I think this is the right decision. Government ain't got not right to tell two people who love each other what they can or can't do as long as they aren't hurting anyone else.

Of course it is correct. Anything else is no different from women not having voting rights or blacks not allowed to marry whites. It is time for the far right to get constipated once again.

First, this is a very big issue as clearly shown by the number of concurring and dissent opinions.

Second, regarding the post of "not steve frank," one of his big issues was whether gay marriage hurts others. Those opposed to gay marriage would and do say that gay marriage would have big time negative effects on society. It seems to me that the question of fundamental rights is not whether someone else is hurt, but whether the right is so fundamental/natural/human that "hurt" to others is not a significant consideration. If its a fundamental right, like the right to vote or freedom of religion or press, society just has to endure the negative effects of those rights.

Are you saying you think it does damage to society?

One of the primary reasons for marriage is to create the next generation. Marriage between two gay people does not contribute towards one of the primary purposes of marriage. You cannot repeal biology. You can't look at a skunk and says it's a cat.

Marriage should be between a man and a woman only. I am not outside the mainstream of the way the rest of society feels about this either. 61% of the voters supported Proposition 22, which affirms this sentiment in the State of California.

If same sex marriage was illegal it would create a group of Americans who are treated by our government as second class citizens. That would be clearly unconstitutional.

Most traditional marriages end in divorce. If same sex marriages have a greater success rate they do that wouldn't hurt the sanctity of marriage it would be an improvement.

Brian,

NO, I am not saying it does damage to society. I only said that others maintain that position.

To be clear, I am in favor of gay marriage if that's what the partners want.

For me, this is indeed a fundamental right and whatever damage others may think it imposes on society is just minor when compared with this major human right.

Brian,

NO, I am not saying it does damage to society. I only said that others maintain that position.

To be clear, I am in favor of gay marriage if that's what the partners want.

For me, this is indeed a fundamental right and whatever damage others may think it imposes on society is just minor when compared with this major human right.

Why should government be involve with marriage at all? Government should limit its role to enforcing and adjudicating civil contracts. Marriage should be a separate ceremonial matter (typically religious but not exclusively so). Let individuals enter into whatever voluntary civil contracts they wish with each other, defining financial and other relationships between them. If they wish to get married, they can find a priest or minister or rabbi or whomever to perform the ceremony, but it shouldn't have the force of law.

Such a system would eliminate the problem altogether. If a gay couple wished to get married, they could have a ceremony and say they were married. A heterosexual couple could do exactly the same. If they wanted to sign a contract specifying their living arrangements and financial relationships, they could do that as well.

Meanwhile, those people who object to gay marriages can continue to object, and can refuse to recognize the religious marriage ceremonies of gay couples. Why should the gay couple care what detractors think? And why should people opposed to gay marriage care if a gay couple "pretends" (as their detractors would characterize it) to be married?

Problems only arise when the government steps in and formally legitimatizes certain relationships and delegitimatizes others.

Now we're headed for a totally unnecessary battle over gay marriage, with a November ballot measure which will likely overturn the California Supreme Court's decision and leave a heavy load of bitterness in its wake.

Mongo,

If you limit your answer to say marriage is about having children you leave yourself open to why we allow people that have no intention of having children to marry or people that cannot have children.

Are you against senior citizens getting married?

What rights do you support? Civil unions?

What about laws that allow employees the same rights against discrimination as other groups are protected by?

Brian

Nice set-up with the legal case in the topic. Makes it pretty easy to read too. I've only read about 10 pages so far, but will try to finish the legal reasoning.

Initially, this court asserts a "right to marry" and while I'm not a constitutional scholar I went back to our state constitution and didn't see this provision written in our state constitution.

Did I miss it? If so, could you let me know where it is?

Brian, what I'm actually saying is that a primary purpose for marriage is to have children - to create the next generation. It's not the only purpose, but certainly one of the main purposes.

I'm not against people getting married who have no intention of having children. My sister and her husband, in fact, were very up front about not wanting to have children when they got married and I don't consider their marriage any less valid than mine.

Seniors getting married is fine as well. I've seen situations where people getting married later in life are much happier than those who got married at a much younger age.

I do support civil unions, as legal protections (and for things like health care and insurance coverage), for gays who wish to unite as partners. I also support employment laws that prevent discrimination and don't deprive benefits for same sex partnership arrangements.

My bottom line is that I believe we need to preserve the sanctity of marriage as an institution that exists only for the joining of a man and a woman. We voted on this very issue, as a State, in 2000 (Proposition 22) and it was approved 61% to 39%. That's a mandate of the people, to my way of thinking. Where do these activist, liberal judges get off on opposing the will of the people?

State voters will most likely have an opportunity to vote again in November on this issue, if a similar ballot measure qualifies, which I think it will. Let's wait and see what happens with this measure before we run out and start issuing marriage licenses.

