Gender Neutral Marriage...

Kanastrous · Jun 17, 2008

...in practice in California, since Monday evening.

I'm surprised there isn't already a thread about this, either praising it or damning it as the End of Civilization as We Know It, or both.

Or maybe there is, and I missed it.

X · Jun 17, 2008

There hasn't been much talk here because, as shameful as the need for a Civil Rights Movement was, people know by now that human beings are human beings regardless of their circumstances and generally should be treated as social and legal (or, sociopoliticalllawlpostmodernism) equals.

Kanastrous · Jun 17, 2008

I'm mostly surprised at the lack of panic mongering from certain conservative/Christian quarters.

Maybe they're too embarrassed by the loss, to want to talk about it.

X · Jun 17, 2008

This matter is embarrassingly simple. That makes it difficult to talk about at any level of depth other than simply stating that gay people should be allowed to marry.

Kanastrous · Jun 17, 2008

In the past that hasn't prevented a lot of huffing and puffing from ConservChristian types, when gay marriage was being discussed as a possibility, rather than as a reality...

X · Jun 17, 2008

Another part of what makes it so difficult to discuss is how it makes me feel. I feel belittled when I'm forced to treat it as anything other than a non-issue. I feel reduced. I feel as ridiculous as parents look when they sit there and have an actual full-on argument with their three-year-old child.

Kanastrous · Jun 17, 2008

Well, imagine a pack of three-year-olds who pay taxes and are enfranchised to vote, and you sort of have something like the religious conservative crowd, when it comes to this sort of thing.

X · Jun 17, 2008

Kanastrous said: ↑

Well, imagine a pack of three-year-olds who pay taxes and are enfranchised to vote

LMFAO!!! I didn't even have to finish the post after this.

Salt & Light · Jun 17, 2008

X said: ↑

Another part of what makes it so difficult to discuss is how it makes me feel. I feel belittled when I'm forced to treat it as anything other than a non-issue. I feel reduced. I feel as ridiculous as parents look when they sit there and have an actual full-on argument with their three-year-old child.

X,

You consider judicial tyranny a non issue? Maybe you should do some research into this particular case so that you can understand why the ruling is being considered judicial tyranny.

I guess the first question should be; do you know what judicial tyranny is?

Kanastrous · Jun 17, 2008

Judicial Tyranny does not even begin to apply, in this context, and it's a desperate reach on the part of people who just can't accept that their ends are unconstitutional.

X · Jun 17, 2008

Salt & Light said: ↑

X,

You consider judicial tyranny a non issue? Maybe you should do some research into this particular case so that you can understand why the ruling is being considered judicial tyranny.

I guess the first question should be; do you know what judicial tyranny is?

You know, maybe I don't know what judicial tyranny is. But I know what it ISN'T: It isn't when a judge makes a determination that has NO EFFECT ON YOU. You can still marry!

In the beginning of this so-called debate, what you have is a sanctimonious asshole who thinks gay people are gross or evil or something. Then, in the face of intellectual scrutiny that asshole is forced to concede to social toleration. But they hold on to their prejudices by claiming that marriage is "defined" as something that is specifically heterosexual.

Obviously, those among us with functioning brains are forced to comprehend the fact that marriage, in a court of law, has next to nothing to do with religion and therefore does not give respect to person or sexual preference. Your religion has nothing to do with the government of this nation, and if you disagree then you can argue about it with Christian politicians like Thomas Jefferson and Barack Obama.

The core of the debate, however, is just as stupid but a hell of a lot deeper. Civilization is maintained by order; the argument in this country is that this order is comprised at least partly of monogamous heterosexual families. The Communists challenged all of those ways of thinking, which is one of the reasons why the American government hated them so much. America has rigid and unsophisticated sexual doctrines. People are allowed to copulate whomever they please as long as they don't do it for profit, homosexuals are treated like second-class citizens, and telling people not to have sex is thought of as "sexual education."

Even the Republicans could tell you that all this is wrong. The real Republicans, anyway; the ones that hated taxes, hated authoritarian government, and freed the slaves. They would tell you that no one has any business telling anybody what to do to each other behind closed doors unless someone was getting hurt. And they'd tell you that marriage is not a declaration as to what kinds of people you'll be rubbing your genitalia on, but a spiritual bond between two adults that love each other.

