Babalu Blog

So tell me, what kind of judges do you think McCain can get approved?

Justices like Roberts. It needs to simply pass the Senate and there's enough Dems in the Senate to get a nominee like Roberts through.

...except that the California Legislature has voted TWICE for full marriage equality. What was at issue was whether the courts wanted to recognize separate but equal nomenclature ("domestic partnerships," etc). Then you can ask yourself this: whether your finely grained sense of justice allows you to feel more indignation over an abstraction like "judicial activism" instead of my real-life right to move to California and start a family with a prospective husband. I mean, why do you care? As Mr. Jefferson said about atheism, it neither picks your pocket nor breaks your leg. Can you look a gay man in the eye and say, "You have no right to marry"?

Anyway, Eugene Volokh analyzes the legalities.

... and the people of California voted for and passed a referendum invalidating what the legislature passed which I believe Arnold vetoed.

I took an oath to protect and defend the United States Constitution and the Florida Constitution.

when you say "why do I care?" I care because it's not in the Constitution. The document has enumerated rights, restrictions, and privileges.

If the people of a state want to enact it, and do so, then good for them; they now have a right to do it in their state. But don't tell me that it's a fundamental right derived from the due process clause of the 14th or 5th amendments to the federal constitution.

If you don't like the law, then change it through the process; i.e., by legislative process; by vote; or by amendment to the constitution. Not through the courts.

and frankly, like Chris Rock says, if gay people want to be married, let them so they can be miserable like the rest of us. But don't force it upon us by judicial fiat. That's my complaint.

I have to disagree with you Cigar Mike. For you, I suppose Brown vs. the Board of Education was a Supreme Court case of judicial activism. The fact remains that the Supremem Court has been responsible for overturning decades (if not centuries!) of human prejudices to achieve minority rights. If you can deny gay people the same rights straight people enjoy, then why not deny them to left-handed people (they were once thought to be witches!)? Why not deny marriage to Jews? or Catholics? or Evangelicals?

The historical oppression of gay people needs to stop and stop soon. Just because you - Cigar Mike - have issues with gay people, does not make it right to discriminate against them. I know you have problems with Communists also - should they not be allowed to marry and reproduce potential little communists? And if you say yes - are you then giving justification to the other side denying those same rights to you, a conservative?

But otherwise, I agree - Obama would make a shitty president.

Cangrejo you are dead wrong on both points.

1. Brown was established on constitutional principle; namely the 14th amendment to the constitution which was enacted in reconstruction. Racial Discrimination is subject to strict scrutiny. Separate but equal violates the equal protection clause of the Constitution.

Your examples of Religious and Racial categories are poor examples as well. That's equal protection and 1st amendment subject to strict scrutiny. That's in the text of the constitution.

Your suggestion that I have issues with them is bunk man. That's the typical argument when you argue the law; having no legally sound response, you're accused of prejudice. That's lame man.

I don't have issues with anyone. What i have issues is with judges subverting the legislative process. If states want to pass domestic partnership laws; fine. Do it. But don't tell me the constitution affords them a fundamental right to same sex marriage. It does not.

If you want to argue the law, then argue it with the law not with emotions.

Where in the original constitution did it define marriage? If the original constitution counted a black person as 3/5th of a white person, how did that get changed?

What the constitution does not explicitly deny, then those rights are mine as a natural born man. You have no right to tell me who I can or cannot marry! If you want to classify marriage as a sacrament (which I do, by the way), then fine, get government out of it altogether. After all, government even recognizes common-law "marriage." Let's call all "marriages" performed in civil society as "civil unions." If you want to get married, then go to your church.

No, no, I won't accuse Mike of homophobia; that word gets tossed around too much for my comfort. He's been civil too, so let's keep the conversation civil.

Mike, you're underestimating the degree to which state supreme courts and SCOTUS have always been "active." Also, each has been either a shrewd or poor reader of public opinion. Constitutional law classes would find the, shall we say, novel interpretations of the due process clause by the Supreme Courts led by Morrison Waite and Melville Fuller (whose decisions found most governmental encroachments into business a violation of the 14th Amendment) curious examples of judicial activism, as noted by dissents by Oliver Wendell Holmes (who was no liberal) and John Marshall Harlan. As any reading of the period will show, not many Southern citizens supported the Voting Rights Act in the fifties, and Democrats in the Senate fought it tooth and nail.

