Tuesday, May 26, 2009

California Court Rules Against Marriage

The state Supreme Court on Tuesday upheld a voter-approved ban on same-sex marriage, but also decided that the estimated 18,000 gay couples who wed before the law took effect will stay married.

The 6-1 decision written by Chief Justice Ron George rejected an argument from gay-rights activists that the ban revised the California constitution's equal protection clause to such a dramatic degree that it first needed the Legislature's approval.

The court said the people have a right, through the ballot box, to change their constitution.

"In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling said. Calif. high court upholds gay-marriage ban


Anonymous Anonymous said...

The court rules to protect the rights of 10% of Americans to vote.

A lot of good people are very happy tonight.

May 26, 2009 6:15 PM  
Anonymous Anonymous said...

"The 6-1 decision"

does anyone know who the one idiot on the California Supreme Court is?

May 26, 2009 11:20 PM  
Anonymous not dazed and confused said...

"California Court Rules Against Marriage"

au contraire

the court voted to uphold the definition of marriage

how is that "ruling against marriage"?

let's say some people said the definition of Jim Kennedy includes all the kangaroos in Canadian zoos

if some court then ruled that kangaroos aren't part of the definition of Jim Kennedy, would that be "ruling against" Jim Kennedy?

think about it

when you're not stoned

May 26, 2009 11:27 PM  
Blogger JimK said...

It's not too hard, Anon, this ruling reduces the scope of marriage and makes a large number of people who would otherwise marry and start a home and family ineligible for it. If they had ruled the other way, everyone could marry the person they love in the state of California. Now they can't, because the court has ruled against marriage.

And given your example it is not clear that you would know what it would be like to "think about it" "when you're not stoned."


May 26, 2009 11:53 PM  
Anonymous Anonymous said...

what are you doing up so late, man?

May 26, 2009 11:55 PM  
Anonymous Derrick said...

Justice Moreno’s dissent:

"The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent."

May 27, 2009 12:51 AM  
Anonymous Anonymous said...

you have to wonder how an idiot like that winds up on a state Supreme Court

May 27, 2009 4:51 AM  
Anonymous Anonymous said...

here's a hint:

he's the only member of the court appointed by Gray Davis

you remember Gray

he's the governor that was so bad that the voters of California got together and had a referendum to throw him out of office and replace him with Ahnold Schwarzenegger

in other words, Moreno is an idiot accident

May 27, 2009 5:32 AM  
Blogger Unknown said...

“the court voted to uphold the definition of marriage”

Not the definition, your definition.

What was defined, however, was the inferiority of certain US citizens.

Further, like the CRW’s signature gatherings, virtually all, if not all of these anti-gay amendments, have been won through the use of lies, and are therefore fraudulent, at least on an ethical level.

It takes a puny mind to think it has the right to force others to adhere to its thoughts about them.

May 27, 2009 5:55 AM  
Anonymous Robert said...

It seems Anonymous is so happy that he had to go and get another pair of Depends.

May 27, 2009 6:39 AM  
Anonymous David S. Fishback said...

This was a tough legal call for the California court. The issue was not same-sex marriage, but what kinds of changes to the State Constitution required what kinds of procedures. If a change is fundamental to the State Constitution, then it must start with approval by the state legislature -- which did not occur re Prop 8. But if the change is not fundamental to the State Constitution, then the legislature does not have to approve.

Here, the Court apparently concluded that the involvement of the legislature is only required when the proposed amendment would alter the basic framework of state government. That three of the four justices who had earlier voted that the state's equal protection clause meant that marriage rights could not be denied to same sex couples now ruled that Prop 8 did not have to go through the legislature is not surprising. Indeed, while Justice Moreno's dissent is interesting, his colleagues probably have the better of the argument -- which is all about the structure of the state constitution, not about equal rights.

The most significant part of the decision is the upholding of the same sex marriages that already took place. Because Prop 8 did not explicitly assert retroactivity, the Court correctly upheld the marriages, because they were valid when made.

So now the contradictions are heightened. 18,000 gay couples were married, and no one can show how those marriages damaged anyone else's marriages. The issue assuredly will be presented to the voters again, and this time proponents of equal marriage rights won't be surprised and blindsided by big-moneyed interests.

Time is not on the side of those who would deny people equal rights. Next time, full civil marriage equality will win. The more people learn about same-sex attraction, the more they understand why discrimination is unnecessary and wrong. Most Americans are fair minded people -- and they eventually get it right.

May 27, 2009 7:40 AM  
Anonymous Anonymous said...

"Indeed, while Justice Moreno's dissent is interesting, his colleagues probably have the better of the argument"

That would be the understatement of the year.