Thanks for the opporunity to clarify my position on this issue.

Seems to me that the Court's determined that the if the State continues to be in the business of legally joining two persons in a domestic partnership it can no longer use one term for opposite sex unions, ie, "marriage", while using another terms for same sex marriages, ie, "civil unions". Since the State IS engaged in such business the voter-approved ban on same sex "marriages" is unconstitutional simply due to its use of the two terms. Ergo, the State may not create a second term for the union of same sex couples without creating a new and separate class of persons, ie, gays, something forbidden under its constitution.

The best remedy may be for the State to get out of the marriage business altogether. Not only does it embroil the State in lengthy, devisive politics and controversies it may also indirectly violate the 1st Amendment by establishing itself as an alternative institution to religion. By offering an alternative to religious marriage civil marriages compete directly with religion. What next? Perhaps the State can offer a rite of civil eucharist for a fee? Maybe the courthouse can offer civil bar mitzvah? Better for the State to simply require a civil recording of domestic partnerships before they have standing in law. Otherwise leave marriage to churches, synagogues and any other social institutions that choose to offer it.

Scott Blough,

The In Re Marriage Cases decision referred to the 1948 California Supreme Court case of Perez v. Sharp as one of the cases in which the right to marry was established as a fundamental right in California. In the Perez case, Justice Traynor wrote (I apologize for the extended quote, but it is important):

"The due process clause of the Fourteenth Amendment protects an area of personal liberty not yet wholly delimited. "While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." (Italics added; Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 67 L.Ed. 1042].) [2] Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means.

No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary. The state's interest in public education, for example, does not empower the Legislature to compel school children to receive instruction from public teachers only, for it would thereby take away the right of parents to "direct the upbringing and education of children under their control." (Pierce v. Society of Sisters, 268 U.S. 510, 534-535 [45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468].) Again, the state's vital concern in the prevention of crime and the mental health of its citizens does not empower the Legislature to deprive "individuals of a right which is basic to the perpetuation of a race--the right to have offspring" by authorizing the sterilization of criminals upon an arbitrary basis of classification and without a fair hearing. (Skinner v. Oklahoma, 316 U.S. 535, 536 [62 S.Ct. 1110, 86 L.Ed. 1655].) fn. 1 [32 Cal.2d 715]

The right to marry is as fundamental as the right to send one's child to a particular school or the right to have offspring. Indeed, "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." (Skinner v. Oklahoma, supra, at p. 541.) [3] Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws."

Lastly, the California Due Process clause is found in Article 1 of the state constitution entitled Declaration of Rights at Section 7.(a).

dpweiner,

I recognize that we are blogging and brevity has its place, but it is quite plain that you are advocating very idealistic, very theoretical libertarianism, a political philosophy that has no credibility or acceptance in this country.

When you write, "Government should limit its role to enforcing and adjudicating civil contracts," you completely eliminate the role of government in long accepted activities, such as police, fire department, road construction, post office, national defense, welfare, building safety, health and the establishment of property rights and the regulation thereof. To be direct, your proposal has no chance in our society or anywhere on earth that I know of.

I ask you, do the "lawless" regions between Pakistan and Afghanistan where the only real law is that of the local warlord have a better political system than our own? What would your libertarian system do with such warlords?

Mongo,

These "liberal" activist judges were mostly Republican appointees in a 6 to 1 margin.

So, ask your Republican governors about that issue you have with them.

The idea that popularity makes justices has a flaw in the foundation.

California was the first state to strike down interracial marriage bans even though it wasn't popular at the time.

Mongo, those were according to your definition "liberal activist judges". I will support those types of justices any day of the week, including Sunday morning.

Scott,

The right to marry is a fundamental right. It would be covered under the free exercise clause of the US Constitution. That is in the addition of precedent set by previous court cases.

Thanks for attempting to read through the ruling. Most people are reacting on the basis of what they think about marriage equality and not on the logic of the ruling.

Mongo, do you want churches to be able to marry who they see fit regardless of it is gay or straight? Or should government tell them how to practice their faith?

It isn't just activist judges for the record. Marriage equality has also been passed by the state legislature twice. The governor vetoed it but he said he stands by this courts ruling.

That means the three branches of government have come to some sort of agreement.

Brian,

I don't intend to argue with you about whether judges appointed by Republican governors should be considered "liberal" or "conservative" judges. In my estimation, the 4 justices who voted in favor of the ruling are all "liberal, activist judges". End of story. BTW, one of the 4 (Carlos Moreno) was appointed by a Democratic governor.

These guys, as I'm sure you know, take on a life of their own once they're appointed and don't vote according to any prescribed ideological viewpoint. I suppose I should have couched my objections more on the "activist" side of things. Therein, is where most of the problem lies anyway.

