Schwarzenegger neutral on legality of Prop. 8 [Updated]

[Updated at 3:49 p.m. Governor Arnold Schwarzenegger today told a federal court that his office remains neutral in the legal battle over whether  Proposition 8 violates the U.S. Constitution.]

“Plaintiffs’ complaint presents important constitutional questions that require and warrant judicial determination," the governor said in a written response to a federal challenge of the anti-gay marriage ballot measure.

" In a constitutional democracy, it is the role of the courts to determine and resolve such questions. … The administration encourages the court to resolve the merits of this action expeditiously.”

U.S. District Judge Vaughn Walker has scheduled a July 2 hearing on arguments whether Proposition 8 should be blocked pending a trial on its constitutionality.

The state has opposed an injunction on the grounds that it could create legal chaos if the measure is eventually upheld. The federal lawsuit was filed shortly before the California Supreme Court rejected challenges to the measure on state constitutional grounds. Atty. Gen. Jerry Brown has argued that Proposition 8 violates the 14th Amendment of the U.S. Constitution.

He also argued unsuccessfully in state court that the measure violated the California Constitution.

"We are extremely pleased Gov. Schwarzenegger does not dispute the unconstitutionality of Proposition 8 and agrees that swift action is needed to ensure that every person is treated equally under the law,” said Chad Griffin, president of a group formed to back the federal challenge.

-- Maura Dolan in San Francisco

Interactive map of milestones in the gay marriage battle and how state laws have changed since 2000

Comments

[Uli Kusterer]

"ant-gay measure law"? Vanna, I wanna buy an "I" and drop, remove and eradicate a superfluous, unneeded and excess noun.

[Bart66]

Schwarzenegger is the real villain here, he let bills the California state legislature pased legalizing gay marriage die on his desk 3 times. He had the chance to do something bold and he failed miserably. He is now trying to save face.

[John]

But by this legal argument, polygamy and incest would be legalized.

[JV]

Interesting.

[Tannim]

Governor: I'll take Obvious for $200, Alex.

[Tannim]

BTW, not that Obama threw the GBLT community under the bus on Friday. When will they quite supporting that sellout?

[jon]

So here we are. Elected officials don't give a damn about the will of the voters and actively seek to subvert that will even when endorsed by the state's own courts. is it any wonder that so many people believe that our political system is so venal, so corrupt, so benighted, that it has simply collapsed? We need a new system and a new constitution. The old one is just plain broke (financially too).

[JasonJack]

Where in the constitution does he get that? "Unconstitutional" is becoming a synonym for "unfair" where only liberals determine "fairness"

[blupnrtguy]

How could a stay on Prop 8 create legal chaos if the measure is eventually upheld? The Supreme Court already ruled that it only removed the 'term' marriage and doesn't affect any rights. If a court stays Prop 8 and then eventually upholds it, the most that could be done is to remove the term marriage from those people that have already wed. Unless of course, that we don't have equal rights (which is the real truth), then of course you have a problem. So, in essence, by arguing against a stay, AG is admitting that gays and lesbians don't have equal rights.

[Amy]

"the ant-gay measure law"?

Was the entire copy editing staff laid off as a cost-cutting measure?

[Brian]

If one understands the history of the 14th amendment, one knows that it was designed to address newly freed slaves. Let's not foolishly apply it where it was not intended.

When we can agree that the marriage preferences built into our laws are there to encourage families and if one also believes that a woman is important in raising a child, and so is a man, then one understands why the law is NOT designed to encourage homosexual unions.

If gays want the advantage of marriage then they can make a legal written contract with each other. Make a will that includes each other, etc. Do not make the rest of us believe that child rearing is as good when one gender is absent.

[Duh]

By Biblical standards polygamy and incest are both supported as "traditional" forms of marriage...

See: Abraham and Sarah. Abraham and their servant (second wife), Hagar. Lot and his two daughters. Jacob and his two wives. King David and his multitude of wives. Solomon and his hundreds of wives and concubines. Cain and... his sister?

There's a problem when you try to create laws based on a bronze-age religion, it doesn't always fit.

So why not make laws based on fairness and equality? That's the basis of the United States Constitution. It's taken a long time to get to this point, but fairness and equal justice under the laws will eventually prevail.

Same-sex marriage proponents don't want to REMOVE anybody's rights, but rather extend them to couples who pay the same taxes, obey the same laws, and live in the same society as everybody else. It's only fair. Bottom line.

[Edgar]

Arnold has actually found something that he does so bad, that it makes his acting appear Oscar caliber.

[SFDR]

Based on some of these posts my understanding is that EQUAL isn't EQUAL. Slaves were the original intent of the 14th Amendment - but the overriding theme is EQUALITY and JUSTICE - FOR ALL. Not just the non-slaves. It's shocking how many people don't understand how or why this country was actually founded. And I wasn't even born here!

[phowwy]

Regardless of the governor's personal position on prop. 8, it is unclear to me how he can call anything unconstitutional. He has no legal background. What he should say is that the court has the ability to determine the constitutionality of the measure.

