California upholds gay marriage ban

[DesDownunder]

California upholds gay marriage ban

CALIFORNIA'S Supreme Court has upheld a referendum which outlawed gay marriage, but said 18,000 same-sex weddings carried out before the vote would remain legally valid.

Here is the way above decision was reported in Australia.

[Tanuki Racoon]

This was to be expected from a legal standpoint.

It'll get returned to the people to get it re-placed on the ballots and then a re-vote.

At least they let those married stay married.

[The Pecman]

Also covered here on CNN.

I hope the next time, the battle for votes is a little more intense. I think too many people approached it casually, and that was part of the reason why it failed the last time.

[colinian]

It's too bad about the Proposition 8 decision today. There are several new efforts to get a Yes on Marriage for All referendum on the ballot, either in 2010 or 2012. I was approached today by a petitioner and signed -- but only after carefully reading the petition. I was happy to see that he had many pages of signatures.

To qualify for the ballot, signatures on petitions from registered voters must be 8% (for a constitutional amendment) or 5% (for a statute) of the number of people who voted in the most recent election for governor. The last gubernatorial election in 2006 had a total vote count of 8,899,059. So, for a constitutional amendment 711,925 signatures would be required, and for a statute 444,496 signatures would be required. Proposition 8 was a statute, so a repeal could be placed on the ballot as another statute that requires only a majority vote. And there could be no court claim that it would be a revision of the State Constitution; the State Supreme Court just ruled on that by upholding Proposition 8.

The biggest concern California citizens should have after this very wrong-headed decision is that it legalizes taking away someone's rights with a simple majority vote, and a constitutional amendment isn't needed. Basically, it overturned the equal protection clause in the State Constitution without due process. That's very frightening!

Today the opponents of Proposition 8 have appealed to the Federal Superior Court for a temporary injunction against Proposition 8 as violating the Federal Constitution's guarantee of equal protection and due process under the law. The attorneys who joined together to present this appeal are the ones who fought each other over the Bush-Gore presidential election decision before the U.S. Supreme Court. That's very interesting!

I think the decision to allow the 18,000 gay and lesbian couples who married before Proposition 8 was voted into law is also very interesting. What it tells me is that the California Supreme Court is suggesting that another referendum, one to overturn Proposition 8, should be put to the vote. If that happens, and passes, had the 18,000 marriages not been upheld it would create a huge mess. This way those 18.000 couples are protected regardless of what happens.

This reminds me of the supposed old Chinese curse: "May you live in interesting times."

These are interesting times, indeed, aren't they!

Colin

[Richard Norway]

California's constitution has always created a mess by allowing a simple majority to trample on the rights of others through it's referendum process. I think the Supreme Court's hands were tied as they couldn't rule on the right of same sex couples to marry, but rather on the "amendment" vs. "revision" debacle. Two things struck me:

1) The court had already ruled that same sex marriage was a right and was constitutionally permitted.

2) By allowing the 18,000 existing same sex marriages to stand, they were affirming their earlier decision to allow same sex marriages and saying to the California citizens to step up to the plate and give them something that they can rule on to allow same sex marriages to take place.

California has always been a leader among our US states when it comes to human rights. I believe same sex marriages will eventually be allowed in California when it's worked through their legal system.

[Graeme]

The Daily Kos has an interesting article which essentially says that the ruling on Proposition 8 is that the proposition reserves the word "marriage" for between a man and a woman, and absolutely nothing else!. It removes no rights -- indeed, it reiterates that same-sex couples are entitles to officially recognised family relationships with all the same benefits and privileges of marriage.

I found it interesting reading, but my concern is how it will interact with the federal level of government when DOMA is repealed. If it's not called marriage, can federal agencies choose to not treat them as marriage, and hence deny same-sex couples benefits available to married couples?

[colinian]

The Daily Kos has an interesting article which essentially says that the ruling on Proposition 8 is that the proposition reserves the word "marriage" for between a man and a woman, and absolutely nothing else!. It removes no rights -- indeed, it reiterates that same-sex couples are entitles to officially recognised family relationships with all the same benefits and privileges of marriage.

Unfortunately, that's not accurate. Companies grant a married spouse health benefits if they provide that option to their employees. Companies do not have to grant health benefits to a domestic partner, and most companies in California do not do so. If Proposition 8 had been overturned, domestic partners (of any sex) would have been able to be on their spouse's health plan. Interestingly enough, the children of domestic partners can receive health coverage from a company that won't provide them for the partner.

I found it interesting reading, but my concern is how it will interact with the federal level of government when DOMA is repealed. If it's not called marriage, can federal agencies choose to not treat them as marriage, and hence deny same-sex couples benefits available to married couples?

That situation already exists. Doug and I are Registered California Domestic Partners. We must file our state income tax as married filing jointly or married filing separately. However, for both of us our Federal income tax has to be filed as single. Since California income tax has to include a copy of the domestic partners' Federal return that was filed the same way -- married filing jointly or married filing separately -- that means we had to each prepare a Federal single return for filing to the IRS, and a MFJ or MFS return to file along with our California income tax forms. Unfortunately, TurboTax does a piss-poor job of handling this complexity (I don't know how or if the other tax programs handled it). Even if Proposition 8 had been overturned this filing problem would exist because the Federal government doesn't recognize domestic partners as a "married" class of people.

Colin

[Graeme]

Hi, Colin,

If the analysis in the Daily Kos is correct, then any company that grants benefits to married spouses but not domestic partnerships is violating the equal rights clause in the state constitution. I will repeat, though, that that assumes that the analysis in the Daily Kos is correct.

As for the second point, I did prefix the statement with the premise that DOMA has been repealed. When that happens, if the federal government recognises same-sex marriages in other states (eg. Iowa), but not domestic partnerships, then this again will be something to go back to the State Supreme Court to force the State to officially recognise that domestic partnerships must be treated as marriage -- including at the Federal level (once DOMA is removed).

However, life would definitely be a lot easier if Proposition 8 can be overturned at the ballot box

[The Pecman]

Good story on CNN about this issue. The most interesting line in the story is this quote from an anti-gay marriage lobbyist:

"I don't think this one is going to tip the balance," Gallagher said. "But we're very close. We're probably only one Supreme Court justice away from a nationally imposed right to same-sex marriage whether we like it or not. That is the ultimate game plan of the gay marriage forces."

Makes sense to me. I'm personally very glad he's worried.

Ultimately, I think the Supreme Court will have to decide this one way or the other, but so far they continue to slide it back to the states. It annoys me that you can be legally married in one state but not in another, plus it brings up legal questions: if two people are married in one state, then move, what's their status? What if one spouse dies? What about insurance benefits?

This gets very messy, very fast.