Saint · Jun 17, 2008

Salt & Light · Jun 17, 2008

Kanastrous said: ↑

Judicial Tyranny does not even begin to apply, in this context, and it's a desperate reach on the part of people who just can't accept that their ends are unconstitutional.

Kanastrous,

Are you aware that it took just four judges to overturn the will of the people and the historical definition and of marriage in California? The split between the judges was 4-3.

Are you aware that in the 2000 election 4,618,673 (61%) Californians’ adopted legislation to define marriage as the union of one man and one woman?

You claim that: "judicial tyranny does not even begin to apply, in this context, and it's a desperate reach on the part of people who just can't accept that their ends are unconstitutional."

Obviously you are much more intellectually astute than the Judges on the California Supreme Court; so explain that to the 3 dissenting Judges. Here are remarks two of them made in their dissenting opinion they wrote.

Justice Marvin R. Baxter said:

“But a bare majority of this court,” Justice Baxter wrote, “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.”

Justice Marvin R. Baxter said the majority should have deferred to the state Legislature on whether to allow same-sex marriage, particularly given the increased legal protections for same-sex couples enacted in recent years.

Justice Carol A. Corrigan said:

“We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root,” … “If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

Justice Carol A. Corrigan wrote that her personal sympathies were with the plaintiffs challenging the bans on same-sex marriage. But she said the courts should allow the political process to address the issue.

I could go on by presenting a couple more points grounded in factual evidence to support my position but I believe that this is a good start. In addition it is more than you, or anyone here, have presented to support your view, other than your personal opinion, which simply means its another typical discussion at ITP today. Imagine that?

X · Jun 17, 2008

Salt & Light said: ↑

In addition it is more than you, or anyone here, have presented to support your view, other than your personal opinion, which simply means its another typical discussion at ITP today. Imagine that?

Evidence.

hahahah. Alright then, a list of evidence:

1) Gay marriage bans are unconstitutional in California.

The interesting thing about this ruling is that the California High Court cannot make an issuance contrary to the Constitution of California. That means specifically that whatever was ruled against was unconstitutional -- in this case, bans on gay marriage.

2) Gay marriage bans are unconstitutional in California.

The interesting thing about Evidence #1 is that it was proven by the California Supreme Court ruling, whereas Evidence #2 was proven by the opposition to the ruling. You see, the opposition's response to the ruling was to put forth an amendment to the California Constitution for the people to vote on in November. This means that for the ruling to be unlawful, the law would have to be different from what it is now.

3) Gay marriage bans are unconstitutional in California.

The interesting thing about doing something unconstitutional is that it is the only time in this nation that you will have no support whatsoever from any group of any kind. If you do something unconstitutional then you are nothing but a criminal and just a general son-of-a-bitch. Speaking of sons-of-bitches, the argument of the ruling was that the California Constitution deems the banning of gay marriage to be socially unequal and irresponsibly threatening to the personal liberty of its citizens. The chief argument for the ban? Tradition.

4) SHUT UP. You are mentally deficient and I hate everything you stand for.

Yes, you. And you know what someone told me? "Fuck the California Supreme Court for overruling the state and the people [because there it was voted 61% five years ago to ban gay marriage]." You know what my immediate response was? "FUCK the state and the people." Those were my exact words. No one is above order. Order is the backbone of society. You are not the backbone of society. Your inhumane ancient teachings of indignant seperatism are not the backbone of society.

No one has the right to do something unconstitutional.

Medora · Jun 18, 2008

S&L's point about the 2000 referendum, and X's point about constitutionality reminded me of an article by Gleen Greenwald submitted 15 May, 2008. The following is much of that article (formatting consistent with author's, including URL sources provided):

In a landmark ruling (.pdf) certain to spark far-reaching political and legal consequences, the California Supreme Court today ruled, by a 4-3 vote, that it is unconstitutional to exclude same-sex couples from the legal institution of "marriage," even if such couples are granted the right to enter into "domestic partnerships" or "civil unions" which provide most, or even all, of the same rights as "marriage." The Court is comprised of six out of seven Republican-appointed judges. The ruling had nothing to do with the U.S. Constitution, but instead was based on the California State Constitution's guarantee of the "right to marry" and its guarantee of "equal protection" under the law.