I'm saying judges ought to be enforcing and interpreting the laws, not rewriting them to their own way of thinking. The laws of the land should be reflective of what the majority of the electorate decide they should be, thus my point on Proposition 22.

Churches, as private and separate institutions, can and will continue to decide what types of marital ceremonies to perform and the State should not dictate this to them.

Another point I should make on this issue is that I see us going down an extremely slippery slope with this ruling. This could very well open the doors to incestuous or polygamous marriages, as an example.

What's to stop polygamists, someone wanting to marry his sister (or his dog, for that matter) from claiming they are being discriminated against under this ruling?

Brian, are you in favor of other "alternative" marriages besides same-sex marriages? If so, which ones?

Brian, what about my point on Proposition 22's mandate of the people? I noticed you conveniently avoided addressing it in your last post.

To skeptic1968,

In my attempt at brevity (which in my case is not necessarily all that brief) I stated that "Government should limit its role to enforcing and adjudicating civil contracts." However, that statement was with reference to the marriage issue. My point was that one of the proper functions of a limited government is to provide a judicial system and an enforcement mechanism to referee contractual disputes.

I do believe that we need a limited government to enact and enforce laws against violent crimes and fraud, to protect property rights, etc. We also need a national defense to protect us against foreign aggressors and terrorist attacks. But I certainly think there are many other functions of government which it performs poorly and which can be accomplished much more effectively by private enterprise. Obviously we have some differences of opinion there.

Marriage is one of the areas in which government performs poorly. It has a "one size fits all" marriage contract, which intrudes into areas that historically (up until perhaps a century and a half ago) were the exclusive purview of religions. Now we have a mess on our hands, because different segments of the population have very divergent views of what should constitute "marriage", and they each want their viewpoints enshrined into law. It's a recipe for fostering societal divisions and hatreds. Whereas if government were to get out of the way, everyone would find it easier to adopt a "live and let live" attitude.

dp wiener,

thanks for the clarification. When you wrote about marriage, you kinda sounded like an Emma Goldberg anarchist. Gotta love that part of you!!!!! Maybe you are a born again hippie.

In protecting "property rights," how would a court determine exactly what constitutes a "property right"? and are you talking about civil laws as well as criminal laws? I noticed that you left out political rights and white collar crimes (except for fraud). Would you have included those if you had more time? Shouldn't there be laws promoting voting? What makes fraud so special? Why not just let the civil system treat fraud as a defense to breach of contract?

As for marriage being "one size fits all," that is not the case in this state. You can have pre and post marital agreements that alter the laws that would be applicable without such a contract.

Lastly, when you write about the "proper functions" of government, aren't you really just using that phrase as a substitute for your own subjective values/beliefs about government?

We all want a limited government, it's just that most of the time, political parties differ in calculating the effectiveness of the private enterprise system and whether a bit (ok, or a lot) of government regulation would make things better.

Some of us would even question whether we truly have a private enterprise system or that private enterprise with its emphasis on money is the appropriate vehicle for deciding distribution of a given product/service, such as education, healthcare, shelter and basic food.

Mongo,

Why do we have judges to determine what the law is when we could just vote?

You said:

"I'm saying judges ought to be enforcing and interpreting the laws, not rewriting them to their own way of thinking. The laws of the land should be reflective of what the majority of the electorate decide they should be."

Do you always feel that way or only when judges agree with you?

The California State Supreme Court eliminated the ban on interracial marriages. Was that an activist decision? It wasn't popular when they did it. Should they have taken a poll and reflected popular opinion?

If you believe in the slippery slope fallacy why do you support civil unions? Under your logic couldn't that lead to polygamous civil unions?

Brian, Brian, Brian, now you're twisting my logic around to make a point. As I said, judges should be in the business of interpreting and enforcing the laws, which, presumably, represent the values of the society they're intended to govern.

There is a clear distinction between interracial marriages and same-sex marriages. Interracial marriages still preserve the basic foundation of the marital relationship - to procreate and provide an example and a counter-balancing relationship (male and female role models) for kids to rely upon for their growth and development as human beings.

To your last point, civil unions simply provide some legal protections for folks who are living together in a same-sex relationship, which, personally, I (and, I believe society as a whole) have no problem with. I do have a problem with polygamous and incestuous relationships, however. They are unhealthy and harmful and have a deleterious and corrosive effect, both physically and psychologically, on society, in general, and children, in particular.

Are you advocating for polygamy and incest? Do you support marriage for people who are in these types of relationships?

Mongo,

What is wrong with you? Do I support cousins marrying each other?

It is clear you didn't read the court ruling or you wouldn't be launching into venomous attacks. Why not discuss the law instead of your own personal feelings about gay people and their relationships?

Just answer the question. Being that the original ruling that this court used as the basis for this court ruling went against public opinion was that a "judicial activist" ruling?