Your first point, btw, is your best: separate but equal violates the due process clause. This is precisely what "domestic partnerships" were in California, according to its Supreme Court. The state couldn't justify having seperate rights for gays and straights.

You are right in this sense: public opinion is steadily moving towards marriage for all.

Mike,

The California Supreme Court has 7 justices. Six of them are registered Republicans and were appointed by Republican governors including the Chief Justice.

And your point about Obama and liberal judges was what?

To be fair to Mike, here's the most impressive demurral I've found

duke, separate but equal violates equal protection, not due process. Under the EPC, there are 3 levels of scrutiny: strict (race); intermediate (gender; national origin) and rational basis (everything else).

Thus, because race is strict scrutiny, it is the hardest for the govt. to satisfy. Sexual orientation falls in the rational basis category. The govt. almost always wins in this category.

The Due process clause applies to "fundamental rights". e.g., speech; voting; etc. life,

there is no substantive due process right to same sex marriage in the Constitution. That does not prohibit the state from passing laws allowing it. But the Courts should not make up the law and say it is a fundamental right enumerated in the Constitution when it is not.

Cangrejo: you make my point: How did the 3/5 nonsense get changed in the constitution? Not by judicial fiat. It got changed by the passage of the 13th, 14th, and 15th amendments to the Constitution thereby making it the supreme law of the land. How did women get the right to vote? By Constitutional Amendment. 18 year olds? the same.

The income tax? by constitutional amendment. Previously, it was unconstitutional for the federal govt. to tax incomes.

Cangrejo, marriage is a legal issue that can be regulated. Under your theory, polygamy and bigamy should be legal as natural rights. Not as simple as you make it.

Glenn Greenwald:

...As the Court made clear, whether someone believes that "marriage" should include same-sex couples is completely irrelevant. It is equally irrelevant whether one believes that the U.S. Constitution can be read to require same-sex marriages. There is one issue, and only one issue, that matters here: are the provisions of the California State Constitution, in light of how they have been interpreted by that state's Supreme Court in prior decisions, violated by the exclusion of same-sex couples from the legal institution of "marriage"?

To be able to answer that question, one must have read and understood the key cases on which the Court relied, such as Perez v. Sharp (1948), Brown v. Merlo (1973) and numerous others. For reasons I've written about before, anyone who criticizes the Court's decision without reference to California constitutional law is engaged in rank sophistry or, to use a more familiar term, pure "judicial activism" (i.e., judging a constitutional question based on one's preferred outcome rather than the requirements of binding constitutional law). Put another way, those who criticize the Court here of "judicial activism" without bothering to familiarize themselves with relevant California constitutional law are themselves engaged in the purest, and lowest, form of "judicial activism."

(2) Equally misinformed will be anyone arguing that this is some sort of an example of judges "overriding" the democratic will of the people. The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their "marriage" laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed "it is up to the state Supreme Court" to decide the issue.

Polls have found substantial support for gay marriage in California, with dramatic trends toward favoring gay marriage. While there was a referendum passed in 2000 limiting marriage only to opposite-sex couples, five years later (in 2005), California's state legislature became the first in the country to enact a same-sex marriage law without a court order compelling them to do so. Thus, even leaving aside constitutional guarantees (which, in a constitutional republic, trump public opinion), today's ruling is consistent with that state's democratic processes and public opinion, not a subversion of it.

Jack, GHWB appointed Souter and Ike appointed Warren. Mistakes do happen. But Obama will appoint liberal jurists like Ruth Bader Ginsberg. Then again, JFK appointed Whizzer White, but I don't believe since Souter, that a President (dem or gop) will make such a big mistake again. if GOP gets elected, you will get a conservative judge. If Dem gets elected, you will get a liberal judge. No ifs and or buts about it.

Duke, if they put it on the ballot and it passes, I have no issue with it.

Whizzer White's a perfect example of a predictable judge: he was supposed to be strong on law enforcement and civil rights, and, doggone, that's what he was; everything else was up for grabs.

Jack's point, from what I understand it: while I won't arguge that Obama's justices will be very liberal, you can't warn readers that Obama will appoint justices like California's since a majority of its justices were appointed by Republicans.

I've been practicing nearly 18 years and I can tell you that the wackiest cases from California and the Federal Ninth Circuit. The Ninth almost always gets reversed and is almost always in conflict with every other circuit.