[Larry]

Who the hell cares? It mystifys me that so called 'moral majority' groups decry homosexual unions for the 'threat' they impose on traditional marriage. In all the years I have been married, I never once worried that gays were a threat to my marriage. And if you are one of those that believe they do threaten your marriage, you really need to become a Christian who believes in God, and not the Reverend Billy Bob of the first church of the holy snakes.

And kudos to the ones who find the ever growing misspellings and horrendous grammar offensive.

[SFDR]

Hey Brian - your strange argument about having one gender absent does not apply. I know of instances (more than 90% of the people I personally know) where the parents are either divorced, widowed or somehow separated. The children of those parents are growing up perfectly fine. It would be significantly better to have 2 people in their lives that they could turn to but they are not lacking in any way by having 1 parent! Your argument suggests that couples, once they have a child/chidren never split up - for any reason. W??

[Warren]

Loving VS VA

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. "

Revised Version:

Marriage is one of the "basic civil rights of man," according to Loving v. VA. To deny this fundamental freedom on the basis of gender directly subversive the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious sexual orientation. Under our Constitution, the freedom to marry, or not marry, a person of same gender resides with the individual and cannot be infringed by the State.

[Jim]

Reading the hateful, anti-gay comments here, is it any wonder that gays and lesbians need to turn to the courts for protection?

[John]

How could a stay on Prop 8 create legal chaos if the measure is eventually upheld? The Supreme Court already ruled that it only removed the 'term' marriage and doesn't affect any rights. If a court stays Prop 8 and then eventually upholds it, the most that could be done is to remove the term marriage from those people that have already wed. Unless of course, that we don't have equal rights (which is the real truth), then of course you have a problem. So, in essence, by arguing against a stay, AG is admitting that gays and lesbians don't have equal rights.
-------------------------------------------------------------------------
Because if couples get married while Prop 8 is stayed, if the court uphold Prop 8 then there will have to be another court ruling, probably by the CA or Federal Supreme Court, on whether those mariages remain valid.

[Jim]

I think the governor for his comments on this.
He did not have to address it. He's term limited. He has no obligation to speak about it.
However, I am happy he has joined Jerry Brown and hopefully the US Supreme Court Justices will overturn this hateful, unconstitutional law.

[John]

If one understands the history of the 14th amendment, one knows that it was designed to address newly freed slaves. Let's not foolishly apply it where it was not intended.

When we can agree that the marriage preferences built into our laws are there to encourage families and if one also believes that a woman is important in raising a child, and so is a man, then one understands why the law is NOT designed to encourage homosexual unions.

If gays want the advantage of marriage then they can make a legal written contract with each other. Make a will that includes each other, etc. Do not make the rest of us believe that child rearing is as good when one gender is absent.
----------------------------------------------------------------------
By this logic, divorce should be illegal, as should adoption, marriage of anyone that is infertile, etc. Marriage in the law (as opposed to ANY religious tract) is a civil contract and as such, denying this to consenting adults because of gender is a de facto denial of their constitutional rights (IMO). And as it is a constitutional issue, the courts are the porper venue for addressing said issue.

[DoAsISayNotAsIDo]

Gay Marriage is a corruption of Traditional Family Values. Just ask Senator Larry Craig, Pastor Ted Haggard, Senator John Ensign, Senator David Vitter, Congressman Mark Foley, State Representative Richard Curtis, Congressman Dan Crane, Congressman Newt Gingrich...

[John]

According to Duh, God is required to change with the times (criticizing so called "bronze-age religion"). Wow, a god who bows to man, and changes with the time. That's one pitiful god you have conjured in your mind.

I hope and pray that Duh and the rest of the hate filled homosexual lovers who read these posts, will actually come to know the true and living God... before He comes to judge them for their unrepentant hearts, and their rebellion against Him.

How is the clay able to command the potter? Repent Duh, before it's too late.

[LAGay]

Let's just do away with the 14 Amendment to the United States Constitution, according to Brian's thinking, it's no longer relavent.

"If one understands the history of the 14th amendment, one knows that it was designed to address newly freed slaves. Let's not foolishly apply it where it was not intended."

Since we have no more "newly freed slaves" and that's the only group it was designed for, I guess we have no need for it. Thanks Brian for explaining that to me!!

[tsm]

Dear 14th Amendment Scholars on this Comment Page: You did learn in high school about the incorporation doctrine, right? So is it your position that the Bill of Rights should NOT be applied to the individual states? Do you really believe that freedom of religion (that's your big one, right?) should be determined on a state-by-state basis? I live in California, so -- with the proviso that by majority vote, my rights can be taken away at any time -- I am fortunate to have state constitutional protections in areas such as privacy, free speech, etc.

[rick]

Sounds like John forgot how the Puritans used to have very strict religious standards and there were also the witch hunts that were based on religious beliefs. John should we go back to those times? Yes things do change with the times and peoples thoughts and opinions do too. Unfortunately you seem to be stuck in the dark ages.

[Danny]

I dont buy any of this "equal rights / equal protection" nonsense.

I, as a straight person, have no right to marry another man. I have every right to marry a woman. I have no right to marry a dog or chair or anything BUT a woman.