Critically, the Court emphasized at the outset that its ruling had nothing to do with the political views of the judges with regard to gay marriage, but rather, was based solely on its legal analysis of past precedent interpreting the relevant provisions of the state Constitution (emphasis in original):

[O]ur 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.

Only after exhaustively analyzing California judicial precedent on these constitutional questions -- over the course of 121 pages -- did the Court conclude that the state statute "limiting the designation of a marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available to both opposite-sex and same-sex couples." The ruling, in effect, compels state and local officials to begin issuing marriage licenses to same-sex and opposite-sex couples equally.

The crux of the Court's ruling is grounded in what it called "the right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family." That right "constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons." The Court rejected a "separate-but-equal" arrangement for same-sex and opposite-sex couples -- where only the latter can enter into "marriage" -- because:

affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same sex couples enjoys dignity equal to that of of opposite-sex couples, [. . . and] assigning a different designation for the family relationship of same sex couples . . . poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.

Given the controversial nature of this ruling, there are certain to be all sorts of myths being spouted by pundits and various advocates who object to the outcome here. Thus, it is vital to note:

(1) No rational person can criticize the Court's decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of -- and contempt for -- how the law works.

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.

UPDATE V: Just to clarify in response to a couple of comments here and elsewhere: nothing in what I wrote states or suggests that one needs to be a "legal scholar," an "expert" or even a lawyer to form a reasoned opinion about the court's ruling. I don't believe that to be true, and have made that point before:

This doesn't mean that only lawyers or constitutional law experts can form opinions about the court's actions. Anyone can read the judicial opinion, then go read the precedents on this provision, and inform themselves about what the [California] State Constitution does or does not guarantee. But -- as is true for any other topic -- a basic understanding of the relevant issues, so plainly lacking in all of these overnight experts, is required to be capable of anything more than baseless demagoguery.

The point is that whoever wants to make a reasoned argument about the court's ruling must -- by definition -- familiarize themselves with the relevant issues, and there is only one relevant issue here: does the California State Constitution bar the law in question? The way our government and system of laws were created, judges have no discretion if the answer to that question is "yes." They're required to strike down the law. As Alexander Hamilton put it in Federalist No. 78, regarding the duties of the federal judiciary: "wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."

It's self-evident that there's no way rationally to assess whether the Court acted correctly if one doesn't bother to find out anything about the California State Constitution and the precedent interpreting and applying it. Anyone who seeks to opine about the propriety of the court's ruling without doing that basic work is simply expressing an opinion about whether they like the outcome as a policy matter, i.e., is being guided by the defining attribute of so-called "judicial activism" (ignoring relevant law in favor of outcome preferences).

Dhampir Boy · Jun 18, 2008

Well, Hyperion just covered almost anything I could have possibly added to this discussion, and did it better than I could have.

All I think I can add is this:
The issue is simple.

1) Unequal treatment based on race, gender, sexual orientation, religious affiliation, political leanings, etc. is unconstitutional, and this is especially true in government services and institutions.

2) Marriage is a legal institution with support from government services.

3) Thus, providing unequal treatment based on race, gender, sexual orientation, et al. in regard to marriage is unconstitutional.

Also, if legislation encourages unequal treatment (e.g.: defining marriage as between a man and a woman), then it it is declared unconstitutional on principle based on the above premises.

Furthermore, I really do not consider this to be all that much different from the past issue of desegregation in the US, particularly in the case of schools. I am sure there were people who were for desegregation who said then that the American people just were not ready for it. "Give it time." Sorry, but what is right really is right, regardless of who is ready for it. If someone is not ready for justice, then they are just going to have to sit in the corner and mumble to themselves about how pissed off they are because, ready or not, Eisenhower is going to send black kids to your whitebread schools with help from the 101st Airborne Division of the United States Army and the federalized Arkansas National Guard.

Kanastrous · Jun 18, 2008

Salt & Light said: ↑

Are you aware that it took just four judges to overturn the will of the people and the historical definition and of marriage in California? The split between the judges was 4-3.

