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Q&A: Answering your questions about the Prop. 8 decision [Updated]

Prop8q&A Times reporter Rong-Gong Lin II is answering reader questions about Proposition 8. Ask a question by submitting a comment below.

Updated at 3:45 p.m.:

The voters aren’t able to decide that murder is OK, right? Or to reinstate slavery? So why can they take away the right for same-sex couples to marry?

California’s Constitution gives its voters broad authority to change state law, and they could, if they wanted, repeal all of the state’s anti-murder criminal laws, the same way they decriminalized marijuana use for medicinal purposes, UC Davis law professor Vikram D. Amar wrote in an e-mail. But voters would not be able to reinstate slavery because that is forbidden by the U.S. Constitution. “We really have two backdrop safety nets: the U.S. Constitution, and the (general) common sense of the people not to do anything TOO stupid or mean, Prop. 8 notwithstanding,” Amar wrote in an e-mail.

Do civil unions provide ALL of the same rights as a married couple or not?

California law already grants domestic partners virtually all of the legal benefits married couples enjoy under state law. But the federal government does not recognize same-sex marriage. This means that married couples of the same sex cannot file joint federal income tax returns or receive federal spousal benefits, including those from the Social Security Administration or the Department of Veterans Affairs. A U.S. citizen who marries a foreigner of the same sex in California will not be allowed to sponsor the spouse to immigrate here.

Does today’s decision take away the rights of married same-sex couples?

No. The justices interpreted Proposition 8 to mean that future unions of same-sex couples cannot be called marriage in California. It does not rescind “ ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage,’ such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.”

Can the California Supreme Court be appealed to reconsider its opinion?

No. The justices were explicit today that further reconsideration of same-sex marriage needs to be done at the ballot box.

Why did one Supreme Court justice seek to overturn Proposition 8?

Justice Carlos R. Moreno, the court’s sole Democrat, wrote that the majority decision today “places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

If I was married in Canada before Proposition 8 was passed, am I still married under this new decision?

The court did not address whether California will continue to recognize same-sex marriages conducted legally in Massachusetts, Canada or other parts of the world where it is legal. From the court’s ruling: “We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time.  None of the petitioners before us in these cases falls within this category, and in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings.”

Will California recognize future gay marriages from other states and countries such as Canada where they are legal?

No. Proposition 8 says, “Only marriage between a man and a woman is valid or recognized in California.” It is unclear whether out-of-state same-sex marriages officiated before Proposition 8 was passed will continue to be recognized as marriages.

Can gay Californian couples legally marry in Massachusetts or Canada?

Gay Californian couples can be married in other states or countries where it is legal to do so. But their marriages are not recognized by California agencies. California same-sex couples, however, can register as domestic partners, which give them many of the legal benefits marriage provides.

How can the California Supreme Court rule that gay marriage is legal and then turn around and uphold Proposition 8?

The California Supreme Court in 2008 ruled that the state Constitution protects a fundamental "right to marry" that extends to same-sex couples. But today, the justices upheld the right of California’s voters to amend the state Constitution to specifically prohibit same-sex couples from marrying.

My husband and I got married in Canada in 2007. When we tried to remarry in California last fall, we were turned away by the county clerk who told us that since we were already married and our marriage was recognized by the state of California, we could not get married again (even though it was to each other). Will our marriage still be recognized in California?

The Times' Maura Dolan answers this question: "The court declined to determine whether same-sex marriages performed outside of California -- and not formally recognized by the state prior to the election -- would be legal in California. The court said it did not hear arguments on that question and wrote that 'it would be inappropriate to address' it today."

I am still waiting for an answer to the basic question of how a law can be found to be unconstitutional and then becomes otherwise by putting it in the Constitution.

The California Supreme Court wrote that the California Constitution "explicitly recognizes the right of the people to amend their state Constitution through the initiative process." That means that, generally, the state's voters have a right to change the Constitution if they disagree with a ruling of the California Supreme Court.

Are they ruling that the definition of the word marriage, between a man and a woman, is not discriminatory? Or are they overturning their decision from last year?

