Proposition 8 Ruled Unconstitutional
Yesterday the 9th US Circuit Court of Appeals affirmed the prior ruling by US District Court Chief Judge Vaughn Walker that Proposition 8, which took away the right of same-sex couples to marry in CA, was unconstitutional. (Read the decision here.)
Money quote:
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” [Romer v. Evans, 517 U.S. 620, 633 (1996)
Context: In California, state law extends the (state) benefits of marriage to same-sex and opposite-sex couples alike. Hence the grounds for this decision.
This is a narrow ruling: the court said it WOULD have taken up the broader question of a “right” of same-sex couples to marry legally, but chose to stick closely to the specific question at hand: “Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the court. (Sweatt vs. Painter, 339 US 629,631 (1950).”
The narrowness of the ruling is good news and bad news for proponents of civil same-sex marriage: on one hand, since it is predicated on the state granting equal benefits to same-sex and opposite-sex couples and denying them only the word “marriage,” it won’t be helpful in arguing for civil recognition in states where that’s not the case. On the other hand, the narrowness of the ruling seems to make it at least conceivable that the US Supreme Court might decline to review this decision. Opponents of same-sex marriage might pursue a full-panel re-hearing before 11 judges, or appeal directly to the Supreme Court.
Intriguingly, while the USCCB and the CDF spoken forcefully against civil recognition of same-sex unions, the decision, arguably, echoes the teaching of the Catechism regarding gay people: “They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.” (CCC 2358) To allow couples to enjoy all the benefits and responsibilities of marriage but to deny them the use of the word, does seem to single them out unjustly.
Same-sex marriage remains on hold pending a decision from Prop 8 proponents about whether to appeal (and to whom.) But this is a powerfully consoling moment for many:
It brings you to tears,” James Pearman, 60, of Daly City, said at a rally outside the Seventh Street courthouse after the ruling was announced. “You know that you are equal. You know that you have rights, that children (of gay parents) will have rights.
And this just in: both houses of Washington state’s legislature have voted to approve same-sex marriage in that state. The governor plans to sign the legislation. Opponents may launch a signature drive to force a referendum this November.
Opponents of same-sex marriage who take refuge in narrowly decided referenda rejecting same-sex marriage should be careful what they wish for. Polling data are trending steadily toward approval of same-sex marriage: soon the referenda are likely to tilt the other way.
I was glad to read the verdict. Some have said this nullifies the wishes of the majority of voters in California but there are times when a minority must be protected from the majority by the courts …. if this were not the case, inter-racial marriages, for example, would have remained illegal much longer – Loving v. Virginia. There was a past article on this subject written by Kermit Roosevelt (Teddy’s great-great-grandson) who teaches law at the University of Pennsylvania’s law school ……
“Regardless of where you stand on same-sex marriage, what’s troubling for US citizens in the California case is the idea that an equality guarantee could not be effectively enforced against the will of a majority. The point of such a guarantee is precisely to protect minorities from discrimination at the hands of a majority.”
And at any rate, if the proposition banning same-sex marriage was up for a vote today in California, it wouldn’t pass.
The idea that “protection of a minority” involves the issuing of marriage licenses is kind of comical.
Carlo-
So a law declaring Catholic marriages null and void wouldn’t be an attack on the Catholic minority?
Or a law declaring interracial marriages null and void?
In the end, in this society, the high priests in the black robes get the last word. They get to interpret the holy scriptures – nobody else. And the holy scriptures are vague enough to make it a crap shoot.
That’s the way we’ve decided to do it. We don’t want to talk it over among ourselves because, one, we just end up shouting at one another, and, two, it wouldn’t matter what we decided, because the high priests in the black robes could always overrule us if they felt like it.
The law merely prevented a mandatory buy-in to groupthink on the part of every citizen.
Please, put that old inter-racial marriage herring away; it really smells.
The fact of the matter is that the people (society) have a right to organize themselves as they prefer.
The majority of Californians initially passed legislation defining marriage as being between one man and one woman. They CA supreme court declared that law violated the CA state constitution.
Accordingly, Californians amended their state constitution via Prop-8, which set the traditional definition of marriage into the state constitution.
