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Prop. 8 opens door to all discrimination, foes say

Lanow_prop8ontrial_3 There is nothing more fundamental than the equal protection doctrine, a lawyer insisted to the California Supreme Court today in casting Proposition 8 as an unconstitutional deprivation of the right to marry targeted against gays.

"This is the first time a ballot initiative will have been used to take away a fundamental right from a suspect class," Raymond C. Marshall of the Asian Pacific American Legal Center said in urging the state high court to strike down Proposition 8 as discriminatory.

Opponents of the November ballot initiative, which won a narrow majority and redefined legal marriage as only between a man and a woman, argued before the seven justices in San Francisco that if they uphold the measure, there would be nothing to prevent the majority from voting to deprive any other minority of fundamental rights.

The anti-Proposition 8 lawyers, who got the floor first during today's  hearing, disputed that the constitutional amendment that reinstated the death penalty was analogous. While opponents of capital punishment argued that executions constitute cruel and unusual punishment, their failure to prevail in getting the amendment invalidated didn't endanger any one group of people over the rest, as Proposition 8 does, Marshall argued.

Michael Maroko, another anti-Proposition 8 speaker, told the justices that "if the state stuck its finger into the marriage business, it should do it equally.... If gay couples don't have the right to marry, straight couples shouldn't either."

Chief Justice Ronald M. George asked those seeking a  ruling that Proposition 8 was an illegal constitutional revision if their basic problem wasn't that "it's just too easy to amend the California constitution," noting it has been changed more than 500 times, compared with 27 amendments to the U.S. Constitution.

George seemed to signal that the justices' hands may be tied in invalidating ballot initiatives -- such as Proposition 8 -- that amend the constitution. "That is the system we have to live with until and unless it is changed," the chief justice told the initiative opponents.

-- Carol J. Williams

Comments () | Archives (19)

THE right should get over it look what all the religon has done for the middle east ? NOTHING but trouble so why are you folks causing more trouble. GET OVER IT ! more than half of all marrages ending up bad in 3 years what is so great about it ! ? OH I am married and straight but back in the 1940's my marrage would have been wrong we are a mixed couple AND PROUD OF IT

I'm a conservative. I'm a Republican. This is wrong. You don't make yourself right by denying choice to smaller groups. This isn't the will of the people, it's one larger group using it's size to deny rights to a smaller group. Courts are supposed to be the ones to stand up for the little guy in cases like this. But it seems they have failed us yet again.

The Supreme Court of California has shot down ballot "amendments" by saying they're actually revisions before; the issue isn't that it's "too easy" to change the constitution, it's that the change caused by it is to large.


Kindly reason, please. Civil rights and gay marriage are not even remotely related. One is genetic, one is not. You have no idea how ignorant you sound, spewing your nonsense so confidently. Do you know about a gay gene the science community does not? If not, kindly use reason in your arguments.

subwarrior, funny you've been corrected on your misconceptions about homosexuality and genetics (hint: it IS genetic, is not chosen, and is not changeable) many times, on many other posts on this very blog. Who's the ignorant one?

You denied your own self, it was your choice to vote the way you did, which was no on prop 8 and when the other people chose to vote yes on prop 8 now it is so totally wrong. NOT...when you deem yourself as lord and saviour of your life and do not recognize that there is a Lord, a higher power than you and you choose to live any kind of way you want to, in direct disobedience, then there are consequences to, it marriage was ordained by GOD between a man and a woman...It started with Him. Now you want to call it discrimination, why because you cannot have your way...I am sorry to say that is wrong, if that is discrimination then we (blacks) should be living in the courthouse and recompensed for all the discriminations that we have lived in, dealt with, and still deal with....

How is this different from abortion, gun control, or capital punishment? In any of those you have a minority who considers these issues to be their rights or vice versa.

How do you define the will of the people?

Are the courts more impartial than the popular vote? If they were, then you wouldn't see older cases being overturned by new judges. If judges weren't partial to an ideology than you wouldn't be able to categorize left or right-leaning justices.