Actually, opponents of Proposition 8 asked the California Supreme Court to overturn the ballot measure on the argument that banning same-sex marriage changed the tenets of the state Constitution and therefore amounted to a revision, which can only be placed on the ballot by a two-thirds vote of the Legislature. Proposition 8 reached the ballot after a signature drive.

In today’s ruling, the court ruled that Proposition 8 "adds but a single, simple section to the Constitution," and therefore was a constitutional amendment and not a revision. "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 government plan or framework of California that existed prior to the amendment."

What would the process be to limit the ability of the voters to amend the Constitution at the ballot box?

Such a measure would require amending the state Constitution.

What did the court say about Atty. Gen. Jerry Brown’s argument that Proposition 8 was invalid because “inalienable rights” are not subject to “abrogation” by constitutional amendment?

The court rejected Brown's argument. It ruled that Brown’s argument “rests inaccurately upon an overstatement of the effect of Proposition 8" on the right of privacy and guarantees of due process and equal protection. The court said that “Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term ‘marriage,’ but not to any of the other of ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage,’ such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.”

What did the court say about the arguments of some that it’s too easy to amend the California constitution?

The court said it is constitutionally bound to uphold the initiative process in the state Constitution. “It is not a proper function of this court to curtail that process.... If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.”


 
Comments () | Archives (143)

My husband and I got married in Canada in 2007. When we tried to re-marry in California last fall, we were turned away by the county clerk who told us that since we were already married and our marriage was recognized by the state of California, we could not get married again (even though it was to each other). Will our marriage still be recognized in California?

So, if I get enough signatures to get a prop on the ballot and a 50%-plus-one majority, can I strip rights away from members of a certain religion or from their "church" also?

Why do we pass a proposition that blue eyed people can't drive. Or left handed people can't eat fish. Why choose the basic civil right of gay people to enter into civil marriage as a proposition.

How can the CA Supreme Court rule that gay marriage is legal and then turn around and uphold Prop 8? This State should not be ruled by the initiative process - otherwise I'm going to sponsor an initiative that legalizes marriage between me and a badger, and I shall henceforth be called BadgerX1, with tax exempt status. Sheesh.

My husband and I were one of the "lucky 18K."

Now that it has been decided to recognize our marriage, what happens if we want to get divorced when same-sex marriage is not legal?

Because it's not legal, how can we legally get divorced?

Not that we want to, we've been together for 17 years, but was asking out of curiosity.

I am still waiting for an answer to the basic question of how a law can be found to be unconstitutional and then becomes otherwise by putting it in the constitution?

Other bills have been bounced from being voted on due to legal challenge finding them illegal, this one was just reinserted with no changes... We now a law being supported by the Supreme Court that they previously declared unconstitutional....

What will the "majority" take away next?

Are they ruling that the definition of the word marriage, between a man and a woman is not discriminatory or does that have to be yet another suit? Or are they overturning their decision from last year?

If I was married in Canada before Prop 8, am I still married under this new decision?

My husband and I were married in Canada before California allowed same sex marriages. When it became legal in California, we called up our county clerk and asked if we can get married again in California, they said no, you are already married. so with this decision what happens to all the marriages that were instantly recognized by allowing same sex marriage? I am furious if I was recognized and now am not.

What would the process be to alter either the initiative-process' ability to amend the constitution or the requirements such a process must meet to amend the constitution? If such an alteration can be made in the legislature, are there any bills currently being considered at large or in committee? Are there any political rumblings along these lines?

Thanks!

My question is around the fact that the court has declared gay and lesbian people members of a "Suspect Class"...meaning, that they are in particular class of individuals marked by immutable characteristics (as of race or national origin) and entitled to equal protection of the law by means of judicial scrutiny of a classification that discriminates against or otherwise burdens or affects them. Are there still objections either made or going to be made to the court to bring these factors to light? In other words, will we also hear the case made that while the Prop 8 amendment process passed muster, the verbiage and intent infringes the rights of a Suspect Class of people?