"Because Prop 8 did not explicitly assert retroactivity, the Court correctly upheld the marriages, because they were valid when made."

Oops! Looks like we need another proposition.

"Time is not on the side of those who would deny people equal rights. Next time, full civil marriage equality will win."

Actually, gays have the same right as everyone else to propose marriage to a member of the opposite gender.

Great article in the Post this morning about the dim prospects for gay "marriage" outside the Northeast.

Thirty states have constitutional amendments forbidding this redefinition of marriage and even the most liberal President of all time is opposed.

Good luck with that, gays!

Oops! I meant:

Good luck with that, guys!

May 27, 2009 8:40 AM  
Blogger Unknown said...

Thanks David, that was enlightening.

May 27, 2009 8:54 AM  
Anonymous Anonymous said...

I'll even pay for the extra Depends.

May 27, 2009 9:27 AM  
Anonymous Derrick said...


Just becuase there is a minor detail in CA doesn´t mean that your anti-marriage friends are winning, in fact-- you´ve already lost.

Pro-equality groups are changing the hearts and minds all over the country and the world. When this is back on the California´s ballot next year, you´ll see that.

May 27, 2009 1:17 PM  
Anonymous David S. Fishback said...

Anon writes:

“Actually, gays have the same right as everyone else to propose marriage to a member of the opposite gender.”

This time I am not going to quote T.S. Eliot, but rather Anatole France, who wrote in the 19th Century that "The law in its majesty equally forbids the rich and the poor to sleep under the bridges of Paris.”

May 27, 2009 1:58 PM  
Blogger Priya Lynn said...

Bad anonymous said “Actually, gays have the same right as everyone else to propose marriage to a member of the opposite gender.”.

They have that right, but they do not have equal rights. John can marry Alice, but Debby does not have the same right he has to marry Alice. Alice can marry John but George does not have the same right to marry John that she has - that's sex discrimination and its wrong. What you're saying is equivalent to the idea that slaves had equal rights because both whites and blacks had the same right to eat food.

May 27, 2009 2:07 PM  
Blogger Priya Lynn said...

Bad anonymous said "A lot of good people are very happy tonight.".

A lot of ignorant and evil people are happy, but the good people are all saddened by the delay of justice.

May 27, 2009 2:08 PM  
Anonymous Anonymous said...

the same restriction applies to everyone

gay Adam can't marry gay Clay

but neither can straight Kris

everyone has the same rights

here's how the gay guy was thwarted on American Idol:

"New evidence pin-points AT&T as the culprit behind Kris Allen's 'American Idol' victory, N.Y. Times reports.

During the final performances, the mobile company provided phones for Kris Allen fans to cast blocks of votes.

There appear to have been no similar efforts to provide this service to supporters of runner-up Adam Lambert.

Last week, AT&T representatives, whose mobile phone network is the only one that can be used to cast 'Idol' votes, provided the free services at two parties in Arkansas after the final performance episode.

During the event, the representatives provided instructions on how to send "power texts," which send 10 or more text messages at one time.

According to sources, the power texts have an "exponentially greater effect on voting than do single text messages or calls to the show's toll-free phone lines."

Officials of Fox Broadcasting declined to comment.

In a statement issued Tuesday, a spokesman for AT&T said, "In Arkansas, we were invited to attend the local watch parties organized by the community. A few local employees brought a small number of demo phones with them and provided texting tutorials to those who were interested.""

in the words of Todd Rundgren:



we need

just one victory

and we'll be on our way

May 27, 2009 2:34 PM  
Anonymous Anonymous said...

"Pro-equality groups are changing the hearts and minds all over the country and the world."

read the Post this morning

there's a great article on the lousy outlook for pro-lunacy groups

California is leading the nation to roll back the gay agenda

May 27, 2009 2:37 PM  
Anonymous Robert said...

Proposition 8 and California are the anti-marriage movement's Stalingrad.

May 27, 2009 3:40 PM  
Blogger Priya Lynn said...

Bad anonymous said "the same restriction applies to everyone gay Adam can't marry gay Clay but neither can straight Kris everyone has the same rights".

Wrong. Alice can't marry Jane, but Ted can marry Jane. The same restrictions do not apply. That is sex discrimination - men and women don't have the same rights, that's unjust.

May 27, 2009 3:49 PM  
Blogger Priya Lynn said...

As the California supreme court said when it overturned prop 22 - A right which is of no use to you is no right at all.

Once again, just because you point out that a group has some of the same rights as another group does not mean that group has all of the rights of the other group. I.E. just because slaves had the right to eat food and sleep doesn't mean they had equal rights to whites.

May 27, 2009 3:55 PM  
Blogger Unknown said...