Is the President any more impartial? If he were we'd all be paying a FLAT TAX!

Your post is painful to real. Was your stream of consciousness typing for you?

Gays have been given all the civil rights the rest of us enjoy. Why do they need to re-define the meaning of the word marriage? If this was about civil rights, nobody would have needed to bring Prop. 8 to the people. Civil unions provide all of the rights of marriage without destroying the meaning of the word "marriage." The real target of the anti-Prop. 8 crowd is the faith community. If they can re-define the word "marriage," they can put pastors in jail for refusing to deny the requirements of scripture and marry them. The anti-Prop. 8 crowd is a most intolerant and vicious group that would function more as a Taliban against those who disagree with them.

When you can now change your gender, the concept of what a man or a woman is no longer the same. Therefore the idea of 1 man and 1 woman being the only ones able to marry is an outdated terminology. And when Marriage is allowed between any two consenting adults it will not affect churchs/religion what so ever due to the whole seperation of Church and State. Which many people seem to forget. Stop saying it's 'god's will' when there is suppose to be seperation between church and state. And frankly there are several churches and religions that allow gay marriage. So stop trying to force your religion on other by the use of the government. And sorry but Domestic Partnerships are not equal under the law. Do some research and educate yourself beyond your religion's outdated mentalties.

Prop 9 - No African-Americans can be elected to public office
Prop 10 - No Jews can live in Orange County
Prop 11 - No women can drive cars
Prop 12 - No Hispanics will be allowed to play Tejano music
Prop 13 - fill in the blank -

See where this leads? When the majority can vote the minority out of rights, things are seriously Anti-American.
It turns into Iran and oppressive societies like Nazi Germany.

Well, generally something of that nature caused by a chemical imbalance in the brain or incorrect hormone levels. Somebody is not "gay" by birth. They do have to make a choice whether or not they want to be "gay." Civil rights are completely different, being homosexual is a choice and a sexual preference. Minorities cannot choose whether they have obtained a physical characteristic. (i.e. skin color, taller, shorter, etc.)

Also, homosexual marriages can account for many of the failed (divorced) marriages in the world.

In all due respect.

easa: Marriage was not ordained by the christian god, it existed in many societies well before the start of christianity 2,000yrs ago. Chinese societies spring readily to mind, with a good few millenia over christianity - look it up.

Chris C. : I'd like to correct you on an issue that is very commonly mistaken in this debate - you say "Gays have been given all the civil rights the rest of us enjoy..Civil unions provide all of the rights of marriage...."
In fact civil unions do NOT provide equal rights/protection. I know this as I am a British man who has been with my American male partner for for almost 12 years. I have just lost my job here and if I cannot find another (within my limited visa restrictions) I will get kicked out of USA.
If I were female, we could get married and I would be able to stay in the country even if I did not have a job. HOWEVER, because one of us is not a womanout, we have zero protection legally to be able to stay together. Civil Unions do not give us this protection.
Can you please explain to me how this is equal in your eyes?
I look forward to your reponse.

It is my honor and delight to officiate for same sex marriages in Connecticut

I even advised all my 100 or so civil union couples that I would upgrade them to marriage for NO charge (if they came to Norwalk or Darien).

CT is proud to lead the way to provide this basic right to ALL couples.

CT is the ONLY state where a same sex couple can get married in one day- no residency requirement, no blood test, no witnesses. Just the $30 license fee and $10 for a certified copy plus the fee for the officiant (which varies by officiant and by location). I can take care of everything for less than $200 including the license and copy).

I have couples who have flown in from CA, FL, TX, IN, OH, IL, Mexico and who have driven in or taken the train from NYC, NJ, PA, RI, VA

Most couples have been together for YEARS...including one couple from Florida who have been together for 45 years!
Let people love each other and take care of each other. Isn't that what marriage is about?

