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Proposition 8 Ruling: Separate and Unequal
The marriage rights of Californians now fall into three categories. Heterosexual couples have access to all rights, responsibilities - and the name - of marriage. Gays and lesbians who were married between May 15 and Nov. 4 can remain so - but cannot remarry in the event of death or divorce. And all other gays and lesbians are prohibited by law from marrying the partner of their choice.
There is a word for this type of unequal treatment:
Discrimination.
The state Supreme Court ruled Tuesday that California voters had the authority to pass a constitutional amendment (Proposition 8) that declared, "Only marriage between a man and a woman is valid or recognized in California."
In reading the opinion, it was almost hard to imagine that it was produced by the same court that so eloquently affirmed the principle of marriage equality in May. Chief Justice Ronald George, then writing for the majority in a 4-3 ruling, had declared that all Californians should enjoy "a fundamental constitutional right to form a family relationship."
The latest ruling focused on more technical legal issues, namely whether Proposition 8 represented an "amendment" to the constitution (permissible through the initiative process) or a more substantial "revision" that could be put to voters only through a constitutional convention or a two-thirds vote of the Legislature.
Curiously, the conclusion that Prop. 8 amounted to a mere "amendment" - and not a change in the basic nature of the constitution, as opponents had argued - required the justices to downplay the importance of marriage. This time, George suggested that domestic partnerships and anti-discrimination laws offer same-sex couples the "same substantive core benefits" as their heterosexual counterparts. The justices acknowledged that Prop. 8 does "diminish the rights of same-sex couples," but not so drastically that it would produce a "sweeping constitutional effect."
It was up to Justice Carlos Moreno, the sole dissenting voice, to rise above the thicket of legalese and capture the essence of the issue. To allow a majority of voters to deprive one minority group of its rights is to put "at risk the state constitutional rights of all disfavored minorities," he wrote
Separate is not equal. Marriage is a word with a meaning that is not matched, for many couples, by a "domestic partnership" or "civil union."
It will take another trip to the ballot box to remedy this injustice. Public opinion is shifting, as evident by the lack of an uproar over the sanctioning of same-sex marriage in other states. Time is on the side of marriage equality.
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34 Comments so far
Show AllFor the life of me, I cannot understand the obsession of the small minded (i.e. the religious right) over the matter of who is sucking what on whom.
Maybe if they'd get laid every once in a while they'd find better things to fret over.
q
It's only a matter of time, you religious idiots. I wish you could get together with your Islamic counterparts and live on some island way out in the middle of nowhere.
quickstepper, Mormons get laid plenty, especially when it's a matter of males screwing teenage girls after 'sanctifying' it. A more barbarous sect would be hard to find on this side of the middle east.
You refer to Religious Idiots and their Islamic counterparts.
To Barbarous Sects in the Middle East. (Which ones?)
I'm glad this is not a thread about tolerance or acceptance. Like one about denial of marriage to Gays would be.
Cheers
The only thing important here is that the law was followed. The vote by the majority was not overturned by a few Judges.
Gay marriage is coming, not as fast as I first thought because of some of the natsiness of the gay activists that have turned folks against them. Their actions are counter productive at this point.
Would you like to give some examples of the "nastiness of the gay activists," Thomas? I'm not pulling your tail here, I really haven't heard of anything like that (I don't have a TV).
Rainborowe
Hey More (nope), last week you were against Gay rights for other, different, bs reasons. The fact that you now have this different and asinine reason for being anti-gay evidences you as just that. Anti-Gay.
A different reason every day. Dude just come out and say it, the very thought of what Those People do makes you sick, huh?
Last week I kept my mouth shut because I'm working on being nice these days,
But now you INSULT gays? "Nasty?" BS, I never met a sweeter bunch, which is the part that makes you squirm I think. I mean, some of those men are just beautiful aren't they Thomas More? It's okay. Go to SF, go to 10th & Folsom, look around and find The Stud. It's a bar. Go in. You might never come out!
It was legal in Nazi Germany to genocide Jews. Did that also make it moral? Get real.
As a lawyer, I think the legal tangles surrounding the issue cause people to lose focus. The practical reasons to support same-sex marriage are solid and convincing, while the reasons not to support it are bogus and/or based on the same religious dogma that preaches against (male) homosexual conduct.
The most basic legal consideration isn't that difficult. As long as homosexual conduct is legal, there's no persuasive rationale for forbidding same-sex marriage. Legalizing it will promote more marriages, which should please anyone who sincerely thinks marriage is a good thing. It would discourage ill-fated marriages between gays and straights, provide more stable couples to raise and support children or be foster parents, reduce sexual promiscuity among gays, and increase attention on the part of gays to the ethics of marriage. It would afford to gay children something that gives meaning to the lives of young straights: the prospect of getting married to someone you truly love and raising a family.
