SAN FRANCISCO, March 2, 2009
Same-Sex Marriage Ban Reaches Calif. Court
Lawyers To Argue For And Against Proposition 8 Which Repealed Right Of Gays To Wed
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Supporters of same-sex marriage rally in Sacramento, Calif., on Nov. 6, 2008, after the passage of Proposition 8, a ballot initiative repealing the state's constitutional right of gays to marry. Now that ballot initiative is being appealed by the state Supreme Court. (AP Photo/Steve Yeater)
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Interactive Same-Sex Marriage Debate State-by-state coverage, opinions, history, photos and a look at the amendment process.
The passage of Proposition 8 last November changed the state constitution to prohibit gay marriage and trumped the high court's decision a few months earlier to legalize it. But the ballot measure was appealed and the justices on Thursday are getting the final word on whether marriage is an institution that must accommodate two women or two men.
The debate will be framed by not only the gay and lesbian couples who see their struggle as the modern equivalent of prohibitions on interracial marriage, but the 7 million citizens who rejected that comparison in an $83 million election.
The stakes are high - for the 18,000 couples who married while same-sex weddings were legal, for gay marriage opponents who object on religious grounds, and for others who are deeply divided on the issue. And whatever the court decides is likely to have ramifications not only for millions of Californians but also for other states grappling over gay marriage.
The question is whether a majority of the justices will defer to popular will or, having already declared that preventing gay people from marrying was unconstitutional, will do so again. Legal experts say it is a tough call and that the court's decision, due within 90 days, will be debated for years to come.
"It's very unusual for any kind of state court to do what the petitioners are asking the California Supreme Court to do," said William Eskridge, a Yale University constitutional law professor.
Same-sex marriage supporters are urging the court to overturn Proposition 8 on the grounds that the measure made such a sweeping change to the state constitution that its sponsors lacked the authority to put it on the ballot without approval from the California Legislature. Citizens can petition to put constitutional amendments, but not substantial revisions, directly to voters.
In a rare departure, the state's own top lawyer, Attorney General Jerry Brown, has refused to defend the initiative and is urging the justices to invalidate it. Brown says Proposition 8 itself is unconstitutional because the Supreme Court's 4-3 decision last year recognized gays as a minority group entitled to judicial protection and established marriage as a fundamental right.
Legal experts say Proposition 8, which won 52 percent of the vote, would almost certainly stand if not for one notable fact: the marriage amendment represents the first time in California history that the constitution was changed at the ballot box to deprive a protected minority group of a right expressly carved out by the court.
"It would be unprecedented for the court to overturn Proposition 8 only because Proposition 8 is unprecedented," said Dale Carpenter, a University of Minnesota constitutional law professor.
A broad spectrum of civil rights groups, including the NAACP, the Mexican American Legal Defense and Education Fund, and the National Organization for Women, have submitted friend-of-the-court briefs in the case, saying other minorities could have their rights put up for a vote if the measure is upheld.
Others, however, see just as much danger in limiting California's tradition of direct democracy.
Lynn Wardle, a Brigham Young University professor who submitted a brief in support of Proposition 8, said, "Do you defer to the political establishment, which in this case supports same-sex marriage and wants Prop. 8 undone, or to California's history of being probably the most populist state in America?"
In the 99 years since California has allowed constitutional changes by citizen initiative, the Supreme Court has tossed out only a handful of voter-approved measures because they were significant revisions that needed prior legislative approval.
On Thursday, the court also will hear arguments on what should happen to the estimated 18,000 same-sex marriages that were sanctioned in the state before Election Day, if the measure is upheld.
The sponsors of Proposition 8 argue the measure's language makes it clear the state can no longer recognize those marriages. The attorney general and lawyers for the couples and local governments say the initiative was not explicit enough to undo the unions.
Legal observers, even some gay marriage opponents, say they think the court may be reluctant to void existing marriages.
"There is no question, for a period of time, there was same-sex marriage in California, albeit a very short period of time," said James Sweeney, a constitutional lawyer who represents the California Catholic Conference.
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Add a Comment See all 121 Comments
- if you want respect..you have to earn respect..
- Reply to this comment
- I often wonder why everyone keeps saying the country etc is a democracy. We are not and have never been a democracy. First of all the United States and all the states within are a Republic....Our REPUBLIC is also based on multiple parts with the judicial branch responsible for making sure that the democratic process or legislative process do not conflict with the basic tenants and rights provided by the constitution. This prevents the government and any other entity (including voters) from enacting laws or modifying the constitution in a way that violates basic rights. This review is done by courts. This review and escalation process through the Supreme Court has resulted in many a controversial decision because it is not the courts responsibility to represent the will of the majority. This is their job regardless of whether you like it or not. Sometimes the will of the democratic voice ends up in opposition to the constitution and it has to be overturned for that very reason.
- Reply to this comment
- I would suspect you aren't getting any answers from gay people because the people discussing the issue with you aren't gay. My answer, which you ignored, was that separate is not equal adn they wish the recognition of their love and commitment to be equal. - mdalerwill to guysdigdirt
mdalerwill,
He has been answered by gay people, numerous times, lengthy conversations with personal reasons, constitutional arguments, historical examples of how things change over time and across cultures, etc. He's been told BY GAY PEOPLE that being gay is not a choice. That's all the confirmation anyone should need for that.