DPWeiner:

I understand where you are coming from to some extent on this issue. Because the state is involved in the regulation of marriage, it does open the door for multiple definitions and political fights.

With that being said, doesn't a non-interference method lead to things such as polygamous or bigamous marriages that Mongo is concerned about?

From reading at least a portion of the court case, one could take those same arguments and apply them to justify other types of marriage arrangements as legal.

Brian, since you finished the 170 page court case, does it address why those arguments don't lead to justifications of polygamous and bigamous marriages?

Scott,

I am sorry, I have barely read through the arguments.

I got drawn in by crazy talk of marrying cousins and the like.

If same sex marriage opens the door to all of that stuff you and Mongo want to talk about do you think civil unions lead to it too?

Do you support civil unions?

I'm not sure if it does or doesn't. The argument the court is making so far could easily be used to justify those arrangements, which is why I asked you whether the court put limitations on their argument.

In my experience in the private sector, generally there already is the opportunity for employees to insure their domestic partners and write-in their domestic partners as their 401(k) primary beneficiary. It's really not a big deal. To me, a lot of this is irrelevant. Many employers want to attract employees of all kinds, so they are willing to offer all sorts of packages to attract them.

It only seems to be a big deal because of state involvement in the issue, but I also agree with Mongo's concern about where the slippery slope may lead us.

Brian: Did you think the state overreached on the Texas polygamy case?

Hey folks, despite how you're trying to frame thia, this is not all about me or what I think. 61% of California voters spoke on this issue when they voted in favor of Proposition 22. Nobody, including Brian, has addressed this as a consideration in the outfall of the court's ruling.

Brian, in your most posting, you admit that you didn't read through the entire court case, yet you're completely comfortable berating me for not doing so. How about a little integrity here?

The answer to your last question, BTW, is "no". The interracial marriage question clearly reflected a change in the public's attitude on this subject. The court was simply updating the law to reflect the changing values of society. They were, in fact, taking the public's opinions and values into consideration when they acted. They are not doing this in the case they just ruled on.

Scott,

Right now there's nothing to stop people from living together in whatever relationships they want: A man can live with any number of women (or men) and have sex with them; or a woman with any number of men (or women). It only becomes "polygamy" or "bigamy" if they claim to be married. But what's the practical difference?

If the government wasn't involved, then it's true that a man could engage in religious ceremonies to "marry" multiple women (assuming he found a church and minister who approved of such arrangements, or else he started his own church). Other people could dispute the validity of such marriages. The man and women could then ignore those other people, and those other people could ignore the so-called polygamists. And everyone could get on with their own lives.

If government would just butt out, the status quo actually wouldn't be too bad. But government taxes married people and single people at different rates, pays out social security in different ways depending upon marriage status, etc. Hence to solve such problems, which the government caused in the first place, people want the government to interfere further in an attempt to rectify those problems. Of course the "solutions" usually lead to still more problems, which creates further incentives for government interference. This latest California Supreme Court decision is not likely to end the vicious cycle.

Ahh, I love it. The Libertarian perspective...

Scott,

The "cases and controversies" limitation on California courts limits the scope of a Supreme Court Decision. Because there was no case or controversy before the court on the issues of polygamy or bigamy, the court made no ruling on those issues.

Of course, I am sure that you appreciate that the court did not act like a legislature and "make law" on the polygamy and bigamy issues.

Mongo,

The whole point of a constitution and constitutional rights is that they are beyond the control of a majority of the people and the state legislature. Use of the will of 61% of California voters on an initiative or referendum would be entirely without any legitimacy in deciding a constitutional question.

BTW, Your reference to that 61% is limited to those who were registered to vote and who chose to vote by absentee ballot or on the date of the election, on that issue, during times that the polls were open with physical/mechanical abilities to get to the polls. To be clear, your 61% did NOT represent 61% of California adults or 61% of California registered voters.

And, of course, we need to recognize that the times, they are changing.

dpwiener,

I have to make this quick, but I am having fun today on this site.

Your statement that there is nothing to stop people from living in whatever relationship they want just is not true. Just off the top of my head I can tell you that there are numerous restrictions on the right to contract in California. YOu even mentioned one I believe, fraud. There are also age, mental capacity, and language (Spanish, English, etc.) restrictions. But, most importantly, there is a general catchall restrictions that has long been utilized by courts in the United States and England, that of not enforcing contracts which are in violation of public policy. And, you only know the public policy that the court is concerned with after you get a decision from the court.

It seems to me that many of the comments on this issue were made by well-meaning posters not trained in the law and its background which establishes context and limitations on courts and court decisions. I don't want to offend. I just want to clear some things up and tell the truth.

Skeptic1968,

To use an old Steve Martin expression - Well, excuuuuuuuuuuuse meeeeeeeee!!!

