Courts Taint Gay Marriage Victory

The New Republic: California Decision Would Have Been Better Achieved Through Democratic Means

(The New Republic)  This column was written by Josh Patashnik.

---

The California Supreme Court, as you've probably heard, ruled 4-3 today that the California Constitution provides gays the lesbians the right to marry. The main question, of course, is whether the ruling is correct as a matter of law, but let's leave that aside for now (I can't claim much familiarity with the mess that is the California Constitution - more on this later). It's hard to say what the political fallout from the decision will be - I've never been of the opinion that the Massachusetts ruling had much of an impact on the 2004 race, but I suppose we'll soon get another data point in that debate.

As a Californian I'm quite pleased that my state now recognizes gay marriages. My instinct, though, is still that this is a lost opportunity. The state legislature has passed gay-marriage legislation twice before, and sooner or later it almost certainly would have been signed, either by Arnold Schwarzenegger or by the next governor. It would have been preferable, I think, for this to have been done through the elected branches first. That said, the question will ultimately be decided at the ballot box, and rightly so. Social conservatives are trying to place a constitutional amendment on this November's ballot that would outlaw gay marriage; they've probably gathered enough valid signatures to do so, but if the amendment doesn't make it on the ballot this year, it will in 2010. So if gay marriage in the Golden State is to endure, it will have to do so with the approval of a majority of voters eventually. (Schwarzenegger, for what it's worth, says he respects the ruling and opposes the ballot initiative to ban gay marriage.)

My fear is that the judicial involvement here will always taint a victory that might otherwise have been achieved through democratic means. Then again, the outcome of the initiative is very much up in the air, and it's possible that there's a non-trivial number of voters who would have been inclined to vote against gay marriage but will now be reluctant to nullify marriages that have already taken place.

One complicating factor is how absurdly easy it is to amend the California Constitution: You just need to collect signatures (from enough voters to account for 8 percent of the total votes cast in the last gubernatorial election) and win a simple majority vote - which explains why the state constitution is so cluttered with junk. One might very well ask what the point is of having a constitution that can be amended at will by a simple majority of voters, but the upside, I suppose, is that if they lose this November, proponents of gay marriage can just wait a few years until the generational demographics of the state become a little more favorable and try again. My guess is that gay-marriage opponents, who managed to push through an initiative statute that banned gay marriage in 2000 (it passed with 63 percent of the vote), are wishing they'd gone for the whole shebang and passed a constitutional amendment (rather than just a statute) when they had the chance.

Update: To clarify, had the gay-marriage bill passed by the legislature been signed by Schwarzenegger, it probably would have been struck down by the courts - in California, a ballot-initiative statute can only be overturned by another ballot initiative, not by the legislature, unless (as in this case) it ends up being unconstitutional. But it would have looked far different had the Court issued this ruling after both elected branches had given gay marriage the stamp of approval.

[guysdigdirt]

This gets you stressed and sleepless at night? Tough then. I don''''t see any burden you could possibly point to that you will have to endure as a result of ga@ys having the same rights.
Posted by jon2012

You said it all right there. It is all about what you want and no one else matters. I think your words were "tough then". It is all about what you want. Don''t try and BS me, it is not about getting the same rights, if that is what it is truly all about to you then fight to get those rights without having to change something that is sacred to others to do it.

I think I should tell you that if you want to change marriage to become what you, a minority, want- tough then. Once the voters vote again, you will be on to do what you should have done in the first place, get your desires without making someone else sacrifice for it.

[jon2012-2009]

If the ggay community wants to enter into a union I do not care. If they want to impose their beliefs upon me and change something I believe to be sacred as it is, then they are forcing their beliefs upon me, and I am not homophobic, bigoted, ignorant or anything else because I believe it should not be changed.
Posted by guysdigdirt at 12:47 PM : May 20, 2008

I''m not sure you''re understanding the issues. The change in the definition of marriage is only in the legal sense to achieve a more equal treatment under the law of all citizens with respect to property rights, taxes and so on. Anyone can still choose to believe what they wish to believe, sacred or not. How exactly are you being imposed upon? Ga@ys are already taking up housekeeping even without the benefits married couples enjoy. This gets you stressed and sleepless at night? Tough then. Anyway those benefits accorded hetero@sexual marriages will not end or be altered in any way because they are extended to ga@y couples. I don''t see any burden you could possibly point to that you will have to endure as a result of ga@ys having the same rights.

[guysdigdirt]

That''''s your arguement isn''''t it? That *** are being unnatural. I wonder where fruit flies learned to be gay from? Obviously they have such a large brain capacity. Explain that one.
Posted by Boston3346

No, my arguement is not, nor ever has been, that ggays are unnatural. The topic and argurement is whether one group of people in the minority have the right to change the definition of marriage even though another group, in this case the majority, do not want it changed.

If the ggay community wants to enter into a union I do not care. If they want to impose their beliefs upon me and change something I believe to be sacred as it is, then they are forcing their beliefs upon me, and I am not homophobic, bigoted, ignorant or anything else because I believe it should not be changed.

