erikred: (Default)
[personal profile] erikred
California Supreme Court overturns gay marriage ban

Hopefully the fundies will fail to get their Amendment through in November, but at least until then, go gay marriage.

Date: 2008-05-15 07:09 pm (UTC)
ext_8707: Taken in front of Carnegie Hall (picassohead)
From: [identity profile]
I wonder if the amendment would even pass legal muster after this decision.

Date: 2008-05-15 07:17 pm (UTC)
From: [identity profile]
The court said that banning gay marriage was "unconstitutional." One would expect a successfully-passed amendment to change that, by definition.

Date: 2008-05-15 08:17 pm (UTC)
From: [identity profile]
An excellent question, and one that ultimately boils down to States' rights and the rules of precedence. Since this was a State Supreme Court decision based on the State Constitution, an amendment to that constitution does not need to meet the test for legality under the previous set of laws. It does, however, have to be legal under the Federal Constitution, but since the Federal Constitution allocates decisions concerning marriage to the States, there is no Federal jurisdiction here to consider.

If, however, California were to pass a constitutional amendment legalizing slavery, this would be in direct conflict with the 13th Amendment to the US Constitution and would therefore be invalid.

Date: 2008-05-16 02:17 am (UTC)
tagryn: Owl icon (Default)
From: [personal profile] tagryn
It'll be interesting to see how long banning recognition of poly marriages survives after this. It would be the next logical extension: if banning marriage based on one distinction like sexual orientation is illegal, can banning it based on other distinctions like number of partners hold up for long? The precedent has been set.

Eventually this'll all probably lead to getting government out of the business of recognition of marriages at all; it'll just be too messy a business, with too much litigation involved.

Date: 2008-05-16 04:05 pm (UTC)
From: [identity profile]
"The precedent has been set."

No, it has not. The precedent for marriage as defined as a contract between two consenting adults has been set. The entire issue of polygamy is an entirely different and uncharted territory, and a rational society can make the distinction without crossing its eyes.

Date: 2008-05-16 05:24 pm (UTC)
tagryn: Owl icon (Default)
From: [personal profile] tagryn
Yes, it has. The ruling sets the precedent that the government can't continue to violate equal protection (regarding a citizen's right to marry) on the basis of a citizen's sexual orientation. The defense that orientation involves sex of partners but not number of partners is, at best, an arbitrary cultural distinction that doesn't have the preponderance of scientific evidence needed to hold up in court.

On page 79, footnote 52 of the ruling, the ruling states that "We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships. Past judicial decisions explain why our nation’s culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry."

That's just begging for a challenge under the equal protection clause as well. As I recall, the 'culture' a decade or so back also thought that gay marriage would be 'inimical to (the) mutually supportive and healthy family relationships,' so trotting out the 'popular will of the culture' argument here as a justification to continue this particular form of discrimination is a weak board of timbers indeed. Heck, one of the major underlying points of the ruling is that society doesn't get a vote when it comes to who-gets-what-rights; by virtue of being a citizen, the equal protection of the law applies to all...which therefore should include whether one is oriented towards monogamy, polygamy, etc. It is too bad the courts fumbled that part of the ruling, but there's always next time.

The door's been opened, it's just a matter of litigating through to the ruling's logical conclusion. Again, I think all this will result in the government's being forced to get out of the marriage-recognition business, and I'm putting together a post for my LJ that'll lay out what the ramifications of that would involve. Interesting times, indeed...

Date: 2008-05-16 06:37 pm (UTC)
From: [identity profile]
In order for bigamy, polygamy, and incest to qualify under the Equal Protection Clause, they would first need to be not illegal under California Penal Code (Sections 281-289). Come back to me when that happens.


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Erik, the BFG

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