Mary Pugh, CT Justice of the Peace, Norwalk, CT

Steven A.-- I am sorry about your predicament. However this is a federal problem. The difference legally between civil unions and marriage in California is nil. The state of California can't do anything legally about your residency status. So, if prop 8 is denied on equal protection grounds, you will still have the same basic federal problem. I hope you find a job.

franciscogoya, I beg to differ that "between civil unions (sic) and marriage in California is nil." As someone who has had both a domestic partnership and a civil marriage, I can attest that I have personally encountered many differences.

First and foremost is the one that's written into the very definition of a domestic partnership: the cohabitation requirement. Married couples are not required to cohabitate before or after getting married. Domestic partners are. Couples like my husband and I who work in different cities are very much denied equal protection by a domestic partnership.
Secondly is the solemnization requirement. My minister was legally empowered to marry us, but not "domestic partner" us. This is a serious inequality for those who believe that marriage must be performed before God to be valid, and is valid when the ceremony is performed (not a week later when the secretary of state gets around to processing the paperwork). We have also encountered serious difference in inheritance law, parental rights, ease of qualifying for spousal benefits through our employers, and have been advised by a lawyer to draw up explicit end-of-life and medical power-of-attorney documents, because under California law either of our parents could still override our domestic partner, but not our spouse.

These are only the CALIFORNIA issues that I've PERSONALLY run across.

From your other comments, it appears that you have at least a rudimentary education in law. Surely you're aware that simply writing a law that says "a domestic partnership shall have the same rights and responsibilities of marriage" isn't enough. There are literally thousands of court holdings that have never been written into law which are explicit to marriage, and courts are always expected to rule on the narrowest grounds possible. That means someone needs to sue for each and every one of those rights (which can only be done once they're violated) for them to also be extended to domestic partners. There are many, many laws which remain ambiguous at best.

I'm sorry, but a domestic partnership is not equal at the state level, either. That was the reason for the Court's decision in In Re Marriage Cases, and it is acknowledged as fact in the dissents as well.

Thanks for the update, Jim. I think giving the church more power to decide on civil matters is a bad idea. I would rather move towards making everyone have a civil union. If they want a "marriage" let them go to their own minister. Nevertheless, I didn't know about the cohabitation provision and that certainly is a matter of significant inequality that should be addressed in the legislature. However, the other differences you cite are largely procedural and semantic. This is a new legal era and it will take a few years to harmonize the process. Clearly the 2007 changes to state law address both end-of-life care and medical decision-making for a legal partner. Substantively, in the eyes of many California citizens, the moderate middle if you will, we want you to have legal equality.

franciscogoya, personally I would be OK with civil unions for everyone. The supporters of marriage equality also said the same during arguments in In Re Marriage Cases, and the Gloria Allred-written brief in the Prop 8 challenge specifically called it out as an acceptable solution. That would be equal, and the problems with California's domestic partnership system would be ironed out much more quickly if they applied to everyone and not just a suspect class.

The one credible argument I've heard against such an arrangement is that it would force atheists (who are also a suspect class in California) to adopt an organized religious structure (with which they inherently disagree) in order to enjoy the non-tangible societal benefits of the word "marriage." Personally, I think it could be overcome, but it's not an argument that's safe to dismiss out-of-hand.

Sadly, the overwhelming majority of supporters of Proposition 8 are not actually in favor of equality. They like segregation, and try to portray us as fighting for something we don't have the right to, when, in fact, what we ask is simply the fundamental right of equal protection. If people really don't want us to be "married," then the simple solution is to deny "marriage" to everyone.

Jim, your major arguments are better directed to moderates not against the hard core opponents of same sex marriage. The folks who enacted Prop 8 were not the Mormons, the fundamentalists, the haters and the homophobes. Rather the difference was apparent when comparing Obama's large margin of victory with the defeat on Prop 8. It is better strategy to convince the otherwise moderate middle who want less polemics, more deliberation and generally agree with the underlying principle of equal citizenship. Many will need to be convinced of the inadequacy of domestic partnerships. Many will not go forward if this is seen as attacking religious freedom.


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