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CA Supreme Court Upholds Prop 8

Posted by GayPatriotWest at 1:04 pm - May 26, 2009.
Filed under: California politics,Civil Discourse,Gay Marriage

I believe the justices made the right decision this time. The decision was 6-1.  Now, the issue is developing a strategy to repeal the state constitutional provision defining marriage as the union of one man and one woman. And to do so in a manner which respects those who favor that definition.

The court said the scope of the decision was narrow.  I’m trying to get the opinion on line, but the State Supreme Court’s site is understandably slow. Here’s a link to the decision. Seems their The decision boiled down to the use of the term “marriage.” whether Prop 8 was an amendment to or revision of the state constitution.  A revision must first pass through the legislature.  The court concluded that this was an amendment because as

. . . a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.

Basically, this means the state will still recognize same-sex relationships, but will not call them marriages.

The court has upheld the same-sex marriages that took place between the Court’s ruling last year and Election Day 2008.

UPDATE:  The real test to see if gay marriage advocates have learned the lessons from their failure to defeat Prop 8 at the ballot box will be how they respond to this decision.  Should they respond as did many angry activists in the wake of the passage of the proposition, they reduce their chances of changing the constitution.

Should they instead behave responsibly (as I suggested here), showing respect for supporters of the status quo, they increase the chances of repealing the constitutional provision enacted with votes approved Prop 8 last fall. (Law Dork offers a similar perspective, asking people to eschew anger: “Rather than spouting anger at these rallies, organizers and speakers should be spouting information about legislative battles going on in their states and counties.“)

UP-UPDATE:  I’m reviewing the opinion now.  Seems the court finally gets the idea of judicial restraint:

Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal  effect of the measure in question.  It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Shouldn’t judges always so adjudicate cases?

The justices see their ruling as a narrow one:

. . . the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

UP-UP-UPDATE: Seems some activists would rather accuse than argue. AP reports demonstrators changing “shame on you” in front of the San Francisco courthouse where the ruling was announced. Let’s hope such juvenile antics don’t define the response to the ruling.

UP-UP-UP-UPDATE: Law professor William A. Jacobson reviews the ruling.

UPDATE FROM BRUCE: A great perspective from Gabriel Malor at Ace of Spades! Read the whole thing!!

Our laws and constitutions are not meaningless.  And our courts are not so broken as people claim. The justice system works and works well most of the time.  Should we tweak it with appropriate legislation (and props, where possible) and by appointing hard-working minimalist judges? Hell yeah.  But exclaiming every time a court decision goes the other way that “the activist black-robed tyrants are at it again” undermines the very point that laws exist for a reason.

[RELATED STORY: Prop 8 upheld by CA Supreme Court – Patrick Range McDonald]

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123 Comments

  1. Plural marriage is illegal and no doubt you are taking something the ACLU (the most hated organization of conservatives) completely out of context.

    Try actually reading the link; it’s rather hard to take out of context something that is posted on the ACLU’s own website.

    I don’t remember the ACLU jumping to defend Warren Jeffs.

    Funny, everyone else does.

    Comment by North Dallas Thirty — May 27, 2009 @ 7:52 pm - May 27, 2009

  2. You so-called ‘conservative gays’ are perfectly willing to let a straight, homophobic society dictate how we live our lives.

    Please. You and your fellow leftists, NJLiberal, don’t even call Louis Farrakhan homophobic. You support and endorse FMA supporters who are Obama Party members. You have orgasms over your Obamamessiah who states that marriage is a “sacred bond” that only should be for a man and a woman. For someone who is against “straight. homophobic” society, you certainly spend a lot of time kowtowing to it.

    First Steve Schmidt (the campaign manager for John McCain who most of you probably voted for) has been joined by Ted Olsen in defending the rights of gays to marry.

    All that shows is that even Republicans can be squishy opportunists.

    Comment by North Dallas Thirty — May 27, 2009 @ 7:56 pm - May 27, 2009

  3. louis farrakhan is homophobic.

    Comment by bob (aka boob) — May 27, 2009 @ 8:32 pm - May 27, 2009

  4. So, are we agreed that NJ bigot is willing to keep people from being treated equally? Though it’s funny to watch him squirm.

    Comment by The_Livewire — May 27, 2009 @ 9:28 pm - May 27, 2009

  5. >Absolute bullshit. You so-called ‘conservative gays’

    Heh, heh. I’m not a conservative gay. It’s actually very funny that you said that. If you read upthread, you’ll see that I support gay marriage. I actually think that, federally, under Equal Protection grounds, that we don’t have civil marriage is wrong. Argued that around here before. Usually until the crazies come out and it just becomes a chore to keep up.

    My point was, I respect Dan’s opinion. I don’t agree with it. I also don’t agree with calling someone a traitor in debates like this because the definition doesn’t apply. Having a difference of opinion in how to advance a cause, even if its wrong, even if its profoundly wrong and ineffective , isn’t the same thing as betraying a cause.