I may not been trained in the law, but I have a pretty good sense about politics and public policy questions and this one ain't going away. The voters of this great State will have a chance to weigh in again on this issue in November and I predict the courts will have to reconsider it again at that time.

Also, you are insulting the voters of this State by claiming that the methods of voting 8 years ago made a difference in the outcome of Proposition 22. I couldn't disagree with you more. We will see what happens in November though. The times might not be 'a changin' as much as you think.

But, then again, who am I but a simpleton, well-meaning blogger, untrained in the law and completely ignorant to the nuances and technicalities of constitutional questions.

Relax Mongo,

I don't think "Skeptic" was trying to insult my intelligence just giving me information to take a look at. Besides, I've been insulted so many times on here, that one was a pretty light slap of elitism.

I openly admitted not knowing the legalese of this decision from my first post on this topic. Generally, I was more interested in the legal reasoning as I already know the politics. Skeptic already gave me a couple things to take a look at. It doesn't mean he/she is somehow mentally superior just has a different background of skills.

"Skeptic", thanks for bringing back con law 101 to my memory bank. I should have known that before I posed the question, so it was a fair critique.

With that being said, give me a reason why the logic in this case doesn't benefit other currently illegal martial relationships?

Second, why is this decision not considered policy-making by the bench?

Feel free to state your legal superiority at the beginning of your post rather than hide it in the middle among the various syllogisms. I may not be able to keep up. :)

Scott,

For the same reason that civil unions between two people of the same gender haven't opened up civil unions for polygamous relationships.

Just my guess, but I am not a lawyer either.

Scott,

First, thanks for providing Mongo some insight and context.

Second, there was no elitism in my posts, unless you are using that word like Republicans have in their recent talking points about Obama. I was just writing the truth and letting the chips fall where they may. I do not view that as elitism, I view it as debating and sharing.

Third, it was very interesting that you concluded I was just trained in the law and NOT other areas. I am also a strong proponent of Howard Gardner, an education expert from Harvard, who basically said that we're all smart, it's just how we are smart.

Fourth, was that a Freudian slip with your spelling of "martial"? Your question is too big for me to write about now. I really have to get off to church. I might write more later, but my recent blogging has taken a lot of time and I truly doubt that it is making any difference.

Fifth, if you provide me your definition of "policy making" I will take some time later to write about this very important and misunderstood issue.

Now onto Mongo for a few moments.

Mongo,

I have two possible responses to you. Choose the one that you find most compatible with your personality.

Version #1. I recently started to blog on this site because I thought that Simi Valley and Ventura County, like the rest of country, were too polarized along party lines and that much of the division was due to miscommunication; and I thought some clarification could help bridge the gap. It's a shame that you did not recognize that I was engaging in providing accurate information and healthy debate instead of your volative flame throwing, name-calling and obstinate disagreement.

As for your indictment that I insulted California voters, there is absolutely no truth to that at all. First, there was no insult. I was simply stating facts, not my values. Second, even if there was an insult, it would not have been felt by the voters; the insult would have been felt by the legislators and judges who worked on the promulgation of the voting laws in effect in 2000. To use a sports analogy, any insult would have felt by a rules committee and the umpires, NOT THE PLAYERS. Third, I was writing about politics. If someone takes offense to debate/discussion/analysis and truthful factual statements, I will NOT accept any culpability for that. Fourth, if you cannot see the truth of what I wrote, well then, there's not much hope for you. I can lead you to the water, but I can't make you drink.

Version #2. As per your typical response, you view things from an out-dated old-fashioned perspective longing to return to simplistic outbursts of a bygone era. Please bring yourself into the 21st century and forget about 1977. You write that you "may not be trained in the law" as if there is a possibility that you have legal training. Why torture us and leave us in such high suspense? Congratulations on believing that you have a good sense of politics and public policy. Might you also have some education/training in that arena also? Was it your good sense that informed you that the gay marriage was not going away or was it that you read about the proposed gay marriage constitutional amendment on the ballot for November? As for your last sentence, your question answered itself.

Finally, if you cannot see the truth of what I wrote, well then, there's not much hope for you. I can lead you to the water, but I can't make you drink.

I'm late. I'm late.

Skeptic:

Have you had an opportunity to read the dissent by Justice Corrigan?

She writes, "the majority places great reliance on the Perez court's statement that ""the right to marry is the right to join in marriage with the person of one's choice."" However, Perez and many other cases establishing the fundamental right to marry were all based on the common understanding of marriage as the union of a man and a woman." Pg.3 and 4 of the dissent.

She also writes that the use of analogies comparing this case to racial discrimination cases does not hold because the civil rights cases were based on "duly enacted amendments to the United States constitution, proposed by Congress and ratified by the people through the states.... By overturning Jim Crow and other segregation laws, the courts properly and courageously held the people accountable to their own constitutional mandates."