That said, I read the Cali decision. It is based solely on the California Constitution. I think the decision is a stretch based on California law. Apparently, 3 out of the 7 judges likewise agree with me.

If you read the last sodomy case from the US Supreme Court (I believe the result was correct, but the reasoning was wrong)(O'Connor concurring in the result only said it should have been decided on equal protection and not due process), if you get enough libs on the court, you may see a similar stretch of what happened in California, what happened in Massachusetts at the federal level. How do you think Roe v. Wade came about? Regardless of what you think of abortion, it was a bad decision; it was based on made up constitutional principles which today is questionable especially in light of scientific advances. The reasoning was made to fit the result even though the underpinning of the case was flawed to begin with. Hence my point.

I have no issue with Domestic Unions if the state enacts them. They apply equally to same sex and opposite sex couples. And they are constitutional. It's not for the courts to make it up.

"Under your theory, polygamy and bigamy should be legal as natural rights. Not as simple as you make it."

This pretty much sums it up. The fact is, the government regulates marriage, period. Whether they should or not is an entirely different debate.

Duke:

I'm all for California's legislature passing laws but what I am not in favor of is the SC deciding what that law should be (in direct opposition to an election, by the people of the state, that was expressly against it). You can make all the emotional arguments you want, but we are not ruled by emotional responses, we are ruled by laws and the people spoke on the issue, firmly, in 2000. Just because the legislature ignored it, doesn't make it right.

Furthermore, the fact that the California legislature regularly does end-arounds on the peoples' will is not a rousing endorsement of the popularity of gay marriage in the state (the legislature routinely ignores or plays semantic games with what is the clear will of the people on everything from illegal immigration to affirmative action). The governor vetoed it because the people had already spoken on it in 2000, not because he is personally against it--and as you know, the governor also represents the 'will of the people' you're so fond of (but only, appparently, when you agree with the decision). There are checks and balances like this for a reason.

That said, if it was as popular as you contend, the legislature could have over-ridden it (they didn't) and it came down to the court deciding it would be law, which is *obviously* exceeding their powers (if it wasn't a law to begin with, how exactly does the court have any say in it--if there's no law to violate, there's nothing to rule on).

Now that this decision has come down, you can bet it'll be on the ballot in November and, once again, the people of California will come out against it. Anyone supporting gay marriage should now be worried that the backlash doesn't, ultimately, result in a constitutional amendment that bans it altogether as in 26 other states (witness the spate of laws over the last several years and the enormous backlash against illegal immigration spurred by the hubris of supporters).
And as someone that lived in Cali for a decade, don't mistake what people in SF think for what everyone else thinks (and I include the people in LA as part of that "everyone else").

If anybody thinks that Chucky is going to approve of another Roberts, I have some only 6 inches under water swamp land I would like to unload cheap.

a Roberts type candidate will pass the Senate. An Alito type, depends.

I don't care if you're left or right, Roberts is one of the smartest jurists out there. His credentials were impeccable and blew the dems like Kennedy away. Even Leahy had to vote for him.

Yeah, I don't quibble with Roberts' intellect or credentials; he's the best choice Bush could have made. That he genuinely saw no difference between him and Harriet Miers sent a chill down my spine.

Cigar Mike,

Let me tell you slowly, very slowly:

T h e C a l i f o r n i a L e g i s l a t i v e p a s s e d a l a w l e g a l i z i n g g a y m a r r i a g e T W I C E, i n 2 0 0 5 a n d 2 0 0 7.

We left Cuba for the oppression of civil liberties. Listen to yourselves now. Letting gay people marry will not affect your rights in any way. Get over it

Mike,

The decision of the court was 4 to 3. All 4 voting in favor of gay marriages on the California Supreme Court were Republicans.

The one Democrat voted against it!

I'm no Obama fan but Mike when you trash Obama or anyone else don't you think you should make sure that the comparason you stretch to is at least based on some kind of fact?

Ed, I can read, and it was vetoed by Gov. because the people of california voted for an ordinance opposing it.

Nuff said.

Jack I see your point but the chances of activist judges on the Supremes will be more likely with Obama. I guarantee it.

There is absolutely no need to stage a vote on the birthright of two human beings to marry one another. Hell, no government - federal or otherwise - every had the right to debate this in the first place. There's nothing to debate. It's like asking for a vote on whether or not Wisconsin residents have the right to breathe oxygen.

No one has used the courts to subvert the legislative process. There is no need to use EITHER the courts or legislation to preserve a right all human beings are born with.

