 AM
It really does. Rush Limbaugh has made millions by being abusive. Maybe I can turn this into a lucrative career. Abusing people by calling them out for being abusive. I love you conservative ideologues. Liberal ideologues are okay but you righties are just so much more entertaining.
Mr. Neaux Nonsense on February 8, 2012 at 5:34 AM
I think everyone here is missing the bigger picture. Clearly a majority of California voted to enact this law. Then without any real explanation, although we know why, a judge was able to overturn the decision. The government no longer has to listen to the people anymore if they can just get some judge to overturn what they want and then leave it to the private funds to try to fight it in court. This is blatant abuse of power and every decision made by this judge should be recalled if this is how he plays it.
Before the idiots on the left start calling me racist you should then realize that this law bans them from getting married. Not anything that is detrimental to existance. This issue is acrually about limits of government not marriage.
speekr on February 8, 2012 at 6:06 AM
@speeker
um yeah that’s what federal judges do, it’s like their job. que surprise! Then you get to read their reasoning on why they did that and other people review their work for mistakes. IT’S CALLED THE FRIGGIN JUDICIAL PROCESS.
Zekecorlain on February 8, 2012 at 9:19 AM
You simply showed that you don’t have a consistent argument. You demonstrated no state interest in refusing the rights of some to marry their would-be spouse.
You’re obviously clinging to some ancient method (chronological) of determining age of consent, and you refuse to acknowledge that non-verbal consent to marriage should be allowed for a person to marry their loved ones.
You’re hypocritical in limiting who you want to grant marriage equality, too. You’ve been exposed.
blink on February 8, 2012 at 9:55 AM
And why are you bullying those people by denying them their right to marry? Do you like being a bully?
blink on February 8, 2012 at 9:55 AM
It is the job of a judge to defy the will of the people?
NotCoach on February 8, 2012 at 9:58 AM
Comment pages: « Previous 1 … 5 6 7 8 Next »