“just because slaves had the right to eat food and sleep doesn't mean they had equal rights to whites.”

To paraphrase a famous quote:

All men are created equal, but some men are created more equal than others.

May 27, 2009 4:01 PM  
Anonymous Derrick said...

Take a look at the San Francisco Chronicle from yesterday, AnonBigot... and you will be proved wrong, once again.

¡Pura vida!

May 27, 2009 4:54 PM  
Anonymous Derrick said...

May 26, 2009

Prop. 8 Challenge Filed in Federal Court

By Andrew Harmon

In a bold move that takes a new approach to achieving marriage equality, two attorneys who argued opposing sides of the 2000 Bush v. Gore lawsuit before the U.S. Supreme Court have filed a challenge to Proposition 8 in federal court, The Advocate has learned.

Theodore B. Olson, the U.S. solicitor general from 2001 to 2004 under President George W. Bush, and David Boies, a high-profile trial lawyer who argued on behalf of former vice president Al Gore, filed the suit May 22 in U.S. district court on behalf of two California gay couples.

The attorneys argue that relegating same-sex couples to domestic partnerships instead of granting them full marriage rights is a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution.

Olson said he was contacted several months ago by representatives of an association called the American Foundation for Equal Rights about his willingness to represent the two couples named in the suit.

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court “make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.”

Olson, Boies, and other attorneys working on the suit are being compensated by the American Foundation for Equal Rights, Olson said his law firm and others also are contributing resources pro bono. As of press time, no website could be found for the newly formed organization. Olson and his representatives declined to specify who was funding the campaign.

The plaintiffs in the suit are Kristin Perry and Sandra Stier of Berkeley, Calif., and Paul Katami and Jeffrey Zarrillo of Burbank, Calif. Perry is executive director of First 5 California, a state health and education agency.


May 27, 2009 9:01 PM  
Anonymous Anonymous said...

how about that suit filed in federal court todya that gays should stop saying they're married in California so traditional marriage will receive equal protection under the law?

May 27, 2009 9:25 PM  
Anonymous Anonymous said...

Turns out that seven or eight major LGBT groups, including Lambda Legal and the HRC, are asking gays not to take this to federal court. Interesting.

May 28, 2009 9:37 AM  
Anonymous Anonymous said...

Were you born yesterday, "Anonymous"?
Given the makeup of the current Supreme Court, there is pretty strong evidence that any decision affirming equal rights of GLBT citizens will not be forthcoming.(what?? do you mean we actually have GLBT people who live in the U.S.A. who consider themselves citizens? Shocking!!) After all, where in the Constitution do you find any specific references to GLBT individuals? So much for your idolized "strict constructionism" views of human rights. And you want to talk about "activist judges"?

May 28, 2009 9:52 AM  
Anonymous David S. Fishback said...

Actually, given the tenor of Justice Kennedy's decision in Lawrence v. Texas, there may well be five votes on the Supreme Court to support the Olson/Boies position.

The dispute, I suspect, is more over the question that has bedeviled supporters of reproductive rights over the years. Many pro-choice people have argued that the political process was producing an increasing number of states in which reproductive rights were respected, and that that an increasingly solid majority was, in the early 1970s, in favor of such rights (as is still the case today). The historical argument is that the issuance of Roe v. Wade in 1973 short-circuited that societal evolution, and created a rallying-cry for those opposed to reproductive rights: That unelected judges had contradicted the will of the majority in states that had not yet changed their laws. So, the argument goes, if Roe v. Wade had not been decided in 1973 -- or had been decided much later -- the later argument about reproductive rights would not have been as virulent as it has been.

That is an interesting argument, and it does have merit. I do not know that I am persuaded by it. Rights are rights. And the tactical argument suggested above clearly would have been awful if it had been applied to Brown v. Board of Education.

I tend to think, however, that it may be best to achieve more state level victories (including a referendum in California in 2010) before resorting to the U.S. Supreme Court. For a very interesting discussion of the issue, check out this article in this morning's New York Times:


May 28, 2009 12:24 PM  
Anonymous David S. Fishback said...

Full NY Times link:


May 28, 2009 12:26 PM  
Anonymous Anonymous said...

David, Jim and all others who read this site because they are concerned with human and civil rights: I recommend an extraordinary entry on Pam's House Blend today: http://www.pamshouseblend.com/diary/11185/olson-and-boies-go-on-media-rounds-to-discuss-the-federal-marriage-lawsuit

Very interesting and helpful to see the arguments pro and con about the lawsuits that are cropping up in response the the California decision.

May 28, 2009 12:46 PM  
Anonymous David S. Fishback said...


Thanks for the heads-up on the Pam's Blend post.

May 28, 2009 5:29 PM  

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