The result of the vote is binding, and therefore significant. The margin by which the vote passed, is not. At least, not until the next changeover election.

Anyway, had the vote been unanimous, I feel certain that you would be complaining about "just seven judges" thwarting the "will of the people, " rather than complaining about "just four judges" having done it.

And the number of judges involved, is meaningless. The point is that under our Constitution and system of government, the courts have an obligation to evaluate and rule upon the constitutionality of any given law. Whether one judge or four out of a panel of seven find a law fails constitutional muster - that's it.

And, I expect you to prove that there is even such a thing as a "historical definition of marriage in California," by furnishing state documents from the state's history, that define it.

Salt & Light said: ↑

Are you aware that in the 2000 election 4,618,673 (61%) Californians’ adopted legislation to define marriage as the union of one man and one woman?

Yes, I am aware of that. So what? If 61% of Californians voted to reintroduce slavery (once a long-standing tradition), would that matter? If 61% of Californians voted to disenfranchise women from voting (once a long-standing tradition), should that matter? The fact that a majority of Californians want something that can't pass Constitutional muster, doesn't mean that they get what they want. Part of life in a Constitutional Republic, is that you have to content yourself with living under the terms and requirements of that Constitution, whether you like them or not, unless you can swing an Amendment to change them.

And we'll just see how that goes.

Salt & Light said: ↑

Obviously you are much more intellectually astute than the Judges on the California Supreme Court; so explain that to the 3 dissenting Judges. Here are remarks two of them made in their dissenting opinion they wrote.

Justice Marvin R. Baxter said:

Baxter essentially feels that the smaller group of people should be denied equal protection, because as a matter of policy the larger populace isn't entirely comfortable with it. Well, fuck him. I bet the Emancipation Proclamation made a fair number of people uncomfortable, too.

And he didn't even use the phrase "judicial tyranny," while saying so.

Salt & Light said: ↑

Justice Carol A. Corrigan said:

Corrigan says flat out that her sympathies are with the plaintiffs. And her perspective is once again rooted essentially in people's comfort level - let things play out by themselves, over time, so that people can feel happy about it. Well, fuck her, too. Deciding that one group of people should be denied a right not specifically denied them under the Constitution, so that other people can feel comfortable about it, isn't even a Constitutional argument. It's pandering.

And she doesn't use the phrase judicial tyranny, either.

Since neither of the actual justices you quote in dissent, even mention "judicial tyranny," I think we can safely dismiss your use of the phrase as bullshit.

Salt & Light said: ↑

I could go on by presenting a couple more points grounded in factual evidence to support my position

You have presented nothing by way of "factual evidence;" I doubt you even understand what the phrase means.

You have presented excerpts from the opinions of a pair of judges whose positions are that the comfort-level of the public trumps the guarantees made by the state Constitution.

If a majority the public were to eventually decide that church revenues should be taxed, or that clerics should be publicly licensed, or that religious expression was to be absolutely banned on any and all public property, right down to Christmas creches, you and I both know that you would be shrieking for the courts to come in and protect your interests, from a public that didn't give a crap about your freedoms.

Salt & Light said: ↑

but I believe that this is a good start.

It's no kind of start, at all. You have not presented a single argument based upon Constitutional law. However, a majority of the highest-ranked legal officers in the state, have evaluated the arguments and found against your position.

How about that.

Salt & Light said: ↑

In addition it is more than you, or anyone here, have presented to support your view, other than your personal opinion,

Except that the highest court in the state, by majority opinion, agrees with my position. Or, alternately, I agree with theirs. So in addition to my personal opinion, on the matter, I have a majority of the highest-ranking jurisprudents in the state, on my side and against yours.

Salt & Light · Jun 18, 2008

Kanastrous,

You are truly a hoot!

You say that historical precedent has no bearing in determining the definition of marriage. What information do you suggest should be reviewed in determining the definition of marriage?

You say that the vote of the people is irrelevant. Then you say that my position isn’t based on Constitutional Law. Doesn’t the Constitution establish government of the people, by the people, for the people? Or isn’t the United States a Democracy anymore? Maybe it has been redefined along with the many other terms that have been redefined in this post modern society.

