Thursday, October 05, 2006

Marriage Back to Golden State Lawmakers

There must be a law enabling same-sex marriage in California for it to be okay, ruled the First District Court of Appeal today in San Francisco.

The case was the appeal of a March 2005 San Francisco Superior Court Judge Richard Kramer's ruling that the ban violated the equal treatment laws and regulation. Instead, today's 2-1 decision was, "We conclude California's definiton of marriage does not deprive individuals of a vested fundamental right or disriminate against a supect class."

This parallels the very odd Washington State ruling that rejected a large body of evidence on homosexuals as a legaly supect class worthy of protection.

As other timid (very clearly not activist) courts have ruled in New York and elsewhere, these three judges want the legislature to take the blame. As the ruling puts it, "The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat."

We'll track down the 128-page opinion and digest it.

Predictably, Marriage Equality USA promises to take it upstream. "We believe that the California Supreme Court will enforce the constitutional guarantee of equality under the law and strike down the discriminatory barriers denying same-sex couples access to civil marriage," said Spokeswoman Molly McKay.

The city of San Francisco will appeal, said City Attorney Dennis Herrera.

Dissenting Justice J. Anthony Kline claimed the ban violates both personal privacy rights and automony. He compared with interracial marriage bans, struck down by the state's high court 58 years ago. That set off a national debate and series of marraige equality laws and decisions.

He found that a DOMA definition of marriage excludes a class by sexual orientation. He wrote that it "demeans the institution of marriage and diminishes the humanity of the gay men and lesbians who wish to marry a loved one of their choice."

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13 comments:

Ryan Adams said...

here's hoping we'll win as it works its way up.

it would be nice to be able to get married in a second state... /sigh

Laurel said...

And of course the irony is that the Cal legislature did pass a marriage equality bill this year, only to have Schwartzeneggar veto it. He, not wanting to be blamed for fairnes and equality in his state (what a girlie-man wuss!), stomped on the Republican 'activist judges' mantra and said the courts should decide.

Mass Marrier said...

Yeah, old Arnie said then the courts were the place to settle it. Any gay, anti-SSM folk in states where the courts decide say its for lawmakers and conversely.

Give it a rest. We have representative government, allegedly. Schwarzenegger was so off-base in that veto, I can only hope the high court there jumps all over him in their decision.

Blue-Xela said...

The issue is such a hot potato. Where is the other active state supreme court case, Maryland? It seems like Maryland is the last state judicial branch that hasn't deferred marriage equality back to the legislative or rejected it outright ... only because they'll side with us AFTER congressional elections, so as not to grease the right-wing-hateful-election machine. That's my hope of course. C'mon Maryland!

Laurel said...

Blue-Xela, a marriage suit is also still pending in NJ. Ruling expected very soon.

On Lawn said...

Laurel: He, not wanting to be blamed for fairnes and equality in his state (what a girlie-man wuss!), stomped on the Republican 'activist judges' mantra and said the courts should decide.

I believe Arnold's statement was that it was between the people and the judges, which is the position given by the constitution. When the people speak, the legislature is not allowed to over-rule. The judges might, but not the legislature.

Besides, that bill was seedy to begin with and was voted down twice that year before they played legislative chicanery to resurect it a thrid time.

MM: We have representative government, allegedly. Schwarzenegger was so off-base in that veto, I can only hope the high court there jumps all over him in their decision.

Aside from the ignorance this statement shows towards the matter, I'm not sure what you know about the Democracy we have in the USA. Is there any state or federal statute that says the court can over-rule a veto?

You really run an interesting site here...


BTW, I came over to let you know I included some of your rhetoric in our latest post on this matter.

Xrlq said...

"And of course the irony is that the Cal legislature did pass a marriage equality bill this year, only to have Schwartzeneggar veto it. He, not wanting to be blamed for fairnes and equality in his state (what a girlie-man wuss!), stomped on the Republican 'activist judges' mantra and said the courts should decide."

Wrong. He rightly noted that the bill violates Propostion 22, and is therefore unconstitutional unless Prop 22 itself is, in which case the bill is unnecessary. He didn't say the courts SHOULD decide these matters, he merely noted that the courts WERE in the process of doing so, and that it made little sense to muddy the waters further by signing a bill which, depending on the outcome of the case in question, would either be redundant or unconstitutional.

