THE ASSEMBLY JUST PASSED THE BILL! Now, all that remains is to get Arnold’s signature, and gay marriage will be in California! Woohooo!!
At what point in time did the Fourteenth Amendment begin to protect women?
This returns us to the problem: if you authorize the courts to read their own opinions on social reforms into the constitution, on what basis do you withdraw that?
If next year’s Supreme Court, with Roberts as CJ and another conservative named by Bush in O’Connor’s spot, finds that the Fourteenth Amendment protects the unborn persons just as well as the born persons… what can you say?
I’m strongly pro life, but that interpretation of the Fourteenth Amendment is wrong. But you have ceded to them the authority to read the Amendment like that.
Outstanding.
The process works. The electorate will do the right thing. We can have the right result by the right process.
All persons born or naturalized in the United States…
The electorate voted for Proposition 22. That was the wrong thing. It’s not yet clear that this legislation will become law, and if it does, it’s not clear it won’t be overturned by plebiscite.
It’s simply ludicrous to maintain that the electorate will always eventually do the right thing. It’s almost certainly false, and even if it were true it does nothing to redress current injustices. Now, if you think that majority oppression of minorities is regrettably sometimes the price we have to pay for a democratic society, and that that price is worth it, that’s one thing. Pretending that we don’t have to pay it, though, is simply being blind to reality.
This is a bad precedent because it implies that Equal Protection is up for a vote. It’s not the electorate’s place to grant this right. The right already exists, The electorate has no say in it. It’s simply up to the judiciary to prevent the electorate from unlawfully trying to restrict it.
If this ever ends up in Justice Scalia’s lap, he will have a hard time overturning it. Scalia – an “originalist” – feels that law should be made by legislatures, not judges. Except if he disagrees with it, of course.
On the other hand, the religious right can no longer hide behind the smokescreen of “judicial activism” to attack this. They are left purely with bigotry as their argument.
First of all, Scalia is not an “originalist”. He is a textualist.
Secondly, why would he vote to overtunr this? He has often stated that the people should generally be able to order their (our) society as they (we) see fit. The people have, thru their representatives, have spoken. On what basis would he overturn this law?
Yup. Arnold’s gonna veto it and there won’t be enough votes to override the veto.
Even if Arnold signs it, the legislature can’t overturn Prop. 22 without a popular vote. [Prop. 22 said that only marriages between a man and woman are valid and recognized in California].
Prop. 22 passed in 2000 with over 60% of the vote. I’m not so sure public attitudes have changed that much in the past 5 years.
It looks like it’s up to the California Supreme Court to interpret the state Constitution and hopefully strike Prop. 22.
Why do you think so? Arnold has said he’s personally against SSM, but that he would not have a problem with it being the law of the land if that is what the people want. IOW, he’s not saying the constitution forbids it.
Is this true? I’m not saying I know it isn’t true, I just would like to see where it says that the legislature can’t pass a statute nullifying a ballot initiative.
I dunno. I doubt a new version of Prop 22 (anti SSM) would pass with 60% of the vote. It might not fail, but I’ve seen polling data showing that the state is more evenly split on the issue now than it was 5 years ago.
This is my hunch, see below.
“The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.” (California Const., Art. 2, Sec. 10©).
The effect of AB 849 (Leno) is to nullify Prop. 22 (arguably). Assemblymember Leno apparently argues that AB 849 only applies to California marriages, and Prop. 22 only applies to California’s recognition of out-of-state marriages.
I don’t think this argument will pass muster with the courts. It’s like interpreting the 14th Amendment’s “equal protection” extremely narrowly to only apply to discrimination against blacks. Prop. 22 seems pretty clear in its language that same-sex-marriages are not “valid” in California. Although I fully support SSM, Leno seems to give Prop. 22 an overly narrow read, IMHO.
Chances for SSM are better now than 5 years ago, but my hunch is the electorate is not quite ready for SSM yet, hence Arnold’s veto.
I hope I’m wrong and I will continue to push for it.
To clarify:
Some people argue that the term “equal protection” in the 14th Amendment should be read narrowly because the context in which it passed was to fix the probelm with discrimination against black people. However, “equal protection” means “equal protection” and is a generally applicable term without qualification in the language of the 14th Amendment.
I think, and so do many advocates of SSM, that the courts would be correct in interpreting “equal protection” more broadly than simply preventing discrimination against black people.
Similarly, Prop. 22 says only marriages between a man and woman are “valid or recognized” in California. Even though the context of Prop. 22 was to prevent recognition of out-of-state same-sex-marriages, the term “valid” is clear, generally applicable, and without qualification in the law.
Under the canons of construction, you don’t get to “legislative intent” to interpret statutes if the language of the statute is clear on its face. I think the term “valid” in Prop. 22 is clear on its face.
My observation is that the best way to get the electorate to accept SSM is through the legalization of SSM. One reason things have advanced so far in the past couple of years is that gay couples have been marrying, and the world is pretty much the same as it was for the rest of us. All of a sudden, gay marriage isn’t much of a boogeyman; it’s a lot easier to scare people with the unknown than with something that’s already been going on with no visible consequences.
Here’s my predictions, if Ahnold signs it:
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By November 2006, the fundies will still be against gay marriage, but the broad middle ground of Californians will have come to accept it, and will vote down any ballot initiative attempting to repeal SSM.
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Over the next three years, several other states will pass laws legalizing SSM. They’ll probably be in the mountain West or New England.
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Over the decade after that, SSM will be legalized, one way or another, pretty much everywhere but the Bible Belt.
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Soon after that, the FF&C clause will be interpreted to extend SSM even to those states.
If he vetoes it, it may slow the train down by a year or two. But it’s coming.
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.
That price is worth it.
In fact, even under your syste, 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.
Like it or not, the electorate ALWATS has the final say, although a super-majority may be needed. If two-thirds of the House, Senate, and three-fourths of the states pass a Constitutional amendment that eliminates SSM, it’s gone; no court’s strained or reasonable reading of the EP clause will help. If two-thirds of the House, Senate, and three-fourths of the states pass a Constitutional amendment to the effect that unmarried people don’t have the right to vote in any election, then they don’t have that right any more. Rights are not handed down from heaven. They are the creation of the law. You may argue some system of moral or natural rights exist. Go ahead. But if a right does not have a corresponding legal remedy, then it cannot be said to meaningfully exist.
I would assume, as soon as passed. It did not, however, grant them formal citizenship rights or the franchise, since it was not read in that manner by the courts of the day. If you reread my statement, what I said was that the Powers That Be at that time did not accept the assertions of many suffragettes that it did in fact give them the franchise and legal equality with men.
Well, as you can imagine, I contend the authorities at the time were correct. The Fourteenth Amendment did not speak to the issue of equal rights under the law for women; the Nineteenth Amendment was thus necessary to effect that change.
Similarly, if you wish to enshrine a federal constitutional right to same-sex marriage, you will find it not in the Fourteenth Amendment, nor hidden cleverly in the Ninth Amendment, but in the Twenty-Eighth Amendment.
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.
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.
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.
Sorry: … if they are forced to do so.