# CA Senate Votes For Same-sex Marriage **URL:** \ **Category:** Great Debates\ **Created:** [September 2, 2005, 6:27pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770 "2005-09-02T18:27:19Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 7, 2005, 7:45pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/81 "2005-09-07T19:45:27Z")
> [@Blalron](#): > > Theoretically, a state could dispense with all the laws concerning marriage. But in reality it is as close to permanent as any law can be. All these proposals to do away with all marriage in light of this gay marriage movement remind me of communities in the South that chose to pave over all their swimming pools in preferance to letting blacks use them as well. I wasn’t making a proposal, just stating a fact. And marriage laws have changed considerably over time-- you are overstating their permanence. BTW, it’s not just theoretical: [Oregon county bans all marriages](http://news.bbc.co.uk/2/hi/americas/3564893.stm). ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 7, 2005, 7:56pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/82 "2005-09-07T19:56:42Z")
> [@John Mace](#): > > Not to beat a dead horse, but the electorate most certainly does has the authority to take away this “right”. I don’t buy the idea that marriage\* is a right in the first place, but even if it were, the electorate would still have that authority. Unless you want to argue semantically that a person still has a right even if he cannot exercise that right. Either way, the electorate can prevent that person from exercising any right he might think he has. > > \*Marriage, in the civil sense, is a set of arbitrary priviledges bestowed upon the married couple (or group) by society. One could easily conceive of a society in which marriage was an entirely religious affair with absolutely no civil aspect at all. In fact, any state in the US could create that situation. Where would that “right” be then? My position is not that marriage is a right by default, but that if the privilege is extended at all, it must be extended to everybody equally absent a compelling public interest to the contrary\*. The electorate has the authority to extend the privilege to everybody or to nobody but they don’t have the authority to single out one group for special rights. \*And whether an exception constitutes a legitimate compelling public interest or “rational basis” is for the judiciary to decide, not the legislature. The legislature can ask and the bench can say no. While I’m at it, I would also say that **Captain Amazing’s** examples of “rational basis” are pretty much both non-starters. The “children” point is belied by the fact that infertile couples are allowed to marry, that unmarried people can have children just as easily as married people and that even fertile married couples are under no legal obligation to procreate. The argument as to “public morality” is even more insubstantial. The word “morality” in this case is so subjective as to be meaningless and I would argue that it amounts to the codification of a purely religious “morality” rather than any genuine protection of public interest. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 7, 2005, 7:57pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/83 "2005-09-07T19:57:32Z")
BTW, here’s the actual prop 22 wording (bolded) as part of the [CA family code](http://caselaw.lp.findlaw.com/cacodes/fam/300-310.html). You can see why the argument is made that Prop 22 only applies to marriages enacted outside CA: > [@](#): > > 1. Marriage is a personal relation arising out of a civil > contract between a man and a woman, to which the consent of the > parties capable of making that contract is necessary. Consent alone > does not constitute marriage. Consent must be followed by the > issuance of a license and solemnization as authorized by this > division, except as provided by Section 425 and Part 4 (commencing > with Section 500). > > \ > > 1. A marriage contracted outside this state that would be valid > by the laws of the jurisdiction in which the marriage was contracted > is valid in this state. > > 308.5. **Only marriage between a man and a woman is valid or > recognized in California.** ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [September 7, 2005, 8:26pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/84 "2005-09-07T20:26:41Z")
> [@Diogenes the Cynic](#): > > While I’m at it, I would also say that **Captain Amazing’s** examples of “rational basis” are pretty much both non-starters. The “children” point is belied by the fact that infertile couples are allowed to marry, that unmarried people can have children just as easily as married people and that even fertile married couples are under no legal obligation to procreate. > > The argument as to “public morality” is even more insubstantial. The word “morality” in this case is so subjective as to be meaningless and I would argue that it amounts to the codification of a purely religious “morality” rather than any genuine protection of public interest. Like I said, I don’t think they’re good reasons…but they’re reasons. As for the first, states do allow infertility as grounds for divorce or annulment. As for the second, it does amount to the codification of a specific “morality”, but so do laws against prostitution, against pornography, against sodomy (which, I know, isn’t operative since Lawrence), against sex in public, against adultery, against fornication, etc. Moral standards are a political issue, not a judicial one, and there’s precedence saying that a community can impose certain moral standards, especially in sexual matters, on it’s members. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [September 7, 2005, 9:14pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/85 "2005-09-07T21:14:47Z")
