What? Dude. You just made my point. The Court’s ruling was based on a democratic principle of majority rules. The court heard arguments, discussed the issue, issued opinions and voted on which way to rule. The with the most “votes” won. So even the court’s decision was democratically arrived at. Now anti-gay marriage advocates want to attack the very process through which judicial rulings are made by declaring the majority opinion anti-democratic.

That makes sense.

Right. Because no democratic institution would ever undermine their own authority by, oh, I dunno, consistently choosing not to act as a check on the power of the Executive branch for example.

So the dissenting justices were looking to subvert the authority of a democratic institution they were a part of?

That makes sense.

Dude, the majority opinion was based on 60 years of previous California Supreme Court rulings. This is hardly an opinion out of left field. At the same time, all the decision really did was reject the statute as written as unconstitutional. The Court left open the possibility of rewording the statute in such a way that is wasn’t unconstitutional. At the same time, as you point out, there is still the possibility of amending the California constitution. It’s all part of a democratic process. To attack the court’s decision as somehow anti-democratic is pure demagoguery aimed at subverting the authority of a democratic institution, that is, the courts.

Mr. Potato Head…..Mr. Potato Head!! Learn to read. I wrote:

“The sad part is, this issue probably would have been resolved at some point by the state legislature and the Governor’s office.

Because you’re an asshole.

… Are you really that fucking stupid, Jay?

The California legislature did pass a gay marriage law. Schwarzenegger refused to sign it.

“This decision will merely make it easier for that amendment to pass.”

Bigots and assholes don’t need reasons to be bigots and assholes.

They are not however, acting within their role when their decisions fall outside of accepted jurisprudence. Remember, this wasn’t a unanimous decision. It was 4-3, not 7-0. The dissenting judges in this case ruled correctly that the court was overstepping its bounds and acting as legislators and that is not the role of the judiciary.

Chief Justice George rejected the minority’s viewpoint that this decision could lead to further decisions that would legalize polygamous and incestuous marriages because there is justification to ban such unions because of their “harmful effect on families.” Well who is he to say that it will have a harmful effect? Haven’t religious conservatives argued the same about gay marriage? The Chief Justice’s comments are a total contradiction to his own decision – that marriage is a “fundamental” right.

Here are two dissenting viewpoints:

“[A] bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves,” Baxter wrote. “Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.”

“Four votes on this court should not disturb the balance reached by the democratic process, a balance that is still being tested in the political arena,” she wrote. “Certainly initiative measures are not immune from constitutional review. However, we should hesitate to use our authority to take one side in an ongoing political debate.”

The sad part is, this issue probably would have been resolved at some point by the state legislature and the Governor’s office. Now with this decision, it gives a lot of fuel to those who want to enact an amendment to the state constitution that will ban gay marriage. This decision will merely make it easier for that amendment to pass.

You know, “overturning the will of the people” is a pretty loaded phrase and it isn’t even remotely close to accurately describing what happened here or in other cases.

Yes, unconstitutional laws get enacted and enforced but that’s because courts only review what comes before them, and law only come before them if there’s some specific case or appeal based on the law. I’m not a lawyer but that’s my general understanding.

But when a court finds a law unconstitutional, they are acting within their constitutionally defined role which is an ESSENTIAL PART of our democracy. It isn’t an assault upon it, as the phrase “overturning the will of the people” would imply. Conservatives who use the phrase and others like it, such as “legislating from the bench” are essentially undermining the authority of the courts to do their job and that’s dangerous. I heard a local LA talk show host today liken the California Supreme court to a dictatorial council. You think that’s healthy in a democracy like ours? I don’t.

Actually, some unconstitutional laws DO get enacted. Some don’t get that far, some don’t get enforced while the matter of constitutionality is settled. But there have been laws on the books that have gotten stuck down years later as unconstitutional.

And when that happens the court, if it’s doing its job, certainly does overturn the will of the people.

Not really. The majority opinion wrote:

“…Our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership, but instead only to determine whether the difference in official names of the relationships violates the California Constitution.”

They were focussed, then, entirely on determining the constitutionality of the statute as worded which asked that the state recognize only same sex marriages. They looked at both court precedent on the “right of marriage” as found in the California constitution and specifically at the equal protection clause of the constitution.

They did not create some kind of new right for gay couples. Sixty years of California supreme court rulings have determined that the state constitution implicitly includes a right to marriage. Furthermore, however, the court never defined marriage previously based on the identity or gender of the plaintiffs in question:

Plaintiffs challenge the Court of Appeal’s characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs’ position. In Perez v. Sharp — this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional — the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as “a right to interracial marriage” and did not dismiss the plaintiffs’ constitutional challenge on the ground that such marriages never had been permitted in California.”

Instead, the Perez decision focused on the substance of the constitutional right at issue — that is, the importance to an individual of the freedom “to join in marriage with the person of one’s choice” — in determining whether the statute impinged upon the plaintiffs’ fundamental constitutional right.

