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california supreme court vs. gay marriage ban

May 15, 2008

I have to admit, I did not see this one coming. Everything I'd seen up until now said that it would probably be a 4-3 decision the other way.

State Supreme Court says same-sex couples have right to marry
Bob Egelko, Chronicle Staff Writer
Thursday, May 15, 2008

Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November. In a 4-3 decision, the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days. The ruling set off a celebration at San Francisco City Hall. As the decision came down, out-of-breath staff members ran into the mayor's office where Gavin Newsom read the decision...

[...] The celebration could turn out to be short-lived, however. The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid. If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts....

California Supreme Court overturns gay marriage ban
In a 4-3 ruling, the justices rule that state marriage laws are unconstitutional.
By Maura Dolan, Los Angeles Times Staff Writer
10:40 AM PDT, May 15, 2008
ยป Discuss Article (14 Comments)

SAN FRANCISCO -- -- The California Supreme Court ruled today that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory. The state high court's 4-3 ruling was unlikely to end the debate over gay matrimony in California. A group has circulated petitions for a November ballot initiative that would amend the state Constitution to block same-sex marriage, while the Legislature has twice passed bills to authorize gay marriage. Gov. Arnold Schwarzenegger vetoed both. The long-awaited court decision stemmed from San Francisco's highly publicized same-sex weddings, which in 2004 helped spur a conservative backlash in a presidential election year and a national dialogue over gay rights.

Several states have since passed constitutional amendments banning gay marriage. Today, 27 states have such amendments. [...] Before today's ruling, gay rights lawyers predicted a victory in the California Supreme Court would help them defeat the proposed constitutional amendment against same-sex marriage, which the lawyers expect to qualify for the November ballot. A loss in the court would have helped the backers of the measure, they said....

California Marriage Protection Act
This measure shall be known and may be cited as the "Ca lifornia Marriage Protection Act."
SECTION 2. Article I. Section 7.5 is added to the California Constitution. to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

SEC. 4. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

Schwarzenegger vows to fight constitutional ban on gay marriages
By Kevin Yamamura
Published 12:00 am PDT Saturday, April 12, 2008
Story appeared in MAIN NEWS section, Page A10

Gov. Arnold Schwarzenegger vowed Friday to oppose an initiative banning gay marriage in the state constitution, calling any such effort "a total waste of time." The Republican governor has twice vetoed gay marriage bills because he wanted the state Supreme Court to decide the issue and did not want to reverse the intent of voters who approved a ban in 2000. A conservative coalition has raised nearly $1.4 million to place an even stronger state constitutional ban on the November ballot that could supersede the court's ruling, which is expected later this year.

Schwarzenegger, speaking Friday at a Log Cabin Republicans convention in San Diego, said he would fight that constitutional initiative and predicted its demise. "Well, first of all, I think that it will never happen in California because I think that California people are much further along on that issue," Schwarzenegger said, according to an audio recording. "And No. 2, I will always be there to fight against that because it should never happen."

I make you some predictions:

1. The California secretary of state's office will find, almost certainly, that the threshold of valid signatures has been met to put the issue before the voters in November. Even if you allow that there may be a fair number of fake, illegible, or mistaken signatures on the petition, it seems highly unlikely that more than 45% of them will be ruled invalid.

The entr'acte promises to be ... interesting, to put it mildly. Once the ballot measure is approved to go to the voters, Conservative groups will almost certainly sue to enjoin marriages being conducted, pending the results of the ballot measure. That way, if the measure passes, there will be fewer marriages to invalidate. It'll be interesting to see how a court reacts to that; after all, it can't be that big an issue to tell a couple to wait until November to see if they can get married, technically speaking. (That said, I would think that the ban, on its face, will require all of those marriages to be invalidated by the state; the only question is going to be whether it's straight-up invalidation, or whether it's "OK, your marriages are invalid, but instead, they will be considered civil partnerships as currently accepted in California law." That will have to be decided by the courts in any event if the amendment passes.)

2. California will vote overwhelmingly to add an amendment to their state constitution, declaring marriage to be the sole domain and privilege of the straight peoples of the state. The margin will be wide enough to startle people who persist in thinking of California as a land of northern crunchy granola liberals and southern Hollywood elite liberals, totally ignoring that the majority of people are rather obviously neither of the above. Oddly enough, it may prove to be one of the few constitutional bans that does not immediately take out civil partnership and all appurtenances upon passage; the ban, despite being very simply worded, is also surprisingly narrow, and refers only to marriage, and not to anything resembling marriage, as most other constitutional bans seem to. (See also: Michigan versus its public employees as well as Ohio versus abused but unmarried people.) By the same token, the methods used to persuade Arizona to defeat its amendment -- to date, the only one that's failed -- may not be effective, precisely because the amendment is not the sort of spectacularly overbroad statement that's clearly going to affect things that people who are otherwise opposed to gay marriage might care about, such as cohabiting elderly or domestic abuse laws.

Mind, it may help that the governor, a Republican, is opposed. But he's not an overwhelmingly popular governor, as I understand it, so I'm not at all sanguine about how much it helps.

3. Because this item is on the ballot, conservative voter turnout will be higher, in California at least, than it might have been otherwise. After all, conservative Republicans loathe McCain, and (assuming he winds up on the ballot as the veep) moderate Republicans loathe Huckabee; absent a major conservative issue, Republican turnout could have been seriously depressed. Mind, this isn't an issue they can use to inflict a huge amount of damage to Obama (assuming he's the Democrat nominee), at least not directly: he's already on record as opposing gay marriage, on precisely the sort of grounds that the Republicans will be using to drum up support for their issues: "I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman." That said, since he's not prepared to run around demonizing gay men and lesbians, there's a little traction there for conservatives, if only a little.

Honestly, I'm not sure how much higher conservative turnout will be, though. After all, Senator Clinton's "working class Americans" will probably be turning out in droves, just to make sure that a black man doesn't become president and to save the country for the white people. Saving marriage for the straight people will probably just be the lagniappe.

4. California will go Republican in the national election. To be sure, it's unfair to put that down simply to the ban being on the ballot, and I'm not saying that; California would go Republican in any event, given the particular candidates. It will just be more strongly Republican than it would be otherwise.

The Republicans will also use this to try to drum up support for conservative candidates and issues nationwide. Given a desperately unpopular ticket and party, it's not clear how successful it's going to be -- more so than if it hadn't happened, anyway.

Note: I'm not saying that people shouldn't have fought to make this happen. There would never be a good time for it; near an election where we're getting rid of a seriously unpopular and incompetent administration is as good as any other time. It would always stir up opposition; it's the one religious thing that the government officially recognizes, and opening the institution can make it feel like the government is taking away that one religious aspect of you that they admit and celebrate.

And I'm not saying that people shouldn't fight for their rights, no matter what this decision brings.

I am saying that people should be prepared for the backlash, because it's going to be nasty. And they should be prepared to start the fight again, because they're going to need to.

Posted by iain at May 15, 2008 01:50 PM







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