> [@](#): > > 308.5. Only marriage between a man and a woman is valid or > recognized in California. It seems to me that at the time this passed that was a simple statement of fact. If and when AB849 is signed and becomes law, then this statement is no longer true and is voided despite the wording of the Bill. > [@](#): > > SEC. 8. > The Legislature finds and declares that this act does not amend or > modify Section 308.5 of the Family Code, as enacted by an initiative > measure, to the extent that Section 308.5 addresses only marriages > from other jurisdictions. The Legislature further finds that > Sections 300 and 308.5 of the Family Code have been declared > unconstitutional by a state coordination trial judge appointed by the > Judicial Council, and the Legislature declares that the purpose of > this act is to correct the constitutional infirmities of Section 300, > which was enacted by the Legislature. The Legislature further finds > that the constitutional infirmities of Section 308.5 of the Family > Code, which was enacted through the initiative process, cannot be > corrected by the Legislature and that the California Supreme Court is > the governmental body that has authority to make a final > determination regarding the meaning, validity, or invalidity of > Section 308.5. Section 308.5 says that since California doesn’t allow same-sex marriages, then it won’t recognize out-of-state same-sex marriages. It now will, so 308.5 is no longer valid. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 7, 2005, 10:14pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/86 "2005-09-07T22:14:47Z")
> [@Bricker](#): > > Next sentence: > > No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. First off, this would seem to say that you can ignore the fact that it was prefaced with the phrase “born”. WTF? Also, do you realize that [A Fetus is not a Person](http://boards.straightdope.com/sdmb/showthread.php?t=332255) Well, if you don’t let me remind you. Some controversial cases may have said that potential humans deserve a little respect, but that does not make a puddle of sperm a person, nor does it make what is inside a one week pregnant women a person. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:02pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/87 "2005-09-07T23:02:59Z")
> [@Scott Plaid](#): > > First off, this would seem to say that you can ignore the fact that it was prefaced with the phrase “born”. WTF? > > Also, do you realize that [A Fetus is not a Person](http://boards.straightdope.com/sdmb/showthread.php?t=332255) > > Well, if you don’t let me remind you. Some controversial cases may have said that potential humans deserve a little respect, but that does not make a puddle of sperm a person, nor does it make what is inside a one week pregnant women a person. So in this case, you want the court to strictly use the words in the Constitution, and only those words, to divine its meaning. But when the issue is, say, a right to privacy, or the right to have an abortion, you are OK with the court reading between the lines to discover those rights. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 7, 2005, 11:04pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/88 "2005-09-07T23:04:12Z")
> [@Bricker](#): > > So in this case, you want the court to strictly use the words in the Constitution, and only those words, to divine its meaning. . No, I am in favor of the spirit and intent of the words. Claiming that the spirit of the text could lean towards cells is just plain odd. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 7, 2005, 11:21pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/89 "2005-09-07T23:21:15Z")
Even between the lines, there is nothing to suggest that a fetus should be treated as a person. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 7, 2005, 11:24pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/90 "2005-09-07T23:24:49Z")
> [@Diogenes the Cynic](#): > > Even between the lines, there is nothing to suggest that a fetus should be treated as a person. Exactly. Same with the plain reading of the words. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:30pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/91 "2005-09-07T23:30:26Z")
> [@Diogenes the Cynic](#): > > Even between the lines, there is nothing to suggest that a fetus should be treated as a person. Of course, I agree with that, so it’s hard to argue the contrary… But it’s also hard for me to accept that even between the lines, the Constitution mandates specifically that a first-trimester fetus abortion cannot be legally restricted by the state. That’s a heck of a specific to find between the lines. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 7, 2005, 11:34pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/92 "2005-09-07T23:34:34Z")
It goes without saying that a woman’s body is her own property. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:43pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/93 "2005-09-07T23:43:46Z")
> [@Diogenes the Cynic](#): > > It goes without saying that a woman’s body is her own property. But the Court also said the in the THIRD trimester, the state could permissibly forbid abortion. How does that fit? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 7, 2005, 11:52pm UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/94 "2005-09-07T23:52:53Z")
