The headlinse have declared that the California Suprme Court have upheld Proposition 8, and they undeniably have. However, what they actually did was uphold it in the narrowestr sense possible:
IANAL, so hoperuflly Bricker or someone better at this stuff than me can chime in, but this seems to say to me that the state has an obligation to a) provide an institution to smae-sex couples that is equivalent to a oppsote-sex marriage in every way, except…2) it cannot be called 'marriage".
Keep in mind, that Civil Unions WERE not the equivalent of marriage, but it seems to me that the SC is basically saying you better make them the equivalent of marriage, they better be equal in every way shape or form to marrigae except, they cannot be called marriage.
I don’t read it quite that far. I do read it to mean that Proposition 8 cannot be used to ban the establishment of “an officially recognized family relationship,” whatever that means. Might mean the same thing, might not.
CA right now doesn’t have civil unions either, right? The ruling appears to me to say Prop 8 doesn’t prevent them from being established, not that the state is obligated to offer them. It’s a pretty strong hint, though.
But if they’re constitutional, wouldn’t the state be required to offer them for the same reason it was required to legalize gay marriage prior to the amendment?
Well, since that issue wasn’t in front of the court, this decision does not require the state to offer civil unionish marriage-in-all-but-names… but it’s a really really strong indication of how the court would view such a case, if it came.
Prop 8 opponents are, in a sense, hoist by their own petard. They sought to paint their opposition as based squarely in the marriage arena, and cannot now credibly argue that they meant prop 8 to curtail any other arrangement the state might offer.
This decision is the correct one, but that doesn’t change the fact that Prop 8 itself is a slap in the face to same-sex couples, and I expect we can number its life in single digit years.
At least the 18K marriages performed last year still stand.
We really need to see about having another constitutional convention out here. There’s too much in the current one that permits twenty-first century mischief that wasn’t conceivable in 1879.
Looks like the court was between a rock and a hard place. If they overturned Prop-8 there’d have been massive hooting and hollering over judicial activism overturning the will of the people. On the other hand letting it stand as envisioned by its proponents seems to suggest it would have been a revision and not an amendment (if not outright federally unconstitutional). I think this latter part was expressed in the dissenting opinion:
So, seems the court waffled and “upheld” Prop-8 while defanging it as much as possible to pass muster.
I did a lot of reading on this back when I was crusading AGAINST Prop 8, and my assessment was that they practically WERE the equivalent of marriage. The slight differences boil down to the administrative setup and dissolution of civil partnerships. In a weird way, California’s far-reaching civil union laws may have taken some steam away from the necessity of the “marriage” word, I’m sorry to say.
While I do not think a court has had a case before it doesn’t “marriage” imply that other states must give Full Faith & Credit to a same-sex marriage in California? Or at the least that argument could be made?
IANAL but somehow I am guessing that other states are not obliged to support an arrangement California made for same-sex couples. Once they leave the state they are “un”-married (or “un”-domestic partners or whatever euphemism they use).
Nope, the Defense of Marriage Act (DOMA) specifically says that states DO NOT have to recognize same-sex marriages from other states. It also says that the3 fedderal governement may not treat SSM as marriages.
No being gay, I must admint that I don’t pay as much attention to this issue as a citizen should; so please forgive me if I get some specifics wrong.
I believe that in Washington State there is a move afoot (or else a law already passed) recognising the right of same-sex couples to enter into a Civil Union that has all of the rights, responsibilities, and protections of marriage; only it is not called ‘marriage’.
The opposition, who based their arguments on the traditional definition of ‘marriage’, are crying foul. They say that you can’t just give gay people all the rights* of married people and then not call it ‘marriage’; therefore this must [not pass/be overturned].
*‘Give’ rights’ is a colloquialism. IMO rights exist and may be recognised or not recognised; but they can’t be ‘given’ or taken away.
Bricker, if a gay couple now wanted to have the true equivalent of marriage without the word, could they sue the State of California for not offering that option? (I know they could, I mean is that the logical next step, presuming Cali doens’t create such an institution).