    Comment by Jody — May 27, 2009 @ 9:49 pm - May 27, 2009

  6. […] GayPatriot » CA Supreme Court Upholds Prop 8 […]

    Pingback by Thinking about California’s Supreme Court Decision and Prop 8 | Herd Watching — May 27, 2009 @ 11:57 pm - May 27, 2009

  7. I’m Henry the eighth I am
    Henry the eighth I am, I am
    I got married to the widow next door
    She’s been married seven times before
    And every one was an Henry
    She wouldn’t have a Willy or a Sam
    I’m her eighth old man, I’m Henry
    Henry the eighth I am

    Second verse same as the first!

    Comment by American Elephant — May 28, 2009 @ 4:39 am - May 28, 2009

  8. (almost as repetitive as liberals with their bogus arguments AND more productive!) 🙂

    Comment by American Elephant — May 28, 2009 @ 4:41 am - May 28, 2009

  9. Interesting blog and good to see that there at least some reasonable homosexuals who understand that the idea of two men or two women getting married is simply preposterous. The court’s decision affirms the natural order as expressed so appropriately by California’s voters last fall: true marriage will remain between a man and a woman.

    Why is it preposterous, Desertcon? Or is it just saying so your only argument?

    Anyway, your last statement is true in California, for about two more years, that is.

    Comment by Pat — May 28, 2009 @ 7:25 am - May 28, 2009

  10. Hmm, either Desertcon is a) ignorant, b) a troll or c) an astroturfer.

    What the court did was affirm (over their personal distaste) was that the people have the right to ammend their constitution. This is a case where the ammendment may not be ‘right’ to some, but it isn’t a revision.

    This is the danger of empathy in judges. We don’t need Judge Oprah. We need judges who understand that the law isn’t ‘nice’ or ‘naughty’ it’s Law.

    Pat,
    Thanks again for being on the blog’s comments. We may not agree on all things, but it’s nice to have a civil argument 😉

    Comment by The Livewire — May 28, 2009 @ 8:59 am - May 28, 2009

  11. Thanks, Livewire. Same here.

    I vote d) all of the above. 🙂

    Comment by Pat — May 28, 2009 @ 10:15 am - May 28, 2009

  12. Orion, I’ll believe that when you discourage all couples who do cannot or will not procreate from marriage with the same fervor.

    Failure to encourage is not the same as discouraging.

    Again, this argument depends on claiming that the tiny, tiny fraction of heterosexual couples who are biologically incapable of procreating are somehow equivalent to the 100% of gay couples who cannot procreate.

    Homosexual couples can procreate: Just not with each other at the moment. But you’re correct; the failure to encourage marriage does not mean we should break it worse than it already is.

    What I’ve really been getting at is that homosexual unions are really personal decisions: the State has no interest in these and no need to encourage or endorse them. I’ve asked this question on and off for years and never gotten a satisfactory answer: “What’s in it for me – the State, that is – to grant a marriage license?” The answer for heterosexuals is fairly straightforward: The two-parent nuclear family unit with a mother and a father has been shown to be far superior in rearing good citizens than any alternative to date. Yes, there are functional “non-traditional” families but these are the exception rather than the rule. No, we don’t support “traditional” families as well as we should. We could (and should) do better).

    When I pose this question to homosexual activists I get a variation on one of two answers: (1) “Because I wanna!” or (2) they blow whistles and scream obscenities. Neither is a particularly attractive argument. If they ever come up with a third I’ll be glad to hear them out.

    Comment by Orion — May 28, 2009 @ 12:29 pm - May 28, 2009

  13. Orion, my point is not to argue whether a nuclear family is the best argument for raising children. So, let’s agree to that. The point is, why is it okay for opposite sex couples who have no intention of having children to marry, but not same sex couples?

    What I’ve really been getting at is that homosexual unions are really personal decisions

    No more so than heterosexual unions.

    When I pose this question to homosexual activists I get a variation on one of two answers: (1) “Because I wanna!” or (2) they blow whistles and scream obscenities. Neither is a particularly attractive argument. If they ever come up with a third I’ll be glad to hear them out.

    If that’s your experience, so be it. All I can tell is that almost all heterosexual couples get married because they “wanna.” And if you think you’ve heard gay persons “blow whistles and scream obscenities,” it will be a picnic compared to the whistle blowing and obscenity screaming that you would hear if opposite sex couples were stripped of marriage.