She goes on to write that this case is quite different in that "through the democratic process, same sex couples have been given the equal legal rights to which they are entitled."

In fact, wide agreement has been reached through the democratic process with passage of the California Domestic Partner Rights and Responsibilities Act of 2003 and a clear opinion on the definition of marriage was obtained in proposition 22.

What this case does is it unravels both such democratically concluded opinions in favor of a decision of a 5-4 divided court as the new law of the state of California.

Policy-making is defined by making decisions to bring about change. Since this law flies in the face of both DPA 2003 which was agreed upon by the state legislature and the executive branch as pointed out by Justice Corrigan. And this decision strikes down proposition 22 passed by the voters, I'm not sure one could conclude that this is not policy-making by the bench.

Corrigan's dissent is off target. She argues that past rulings never challenged the definition of marriage as being a union of opposite-sex couples, thus the new ruling is wrong to use those past rulings to bolster its decision. However, I can't find where the Court made any ruling on what constitutes a marriageable couple. Though the new ruling has the EFFECT of redefining marriage as also including same-sex couples, the Court ruled only that the state can not maintain two different definitions of domestic partnership, ie, "civil union" for same-sex couples as opposed to "marriage" for opposite sex couples, for the following reason.

Maintaining a single definition for both opposite-sex couples and same-sex couples brings harm to neither of these groups. Yet to maintain two separate definitions has shown, in the light of historical context, as being harmful to a distinct group of people. In this case: gays & lesbians.

What the Court seems to be saying is that by labeling gay marriages as merely civil unions, the State then creates a situation that has the effect of sanctioning prejudice against gays & lesbians. It would be akin to the State creating a two-tier citizenry simply by officially calling one group "Blue Bloods" and the rest "Immigrants" or "Whites" and "Minorities". In reality such definitions merely reflect what is obvious but historically it can't be denied that such labels encourage prejudice and social stigma.

Would you feel comfortable carrying an ID card that told prospective employers that you held status as a "CITIZENSHIP/CATEGORY 2: NON-EUROPEAN CAUCASIAN"?

Skeptic1968,

You have now entered the realm affectionately known as "Rantville". Let us know when you come to your senses and can engage in meaniningful dialogue once again.

Obviously, you are new to blogs, but just a couple of words of advice from a veteran, if you will:

First, lighten up on the elitist, know-it-all attitude. It just works to destroy your credibility ("I can lead you to the water...").

Second, please don't continue to insult 61% of the voting public of the State of California by disregarding their attitude on same-sex marriage. It diminishes your self-proclaimed (but unverified) monopoly on knowledge and wisdom.

GS:

Your argument is that Justice Corrigan is "off-target" seems to lack contradictory evidence showing why. If that is just an opinion that is fine, but why is she wrong?

To your point: In 1948, when the Perez case took occurred, it was generally accepted that marriage was between and a man and woman.

If you have contrary evidence, please provide it.

Last, if there is not an adequate legal definition of what constitutes a marriage, should the court define it or the legislature and people?

In the absence of a clear definition, such definition-writing or law-making should be left to the legislature and/or initiative process, so the voters and their representatives have an opportunity to participate in law-making.

Scott,

Yes, I read J. Corrigan's concurrence and dissent.

Regarding the use of precedent and reasoning by analogy, a case is only persuasive or an apt analogy if it is similar to the current case. No case is 100% the same as a previous case; there are always differences. So, it becomes a value judgment as to whether one accepts a previous case as precedent. And, for the California Supreme Court, since it is the highest court in the state, it doesn't even have to remain true to the notion of precedent. In other words, let's say a previous case consists of 10 facts and the current case consists of 6 of those same facts and 5 different facts. Do the six same facts make the current case similar to the first case or do the 4 facts not appearing in the current case or the 5 new facts make the case different? There is no answer based on logic; in reasoning by analogy, the answer is based on the decison maker's judgment and values. If you want to pursue this, I could give you the names of more than a few books and articles on this well-discussed subject.

Every lawyer/judge knows this or should know this; they just don't frequently say it.

As for policy making, this is a very difficult issue, in part, because politicians, including judges, and teachers of elementary, high school and some colleges maintain the false notion that judges do not or should not make law; that they simply may interpret the law or apply the law to a particular set of circumstances. That simplistic notion just doesn't harmonize with the limitations on human language, politics (the making of legislation and constitutions) and real life.

Let me try something I have been thinking about since my days teaching law at the university undergraduate level.

Take the commandment, thou shall not kill. Now you be the judge.

1. If I were a prosecutor and I proved a case before you that the defendant killed a bug or a dog or some other animal, would you convict the defendant for violation of the commandment? Remember that the commandment says nothing about the thing being killed.