[guysdigdirt]

It''''s good we have the courts. Judges, even those appointed by Republicans, have at least some training to apply reason and logic to the law objectively and unencumbered by bias.
Posted by jon2012

Your whole post has the stench of the very bias you condemn. Hypocrite.

[guysdigdirt]

What will they think of you if it is your belief that they be treated as second class citizens without the same rights and respect as eveyone else. A lot of problems we have in our country right now is we have too many people who are judgmental of others when they have no right to be. Everyone should be able to live a happy and fulfilling life with the exact same rights regardless if they are gay or straight.

Equal rights for all
Posted by keithndustin

Just the fact that two men not being able to be married does not equate to them being treated as 2nd class anything.

the definition of marriage is one man and one woman, what makes one person''s desire to have that changed more important than another person''s desire to have it left as it has always been?

If the ggay community wants to have a union, come up with your own.

[jon2012-2009]

Much of the bigotry and hatred underlying homophobia has the smell of a religious bias. They may call it immoral or unnatural or something but behind the hostility is religion. As with anything tied to religion, logic and facts will not have much effect against a ''higher'' plane of authority. You call these people zealots and religious nuts, etc. That explains nothing. What they suffer from amounts to a cognitive deficiency--the logic circuits in their brains are no longer firing in the same way as a person uncontaminated by religious indoctrination.

It''s good we have the courts. Judges, even those appointed by Republicans, have at least some training to apply reason and logic to the law objectively and unencumbered by bias.

[boston3346]

For you out there who are homophobic...did you know, in a clinical trial, men were tested to see how aroused by homosexual pornography they were. The non homophobic ones, who professed no problem with *** and lesbians were not aroused, but those who were homophobic, were aroused. So, why don''t you stop being ingnorant and scared and accept that homosexuality is simply another part of the human species...just like race, culture, and religion. If you think that *** choose to be gay, you''re kidding yourselves. Who would choose a life of oppression and hatred from neo-conservative right-wing nut jobs? Did you choose to be straight? Homosexuality presents in many species. Do you think that the 1500 other species with homosexual creatures are unnatural. That''s your arguement isn''t it? That *** are being unnatural. I wonder where fruit flies learned to be gay from? Obviously they have such a large brain capacity. Explain that one.

[keithndustin]

Marriage may take many forms: for example, a union between one man and one woman as husband and wife is a monogamous heterosexual marriage; polygamy %u2014 in which a person takes more than one spouse %u2014 is common in many societies; and, in some jurisdictions and denominations, a same-*** marriage unites people of the same ***.

I don''t see how two men or two women who get married will affect anyone but them. I like what elkc said.

Gay marriage does not mean that it will demand a church to allow gay marriages take place within their houses of worship. It would not require churches to accept anyone in the gay community as members of the congregation. You could still believe as you wish, worship in the same places that prohibit homosexuality acts, and ban the gay community from being members. Nothing would change!

Why be so hateful? What if your son or daughter were gay. What will they think of you if it is your belief that they be treated as second class citizens without the same rights and respect as eveyone else. A lot of problems we have in our country right now is we have too many people who are judgmental of others when they have no right to be. Everyone should be able to live a happy and fulfilling life with the exact same rights regardless if they are gay or straight.

Equal rights for all

[guysdigdirt]

We are all sinners, but God love us all, and How dare anyone tell me otherwise.

God Bless
Posted by shaunnsd

shaun, I have no problem with you being gay, that is your life to live as you see fit. I will not judge you for who you are as long as you do not force it down my throat or take something away from me or my family. But do not try and take marriage away from us. It is one man and one woman and thus it should stay.

[guysdigdirt]

Curious, I just checked. My dictionary, "American Heritiage Dictionary", defines marriage as the state of being married. Marry''''s first definition is "to take as husband or wife". Nothing to imply that specific genders are required (or about love for that matter".
Posted by pdchapin

Once you get out of the 2nd grade you get to use a real dictionary, until then let me help you.

Websters Dictionary Unabridged (v 1.1)
mar7riage %u2013noun
1. the social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc.
2. the state, condition, or relationship of being married; wedlock: a happy marriage.
3. the legal or religious ceremony that formalizes the decision of a man and woman to live as husband and wife, including the accompanying social festivities: to officiate at a marriage.

[guysdigdirt]

Denial of granting two people won''''t stop the relationship from forming. Its a piece of paper with signatures on it that form a contract between two people that protect their assets, insurance policies and public privileges.
Posted by elkc

Exactly correct, so why do you need it? Why do you want to change the definition of marriage?

[guysdigdirt]

2 people in love, who wants to commit their lives to one another, should not be denied to enter in to a the contract of marriage. ID gay marriage for what it is! Sexual discrimination extended to deny love, between two people.
Posted by elkc

So you have to be married to love one another? Seems like a relationship that is doomed fromt he start.

