Which isn’t what I said, but my wording wasn’t as clear as it could have been.
I incorrectly asserted that the definition of marriage was in the CA constitution, so I offer my apologies for the factual error. John Mace pointed out that’s in the family code, and Prop. 22 added 308.5 to allow CA to not recognize same-sex marriages performed in other states.
The mayor’s actions are not valid by both sections 300 and 308.5. It’s just a piece of paper with no legal meaning.
Had they wanted to challenge the law in court, they could have had a same-sex couple apply for a license, and then sue when they were denied it.
No. Why would you even need to ask that? I’ve already stated that I understand why the gay couples wanted to get married, and that I consider their actions to be a legitmate protest. My issue here is with the mayor, not the folks.
That doesn’t answer the question, John. If a mayor thought the anti-miscegenation laws were unconstitutional (as was, in fact, eventually so ruled), would you have been just as upset with him for performing interracial marriages in the face of that law as you are with this guy for performing gay marriages in the face of Prop. 22 etc.? Blalron’s analogy is completely pertinent, and your objections are to the side of the central issue.
As for Newsom’s political risk, your assessment only covers it if you assume he’ll never try for higher office. He has quite a few years left, and if he eventually takes on the aura of Civil Rights Pioneer in hindsight, that can only help him, right? Even only in his capacity as mayor, having more popular support translates into more power to do other things.
I answered the exact question that was asked. If you can show that another question was asked, please do so.
I don’t think the analogy with antimiscegenation laws hold. AFAIK, there was never a situation where they existed in all the states, so there was a clear precident for them to be successfully challenged. And whether I would have been “upset” (to use your word) would depend on the context. If the mayor had indeed exhausted all the legal means to change the laws, then I think a strong case could be made for violating what was clearly an unjust law. In Newsom’s case, this is not the situation. His very first act on the matter was to break the law. Contrary to what you have posted earlier, he could have lead a challenge to the law w/o breaking it (as was done in MA).
I’m not personally upset with him. I’m trying to understand if his actions will further help gay marriage become legal or whether it will cause a set-back. I’m questioning the tactic, not the goal.
I cannot envinsion a situation in the modern era where antimiscegenation would be incorporated into a state constitution. But I can envision an anti-gay marriage amendment passing, at least in some states. I suspect this will end up in the Supreme Court sometime soon, and it’s unclear to me that they would rule in favor of gay marriage (ie, that the constitution requires the states to offer marriage to same sex couples).
It’s not likely to end up in the U.S. Supreme Court too quickly, as there’s no federal constitutional question until and unless one of these couples either dies or seeks divorce in another state. It’ll be in the California Supreme Court much more quickly, and they’re a far more liberal bunch than the Nine in Washington.
On the other hand, having actually looked at the California Constitution now, I think the legal argument isn’t there. California has no general antidiscrimination clause in its Constitution (the way Massachusetts has in its); rather, California only prohibits sex discrimination for those pursuing “a business, profession, vocation, or employment” (Article 1, Section 8) and “in the operation of public employment, public education, or public contracting” (Article 1, Section 31). Neither of these spheres includes marriage, in my opinion. Contrast Article 106 of the Massachusetts Constitution: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” Unless there’s an argument based on other language in the (rather long) Constitution of the State of California, I’m not sure on what legal argument the Mayor plans to hang his hat. Should be interesting, nonetheless.
I suspect the way it will end up in the Supreme Court is after MA legalizes gay marriage and someone challenges another state to recognize the marriage on the FFaC clause. That could easily happen within the year.
But you are right in that we will most likely see a number of challenges at the state Supreme Court level first. At the CA level, the state officials have already said they will not register the marriage licenses on the grounds that they had been altered (the licenses are pre-written to state “unmarried man” and “unmarried women”). The next step will probably be to challenge that action.
Oh, I know that. I just thought it was interesting that there’s enough give and take to this that the judge wouldn’t even grant a temporary injunction. That’s actually more potential leeway than I expected the CA judiciary to give on this…
same here. i was sure they’d stop it all at the first challenge, due to how clearly it looks to be against the law.
anyway, i’m starting to change my stance. i originally thought this was just a jerk pandering for votes and that the whole affair would be quickly stifled. it appears that that’s not the case.
this is getting to be a pretty big beast. and the more couples that get married this weekend, the more i’m convinced that this is going to be a pretty big step forward for gay marriage.
KellyM, couldn’t the argument be that Cali is forbidden by *federal * equal-protection guarantees from acting discriminatorily in enforcing this new law? That would put the matter straight into the federal system - and yes, that looks inevitable and soon, Dewey’s protests notwithstanding. John, miscegenation laws were struck down federally, and it didn’t matter that not every state had them. The analogy is good. I understand you’re concerned with the tactic and not the goal, but KellyM has a more informed answer anyway to the extent it even matters (which is my view).
