Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Thursday, May 15, 2008

California Supreme Court Victory!

The California Supreme Court today struck down the ban on same-sex marriages. To my further amazement, Governor Schwarzenegger immediately issued a statement saying not only that he would respect the court's decision, but he would also oppose any attempt to invalidate it by ballot initiative. I confess, I got a little choked up.

The heart of the Court's 4-3 ruling was this: if you grant a domestic partnership or civil union all the rights of a marriage, as California has done, then you must call it a marriage. Naming it anything lesser has no legal purpose other than to be discriminatory. There may be practical, negative consequences of that ruling on the fight to secure domestic partnerships and civil unions in other states--or federally--I do not know.

But mostly I am speechless. And I am so thankful to the justices, so honored to live in California. I am sure it was a difficult call for them. All I can say is, when your verdict is greeted with gasps, cheers, hugs, and tears of joy... from thousands of people... You have probably made the right decision.


Spotted Handfish said...


Okay: I'll bite. What's the catch? I haven't read the articles I've seen in detail (currently suffering insomnia in Aus, and hence not concentrating real hard), but surely there is a catch...

Raised By Republicans said...

This is very welcome news. I'm especially glad to see the reasoning the court used. They confront head on the motive of these things. They clearly state that this is not about protecting the rights of one group but rather attacking the rights of another.

The catch is that this was a state court decision. Our federal system will limit the scope of this decision's effects.

The Law Talking Guy said...

Of course, if it had been a ruling based on the federal constitution, the Supreme Court would nullify it. It cannot do that for a state supreme court's constitutional ruling (or so we thought before Bush v. Gore...). So that "catch" is not a catch.

Poor McCain. He will find his conservatives more disappointed than ever in his refusal to back a national constitutional amendment to ban gay marriage. By contrast, Obama can just take a "states rights" line and appear moderate.

Dr. Strangelove said...

By the way, the Connecticut Supreme Court is also due to rule on the issue soon. We'll see if they follow MA and CA or if they follow NJ.

Anonymous said...

When I heard this on the radio in the car, I shrieked so loudly I almost woke up Law Talking Baby (lucky for me she's a good sleeper). I'm thrilled about this turn of events, and I can only hope other states will follow suit. I can't wait to read the decision.

As an aside, Mildred Loving (of the well-named Loving v. Virginia, the Supreme Court case which struck down interracial marriage laws) died recently. According to the New York Times, Loving had issued a statement last year supporting gay marriage. I'm a little sad she didn't live to see this.

-Seventh Sister

Average Joe American said...

Leave it to the eternally disillusioned state of California to come up with such a ruling. What's next, abolishing the legal age of consent? Appalling!

Dr. Strangelove said...

On the contrary.... California is eternally hopeful--not disillusioned at all!--which is why the Court bravely moved to protect and secure the sacred institution of marriage... for everyone.

Raised By Republicans said...

Hurray for California!

"Average Joe American" is not that average anymore. Thankfully, his views are increasingly a relic of the past.

Dr. Strangelove said...

A couple other things of note about the decision. The CA Supreme Court declared marriage to be a fundamental right, and also said CA would now use strict scrutiny when it came to issues of discrimination by sexual orientation, just as it does for race and sex.

Bob said...

I was under the impression (from Glenn Greenwald's reading) that the ruling declared the thing we call marriage a fundamental right, distinct from having that thing called specifically "marriage". It explicitly offered the possibility that the state offer "unions" or whatever to all couples, and the term "marriage" be reserved for the religious ceremonies of union.

The key point, it seemed to me, was that whatever term (and rights) the state offers to opposite-sex couples, the same term (and rights) must be offered equivalently to same-sex couples.

Which seems so right to a separation-of-church-and-state type guy like me.

I also find it hilarious that Dr. S is referring to the court protecting and securing "the sacred institution of marriage".