2. What if the case involved the killing of a human being who had verbally impugned the honor of the defendant's wife? sister? daughter?

3. What if the case involved the killing of a human being:
a. who was attacking the defendant with a mere slap to the face that would cause no physical injury?
b. who was attacking the defendant with a lethal weapon
c. who was attacking the defendant's wife with a lethal weapon
d. who was attacking the defendant's friend with a lethal weapon
e. who was attacking a stranger to the defendant with a lethal weapon
f. who first attacked the defendant with a lethal weapon but then ran away and was not currently threatening the defendant at the time the defendant did the killing
g. who was a soldier in an army at war with the United States and the defendant was also a member of the U.S. armed services
h. who was a civilian accidently killed by a member of the U.S. armed services during an otherwise valid war event.
i. when the defendant was 7 years old and unable to understand the consequences of his/her actions
j. when the defendant was 48 years old but insane (by whatever definition of insanity you want)
k. when the defendant lost his/her attention while driving a car and accidently caused a collision
l. when the defendant was speeding in a car to get his dying child to the emergency room

I think you get my drift and note that I have given you the facts. In real life, a decision maker gets to believe whomever the decision maker wants. There is obvious room for great manipulation in that circumstance.

Here's the important question: are the decisions in each of the above cases, whether for conviction or not, actually instances of judicially policy making? In arriving at a decision is the judge just interpreting the law? Do limitations on the human language and the words of the commandment give the judge discretion to decide in either direction?

Also, please consider that a trial judge/first level appellate judge is not like a philosopher, he/she may not just put a case on the shelf and ponder it at another time (but Supreme Court justices can)when he/she is comfortable enough to make a decision. A decision must be made on the law and facts before the court.

Gotta go. Hope you recognize that I spent a lot of time on this and I did that in good faith.

And as for Mongo, I'm done with him. His comments are not worth my time any more.

Of course this is all opinion. So is Corrigan's dissent. Note: a court ruling may be flawed but upheld, nonetheless.

Corrigan argues that the examples cited by the new ruling refer to cases where it was generally accepted that opposite-sex marriages were the norm and thus the new ruling is automatically flawed. But the new ruling uses those cases not to define what constitutes marriageable couples but instead to establish a historical context for their decision. There's nothing wrong with her own view of historical context but she argues for the wrong reason. In the Court's closing few pages it clearly states what it finds constitutionally wrong with the ban: that (A) because the State created two separate definitions for gay unions and hetero unions it has, in force and effect, harmed one group, whereas (B) by maintaining a single definition for both types of union harms no group. In its ruling the Court acknowledges that the State is in violation of the constitution when it allows one group to be harmed (as in A), even if that harm is an unintended consequence.

The ruling continues to point out the issue of labels and how those labels create separations between groups, divisions within society and has the unintended consequence of causing harm to one group, ie, gays. Ergo, the ban is unlawful.

Wow, Skeptic1968 must really be a lawyer. He has the ability to condense 2 or 3 simple points into 12 paragraphs. Next thing you know, I'll be receiving an invoice for billable hours in the mail.

I think all of us, with the exception of Scott, are done with you too, buddy. You are obviously posting on the wrong blog. This is supposed to be about public policy questions and arguments. Not you proving how much you learned in law school.

There are plenty of legal blogs that are perfect for your endless hypothesizing.

GS,

So as an extension of the argument that you put forth that labels create separations between groups within society, what then of the argument that polygamists or those practicing incest are labeled in such a way as to cause them unintended consequences by not allowing them to marry?

If I'm a member of a polygamist cult organization, like Warren Jeffs' group in Texas, I think I could effectively argue that the marital practices of my organization are perfectly legitimate under the California Supreme Court ruling. Otherwise, I am being discriminated against by the State.

I have a question for everyone, and this is a very honest question regarding something I am quite puzzled about: Why are people so upset about polygamy?

In making arguments against gay marriage, people keep citing polygamy as though it's the reductio ad absurdum, or the terrible end of the slippery slope. Obviously the specter of polygamy has a long history in this country, being used especially against the Mormons. But I've never understood why it gained so much traction.

Is it a purely religious issue? Is it jealousy directed at men who have easy sexual access to more than one woman? Is there some visceral emotional reaction against the concept that I simply fail to appreciate? Truly, I'd like to know.

Mongo,

First, I don't believe the Court specifically ruled that same-sex couples have a right to marry. My understanding is that the ruling struck the State's ban on the grounds that its separation of S-S and opposite-sex couples into two classes created the flaw. I also think that the court's ruling allows room for a remodeling of the ban in the future, in an effort to satisfy the court's concerns. I doubt it will happen but who knows...