Later news is that the 2 fundie groups challenging these new marriages are having to show standing first. That looks like a good one - who can claim to be injured by this action and therefore have grounds to sue?
The stream of happy couples lined up outside SF City Hall must certainly make an impression on pols counting registered voters. Certainly the MA pols, now in a cooling-off and restrategizing period during a constitutional convention adjournment (a good idea, actually), can foresee it happening here, too, as of May 17. Those arguments have been interesting, especially with the MA SJC ruling confirming that separate is *not * equal emboldening the civil-rights side to reject civil unions as a compromise. The main anti argument, “Let the people vote!”, is a good one but is foundering on the point of what the people should vote on. The pro argument, “We must not enshrine discrimination in our constitution!” is attractive too, and seems powerful enough numerically to prevent any amendment passing at all.
The strings leading from Gov. Romney back to Karl Rove are becoming more apparent, too - Mitt’s a decent person but he’s going to be required to try to demagogue Kerry with this, no matter what Kerry’s actual position is. I kinda feel sorry for the guy - he shoulda stayed in Utah.
One thing that is confusing in the current situation is how the people feel in CA and MA about a state constitutional amendment. All the polls I’ve seen are focused on a federal amendment, not a state one. I suspect that the MA voters would not want it, but CA voters might be more receptive (based on how easily the DOMA passed here). The CA constituation needs a 2/3 vote in each house to pass an amendment, though, and that might be just a bit too high a hurdle to overcome. At any rate, the CA DOMA will certainly be up for judicial review very soon.
Questionable. Gender discrimination under federal law is judged by the standard of intermediate scrutiny, which is lower than the standard of strict scrutiny that was involved in overturning Virginia’s miscegination statute in Loving v. Virginia. On the other hand, the Supreme Court strongly hinted that sexual orientation might be a condition might be deserving of strict scrutiny in its 5-4 decision in Romer v. Evans (overturning Colorado’s gay-pariah constitutional amendment that eviscerated all gay rights protections enacted at any level in the state and forbidding any gay person from seeking redress of any sort in any of the state’s courts or council chambers). The concurring opinion in Lawrence v. Texas also suggested at the appropriateness of treating sexual preference as a protected class, deserving at least of intermediate scrutiny, if not strict scrutiny. (The majority opinion in Lawrence, of course, was grounded in privacy, not in equal protection; Lawrence’s majority opinion has no direct application to gay marraige.) The decision in any case on this matter will almost certainly come down to Justice O’Connor’s vote (as it so often does), and I can’t predict how she’ll go on these issues with any certitide.
Not many people, that I can think of. You’d have to find an ex-spouse of one of the married couples who is still paying alimony (alimony terminates upon remarriage), or wait for one of them to die (which could trigger a probate challenge) or seek divorce. It might also get interesting if one of the lesbians married in San Francisco subsequently has a baby (who are its legal parents?). It’s more likely to hit the courts when one of these people attempts to claim an incident of marriage, which will happen not later than next year when they start filing tax returns.
In the future, please do not falsely accuse me of breaking board rules, even jokingly. Emarkp speaks for himself on these matters, and I have refrained from comment until this point.
And my view is this: this may well be a noble example of civil disobedience. However, like the civil rights protestors of days gone by, I expect those who practice civil disobedience to pay the consequences for their protest. As Dr. King spent time in Alabama jails, so too should the officials responsible for flouting California law feel the full force of the penalties for doing so. It isn’t just the act of disobedience that wins converts to your side – it is nobly (and publicly) paying the price for your principles as well.
I have great respect for those that practice civil disobedience as long as they aren’t giant pussies about it. Take your lumps for the cause, and don’t expect favorable treatment because you see yourself on the side of the angels.
Idiot. I never said that a separate lawsuit might be brought to raise a federal challenge to the unavailability of gay marriage; indeed, I specifically pointed that out as a possibility. What I did say, and what you continue to be incapable of understanding, is that there is no way for the Massachusetts decision to be appealed into the federal system.
I’ll be very surprised if this doesn’t hit the courts long before that. Hundreds of people are being granted marriage licences, and some will surely claim an incident of marriage before then, even if it just to challenge the state’s refusal to record the licenses:
Proposition 22 was adopted with a 60% affirmative vote. Since an amendment to the California Constitution requires a two-thirds majority vote, it is reasonable to expect that any attempt to enshrine such attitudes into the state Constitution would fall somewhat short.
Proposition 22 won’t actually come up for review until Massachusetts (or some other state) begins issuing same-sex marriage licenses and one of those people thereby married moves to California and claims an incident of marriage based on that other state’s marriage.
My apologies. Although I do wonder how many times I will have to keep re-explaining the same basic, fundamental point before Elvis finally manages to absorb it, or how many times he can keep misconstruing my statements before it is deemed deliberate.