He's not interested in it. He's not really interested in knowing the truth or caring about other people. He continues spewing the same dull tripe he's used for the past year or better, never listening, never learning, never thinking outside of his own little box. He only wishes to sew discord.
It's why I will not discuss anything with him or address anything to him, even when he tries to goad me into doing so with some comment in reply to something I've posted.
As I said earlier in these posts... if you still have some hope of his enlightenment you may as well quit. You can't teach something to someone who's not even willing to listen. It's your time though... - Reply to this comment
- guysdigdirt: i personally did not screw up marriage as an institution (after all, who wants to be institutionalized?) , but collectively we heterosexuals not nothing to be crowing about. From the 50% divorce rate, to the cheating spouse, to the las vegas wedding with elvis as the justice of the peace. No children involved.
- Reply to this comment
- You are right, I did assume you were gay. I am very sorry for assuming that.
Posted by guysdigdirt at 11:49 AM : Mar 3, 2009
That's not a problem. I'm not offended by it, but it was causing some confusion. - Reply to this comment
- You seem like a good person and I have a lot of respect for you and what you are saying, I just wish there was a way to make everyone happy.
Best wishes to you.
Posted by guysdigdirt at 11:45 AM : Mar 3, 2009
Thank you. Best wishes to you as well. Hopefully the views expressed here will encourage people to look at the issue in ways they might not have. - Reply to this comment
- You asked why gay people want to marry. I'm not gay. That's what you get for assuming.
Posted by mdalerwill
You are right, I did assume you were gay. I am very sorry for assuming that. - Reply to this comment
- But it is not about gays being married. It is not about equality. That is the reason none will answer me here. They have answered me in the past and they admit is not about equality. Gay love and straight love are the same, but are different too.
I have a lot of gay friends, many I love like brothers and sisters. While I want them to be able to have all I have I do not want them to take it from me to have it. It is not even about me, it is about my kids and those who will come later. - Reply to this comment
- mdalerwill,
You seem like a good person and I have a lot of respect for you and what you are saying, I just wish there was a way to make everyone happy.
Best wishes to you. - Reply to this comment
- So why after I have asked over and over will no gay person answer me and tell me why they want to be married? Why dont they want to have a union that is a gay union?
Posted by guysdigdirt at 11:30 AM : Mar 3, 2009
I would suspect you aren't getting any answers from gay people because the people discussing the issue with you aren't gay. My answer, which you ignored, was that separate is not equal adn they wish the recognition of their love and commitment to be equal. - Reply to this comment
- You are thinking of someone else. I never said anything about bible-thumpers.
Posted by mdalerwill
My mistake, excuse me. - Reply to this comment
- So tell me why you want to be married. I have asked you many times but you fail to answer.
And if you think I have insecurities about my marriage and myself.. that is what you get for thinking.
Posted by guysdigdirt at 11:26 AM : Mar 3, 2009
You asked why gay people want to marry. I'm not gay. That's what you get for assuming. - Reply to this comment
- Banning homosexuals from achieving a legal relationship doesn't force them into legal relationships with members of the opposite sex; it forces them into illegal relationships with same sex individuals. How is this a good idea?
Posted by hatesthecolt
Get educated then pop off. Gays can have legal unions that give them the same rights as straight marrried people. - Reply to this comment
- Earlier you condemed the bible-thumpers now you want to quote the bible? Hypocrite. I have not referenced the bible, so why bring it up here? If you want to quote the bible you shoot your whole arguement in the head.
Posted by guysdigdirt at 11:34 AM : Mar 3, 2009
You are thinking of someone else. I never said anything about bible-thumpers. - Reply to this comment
- And you are getting this definition from what? The one man-many wives is everywhere in the Bible and God didn't seem to have a problem with it.
Posted by mdalerwill
Earlier you condemed the bible-thumpers now you want to quote the bible? Hypocrite. I have not referenced the bible, so why bring it up here? If you want to quote the bible you shoot your whole arguement in the head. - Reply to this comment
- i did once and treated a nice girl like crap. i am one of many heterosexuals who have diminished marriage more than homosexuals could.
Posted by honestabe8
dont assume you are so great as to be able to corrupt marriage as much or more than the gays. just because you messed up does not mean you messed a lot of other people up in the process. one great lady maybe, not more than that though- unless there were children involved and then you really screwed up. - Reply to this comment
- So why after I have asked over and over will no gay person answer me and tell me why they want to be married? Why dont they want to have a union that is a gay union?
- Reply to this comment
- I do believe that they should have domestic union contracts for both homosexual and heterosexual couples that gives them the same rights as married couples have. Posted by honestabe8
that already exists. - Reply to this comment
- I just feel it is not right to take the institution of marriage away from those who see it as one man and one woman and change it to suit your own needs.
Posted by guysdigdirt at 11:17 AM : Mar 3, 2009
I am sure those who saw it as being intended only for people of the same race felt the same way.
Posted by mdalerwill
You are sure? How do you know? Or are you just assuming? - Reply to this comment
- I'm sorry, I don't mean to be insulting, but it sounds like the problem is your insecurity about yourself and your marriage.
Posted by mdalerwill
So tell me why you want to be married. I have asked you many times but you fail to answer.
And if you think I have insecurities about my marriage and myself.. that is what you get for thinking. - Reply to this comment