In my mind, the "sacred" part, or as the opponents put it, "the sanctity of marriage", is the whole problem. If the religious part were wholly divorced (sorry, couldn't resist) from the civil part, I think the opposition would lose its rhetorical appeal for many people.

Unless they want to argue that we're a Christian nation and separation of church and state is a bad idea. Which is a clear and unequivocal case I'm happy to take up arms against.

The Law Talking Guy said...

Bob is right, except that the Court also found that extending "marriage" so-called to all individuals was in keeping with longstanding public policy in this state. That is unquestionably true in a historical sense.

I would not like to see the state stop regulating marriage. I think the problem with taking the "sacred" out of marriage is that people want marriage to be "sacred." That's part of the value of the institution of marriage that gay people want. I don't want to start having to explain if my marriage is "civil" or "religious." That would be opposed by a lot of people. What to do about all those folks who aren't really practicing Christians but insist on church weddings?

As I have blogged before, marriage law is an integral part of family law and can't be easily excised. I don't see any practical reason to do so.

Pombat said...


Ok, so now I'm really late to the party on this one, because I wasn't suffering from insomnia in Aus, but did suffer from evil software eating my comment...

Bob - as LTG says here, and both Dr.S and I have said elsewhere, the sanctity of marriage is the whole point - marriage as something special; rather than *just* dry & legal; is the goal, and as far as I'm concerned, it ain't special as long as it's only available to a 'select' few.

Question on general US views on marriage: in Aus it's very common for people to be married by a state-sanctified 'celebrant', in a beautiful garden or similar, with no religious theme. This is described as 'marriage' in exactly the same tones as the relationship resulting from an in-church wedding complete with priest-in-frock - there's no distinction between them. My assumption is that this is not the case in the US, and that the majority of weddings are religious ones, at least in as much as they are performed in churches - am I right?

Raised By Republicans said...

Bob, I've made a similar appeal to "divorcing" the church from the legal aspects of marriage before.

While LTG has argued that it cannot be done, I'm not 100% convinced he is correct.

It just rings reasonable to me that the root of all this mess is that the state's role in overseeing legal rights and responsibilities related to marriage has been artificially tangled up with the prejudices of various religious factions. I don't think that as a philosophical matter, it is inherently neccessary for this to be the case.

This goes back to Jefferson and Madison's failure to enforce the first amendment as they intended. Instead, followers and exloiters of what Jefferson refered to as "tyrrany of the mind" prevailed - leaving yet another dimension along which our revolution remained incomplete.

The Law Talking Guy said...

Actually, RBR, the First Amendment was not in all likelihood intended as you suggest. Until the 1820s, both Mass and Virginia had established (tax-supported) churches. The First Amendment was not intended to stop that - its limitation is specifically on Congress setting up a national church. ("Congress shall make no law...").

In other words, the US constitution was not initially intended to change the role of religion in individual states. That was left up to them. That began to change after the 14th Amendment (1871) made the Federal government the guarantor of individual liberties against state interference.

We have had a long evolution in this country of our doctrine. I note, by the way, that the UK still has state-supported churches and an official religion, but probably a more secular government overall than the USA. That's because the Brits seem more interested (sensibly, to my mind) in the reality of religious than many American liberals, who often obsess on forms (like those people who sued Los Angeles county because the county seal bore, among its several small pictures, a picture of a mission church with a cross on it).

Raised By Republicans said...

LTG is probably right that Madison didn't think of the US Constitution has having direct effect on the behavior of the states in this regard. But I do think he would have prefered that they each had a similar 1st Amendment and implemented according to his vision.

Here is what the author (James Madison) says about a little thing like a Congressional Chaplin:
"Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In the strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?
The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain! To say that his religious principles are obnoxious or that his sect is small, is to lift the veil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers or that the major sects have a right to govern the minor.

If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expense. How small a contribution from each member of Cong wd suffice for the purpose! How just wd it be in its principle! How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience! Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Gov. (Detached Memoranda, circa 1820)."