These points, which are far less abstract than the arguments that gays are entitled to "civil rights" and "equal protection" (both of which I agree with), need to be stressed more than they are. It's clear that politicians like Obama won't fall in line until the voters do. If those of us who favor same-sex marriage can get voters to think about the practical aspects, it will speed the day when the law in California catches up. It might even make a difference in my own brutally red state, Texas.
I would also counsel against heated denunciations of groups like the Mormons. The whole point of religious liberty is to allow people to run their own lives according to their beliefs as long as this doesn't infringe the rights of others. Let the Mormons, and all others with similar beliefs, have their rigid opposite-sex marriage rule. Just don't allow one of the most valuable resources of any society -- its gay population -- to be oppressed by legally enforced religious belief.
The Moron Church I guess you mean. It is a fact that "Obama voters" helped pass Prop 8 that is the only way it got the needed votes. Lets be honest about what happened and not sugar coat the truth. Blacks ask those who are not Black to support Black civil rights, but Blacks voted against LGBT civil right by 70% in California. Shame! Shame! Shame!
Jason Grant Garza here ... Having grown up in this discriminating country all my life and be told that it wasn't HAS prepared me for the more bold face lies that I have had to endure. To be lied to and mislead by my very government which I stood and said quote "Under ONE GOD with liberty and justice for all" only apparently was meant to apply to true first class citizens. As a true patriot, I believe that my only option now for IMMEDIATE REREDRESS is to not support the illegaility and NOT PAY TAXES. NO TAXATION WITHOUT REPRESENTATION ... just as in the IRAQ war and the brave individual who would not go back and be in an illegal war and unlike the CONGRESS that gave sanction to an illegal war (making them war criminals) ... my approach at civil disobediance is common in history. WHAT WILL THEY DO ... PUT 30 MILLION GAY PEOPLE IN JAIL? Please don't be like my unclever gay friends and insist that we work within the system that constantly redefines our lives and moves the goal post of equal protection. As a second class citizen and of no value to the rest of society ... my taking and tying up courts and those who agree with me would make this an impossible situation and as such maybe the impossible would happen ... we would have equal rights and equal protection; however, don't expect contrition afterwards. Those who are often wrong are never sorry unless caught and then only sorry they got caught. Oh, coarse this is only my opinion; however, I would like to hear some discussion of the matter ... civil protest ... NO TAXATION WITHOUT REPRESENTATION (equal under the law.) Comments ???
I like the idea of not paying taxes; in fact Ted Rall wrote an article recently that expressed the very same idea. Unfortunately for the majority of the American workforce, the employer withholds the taxes before we can even get our hands on it. That would make it very difficult to not pay taxes. Most people do not realize that when they get a check from the government - in the form of a tax refund - the government is only returning monies you, the taxpayer, have overpaid. I agree with this form of civil disobedience, unfortunately unless you're self-employed the plan simply will not work.
What you do is ask your employer to grant you a very large number of deductions.
In other words, when you get the W2 form, write down the number "20" in the "how many deductions can you claim column".
When HR calls you up about it you tell them that you are tired of getting very large checks back from the government and you need that money now, that this isn't really their business anyway and they need to just put down the number you wrote. No it was not a mistake.
And then, when you fail to turn in your tax form, be prepared to lose everything you have and be thrown in jail for tax evasion. This is a court system where you must prove your innocence, it is assumed you are guilty if you are accused.
Personally, if I were so inclined to do this I would only withhold the portion of my taxes that go to defense spending and servicing the national debt. I think the federally funded research, Medicare and medicaide, welfare (such as it is), and entitlements that go to most normal people are actually good things and, generally, deserve my support.
Don't pay your taxes by all means, but be prepaed to go to jail or have your property seized. Henry David Thoreau refused to pay his taxes to protest the Mexican War. He went to jail. When his pal Emerson came to visit him he said, "Henry, why are you here?" Thoreau replied, "Ralph, why are you not here."
Rainborowe
Oh please, give me a break! The writer of this piece seems to think that this separate but equal treatment is new. Well it isn't and it applies to more than just the GLTB folks.
All one has to do is look at how our society treats single people in general (adults 18-65, who are not married or have not remarried). By the way, single adults/the 2000 census, comprise 43-48% of the general population.
- singles cannot name a beneficiary to the social security account. At least marrieds and people with dependent children will know who gets the benefits they have worked for. If a single dies, even before eligibilty at 62, their account goes into the general account for anyone to use.
- singles often pay a high percentage of the income in taxes; especially when one considers the property tax rates used in most communities to finance public schools.
- Often employers pay single people less than marrieds; this has been well-documented in the military and some strides have been made to rectify the situation.
- lots of employers often discriminate against single people in awarding vacation time, holiday time and personal time off; as well as giving promotions, especially when married or singles with children start to complain.