Once you remove the specific details of race and gender from the equation, the court found that the right of marriage cannot be applied unequally under the equal protection clause, especially as it did not find any compelling reason to do so. The statute in question did not apply equally so it was struck down. The key determination here wasn’t the definition of marriage itself but the equal application of the right to marry.

The court stated that if the statute had made a distinction between state recognized unions and religiously recognized marriages by limiting the state to recognizing only civil unions, leaving marriage up to churches, the statute would not have been unconstitutional. I think this speaks directly to your comment: “I would be happier if the state got out of the marriage business altogether.” The court left open the possibility for this to actually happen, but would anti-gay marriage activists in general be happy with that? I doubt it. What they want is for the state to recognize and enforce their own, specific morality and impose it on the rest of the population which is why they worded to proposition the way they did.

So again, the court ruled only on the constitutionality of the statute as worded which is its proper constitutional role. It did not overturn the will of the people, as neither legislatures nor voters are allowed to enact laws which are unconstitutional.

To call what the court did “legislating from the bench” does only one thing: undermine the constitutional authority of the courts in this country. That, as far as i’m concerned, is far more dangerous to this country than allowing gays to get married.

Agree with you all the way there.

State not involved in marriage at all. No license required to get married. No privileges granted to folks because of their marital state.

For determining beneficiaries and who gets to make medical decisions, etc, etc. let couples (man-woman ones, too) register with the state as a domestic partnership or civil union. Something completely separate and apart from marriage.

You need to read a little more carefull, jay. I wasn’t confusing your political and religeous views. I was simply asking you why if you could elaborate on why you are opposed to gay marriage beyond “I’m a Christian”.

Jay: Again Sean, read more carefully. It is not about whether or not it is legal to get married. I am opposed to a law that makes it crime for somebody to marry another.

Again, Jay, it would help if you read more carefully. I understand what you wrote. I just asked you to clarify it. Do you believe, then, that courts should then not recognize this “mythical right” for anyone. You said you don’t want the courts involved, and I asked how completely do you want them uninvolved.

If you like, I can just jump in and attack you for what I think you mean without asking for clarification. But I’d rather make sure I know what you mean before I jump to a conclusion you are wrong.

Jay: Once again, it has nothing to do with whether or not it is ok.

It doesn’t? Really? Whether something is “ok” or not has nothing to do with determining whether it is “ok” or not?

Jay: If the state of California wanted to legally recognize gay marriages, then let the legislature and the Governor do it. People need to stop relying on a court making up the law as it goes along.

What law did the court make up? The court interpreted the law and found it didn’t pass constitutional muster. That is exactly the role the court is required to play.

Jay: They also ruled basically that being gay is just like Black in the state of California, which makes no sense.

In other words, something you intrinsically are is just like something else you intrinsically are. There is sense there, Jay. Now you can argue that sexual orientation, unlike race, is something you can choose, and we can argue over how much sense a comparison makes. But you can’t just say it makes none at all.

SDM: Nice way to not actually address the point being made, Jay.
Jay: Actually, I did. I was just correcting your error.

Nope, still ducking it.

Jay: Actually they did overrule the will of the people which passed in 2000.

And what, exactly, is wrong with the court overruling the will of the people? It is the court’s job to determine what is constitutional and what is not. If the people pass an unconstitutional law then, yes, it is the court’s sworn duty to over rule them. If the people don’t like it they can get together a large enough majority to change the Constitution. It’s that pesky checks and balances thing.

I hereby plant this flag on Common Ground.

Can I take it you’re also opposed to a U.S. Constitutional amendment that recognizes marriage as “only” between a man and woman?

It is when you compare bans on same sex marriage to laws that made it a crime for interracial couples to marry.

That’s great, but that’s not what we’re discussing.

To be honest, I found it to be somewhat abhorrent that I had to go to the state and get a license that had to be given to my Pastor before he performed my wedding ceremony. I would be happier if the state got out of the marriage business altogether.

I didn’t say it was an answer Sean. I was just stating my viewpoint on gay marriage in that context. You need to read a little more carefully. My religious views can be separated from my political views.

Are you saying the courts shouldn’t recognize “some mythical ‘right’ to marry” for anyone?

Again Sean, read more carefully. It is not about whether or not it is legal to get married. I am opposed to a law that makes it crime for somebody to marry another. However, there is nothing in our constitution that says a state must recognize a gay marriage. Again, gays can get married in every state. It’s not illegal anywhere. The only legal question is whether or not the state should recognize that marriage. That is a question that should be left up to the legislatures and the public, not the courts.

But if the state says “do this and we’ll passively penalize you by denying you legal status and the benefits that come with them” then that’s OK?

It’s not a matter of whether it is ok or not. You cannot seem to comprehend the point at hand. It’s not about how I feel about the issue or whether one scenario is Ok or not. The comparison between the two is not valid for the reasons stated.