How can this or any state allow discrimination? Brought about by popular vote or not, I thought the justices were there to interpret whether laws are constitutional. I didn't think such blatant, fear-and-ignorance driven discrimination would be viewed as constitutional, especially since allowing it rescinds the justices' own previous ruling. "Oooops, I guess we were wrong just doesn't seem to cut it." This is beyond ludicrous. These justices, whom I had begun to view as people of character and honor, men and women who had beliefs by which they stood, have reduced themselves to cowards and self-serving weasels. I am sickened, mind, body and soul, by this supreme display of idiocy.

What I want to know is how the state Supreme Court can justify using a majority vote to override the rights of the minority, which undermines the entire state constitution and Bill of Rights, not to mention the leaving of the constitutional conflict between the equal protection clause of one part of the state Constitution, which was cited in the original ruling, and Prop 8, which did nothing to address equal protection afterwards, and in fact never overturned that part of the marriage cases?

IOW, what was the state Supreme Court smoking to royally screw up such a fundamental point?

Will the state recognize gay marriages from other states and countries such as Canada where they are legal?
Can gay Californian couples legally marry in MA or Canada?

This is unjust in every way, and lovers of constitutional rights will continue to work to overturn this hateful ruing. My God, troops, if Iowa and Maine can do it, why can't we?

What happens now to this "special class" of citizens created by this decision? Along with 18,000 others, my husband and I were married in the narrow window when it was legal in California. Apparently, the court unanimously decided to allow those marriages stand. So now we have a minority within a minority. Won't this be a nightmare for the courts, for government agencies, etc.?

As a lawyer who is also gay, this ruling should NOT be a disappointment to gay activists. The California Supreme Court as an institution could not make a constitutional exception for Prop 8. That is what gay legal activists were seeking in this decision: to be excepted from the unfortunate and uninformed decision at the ballot box.

The right and correct next step is for gay activists to collect the signatures to put a repeal of Prop 8 and guarantee of marriage equality in the California constitution. Demographics are on our side. Young people do not think it is a big deal and every day another bigot of the old generation dies. In fact, I think that if the matter were taken to the next possible California ballot, it would now pass.

The outcome is absolutely mean!!! Whyt aren't we like the Canadians or Spain? Or one of those countries that have progressed so much in gay rights? Why have human rights stalled in the US?

If they take our rights, it is time to send all illegal aliens back to thier countries. They have no right to be here illeagally.

So as I understand this, the SC rules that the 18k marriages already entered into are legal and are not in question. However, anyone wanting to get married from this day forward who happens to be the same sex cannot. What a CROCK!!.

I guess that 6/7 of the judges are so afraid to make a stand

Now that it’s legal and acceptable to vote to take away fundamental rights from disfavored minorities in CA, someone should start a campaign to take away the right to vote in state elections from Mormons. If it's good for the goose, it's good for the gander.

There has been a lot of debate about whether the will of the majority should override the rights of the minority. My question is, what minority rights have been overridden?

For example, I know Melissa Etheridge has complained about being a minority not recognized by the government. Her and her same-sex partner Julie Cypher were denied marriage. However, they broke and later Julie married Matthew Hale.

So what make Melissa more of a minority than Julie? When did Julie cease being a minority that was denied marriage? When she broke up with Melissa? When she fell in love with Matthew?

The same thing happened with Anne Heche and Ellen DeGeneres. They were a same-sex couple, until they broke up and Anne married Coleman Laffoon.

I used to be only attracted to other men, but am now in a fulfilling marriage with my wife to whom I am sexually attracted. When did I cease to be a minority that was denied marriage?

If this...

"Even with the court upholding Proposition 8, a key portion of the court's May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims."

..then how were we NOT discriminated against?

Whether you are FOR or AGAINST same-sex marriage, you should be happy about the decision....why????????


Because it is a scary thing when our legislature, (the immediate ruling body) overturns something the MAJORITY of the PEOPLE have voted for. (not democracy, that's tyranny)

Even if you are pro same-sex marriage...if you're an American you should be pro-democracy and anti-tyranny.

Keep up the fight if that's what you want...but do NOT try to win by defeating democracy!

 
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