While the CA state supreme court has held that so amending the state constitution is constitutional, the 9th-Circuit court of schlemiels says it is unlawful to amend the state constitution. The 9th-circuit court is the most overturned court in the land and not a few of its judges are held in low regard as cranks.
This will go to the US supreme court and Prop-8 will stand.
Ken-
The people of California do not have a right to organize themselves in any way they prefer. They cannot interfere with the free exercise of religion, engage in unreasonable searches and seizures, engage in cruel and unusual punishment, enact slavery, deny women the ability to vote, or deny its citizens the equal protection of the law.
When I hear news like this I think of the “Canticle of the Turning” which we sing occasionally at Newman Hall here in Berkeley: Let the fires of your justice burn!
http://www.youtube.com/watch?v=TXyGh1MW2OM
You are correct Cupcake and I should have qualified that:
The fact of the matter is that the people (society) have a right to organize themselves as they prefer – provided of course (if they happen to be part of the USA) that they observe the US federal Constitution.
It is an important point; in order to be part of the USA, all of the states must observe the federal constitution.
The US Supreme Court will decide if Prop-8 is in accord with the US Constitution, probably within a year or so. Most likely the court will say Prop-8 is OK.
If the court says it is not, then other states marriage laws will need to change as well. Before that happens however, advocates for traditional marriage would likely start the process of amending the US (national) Constitution so as to clearly spell out the traditional definition of marriage, effectively outlawing gay marriage nationwide. The individual states would vote on the amendment and if it passes, that should settle this matter for a long time.
@Ken – I’m not sure why you refer to the example of interracial marriage as a red herring. If “people (society) have a right to organize themselves as they prefer”, then why do they not have a right to ban interracial marriage? In fact, California state law did prohibit interracial marriage–up until 1948 when the California Supreme Court held that ban to be unconstitutional. Did the California Supreme Court act wrongly in denying the people of the State of California the right to organize themselves as they preferred? Note that this was almost 20 years before the U.S. Supreme Court issued its decision in Loving v. Virginia.
William, you may have missed my correction:
“The fact of the matter is that the people (society) have a right to organize themselves as they prefer – provided of course (if they happen to be part of the USA) that they observe the US federal Constitution.
It is an important point; in order to be part of the USA, all of the states must observe the federal constitution.”
Regarding interracial marriage (per map on Wikipedia; a bit hard to read); 5 or 6 states never had laws regarding that, 9 or 10 states repeal their laws prohibiting it before 1887, 14 states repealed bans on interracial marriages between 1948 and 1967, and Texas, the Carolinas, and the traditional South (looks like 16 states) repealed them as a consequence of Loving vs. Virginia in 1967. It took 191 years, from 1776 to 1967 before the supreme court determined that bans on interracial marriage violated the deferral Constitution. By then (1967), most states (looks like about 34 from the graphic) had already done away with laws prohibiting interracial marriage. Essentially the thinking on the matter had changed over 190 years and in 1967 the Suprme Court affirmed what most states had by then already done.
Currently 7 states allow gay marriage, and 43 do not. Some 35 states have either legislation or constitutional language outlawing it.
Add to this that while being black or any other race for that matter is normal; quite different from being a homosexual. Regardless of what psychiatrists and other so-called experts think, many average Americans consider homosexuality to be an abnormality, like alcoholism; a disorder. Nobody looks at their five year old son or daughter and wishes them to be saddled with homosexual tendencies as they grow up. No parent says; ”Oh I do hope little Johnny is gay when he grows up”.
That brings us back to a representative government we have in America. Even when the majority of voters do not agree with “experts”, the majority still gets to have the say-so. Why? Because we do not live in a nation ruled over by technocrats and experts; this is not a fascist nation or a technocratic utopia.
The people, the voters of this nation will decide this and most likely, as I outlined earlier, it will be settled for now either via the US Supreme Court that allows state by state bans on gay marriage to stand, or by an amendment to the federal Constitution banning it.
For now anyway.
Since ours is a dynamic society, in time, if enough states do as Washington is doing, if the majority of the states come to think that bans on gay marriage should be repealed, then the US supreme court will no doubt take another look at this matter.
