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17 May 2008

Putting The Carriage Before Marriage In California

As a rule, I don't comment on current events until they have had a little time to settle. Especially when the issues come from partisan pandering or the law. By setting up this rule of a cooling off period, F6's commentary is based not on an emotional or zealous response but a little more information and analysis, by both qualified interpretation and incompetent buffoons alike. I get the pleasure of throwing down some other concerns or queries that everyone else has ignored or over looked, which then put the issues into a new light that will either stir up more controversy or piss everyone off. I, much like Oscar Wilde, await such responses with anticipation and receive them freely with gratitude. The rest of my commentary is towards the end and there are some cross blog links that I though you all might find interesting at the bottom of the page. On a secondary note, there are no pictures on this post.

So first, a case law review: What exactly did happen in California this week?

The California Supreme Court was ruling a combination of six cases from back in 2004 and 2005 that had trounced through and were delayed in the normal judicial reviews and pathways of the legal system for over three plus years. These cases still had remaining questions that had not been raised or resolved in the original findings by the Court regarding the February 2004 San Francisco Gay Marriage Protest in which, Mayor Gavin Newsom began an act of civil disobedience. The Court later ruled "concluding that the City officials had exceeded their authority in issuing marriage licenses to same-sex couples in the absence of a judicial determination that the statutory provisions limiting marriage to the union of a man and a woman are unconstitutional, and further concluding that the approximately 4,000 same-sex marriages performed in San Francisco prior to our March 11, 2004, order were void and of no legal effect.", (Lockyer vs. City and County of San Francisco).

So that makes this not at all a sudden drastic decision on the Courts part. This was the normal course of review to clean up the remaining cases from a group of incidents which could not be resolved by the decision in the original case which was brought by the Attorney General. The "new cases" asked a "substantive constitutional question" and due to the nature of preexisting laws on the books in California made the establishment unique to other precedents or legislative schemes not applicable to these particular other cases across the country.
"These (other State and Appeal Courts), often by a one-vote margin, have ruled upon the validity of statutory schemes that contrast with that of California, which in recent years has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple. Past California cases explain that the constitutional validity of a challenged statute or statutes must be evaluated by taking into consideration all of the relevant statutory provisions that bear upon how the state treats the affected persons with regard to the subject at issue."

The path of judicial review is established; becomes necessary for the Supreme Court to review

a. On April 13, 2005, the superior court issued its decision on this substantive constitutional question.... the superior court confined its decision to the challenge that was based upon the equal protection clause... ultimately concluding that the statutory limitation of marriage to the union of a man and a woman not only does not satisfy the strict scrutiny standard, but also does not meet the more deferential rational basis test because, the differential treatment mandated by the statute does not further any legitimate state interest. In light of this conclusion, the court held that California's current marriage statutes are unconstitutional under the state Constitution insofar as they limit marriage to opposite-sex couples.

b. On appeal, the Court of Appeal, in a two-to-one decision, reversed the superior court's ruling on the substantive constitutional issue, disagreeing in a number of significant respects with the lower court's analysis of the equal protection issue a right to same-sex marriage (without established precedent). Second, rejected that the California marriage statutes discriminate on the suspect basis of sex but rather permit members of either gender to marry only a person of the opposite gender. Third, sexual orientation does not constitute a suspect classification for purposes of the state equal protection clause.

The majority thus concluded that, the marriage statutes survives rational basis review, reasoning that the state has a legitimate interest in preserving the traditional definition of marriage and that the statute's classifications are rationally related to that interest. The concurring justice observed that in her view, "The nuance at this moment in history is that the institution(s) are distinct and, we hope, equal. We hope they are equal because of the great consequences attached to each. To the degree that any committed relationship provides (those consequences) it is entitled to respect. Whether it must be called the same, or supported by the state as equal to the traditional model, only time and patient attention to the models at issue will tell."

The third appellate court justice dissented from the majority's determination that the marriage statutes do not violate the California Constitution. The dissenting justice (1) disagreed that the same-sex couples challenging the marriage statutes are seeking recognition of a novel constitutional right to "same-sex marriage" rather than simply the application of an established fundamental constitutional right to marry a person of one's choice, (2) sexual orientation should be considered a suspect classification for purposes of equal protection principles, and (3) finally concluded that the challenged statutory restriction limiting marriage to opposite-sex couples "has no rational basis, let alone a compelling justification."

What the Court asked? How the Court ruled?

"Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a "marriage" whereas the union of a same-sex couple is officially designated a "domestic partnership."