    But I’ll try to give you answers different from 1) and 2). “Traditional” marriage has been modified for years. Sure some for worse, but most for better. While the basis of marriage as we know it may have been for having an optimal environment for children, it has become much more with that. We encourage, and should continue to encourage people to settle down with someone they love. This includes couples past childbearing years and couples who have no intention or unable to have children. Again, this is not something we do to avoid micromanaging couples’ decisions or abilities to have children. We still encourage and applaud these couples when they get married even when we know they are not going to have children. I’m saying that we should encourage same sex couples to do the same. And, of course, we should absolutely discourage gay persons to marry someone of the opposite sex (can we at least agree to that?). The same benefits to the state for allowing opposite sex couples to marry, even if they choose or can’t have children would also apply to same sex couples. Or are you saying that marrying opposite sex couples who don’t have children provides no benefit?

    Comment by Pat — May 28, 2009 @ 1:01 pm - May 28, 2009

  14. Or are you saying that marrying opposite sex couples who don’t have children provides no benefit?

    Generally, yes. But we cannot predict with nearly the degree of certainty that a heterosexual couple will or will not have children that we can with a homosexual couple.

    The primary purpose of marriage is, as Orion correctly points out, to provide the best possible environment for children. Serendipitously, the environment that is best for children also happens to be one that discourages irresponsible behaviors that are bad for society. However, one look at heterosexual marriage, especially in minority communities, should be proof enough that it by itself is not sufficient to discourage irresponsible behaviors that are bad for society, and that there are far better and more effective means to encourage responsible behaviors than simply handing over a marriage license.

    The problem here, Pat, is that, having thrown out religion, sneered at morality, and preached pure hedonism as a worthwhile goal, the gay community has systematically dismantled the most powerful means of curbing irresponsible behavior and is now trying the excuse that a piece of paper will make them behave in a fashion that is good for society. In short, you are trying to argue for extending marriage based on what is at best a secondary benefit and proven to be highly ineffective to a group of people for whom the primary benefit of marriage is completely irrelevant.

    Comment by North Dallas Thirty — May 28, 2009 @ 2:06 pm - May 28, 2009

  15. When I pose this question to homosexual activists I get a variation on one of two answers: (1) “Because I wanna!” or (2) they blow whistles and scream obscenities. Neither is a particularly attractive argument. If they ever come up with a third I’ll be glad to hear them out.

    If that’s your experience, so be it. All I can tell is that almost all heterosexual couples get married because they “wanna.”

    But I – donning my All-Powerful/All-Knowing/All-Wise State Hat – just said I don’t care about the “I wanna” argument: I do however see a benefit in heterosexual marriage in that these tend to produce lots and lots of little taxpayers/good citizens in the long term. A homosexual marriage produces nothing to the State except perhaps the sales tax on the wedding cake. Again, the state/society sees no real benefit from homosexual couplings; why should it encourage these? The best you should realistically aim for is tolerance. The day you vow eternal love and companionship to your same-sex partner before friends and family and government-sponsored ninjas rappel down from the rafters to bundle you off to Oral Roberts University for reeducation I’ll agree there’s a problem.

    And if you think you’ve heard gay persons “blow whistles and scream obscenities,” it will be a picnic compared to the whistle blowing and obscenity screaming that you would hear if opposite sex couples were stripped of marriage.

    But as I’ve said repeatedly heterosexual marriage is in the best interest of the state/society so that ain’t gonna happen. A society that doesn’t value marriage – the traditional kind – has dismal prospects. Europe has basically abandoned marriage as a worthwhile goal: Europe has a birth rate of 1.7 children per couple and that’s only because they’re counting in the Muslem subpopulation with its 3.2 children per couple birth rate. If homosexuals think they have it tough now, wait a couple of generations when Europe is under Sharia Law and all the (abandoned) churches are converted to mosques. What you’re talking about is a society committing cultural suicide. Homosexual marriage is (at present) a matter of vast indifference to the future of our society and the only way it becomes important is in a negative sense, if the birth rate for whatever reason plummets.

    Eventually, if we develop technology to the point that we reproduce over the Internet (basically ordering our next generation from Babies.com), the question becomes moot. Society enters a new and unpredictable future. In 200 years my descendents, delivered fully grown from the factory w/o sex organs because these aren’t needed any more, will look back on this and wonder what all the fuss was about. It wouldn’t be the future heterosexuals envision but it certainly won’t be one that homosexuals look forward to.

    Comment by Orion — May 28, 2009 @ 7:01 pm - May 28, 2009

  16. #110: Ah, the personal attacks begin. Oh well, I’ll not respond in kind.

    #109: Two men marrying is preposterous because the general point of marriage is to provide an incentive for a stable male-female union from which the next generation arises and can be nurtured to adulthood. I don’t see this from the same-sex marriage crowd rather, as another suggests, it’s more of a case of “I wanna have all the benefits and oh BTW, my spouse and I, once we get married have agreed that a little fooling around on the side will be part of our arrangement.”

    As for California, it’s no slam dunk that Prop 8 can be repealed in two years and there are few if any other states on the horizon for your side.