- the travel industry has opening admitted that charging singles 40% more for the sample travel packages is an industry practice!
- often the medical profession, the courts and family members will deliberately ignore written advance directives implemented by a single adult.
-employers support marrieds and people with kids more than singles; a single cannot put another person on their medical or dental insurance unless they are married to that person or it is a dependent child. Not even adult siblings or close friends; even if payroll deductions could be taken. The only way presently for a single to get equal employer benefit packages is to work for an employer who uses the cafeteria style formula. Everyone gets the same amount of financing and singles can then make a few more choices to accommodate their marital status.
- try getting a home loan with a decent interet rate, even with a FICO score less than 800 or a salary less than $50,000/year.
There's lots more, but you get the drift. Separate but equal-welcome to the club!
Rockerbabe1, your complaint is that marriage shouldn't be supported by law. The editorial doesn't address that, but rather whether, if the law supports marriage (by allowing or providing for benefits, rights, and privileges like those you refer to), it should forbid same-sex couples to marry and receive those benefits. I've never heard anyone argue that marriage itself doesn't deserve special status.
That special status that heterosexual couples have, is the very reason a lot of GLTB people want marriage rights, which I do not oppose. The premise, I believe, is that gay citizens are the only ones being treated unfairly and that is far from the case. I do not think rights and fair treatment should be based on marital status as that is often a chosen state of existence for most Americans. To say couples deserve more societal assistance and governmental supports is a violation of the 14th amendment or equal protection under the law. This two tiered rights and benefits supposition is just plain unfair to those without a civilly recognized life partner (married). Since all citizens pay taxes, a good many of us actually vote in elections and/or own property, the tax laws and rights laws should be crafted to not discriminate against those not married.
I think you have a serious point here Rockerbabe1.
I am a classic example of part of a couple that has taken maximal advantage of this marriage game.
I got married relatively young (ages 23 and 22) and we are still married after over 20 years. But even better we have no children and two incomes.
Even if the law and in particular tax law were completely marriage-blind we STILL would be much better off because we can share out the expenses of just living in a decent place. But then, since we have no children and will not have any there is absent a huge drain on household resources. We get all the benefits of the marriage bonus, both artificial and natural, but have none of the strains that effect most married couples. A large number of gay couples would find themselves in a similar situation (not ALL of them would want to have children).
Perhaps it is that rather high level of financial benefit that the laws and living together with no children brings which the conservatives do not want others to have.
After all, with fewer poor workers around, they might need to actually pay more for their labor source.
Singles can name a Social Security beneficiary by marriage, no?
At any rate affirming inalienable rights is the issue and not other issues of that are negotiable through your union with your employer or with your city assessor
Actually, no one gets to name a beneficiary for their social security account. The law allows surviving spouses and dependent children to claim a benefit if the married wage-earner paid into the program and met the guidelines. No matter how many years a single person, without children works, they get NO beneficiary designation at all, even by law.
As if I had no one I would like to provide for, except the "common good". I would like to name a financially less fortunate person in my family or from my circle of friends to be able to make a claim on the account I have worked all these years to fund. When I finally get to retire (age 67 with full benefits-assuming the program is still solvent), I will have worked and paid into the program 53 years! I should be able to provide someone I care about will the option of having my account or their own. Since I have always made more money than several people I would like to consider, I think they would chose my contributions over their own, since it would help them financially. I have worked most of my life since age 14 and think I should be given some consideration by the government in this matter. The fact that I am single without children has no bearing on those I love and care about.
"...not as fast as I first thought because of some of the natsiness of the gay activists that have turned folks against them."
That's not true and it's nasty to blame the victim. It is bigotry and prejudice that is stopping progress, and the Mormon Church and others pouring oodles of money in from out-of-state to run false and/or misleading ad campaigns on the subject.
Why is it that 50.0001% of the people can overturn what the court found to be legal? It should be 2/3 of the voters.
whoswho, I'll disagree a tad with you on this one. NEITHER 50% plus 1 vote nor 2/3s of voters should be able to overturn the rights of a minority. The "tyranny" of the majority, even a super-majority, is what I think the U.S. Constitution was designed to combat. True, the Constitution itself can be amended by a popular vote process, but that happens in a process that goes far beyond the "will of the voters" as expressed in a particular referendum in a particular political jurisdiction. This is the "genius" of the U.S. constitution, though it is always under threat from "pragmatic" or loose constructionist jurists who say that the "will of the people" must be given predominant weight where the rights of minorities are concerned. It is in the area of just such understandings of Supreme Court operation that Obama's nominee for Justice, Sonia Sotomayor, should be questioned during her Senate confirmation hearing. I don't know her record in detail, but some snippets I have heard about her willingness to grant states the right to act against the rights of minorities make me think that constitution-defending agencies like the ACLU should be all over the public debate about her confirmation. Ben Franklin said that our government "is a republic, if we can keep it," and its an ever-live question whether we can "keep" the constitutional form of that republic.