The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.... (and) whether the difference in the official names of the relationships (marriage vs. domestic partnerships) violates the California Constitution. As explained hereafter, the determination whether the current California statutory scheme relating to marriage and to registered domestic partnership is constitutionally valid implicates a number of distinct and significant issues under the California Constitution:

"Whom has the right to marry"

1. The nature and scope of "the right to marry"... we conclude that, under this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

2. The Attorney General, observing that fundamental constitutional rights generally are defined by substance rather than by form, reasons that so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple's constitutional right to marry simply by assigning their official relationship a name other than marriage. Because the Attorney General maintains that California's current domestic partnership legislation affords same-sex couples all of the core substantive rights that plausibly may be guaranteed to an individual or couple as elements of the fundamental state constitutional right to marry, the Attorney General concludes that the current California statutory scheme relating to marriage and domestic partnership does not violate the fundamental constitutional right to marry embodied in the California Constitution.

3. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple's constitutional right to marry under the California Constitution. Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential "rational basis" standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review -- "strict scrutiny" -- is applied when the distinction drawn by a statute rests upon a so-called "suspect classification" or impinges upon a fundamental right.

4. As we shall explain, .... we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents -- like gender, race, and religion --a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple. Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest.

We came to the conclusion

Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California's current marriage statutes -- the interest in retaining the traditional and well-established definition of marriage -- cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. A number of factors lead us to this conclusion.

First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise -- now emphatically rejected by this state -- that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

COMMENTARY: How will this landmark case effect laws in Indiana or across the Country?

It is also important to note that like Texas, California was originally a very long time ago was an Independent Republic and not always a State or Territory of the United States. The Constitution, the legal mind set, and cultural roots of Hawaiians, Californians, and Texans is uniquely distinct from that of most Americans. These cases besides the query of Equal Access/Protection Under The Law is more about what type of Judicial Review applies either a "Rational Basis" or "Strict Scrutiny". Legal precedents and established law have had three plus years to accumulate between the original cases and this particular judicial review by the highest Court of California. As reported by F6 last August, the Ninth Federal Circuit Court issued a broad definition for a person's social associations based on unchanging or undeniable characteristics that are inherent to membership in the group as protected under the Constitution of the United States of America as a stable minority classification.

The precedent of either decision will not have stability in Indiana until the precedent is affirmed either by the State or Circuit Courts here or the Supreme Court of the United States. This is also a landmark victory both for and against Federalism/State Rights versus The People under the enumerated powers of the 9th Amendment to the Constitution. However it also reopens questions and provides a challenge specifically to the United States Congress to certain pundits dismay under the Commerce Clause (Article 1, Section 8, Clause 3) as well as the Duties of the States under the Full Faith and Credit (Article 4, Section 1) Clause, like the Tenth Circuit's Oklahoma Gay Adoption Case, (Finstuen v. Crutcher (pdf)), amongst others.

While the case at issue was specific the precedent established holds application in the State of California. However to the dismay of all citizens and Legislatures, it looks as if the Supreme Court of the United States will have to rule on some of these cases eventually. Why? you ask. Because, at least with a layman's interpretation of the rulings, there are now unanswered questions in both Federal and State Courts decisions regarding Title 9 compliance - at least at the State level, as pointed out in number four above: "the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we (The California Supreme Court) conclude represents -- like gender, race, and religion --a constitutionally suspect basis upon which to impose differential treatment"; with strict scrutiny.

As much as people wish to bitch about "judges legislating from the bench" which is easy for a rhetoric debate. They forget that it really is a bottom-up review process before it becomes a top-down application. The review by the judiciary starts at the local level. As President James Madison said so eloquently "In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority." is the purpose of the rule of law in this country having supremacy unto or by no one else, even "We The People". As the Justices said in their decision: "Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions."

This is the reason why, as a Libertarian, I believe government should get out of regulating marriage all together, allowing consenting adults to form their own contractual bondings, as their individual selves, under the review of the courts, the way it was intended in the first place.


1. Hold The Champagne
by Jonathan Rauch
Independent Gay Forum

2. On Differing from my Gay Peers on Marriage Ruling
by West
Gay Patriot

3. Where Kurt is King
by Bil Browning

4. The Reasoning of the CA Supreme Court
and her prelude review
Sitting Around Waiting for the CA Supreme Court to Rule
by Ellen Andersen

5. The Libertarian Party of California's Official Statement
by Chairman Kevin Takenaga
Third Party Watch

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give medals 4 killing men but 4 loving men they wish you were dead?

give medals 4 killing men but 4 loving men they wish you were dead?
thanks to the sacrifice of many the scourge of Dont Ask Dont Tell in the land of the free and home of the brave will be gone by the end of June!!!!