    Comment by Desertcon — May 28, 2009 @ 8:31 pm - May 28, 2009

  17. >What the court did was affirm (over their personal distaste) was that the people have the right to ammend their constitution.

    It also upheld that all of the rights of marriage must be made available to gay couples and straight couples, equally. It can be called something different, but it has to be the same.

    >As for California, it’s no slam dunk that Prop 8 can be repealed in two years

    True. But it’s pretty likely it will be within five years. Eight at the outside. The demographics in California between those who are oppose gay marriage and those who accept it are changing that fast.

    The decision this week was a pretty hollow victory for the 8ers. It’s like getting the house but nothing within the house, including the piping, electrical work and carpeting.

    Comment by Jody — May 28, 2009 @ 10:13 pm - May 28, 2009

  18. this is also up at ‘the way forward’

    just for fun. . . .

    http://www.youtube.com/watch?v=QNiqfRyoAyA

    Comment by rusty — May 28, 2009 @ 11:40 pm - May 28, 2009

  19. Thanks for that, Rusty. That was cute and apropos. I know Keith. I’ll have to send him a note about that.

    Comment by Jody — May 29, 2009 @ 12:34 am - May 29, 2009

  20. Pat: Or are you saying that marrying opposite sex couples who don’t have children provides no benefit?
    NDT: Generally, yes.

    Okay, NDT. We have pinpointed our disagreement in this matter. Thanks.

    But we cannot predict with nearly the degree of certainty that a heterosexual couple will or will not have children that we can with a homosexual couple.

    In light of your comment above, I see why this fact is relevant to you. Since I see the value of marriage whether or not a couple can or choose to procreate, that fact is completely irrelevant to me.

    The problem here, Pat, is that, having thrown out religion, sneered at morality, and preached pure hedonism as a worthwhile goal, the gay community has systematically dismantled the most powerful means of curbing irresponsible behavior and is now trying the excuse that a piece of paper will make them behave in a fashion that is good for society.

    I guess our gay communities are different, NDT. Most of the gay people I know are just as religious as straight people. Further, they are, in general, no more or less hedonistic than straight people.

    And I agree that simply having a piece of paper is not going to curb certain behaviors. It has to be more than that. I’m looking to have a culture of marriage for straight and gay persons to want to emulate. I have no illuisions that same sex marriage is going to eliminate gay promiscuity. Or even lessen it immediately. I’m looking at the long term. Nothing has been proved yet as you suggest. We haven’t had same sex marriage that long. We haven’t had a culture in which gay children growing up can see that they can get married as their straight brethren can. We still have a culture, unfortunately, where, still too often, gay children are excoriated for being gay, or hide their sexuality, try to play it straight and enter a sham marriage, etc. We’ve got a ways to go. It’s not just about the piece of paper, as you say, but it’s a good start.

    Comment by Pat — May 29, 2009 @ 8:49 am - May 29, 2009

  21. Ditto to the first part of what Pat said.

    For the second part: You both have points. I can see NDT’s point. Gay guys in our area (we live in the same metro area) tend to be hedonistic. I can’t speak about the lesbians, and it’s dangerous to generalize from personal experience, but my experience is that even the guys who would claim to be settled and/or religious have ‘charming’ tales of infidelity if they think their listener is sympathetic, will approach men for 3-ways, etc. I referred to a married friend earlier: he is faithful to his husband – that I know of – but he has a hedonistic past, and tells me of ongoing porn usage that he hides from his husband. I don’t know what to make of that; but for the record, very many gay guys in my area will defend and promote porn as ‘harmless’ and that isn’t true. I don’t think gay marriage will magically improve any of that. What I think it will do, once it is firmly established in law, is what it always does: provide a known, civilized path for those men (and women) who choose to accept it.

    We haven’t had same sex marriage that long. We haven’t had a culture in which gay children growing up can see that they can get married

    Exactly.

    Comment by ILoveCapitalism — May 29, 2009 @ 9:54 am - May 29, 2009

  22. NJ Liberal, you are way off. GPW and most who share their opinions on here are not traitors to their “people”. On many issues we have the same goals just different ideas of how to reach them. That is healthy and the only way positive change can happen is when we work together. Don’t mean to sound all hallmark but the simple fact is that it’s true.

    There are certainly some who are as hateful, if not more so, than those who oppose our lives but they are the minority. I had to laugh at the whine from the biggest basher this side of Fred Phelps about the names he is called. The real conservatives should be insulted by his nonsense.

    Comment by a different Dave — May 29, 2009 @ 9:08 pm - May 29, 2009

  23. NJ Liberal, you are way off. GPW and most who share their opinions on here are not traitors to their “people”.

    “Freedom is irrelevant. Self determination is irrelevant. You will comply.”

    Comment by ThatGayConservative — May 30, 2009 @ 6:31 am - May 30, 2009

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