A gay man has EXACTLY the same rights as I do. He has no right to marry another man. He can marry a woman. He has no right to marry a dog, chair or anything else.

The fact that he "wants" or "feels" like marrying a man is completely irrelevant. We dont base our laws on "feelings".

They are End of story.

[JR Bikerboy]

Did you folks read the article? Arnold didn't say it was unconstitutional, he merely said his office is neutral. Chad So 'n' So said he is pleased the Guv did "not dispute the unconstitutionality" of the proposition that is now law. That's a bit different that claiming it may be unconstitutional. Don't pay attention to the article headings - they're written by associate editors that usually only briefly scan copy they approve for print.

That said, Prop 8 is law. The voters approved it in a legal referendum. If a court, even the U.S. Supreme Court, overturns it on some politically contrived grounds, that would be, incontrovertibly, constitutional.

Society must resist pressure to accept and approve behaviors that clearly threaten the well-being of families and children. No specious arguments regarding divorce, polygamy, or any other activity, or condition diminish, or eliminate the serious threat normalizing homosexual behavior is to the vital moral fabric of society. The health of a society is utterly dependent upon the stability and prevalence of traditional families, regardless of current conditions. It begs the question: Are current conditions good? I think on the basis of economics, crime and general civility, we can confidently respond: No!

[tsm]

So if we continue to permit the free exercise of religion, that means we have to legalize human and animal sacrifice, child molestation, mind-altering drugs, mass suicide and mass murder, right? Oh, and polygamy and incest, too...

[John Schuh]

John says:

"By this logic, divorce should be illegal, as should adoption, marriage of anyone that is infertile, etc. Marriage in the law (as opposed to ANY religious tract) is a civil contract and as such, denying this to consenting adults because of gender is a de facto denial of their constitutional rights (IMO). And as it is a constitutional issue, the courts are the porper venue for addressing said issue."

So denying the right of a 12-year old to marry is a violation of
the 14th Amendments. Part of contract law is that only certain parties are competent to enter into it. A person already married may not enter into contract with a new person without ending the old contract. I guess one can say that the legislature can be fiat simply disregard the history of marriage and decide that two men or ten men can marry. But to do so is to ignore all precedent, legal or social. But of course, that is revolution.

[Diedrich Holgate]

Proposition 8 is a violation of the First Amendment. If my church says gays can marry, your church can't use the government to nullify the marriage. This also opens the door on polygamy ;-p yet another persecuted minority. Freedom's scary, and the U.S. is not free. The population's still mesmerized by the shadows dancing on the wall. This gay marriage issue is a minor infraction compared to the Drug War. Seems everyone forgot (or never really knew) what liberty really means. If some one can tell you what you can and cannot consume, who you can or cannot marry; YOU'RE NOT FREE!

[Jim]

It's truly scary how many people don't understand the concept of consent.

• Children cannot consent.
• Animals cannot consent.
• The dead cannot consent.

The only thing marriage equality opens the door for is allowing consenting adults to marry the consenting partner of their choice. (And yes, that IS a civil right.)

If consent is such a difficult concept for you, please stay away from my children and pets!

[Jim]

Danny,

Your argument that "[a] gay man has EXACTLY the same rights as I do" may sound reasonable, but by this logic, bans on interracial marriage are also OK.

When anti-miscegenation laws were on the books, a black person had exactly the same rights as a white person -- to marry within their race.

Is this really your position?

[Diedrich Holgate]

In response to TSM: the U.S. Supreme Court overturned the ban on ritual animal sacrifice in 1993, and what industrial farming does to animals is far more disturbing. Child molestation and murder are violations of the liberty of another, and thus criminal. The rule of law is based off of the concept of liberty. A crime involves the negation of another's liberty or theft (indirectly attached by way of the fruits of one's labor, right of possessions and life). Suicide, while disturbing, is not the business of the state. In response to John; an animal or a chair cannot consent to marriage... so it cannot be marriage. Besides, animals and chairs don't pay taxes or go to work ;-p

We all have concerns and beliefs about how people and society should live and behave. This is a debate left up to the individual and society as a whole, not something for government to regulate. Positions are won (in the long run) off of reason and merit. Most all of us can reason that crack and other hard drugs are a bad idea; it's not hard to win that argument. It's a health issue, not criminal; consensual crimes are unconstitutional. People lose the debate on "moral" issues, that go against the grain of their conditioning. Using the state to force their "morals" on the rest of us. Benjamin Franklin was a member of the notorious Hellfire Club, and had no problem calling on the services of a Lady of the Evening. We Americans, have a rich history of social disobedience; fundamentalism is just plain un-american.

[Not a gay member, but supports]

Last time I checked, the United States has been said to be, "The land of the free and the home of the brave." If the U.S. is the land of freedom, why aren't gays/lasbians etc. getting theirs. Where's the freedom when these people in love can't get married? How would it effect your own life if someone of a different orientation got married anyways? .."And the home of the brave.." Why isn't anyone brave enough to stand up to the government and let them know how cruel this really is and that it should be okay for gays to get married. If people that are straight can be happy and get married, why can't gays be given the same equal rights?