I think that the state ought to confer certain rights on people who live together, who may or may not be in a sexual relationship and may or may not be of the same sex. I think that’s a natural Common Good right that simply flows from living together and sex doesn’t come into it.
On the other hand, same sex relationships, whatever benefits they may have and whatever rights they ought to enjoy, and I think they can be beneficial and they ought to enjoy certain rights, are simply not marriage because of themselves they simply are not the kind of relationship which begets children.
The state has a Common Good Social Justice interest in this because the state has an obligation to our children.
God Bless
@Ken – You do not seem to be aware of the legal history behind antimiscegenation laws in this country, or else you are deliberately ignoring that history. The U.S. Supreme Court upheld antimiscegenation laws as constitutional in 1883 (Pace v. Alabama, 106 U.S. 583). Both before and after 1883, state antimiscegenation laws were upheld as constitutional by state and federal courts.
Here is my question to you: Given that the U.S. Supreme Court had ruled in 1883 that state antimiscegenation laws were constitutional, was the California Supreme Court right to strike down that state’s validly-enacted antimiscegenation law in 1948 as being unconstitutional?
You claimed earlier that the example of interracial marriage was a red herring. In my experience, people who claim that are usually aware, uncomfortably so, that they cannot reconcile their views on the propriety of courts striking down laws prohibiting interracial marriage with their views on the propriety of courts striking down laws prohibiting same-sex marriage.
Jim Jenkins,
Thanks for the song – I’d not heard that before :)
William; the point is that only after the individual states had gradually lifted bans on interracial marriage did the US Supreme Court come to see that those bans went against the national Constitution.
Interestingly enough, the graphic I was looking at regarding this categorized the states as:
- Those states that never had bans on interracial marriage
- Those that repealed their antimiscegenation laws prior to 1887
- Those states that repealed their antimiscegenation laws between 1948 and 1967
- Those states that needed to repeal them after the US Supreme Court decision of 1967
This highlights a gradual evolution of thought/opinion on the matter.
Accordingly, while I tried to explain to you why I do not think one can directly compare interracial marriage to gay marriage, applied the notion of a gradual evolution of opinion to bans on gay marriage.
While 43 of states do not allow gay marriage, seven do. With time, this may or may not change. Unless we get to the point where the number of states that have legalized gay marriage outnumbers those that still have bans on it, I doubt if the US supreme court will come to the conclusion that individual states’ laws against gay marriage are against the national Constitution.
As to your question, I think you are looking at it incorrectly. Chances are the US Supreme Court came to the conclusion that Virgina’s, and the minority of other states’ antimiscegenation laws were contra the federal constitution, precisely because California and so many other states (the majority of states) had by then already decided to allow interracial marriage.
Ken you keep shifting your ground. The people are speaking up more and more in favor of gay marriage and even aged Catholic theologians are swinging that way. Even if the Supreme Court does not uphold — as you think they will — the unconstitutionality of banning gay marriage, the people will move anyway. http://www.youtube.com/watch?v=UiGmgqW6ES8&feature=youtu.be
Or rather, Ken, you think the Supreme Court will not uphold the unconstitionality of a gay marriage ban UNTIL a majority of States have gay marriage. I do not know enough about American legal history to know if their is any substance in this claim. I am wondering how many States had slavery when it was abolished.
[...] post on Commonweal caught my eye yesterday and led me to do a little digging into an old friend. [...]
From Wikipedia, the free encyclopedia
The American Civil War (1861–1865), also referred to as the War Between the States, was a war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America (“the Confederacy”); the other 25 states supported the federal government (“the Union”). After four years of warfare, mostly within the Southern states, the Confederacy surrendered and slavery was outlawed everywhere in the nation. . . .
Interestingly enough, after the South lost the Civil War in 1985, several thousand Southerners emigrated to Brazil, where slavery was still allowed until 1888. Their descendants are known today as “Los Confederados”
http://en.wikipedia.org/wiki/Confederados
Oops – I meant to post my comment too, not just cut/paste from Wiki –
When slavery was outlawed in the USA – in 1865 (not 1985 – ??) – there were eleven slave states (in the South) and 25 free states (North), which is to say that of the existing 36 states, 11 allowed slavery.