[guysdigdirt]

The only "right" of the majority that is being imposed upon is the "right" to discriminate against and hurt gay people. So, yeah, we are taking away your right to treat other tax-paying citizens as second-class citizens -- get over it!
Posted by rx7ward

Hypocrite.

I am not a bigot, you are. I am not forcing you to change the definition or an institution to fit my deisres, you are. If you want a union, why take one from a group you so highly destest? Get your own union, call it what you want- except marriage. Do not take one that mean what it does to me and try and take that from me. You are discriminating against me for being straight and married and you want to take something from me for being so.

[shaunnsd]

I will have to say this. God created me the way I am. Many state that God doesn''t make mistakes so therefore, God created Homosexuals. I cannot change who I am. There are those who state that God hates me, for that I remind you that Homosexuality is not in the 10 commandments, however bearing false witness is. I would prefer that people hate me for who I am, rathen than love me for who I am not. Marriage being the leading cause of divorce, maybe the Gay community would benefit from starting our own Constitutional Amendment drive, to deprive the Court from the ability to allow or grant Divorces, thereby making all marriages in California for life. I believe the bible clearly states Those who God has joined together let no man take apart. The call it the marriage protection Act, yet they should call it the marriage exclusion Act. Everyones family will have to have the "Talk" Moral or immoral, right or wrong, families are going to have to deal with Homosexuality. When it come to your own child, do you cast them off, tell them that you know them not. Banish them. Or better yet have your other friends and family members gather and have an old fashioned stonning party, or do you feel for you child and hug them and tell them that you love them as God intended for all families. Remember they are Flesh of your Flesh and Bone of Your Bone. We are all sinners, but God love us all, and How dare anyone tell me otherwise.

God Bless

[rx7ward]

"the rights of the majority be subject to the whims of the minority?"

The only "right" of the majority that is being imposed upon is the "right" to discriminate against and hurt gay people. So, yeah, we are taking away your right to treat other tax-paying citizens as second-class citizens -- get over it!

[elkc]

2 people in love, who wants to commit their lives to one another, should not be denied to enter in to a the contract of marriage. ID gay marriage for what it is! Sexual discrimination extended to deny love, between two people, by a radical political religion.
Denial of granting two people won''t stop the relationship from forming. Its a piece of paper with signatures on it that form a contract between two people that protect their assets, insurance policies and public privileges. The marriage contract was not created by Jesus Christ. It originated after the Civil War, by those who wanted a law that would prevent a white from marrying a black. The marriage license has always been used as a way to establish property ownership. IT in fact created at a time when men considered their wives personal property. Yes wife stealing was a serious moral and legal violation! It would help gay partners retain property that two people in love developed in life. Allowing marriage between same *** couples decreases the amount of government in all our lives, instead of new laws from a government controlling people, it would apply laws already on the books in the form of equality. It would not demand church''s allow gay marriages take place within their houses of worship, it would not require churches to accept *** as members of the congregation.You could still believe as you wish, worship in the same places that prohibit homosexuality acts, and ban *** from being members. Nothing would change!

[pdchapin]

Then your minister was incorrect. Look in the dictionary, "one man and one woman". If it was only about love then you could marry your pet goat. Should that be a legal marriage also?

Posted by guysdigdirt at 12:47 PM : May 19, 2008

Curious, I just checked. My dictionary, "American Heritiage Dictionary", defines marriage as the state of being married. Marry''s first definition is "to take as husband or wife". Nothing to imply that specific genders are required (or about love for that matter".

[elkc]

All religious orgs. should become privately owned interests with it''s congregations as share holders, who should be required to show financial reports on its earnings. Be taxed for financial gains as any profit making company in America is required by law to do. We have mega church''s profiting at a higher rate, than some businesses listed as a publicly traded stock. Church''s do so without being taxed and further pass non-taxable status to its members through various projects and programs. Its wrong that simply because an organization claims religious affiliations that they dodge taxation then demand laws be passed suppressing those who do pay taxes to live under their rulings by trying to gain fiscal control through laundering elected officials to pass legislation, that outlaws groups of people based on their differences, weaknesses and vulnerabilities. You have the equivalent of resistance that reflects to predated history, which appear not to have progressed with what should be an "advanced form of leadership" instead their ideas and values are based on the Puritan Cult groups of early day discoveries of different regions and continents. From these groups come hostile attacks on our country from foreign crusades. Rather than lead forward by embracing acceptance for all peoples and progresses, they run backwards in an effort of greed!

[guysdigdirt]

The last time I recall ''''defining marriage'''' it was an expression of love between two PEOPLE!! That''''s what was actually stated by the minister when I was married.
Posted by AR_Teacher

Then your minister was incorrect. Look in the dictionary, "one man and one woman". If it was only about love then you could marry your pet goat. Should that be a legal marriage also?

[guysdigdirt]

===Maybe 7 judges should pick the next president based on their interpretation of the type of president that the constitution wanted.===
Posted by payasyougo

Nine already did that in 2000.
Posted by Rafterman1

Get over your fantasy. The right person won- get used to it.