Madison did sweat the little stuff. And he wanted and absolute and stark division. We would be a better country if his vision had been imlpemented throughout the country.

Raised By Republicans said...

Religious symbolism in public seals is a minor irritation but only because the religious left and right have such a stranglehold on our society in areas that matter more - like marriage rights.

As a matter of principle, I'd be happier without any religious symbols being given official sanction by the state.

The Law Talking Guy said...

Bully for Madison. But I note that, as President, he did not abolish chaplains. It just wasn't worth the trouble. I want to fight the cultural war against real religious oppression, such as at the Air Force Academy, in hundreds of small southern towns where "voluntary" prayer takes place at football games, and in school districts back East where kids get to leave school early for "CCD" classes. I want to wage the war against school boards that ban the teaching of science and the mindset that causes some of our (presumably fundamentalist Christian) soldiers to use the Koran for target practice. I do not want to jeopardize those important fights with stupid symbolic battles. For example: (1) demanding the beloved cross come down off Mount Soledad in San Diego; (2) excising the word "Christmas" from public speech in favor of "Holiday" - as in holiday party, holiday tree, "the holidays" (for December, not September); (3) barring nativity scenes on public property at Christmas time, or requiring they be accompanied by Menorahs or Santa Clauses; (4) removing the bible from the presidential swearing-in ceremony; (5) removing the words "in god we trust" from our currency where it currently is in tiny type (and where it makes a very funny theological statement viz: "render unto Caesar..."; (6) editing the Pledge of Allegiance which we should just stop using altogether.

Yes, the trappings of religion are all over American public life. Most of them are harmless bits of tradition in a country that has so little tradition to enjoy. While I agree that the symbolism is not in line with our values, but it's not worth losing a single seat in Congress to try to change them, as far as I'm concerned.

Dr. Strangelove said...

Many people have applied LTG's argument to the fight for civil rights for gays and lesbians. The argument is that we should not waste time on mere symbols, mere "harmless bits of tradition" like the word marriage, and instead concentrate on the "real" fight to end job discrimination, obtain reciprocal health benefits, secure hospital visitation rights, etc. Part of the idea is that, once the practical issues are settled, it may be easier to handle the symbolic issues. That is how California has approached gay marriage, and so far it has seemed successful. Although I suppose we the real test will come in November when we see whether the voters of California will deny it.

But there is a deeper strategy here. The real reason gays and lesbians managed to obtain full civil rights in California is not a matter of careful strategy or priorities, bur rather that gays and lesbians came out of the closet more and more over the past few decades. The legislative fight was led by gay and lesbian politicians in Sacramento. Gays and lesbians had already formed families, had already been welcomed in many communities--in a sense, the recent ruling on marriages was judicial recognition of a fait accompli.

There are many more atheists than gays and lesbians, if one believes the surveys, yet atheists are totally absent from political life. There are dozens of gay and lesbian legislators around the country, even a handful in Congress, but there is only one openly atheist politician (he "came out" last year) and I do not believe he is running for re-election. If atheists are to attain their civil rights in this country, we need to come out of the closet. We need an atheist equivalent of Barney Frank in politics; we need an atheist equivalent of Ellen DeGeneres in entertainment. We need people willing to stand up, be counted, and live openly as atheists in public life.

LTG is right. Fighting the symbolic war first is a losing strategy. But before the practical gains can be made, there needs to be a quiet revolution. In the end, this is not about Christians curbing their own excesses: it is about atheists learning how to live without apology in a religious world. It is critical to understand that this is not a call to arms, but a call to understanding. This is not a call for war, but for peace. Gay and lesbians succeeded because, though it was hard, gays and lesbians found a way to live with quiet dignity as full members of society and family. Atheists must do the same: we must learn how to live openly, authentically, and also harmoniously with those who love us but do not understand us. That is the real challenge, I believe.