Second, I believe the court looked at the historical context of the S-S issue and decided (1) that since there were no surviving laws specifically banning S-S unions the State must presume that the right to choose one's partner rested with the People (in this case, gays & lesbians) and the State could not step in and usurp that right, and (2) that the law has clearly spoken on the issue of extending to the gay community all rights available to others.

With regards to the second matter, polygamy and incest have long been denied in legal tradition, since before the Constitution and it can't be said that there's no body of surviving law against those forms of union. Thus polygamy and incest are not two rights enjoyed by the People.

Now that may seem like a double standard: that being gay used to be illegal in many states so what's the difference. The difference here is that in case after case those state laws have been struck down or abandoned and the State's basically acknowledged that there's no crime in being gay. The Court's reasoned that since there's no crime in being gay then why is the State labeling gay unions in such a way as to cause them harm?

The remedy for polygamists and incest couples is to petition the Courts to strike the old laws and, if successful, insist that their own domestic unions be defined as "marriage". It may come to pass. I doubt it but who knows...

GS,

I'm just saying, there are some Mormon offshoot groups out there that believe polygamy is an inalienable right. To think that they're not going to bring their case to the forefront, I think, is being naive.

Just a thought for those who think that domestic partnership laws provide gay couples with all of the benefits and protections that marriage provides to heterosexual couples.
In the 1954 case of “Brown v. The Board of Education” the U.S. Supreme Court ruled that separate but equal is inherently unequal. I wonder how a ban on gay marriage would stand up if challenged on these grounds?

Believing you have an inalienable right to do something isn't the same as having the legal right to do it. Besides, I'm not so sure that polygamists don't have the right to marry several wives. Under the Court's recent ruling I think their unions would still be considered "marriages", as opposed to "civil unions" but they would be invalid marriages and the partners would be charged with a crime.

Brings up an interesting question. In a state that has a law making it a crime for a person to enter into multiple "marriages" is a person guilty of a crime in that state if he/she enters into multiple "civil unions"? If the CA ban on S-S marriages had been upheld, could gays have entered into polygamous partnerships that heteros could not? Would that have made gay harems acceptable under law and yet deny the same benefit to straight people?

Hey everyone,

Do you have polygamist friends? Family members?

Do you have gay friends? Family members?

Okay, case closed. Back to this court ruling then.

If you are really concerned this court ruling impacts polygamy I will sign a petition to ban the state of California from recognizing polygamy.

Anyone have a pen?

I don't think it does yet, Brian. The point is that it opens the way for a legal challenge from a polygamist group or individual. I know of several in Northern California that may be willing to put themselves out there to challenge it.

Brian,

The answers to your questions are Yes, I have polygamist friends; and No, I don't have polygamist family members; and Yes, I have gay friends; and No, I don't have gay family members. How do these answers lead to "case closed"?

I find it interesting that you are willing to sign a petition to ban the state of California from recognizing polygamy. Did you also sign the petition to ban the state of California from recognizing gay marriages? What makes one type of marriage tolerable and another so terrible that it must be outlawed?

Yeah, Brian, answer the question, why don't you?:)

Almost all of us have either gay friends and/or family members that are impacted by civil union or marriage laws.

I don't buy into the idea that gay rights will direct us onto a slippery slope where people are marrying blood relatives or multiple relatives.

If it did Mongo, wouldn't civil unions cause polygamous civil unions?

GS, no civil union laws didn't allow plural civil unions.

Sorry, but I don't think the most important part of this case worthy of discussion is polygamy.

Maybe a part, but not the most important part.

My apologies to Mongo's friends up north and dpweiner's friends.

My understanding of the court ruling had to do with identity of gay people ( a protected class like what exists based off of race or gender) unlike polygamy and it had to do with the state having separate institutions for gay people.

Little of this legal reasoning has to do with polygamy.

As this is likely to be a huge ballot battle tell all groups involved locally that I post press releases.

If you see a press release or an email about this topic, please forward it to me.

Polygamy is simply the red flag one side's waving in defense of their argument against gay marriage.
Its like the 50s admonition that rock & roll will lead to chaos.

Can I change the approach here a bit, and give my political opinion? While 61% of the voters supported Prop. 22 in 2000, I believe that 8 years later, it would be a closer vote and probably would not pass. Our Governor has stated that he would not support an initiative that would challenge the Supreme Court's decision.
Voters are largely focused on the war and the economy and probably do not have gay marriage near the top of their list of most important issues.
However, conservatives will use the initiative to help turn out their vote in November, when they might have been inclined to stay home without an evangelical candidate at the top of the ticket.

50% of all marriages between a man and a woman end in divorce in California and the victims are the children. With a 50% divorce rate I don't see any sanctimony in marriage anymore so I see little reason to say two people of the same sex should not be allowed to marry. Like I said, the government should keep their nose out of other peoples business when love is involved.

Yeah, I guess another way to look at it would be why shouldn't the gays be as miserable as the rest of us.