-Anatasio

Marriage is not a birthright. It is a legal recognition of a union between man and woman. That's how it began in all organized religions. It is subject to control by the government now as it was in biblical times.

Someone mentioned common law marriage. Some states recognize it. Others don't. Florida does not recognize it.

OK, then when will the legislative debate on the legality of opposite sex unions begin?

AB

My point is, you can't offer the possibility of marriage to one sect or group yet deny it to another. That's called prejudice.

It's all or nothing.

AB,

I'm no Constitutional scholar a la Cigar Mike, but your statement of absolutism strikes me as too far reaching. Does a male human have a right to legally marry his favorite animal, vegetable or mineral? I know I'm taking it to the extreme, but shouldn't society impose some limitations on what we call "marriage"?

Lets use a not so extreme example. Lets limit it to human beings. Should the State recognize a 40 year old man's marriage to a 6 year old girl? A 12 year old girl? A 16 year old girl? Should society "draw lines" somewhere? If so, how do we decide where the line(s) should be drawn? What if the 40 year old man wanted to marry three 20 year old women? No state recognizes that. If we limit it to "consenting adults" why not polygamous marriages among adults?

I see the desire to be "inclusive" in your absolutist statement, but somehow I think you'll agree it is too far reaching. Don't society's interests require some limits?

They require limits where a certain action would be dangerous to certain parties - like your six-year-old analogy. But, if two consenting adults want to get married, why should anyone have the right to stop them?

Seriously, just give me one reason.

AB,

I personally don't have any reason to give. As someone said above, as long as it doesn't pick my pocket or break my leg, I don't care.

I merely question your pronouncement deeming it too broad. You picked one of the examples I used imvolving minors. Lets use the other example: the adult male who wishes to marry three adult females, all consenting. Any reason(s) why society might want to proscribe that? If your answer is "no", are there any limits that might apply?

That is my only query.

If the parties are consenting - "knock yourself out."

The only caveat I would have would be regarding benefits - IE: tax breaks, and health insurance provided by employers. One cannot expect the bill to be footed for all the parties involved in the marriage. So, a choice would have to made as to who receives benefits. I suppose I'm getting a bit technical but, it's worth mentioning I feel.

AB

AB,

I think you now hit the nail on the head. People who want their union recognized as "marriage" aren't doing it because they think its "romantic" or out of "principle." They want the legal recognition and social benefits that accrue, ie. insurance, social security "widows" benefits, etc. etc. There so, will it pick my pocket? What if John Doe has three wives and he dies, do they collect three times the survivor's benefit. Just one interesting repercussion which must be considered.

It is a complex issue beyond the

But you could say the exact same thing about a straight marriage so I fail to see your point . . .

Then outlaw ALL forms of marriage so nobody is getting any benefits. That would be fair and equitable the way I read your point.

The only point is that there may be policy reasons why society would want to extend benefits such as health insurance, a share in her husband's social security benefits, statutory share of a decedent's estate (just by way of some examples) to a woman who bears and educates children in a marriage; which do not apply to two adult males who are in a sexual relationship.

The first, some would argue, forms the basic "building block" of Western society. The wife may give up her career, or takes a less remunerative "mommy track" to care an educate the couple's offspring. Society needs to afford her legal protection.

The second couple, not that there is anything wrong with it, does not for the same "building block." So, society does not have the same interested invested in recognizing the relationship, or creating legal protection for one of its members.

Just seems that we as a society pass laws to protect what we deem important. One "unit" serves a purpose that the other does not serve, generally speaking (yes, I know, there are same sex couples that adopt, etc.-- but that is not the typical situation).

In any event, I guess I'm getting more into this than I had anticipated. As I stated, as long as it doesn't pick my pocket or break my leg, then more power to 'em.

But, it seems to me it isn't as simple and cut-and-dried as to merely say, all humans should have the right to marry.

I don't care if gays marry - I've given it a lot of thought and I can't find how that affects my right to life, liberty and the persue of happiness. I however, fear much more what Obama can do to our country with his economic and foreign policy. PS: I agree with Cigar Mike/ Chris Rock: ~ let them suffer ~ :)

u

I've always thought of marriage as a religious institution. I think the government should get out of the business of sanctioning relationships altogether. That way if you belong to a church that says a man and a man can get married fine. It's up to the people of that church to agree or disagree with it.

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