I think the Court erred with that, but I suppose the argument (and maybe this is a fact that needs to really be acknowledged by both sides) is that a fetus is not the same entity at every phase of pregnancy. A third trimester fetus is not really comparable to an two week old embryo. Calling a 30 week fetus a “baby” is something I can see philosophically, but calling a blastocyst a baby is ridiculous. Only a fraction of one percent of abortions are performed in the third trimester anyway, and even then it’s for compelling medical reasons. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 8, 2005, 12:07am UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/95 "2005-09-08T00:07:34Z")
> [@John Mace](#): > > Maybe I’m reading this wrong, but it sounds to me that you’re saying only religious fundamentalists will be against SSM. That’s an unsupportable claim if I ever I saw one, and (if that’s what’s you’re saying), you’re off by a mile. Nope, wasn’t saying that. Just saying there is a fairly sizable minority that won’t be convinced; they’ll have to die off, I expect. > [@](#): > > Or, an energized “red state majority” gets a constitutional amendment passed on the federal level banning SSM. Further, democrats lose even more ground in these “red states”, losing seats in Congress and the next presidential election. The antigay movement has had its high-water mark - opposition to gay rights is strongly correlated with age. > [@](#): > > I’m not necessarily saying my prediction will be more accurate, just that it’s way too early to tell which way this will play out. I fear that it’s too soon for most Amercians to accept SSM, and there will be a political backlash if they are accepted to do so. I think we’ve already seen the backlash, last year, and no pro-gay-rights gains can really do much more to inspire one. We’ll see. I’ve made my predictions, and I stand by them. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 8, 2005, 12:10am UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/96 "2005-09-08T00:10:34Z")
> [@Bearflag70](#): > > How about this … if Ahnold signs it … > > 1. A “family values” organization sues to invalidate AB 849 on the ground that AB 849 is unconstitutional. The argument will be that AB 849, a legislative statue, is in conflict with Prop. 22, an initiative statute, and AB 849 has not been approved by the electorate; Gotta admit, this California business where some statutes are more equal than others is a new one to me. That’s a tangle I don’t understand. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [September 8, 2005, 12:26am UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/97 "2005-09-08T00:26:28Z")
> [@Bricker](#): > > That price is worth it. > > In fact, even under your system, we pay that price: SSM is _STILL NOT LEGAL_ in the vast majority of the country. > > The right to self-governance is what this country was founded upon. > > It’s true that sometimes the elctorate won’t do the right thing. (Or at least, they won’t do what I consider to be the right thing.) But agreeing to accept the decisions of the majority (or in some instances, the super-majority) is how things are run. Under _my_ system? Under my system, insofar as I can be said to have one, same-sex marriage has been legally recognized nationwide since C-38 received Royal Assent on July 20th of this year. Or, if you prefer, under my system, same-sex marriage has been legally recognized in this province since November 5th of last year, when the provincial courts ruled that the common law definition of marriage violated the Charter Rights of gays and lesbians. As to self-governance, I’ve been over this ground many, many times. By self-governance, you mean absolute majoritarianism. By self-governance, I mean individual autonomy such that I govern myself, and no one can tell me what to do without some degree of justification. However, my point in this thread was simply to stop you from overlooking the fact that the electorate can and often enough does horrible, unjust things, and that there is no guarantee that they will ever lift the oppression of any specific group of people. The actions of the California legislative assemblies do not change the fact that in most of the US, the courts are rather more likely to grant equal rights to same-sex couples than the electorate is. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [September 8, 2005, 12:49am UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/98 "2005-09-08T00:49:55Z")
> [@Bearflag70](#): > > 1. CA will not be able to show it has a strong public policy against SSM because CA allows in-state SSM pursuant to AB 849. Accordingly, the court would strike down Prop 22 as an unconstitutional violation of Full Faith & Credit. > > 2. The ultimate effect of AB 849 then would be to cause Prop 22 to be unconstitutional and void. Thus, AB 849 would violate the state constitution because the legislature cannot cause a state intiative to be void by passage of a legislative statute. IANAL, but that doesn’t seem logical to me. If Prop 22 is unconstitutional according to the US Constitution, it doesn’t matter that there’s a state constitutional requirement that AB 849 not override the initiative. AB 849 isn’t overriding Prop 22; Prop 22 is unconstitutional on a higher level, and should never have been valid law in the first place. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [September 8, 2005, 1:29am UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/99 "2005-09-08T01:29:12Z")
[Arnie’s gonna veto](http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2005/09/07/state/n174658D66.DTL). Sigh. :shakes head: ☹ ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 8, 2005, 1:43am UTC](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770/100 "2005-09-08T01:43:32Z")
Not a surprise. The party could never let him sign it. [Previous page](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770.md?page=4) [Next page](https://boards.straightdope.com/t/ca-senate-votes-for-same-sex-marriage/319770.md?page=6)