"Give it a rest. We have representative government, allegedly. Schwarzenegger was so off-base in that veto, I can only hope the high court there jumps all over him in their decision."

Huh? Last time I checked, Schwarzenegger is part of that representative democracy. Since when do courts review vetoes, anyway? That makes about as much sense as asking the court to enact a statute that the legislature did not pass, but would have passed if only more legislators had been a little more enlightened.

Mass Marrier said...

For Arnie, actually several times before his veto, he stated that he wanted the courts to decide this. It was after the veto that he avoided the issue by saying it was then in the courts.

Proposition 22 amended the Family Code. It can be challenged in court on a variety of legal bases, as well as overturned by the legislature. That's California law, and typical of most states.

We'll try to get to the whole recent decision soon. We have been away.

Xrlq said...

"For Arnie, actually several times before his veto, he stated that he wanted the courts to decide this. It was after the veto that he avoided the issue by saying it was then in the courts."

Source, please?

"Proposition 22 amended the Family Code. It can be challenged in court on a variety of legal bases, as well as overturned by the legislature. That's California law, and typical of most states."

Wrong again. Can't speak to "most states," but in California, initiative statutes cannot be amended or "overturned" (I think the word you're looking for is "repealed") by the Legislature without a popular vote. The only exception is where the initiative specifically provides that it can be amended or repealed by the Legislature (very few initiatives do, and Prop 22 is no exception). The California Constitution (more specifically, Art. 2, Sec. 2(c), but who's counting?) is very clear on that point.

Mass Marrier said...

As to Arnie and the courts, the AP reports on September 8, 2005, everywhere, was one of the times. There were several before when he didn't even include mentions of the initiative.

We're not in the business here of doing homework for quibblers. You can slice things as finely as you want and it still doesn't change the intent and subsequent realities. Don't look here to push this or that "refinement" or rephrasing.

Yes, the legislature can make a law that conflicts with and supersedes an initiative. Also, if you nose around here, you'll find that we are in the camp that finds ballot initiatives much abused. They are like law suits, in which people can sue for almost anything. An initiative can pass that courts rule violates various laws and constitutions. One can pass that a legislature changes.

The smugness of we-passed-an-initiative-so-there is part of the process and larger picture. Initiatives are not absolute, even in California.

You are welcome to make your points on Opine.

On Lawn said...

You are welcome to make your points on Opine.

Everyone is welcome to make their points on Opine.

As to Arnie and the courts

As to Arnold and the courts, it would be wrong to say that Arnold doesn't want the people to have their say in the matter. It would be wishful thinking at best to assume the legislature was representing the people in their gyrations over AB 849 of that year.

Here's the quote from Arnold on the Tonight show with Jay Leno,

--`Leno then asked Schwarzenegger if he would mind if the courts ruled gay marriage legal, and the governor said: "No, I don't have a problem."

`"Let the court decide," Schwarzenegger added. "Let the people decide. The people have voted just in the last election on Proposition 22. They voted very clearly that marriage is only between a man and woman. That's the law, so we have to abide by the law."'

Don't look here to push this or that "refinement" or rephrasing.

Intellectual honesty demands more integrity and honesty in how you quote others. You re-telling of the story is a dishonest refinement and rephrasing of what Arnold said.

Yes, the legislature can make a law that conflicts with and supersedes an initiative.

As much as the legislature can make any unconstitutional law, I suppose. But you should check yourself before you wreck yourself advocating unconstitutional behavior for a legislature.

Initiatives are not absolute, even in California.

False dichotomy. They may not be absolute, but they are out of the reach of repeal by law makers without direct consent from the voters. At least the from the standpoint of the CA constitution.

Mass Marrier said...

That's close to true, but with some key ifs, like if the initiative has language permitting and so forth. We're not going to play. We concede that California has made it harder to reverse even unfunded mandates, but not made it impossible.

Unless something new occurs, this is dead here.

Anonymous said...

Mass Marrier:

in California, if the legislature makes a law which conflicts with an initiative, and the initiative does not in and of itself grant permission for that, the courts are bound by the Constitution to invalidate the law.

Statutory initiatives outrank legislation.

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