Nice way to not actually address the point being made, Jay.

Actually, I did. I was just correcting your error.

So, if there was no law against black people marrying, but marriages of blacks simply just weren’t recognized by the state, that would be OK?

Once again, it has nothing to do with whether or not it is ok. I really wish you could see past the emotional part of this and use some reason when discussing the issue. If the state of California wanted to legally recognize gay marriages, then let the legislature and the Governor do it. People need to stop relying on a court making up the law as it goes along.

They rejected the law on the grounds that it was discriminatory, not because gay people have a “right” to get married. The law said only certain kinds of people can get married. That’s an unequal application of the law and so unconstitutional.

You’re wrong. Chief Justice Ronald George said the exclusion of gays having their marriages recognized in the state of California denied them “their fundamental rights to marry.” They also ruled basically that being gay is just like Black in the state of California, which makes no sense.

Constitutionally, polygamy or bestialty doesn’t enter into it because, as I said above, laws against polygamy and bestiality do not say, well this group can do it, and this group can’t. No one can engage in either behavior legally and so the law is being applied equally.

Sorry, but that doesn’t hold water. First of all, the ‘behavior’ is not what they do, but marriage itself. Therefore, one group can and one group cannot. So the law is not being applied equally. Incest in and of itself in California is not illegal. But California law specifically prohibits incestual marriages. The only conclusion that can be made from the court’s ruling is that those people are being discriminated against and therefore, those laws should be found to be unconstitutional. That door is now wide open.

It’s disingenuous to suggest that the Court “overruled” the will of the people in some grab for power. The court was acting exactly as it’s required to act by the constitution.

Actually they did overrule the will of the people which passed in 2000. Once again, their decision doesn’t hold up because while saying a ban on gay marriage is unconstitutional, they left in place other bans.

At the same time, if you are opposed to gay marriage because you are a Christian and believe that your personal morality should be enshrined in law, that is the very definition of unconstitutional discrimination.

I don’t, so that doesn’t concern me.

Be that as it may, that is, again, not why the California Supreme Court rejected the law. They rejected the law on the grounds that it was discriminatory, not because gay people have a “right” to get married. The law said only certain kinds of people can get married. That’s an unequal application of the law and so unconstitutional.

The court would have done the same thing if Californians passed a proposition saying only straight people could get driver’s licenses. No one has a right to drive, but that doesn’t mean that legislatures can pass laws granting the privilege to only certain segments of society, short of compelling reasons to do so, such as limiting the age at which someone can drive. But even that restriction doesn’t deny, entirely, the ability to get a license. Teenagers just have to wait for it.

The majority of the court found their was no compelling social or safety reason for limiting the privilege of marriage to only straight couples. Constitutionally, polygamy or bestialty doesn’t enter into it because, as I said above, laws against polygamy and bestiality do not say, well this group can do it, and this group can’t. No one can engage in either behavior legally and so the law is being applied equally.

The court did not “discover” or “create” some right that didn’t exist beforehand. It did, however, find the law unconstitutional, which is precisely their constitutionally defined role. It’s disingenuous to suggest that the Court “overruled” the will of the people in some grab for power. The court was acting exactly as it’s required to act by the constitution.

At the same time, if you are opposed to gay marriage because you are a Christian and believe that your personal morality should be enshrined in law, that is the very definition of unconstitutional discrimination.

Why? Just “because I’m a Christian”? Hardly a thinking answer. isn’t an answer. What is the harm caused by or danger posed by gay marriage that makes it something that should be opposed?

Jay: as a libertarian, I don’t like such issues being decided by the courts where some mythical ‘right’ to marry and have that right be recognized by the state is being discovered.

Are you saying the courts shouldn’t recognize “some mythical ‘right’ to marry” for anyone?

Jay: Miscegenation laws (or anti miscegenation) laws specifically banned interracial marriage and provided criminal penalties for violating those laws. There’s no criminal sanctions in any state for two gay people to get married. Most states do not however, recognize such marriages.

So it’s the extent to which one is penalized that matters? If the state officially says “do this and we’ll actively penalize you by putting you in jail” that’s wrong. But if the state says “do this and we’ll passively penalize you by denying you legal status and the benefits that come with them” then that’s OK?

SDM: I can’t refuse to rent an apartment to you because you are black or gay.
Jay: Actually, you can. Housing discrimination laws do not apply to personal dwellings (two family house) or even apartment buildings with less than a certain amount of units (like 6 or something).

Nice way to not actually address the point being made, Jay.

SDM: Now the law in many places is that two people of the same gender can not marry.
Jay: See, that’s where you’re wrong. It is not against the law for two gay people to marry. It is the state recognition of that marriage that is at issue.

So, if there was no law against black people marrying, but marriages of blacks simply just weren’t recognized by the state, that would be OK?