You say that I have not presented factual evidence to support my position. Well Kanastrous, my friend, what have you presented besides a flaming unsubstantiated rant pointed entirely at me rather than the topic?

You are right on one thing. That is that the California Supreme Court handed down a ruling, by majority, and that ruling must be honored, at this time, for our Democracy to function.

Thanks,
Salt & Light

Salt & Light · Jun 18, 2008

X said: ↑

hahahah. Alright then, a list of evidence:

1) Gay marriage bans are unconstitutional in California.

The interesting thing about this ruling is that the California High Court cannot make an issuance contrary to the Constitution of California. That means specifically that whatever was ruled against was unconstitutional -- in this case, bans on gay marriage.

X,

I must say you are more creative than Kanastrous. :msn wink

In affect the decision handed down by the California Supreme Court amended the Constitution of California while circumventing the people from the process. This is what judicial tyranny is. That is why I asked you in the beginning of the discussion if you knew what it was. You said: “maybe I don't know what judicial tyranny is.” Your reasoning shows that you don’t and therefore didn’t recognize it when you wrote your opinion.

I see no need to address any of the other points on your “list of evidence” because they either hinge on item 1 or are absurd personal opinion, not evidence.

Thanks,
Salt & Light

Kanastrous · Jun 18, 2008

Salt & Light said: ↑

You say that historical precedent has no bearing in determining the definition of marriage.

Please quote verbatim where I said precisely that, on this thread. I don't believe you can, because I never said that. So don't lie and say that I did.

I did, however, ask you to cite documents demonstrating that the State of California has an established "historical definition of marriage."

Care to do that? Or admit that you can't?

Salt & Light said: ↑

You say that the vote of the people is irrelevant.

In the specific context of voting up an unconstitutional law, yes, the vote is irrelevant to the constitutionality, and therefore permissibility, of that law. That is one reason why we have courts: to interpret the Constitution and determine whether laws passed by legislature or referendum conform to its requirements.

Salt & Light said: ↑

Doesn’t the Constitution establish government of the people, by the people, for the people?

By the Eternal Pipe, you are fucking ignorant. Don't they teach civics at all, in whatever educational system spat you out?

The phrase is not from the Constitution; it's from Abraham Lincoln's Gettysburg Address!

[FONT=arial, helvetica, sans serif]"that we here highly resolve that these dead shall not have died in vain--that this nation, under God, shall have a new birth of freedom--and that government of the people, by the people, for the people, shall not perish from the earth."

[/FONT]I actually kind of feel like you owe the people on this forum an apology, for fouling their screens with the vileness of your uneducated, self-righteous shit. Do you even appreciate your own ignorance, while you smugly sit and crap away as though you have even read the Constitution?

You uneducated, ignorant, pissant fuckwit.

Oh, and to answer your question, no, the Constitution doesn't establish that, because those words are not in the Constitution.

Salt & Light said: ↑

Or isn’t the United States a Democracy anymore? Maybe it has been redefined along with the many other terms that have been redefined in this post modern society.

The United States of America has been - from the day of its inception - a Democratic Republic. The fact that you don't understand what that means, is no surprise considering the low grade of education you've displayed on the subject, so far.

In a Democratic Republic the people don't get one-vote-per on every item of policy or law. The elect a system of accountable representatives who cast those votes on their behalf, subject to the review of a judicial branch and the veto of an executive one.

Salt & Light said: ↑

You say that I have not presented factual evidence to support my position.

Because you still haven't. Do you think that you are fooling anybody here, with your bullshit? Everyone can read and see that you don't offer any evidence at all, to underwrite your claims about Constitutionality or government; hell, you don't even know what's in the Constitution.

How do you think others regard you, and what you have to say, when you are so flagrantly ignorant and arrogant, to quote from a document you know so poorly, as to be quoting something else, entirely?

How seriously, do you think anybody takes what you have to say?

I note from some of your posts that you like to think of yourself in the role of a teacher (So-and-so, I'm so glad you asked that question! The answer is...)

Look, everybody, look at the big teacher, who pulls quotes from his ass out of documents he's never read, and thinks he's ever so smart and ready to teach the rest of us what's what.

That, by the way, is what a rant directed at you would actually look like, should I choose to compose one, you whiny ignorant little punk.

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