I support gay marriage, not civil unions, but gay marriage. I support it unequivocally.
But it disgusts me to see people come out of the woodwork just to protest this ONE issue.
If you've gone to the anti-war protests (under both Bush and Obama) then I have no problem with you. But people who protest ONLY when their group is effected I have no respect for. I've seen a lot of those folks in the past few days.
"The shame of the ignominious six Judges in their ruling written by Chief Justice Ronald M George stains the history of California as Plessy v. Ferguson stained the United States until Brown v Board of Education repudiated it in 1954.
Today, we ought to revere Justice Carlos R. Moreno :“Justice Carlos R. Moreno, while agreeing with the majority's conclusion that Prop 8 applies only prospectively – and therefore the marriages that took place are legal – bucked the majority by writing a dissenting opinion stating Prop 8 is invalid because it is not a lawful amendment of the California Constitution.” - Matthew S. Bajko - Breaking: CA Supreme Court upholds Prop 8; 18,000 marriages stand
Let us stand together with Justice Carlos R. Moreno and have the courage to demand that right be done, not only to undo Proposition 8, but moreover to protect the rights of the minority against the tyranny of the majority."
"The ruling on Proposition 8 written by Chief Justice Ronald M George, who was too clever by half, stains the history of California."
This is not just a religious issue, as some have suggested. There are many that are upset about this for common sense reasons. There is no argument that people have the right to live as they choose, including being gay or lesbian, just do not insist on calling it MARRIAGE and the problem would be over. Think up a new name for the civil union and most people would agree they should have equal benefits.
My church is happy to marry same-sex couples. Who are you to say that we are not allowed to practice our religion as we see fit? What might work is the state staying out of the marriage business entirely. Let them only acknowledge civil unions for EVERYONE, and let churches do as each sees fit with marriage, as it should be.
Opinionated is right.
Let's just assume that a God exists and that this God brutally punishes everyone who engages in a same-sex relationship, even if that couple follows all other principles of morality. (Oh and of course, this is somehow a LOVING God...)
OK, fine.
Now exactly how is that any of YOUR business?
Exactly how is it the job of you or the State to do the job of this God?
Is this God so emasculated that He is incapable of handling the situation for Himself?
This position makes no sense. But this is the claim of the conservatives.
Actually, I think it is a deep seated and completely irrational response based on these principles.
First: There is the irrational fear of homosexuality. I am no psychologist, I am only reporting what I have observed in many people as a fact and have no serious explanation of that fear.
Second:There is the belief that sexual orientation is a choice...like your favorite color or what clothes you are going to wear today. And thus it is not a difficult thing to "change your mind" regarding choices for life-partnership. (Somehow, what is not a choice for those of us who are heterosexual is seen as a choice for homosexuals. I suppose the argument is something like 'they are different from us'...I've heard that one many times before and it has ALWAYS led to pain.)
Third: There is the fear that if your children see happy and healthy same-sex couples that your children will "choose" to be in a same-sex relationship rather than follow the expected path of marriage then marriage problems then children then divorce. After all, see my point number two, if it is so easy to "change your mind" and you see how easily your children are manipulated.....it's a small leap to not having any Grandchildren.
I suspect that all the "arguments" from the right really come down to this problem. People are afraid their kids will "choose" the wrong path.
Well, this is my suspicion anyway.
What are the non-religious "common sense reasons"?
Tradition. I hear that all the time. "I'm not religious but it's traditional for marriage to be a man and a woman and it should stay that way." It's fear of cultural change.
So let's to the ballot box. This one may take a few rounds.
Yes, take it to the ballot box. It will happen but may take time. Never Give Up!!
With the US economy in a very bad state, couldn't money spent on wars and stuff like gay marriage better be spent on education, health-care etc? Every time, it's those fundies fucking us all up again and the have branche-offices all over the world!
What homophobic Straight Amerika isn't realizing is that, thanks to Prop. 8 and the other Props across this Nation, it is now legal for the ignorant masses to decide on the rights of others through a popular vote. The US Constitution, the ONLY thing that made us a great Nation, has now been made irrelevant by a bunch of ignorant thugs. You may, in all your smug righteousness, get off on the fact that Gays must now beg the ignorant for their Rights...can you imaging the Blacks in the 1960's going in to racist White neighborhoods trying to convince them to change their minds even though 70% of the US population at the time were against Civil Rights for Blacks??? "No Ma'am we certainly aren't inferior...would you please just give me my Rights, pretty please?"
You fools have lost your Country behind your homophobia...and you think you won. Pathetic.