On May 15, 2008, the Supreme Court of California released a rather ponderous (172 pages, double spaced) decision In re MARRIAGE CASES. The decision has enough footnotes and dissenting/concurring opinions that only a recovering attorney could love it. It will doubtless inspire numerous scholarly and insightful law review articles, which this neither is nor pretends to be.
The Court declared that legislation adopted pursuant to popular referendum to the effect that "marriage" can take place only between persons of different sex violates the State Constitution. It was careful to point out that it was doing so even though the same substantive legal rights and obligations of those in heterosexual marriages inure to persons engaged in civilly recognized same-sex civil unions. The basic premise of the decision was that this fact notwithstanding, people who are married are accorded a different social status than people in civil unions, which is not permissible under the California Constitution. This decision was based on an implicit, rather than an explicit, provision in the California Constitution guaranteeing the right to "marriage;" the decision thus may have little, and perhaps nothing, to do with people neither living in nor desirous of moving to California; or then again, it might.
Legal analysts say Thursday's court ruling could have wide-ranging implications for other US states, noting the California Supreme Court's history of landmark rulings.
"The California Supreme Court's example is often emulated and it often is sort of a groundbreaker," said David Cruz, a law professor at the University of Southern California and an expert in constitutional law.
On the other hand, at least one gay rights activist hopes not.
Despite the facially rather limited extent of the decision, headlines such as California's Supreme Court declared gay couples in the nation's biggest state can marry" were rampant. It was also pointed out that efforts were already underway to amend the California Constitution to obviate the Court's decision.
I respectfully (?) dissent from the Court's decision, because it is very poorly reasoned and more than likely fraught with unintended consequences. Even though it purports to interpret only the California Constitution, it may easily be stretched to other venues, conceivably even to the United States as a whole via the due process clause of the Fourteenth Amendment. In addition, a homosexual marriage countenanced under the California Constitution as now interpreted, may well, under the full faith and credit provisions of the U.S. Constitution, be required to be recognized by states lacking an implicit constitutional provision such as that found by the California Supreme Court in the California Constitution. Would a state which fails to recognize same sex marriages be required to offer same sex divorces? I don't know. And, even if the California Constitution should be amended to obviate the decision of the Court, the rationale of the decision may retain sufficient life to have impact on both State law in general as well as Federal law.
Article comments
— go to most recent comments1 - Zedd
To the extent that same sex marriage is an experimentation that will change human evolution, it should be considered more seriously by all parties that ponder on such matters.
As things are, the request for change is an emotional one which seems to fit. However the structural changes that it will ensue have not yet been examined thoroughly.
2 - zingzing
zedd: "To the extent that same sex marriage is an experimentation that will change human evolution, it should be considered more seriously by all parties that ponder on such matters."
not sure if i'm just not getting you here, zedd, but... the "same sex" kind of kills off any idea of changing "human evolution," doesn't it?
3 - Cindy D
"Would adverse legal consequences attach to such refusals?"
Churches have the right to discriminate if that discrimination is based on religious belief. For example, If a church refuses to hire females as priests, it is discriminating based on religious belief.
4 - Cindy D
Dan,
"...it is very poorly reasoned and more than likely fraught with unintended consequences."
I think, judging by what the court itself said, it is unlikely to be disturbed if the effect of its ruling is that people were granted their basic civil rights in other states or through federal law.
I don't see any poor reasoning in the decision myself.
5 - Cindy D
Zedd,
What is it with you and gays? Every time the subject comes up you start typing things that don't make much sense.
6 - Clavos
Cindy,
I don't see any poor reasoning in the decision myself.
Are you an experienced lawyer, familiar with interpreting court decisions and their language?
Dan is.
7 - Zedd
Acquiescing again Clav?
8 - Cindy D
Well, Clav, actually no.
I do, however, have years of experience dealing with contract law. It has been a part of my employment to both construe and write numerous legal contracts, for example, (and at one point I worked with a lawyer on retainer for about 5 years, thus availing me of many hours of engagement with concepts and elements of law in general). I have some experience in the following as well: divorce law, real estate law, criminal law, and civil law.
I can write you up a will, promissory note, mortgage, lease, or what have you and if you give me a day, I will tailor it to the laws in your state.
So, I would consider myself fairly competent (not an expert) in construing some reasonably simple to understand, straightforward decisions.
And if that isn't enough, my mother thinks I'd make a great lawyer! :)
So, I am not an experienced lawyer. Nor, am I am experienced cardiologist, I did recently, however, manage to diagnose my husband's CHF, despite arguments from his "experienced cardiologist" (who I fired just in time as it turns out.)
The point is, Clav, what does that have to do with anything? Four supreme court judges (who themselves likely think their decision was well-reasoned) trump Dan's experience. So, is Dan a Supreme Court judge? And since he isn't should he just shut up?
9 - Clavos
I think I was challenging Cindy, Zedd.
10 - Dr Dreadful
A most informative and interesting analysis of the decision, Dan.
All hell (for some, quite literally) will inevitably be breaking loose over this case, and much charged rhetoric will no doubt be flying back and forth*.
Your piece will serve for me as a commonsensical** anchor point as the debate continues to rage. Many thanks in advance.
* Did you know today is National Mixed Metaphor Day?
** Did you know tomorrow is National Coin Your Own Word Day?
11 - Cindy D
BTW Dan, no reflection on your article is intended in anything I said to Clav.
That was a separate argument. (And speaking of metaphors.) My example about the cardiologist, for example, was not intended as a metaphor relating to your article.
So, you understand, I am not arguing with your analysis--just with your opinion about whether the decision was "poorly reasoned" based on the idea that the potential consequences are "unintended" (at least by the 4 in favor, who obviously heard dissension from the other 3).
12 - Dan Miller
Cindy,
I agree that anyone reasonably competent should be able to understand judicial decisions. That is not necessarily true of contracts or, particularly, multi page loan documents in small print, purposely written so as not to be understood; borrowers are frequently in technical default the moment they sign the documents, leaving the lender substantial discretion on what to do in the event of a default which it deems material and which makes it seem advantages for the lender to foreclose.
Here, the California decision was probably intended to be understood. The problem, as I see it, is that it will be understood quite differently by many readers, and that things which the Court left unsaid are likely to pointed to as indicating what the Court actually meant.
I found very puzzling the Court's omission to reference the historically religious nature of marriage, while focusing extensively upon the societal advantages of marriage. If you will look at the lengthy listing of parties arguing the case, you will find a substantial number of religious organizations. Surely, they must have had something to say beyond "duh." Was the Court's omission intentional? I'm not a mind reader, and don't really know. It is possible that the Court didn't wish to interfere in the way churches do things, and accordingly did not discuss the point. However, you can take to the bank the notion that it will in future be argued that the omission was not only intentional, but that the Court implicitly decided that the right to marry trumps the rights of churches to decline to marry those who are unqualified to do so based on religious doctrine. I hope that I am wrong, and that subsequent decisions won't stretch the decision to reach that conclusion. Unfortunately, that's the way in which the judicial process often works, sometimes for good, and sometimes for ill.
An appellate court has to be very careful lest the law of unintended consequences prevail, and grossly over-extend whatever the court set out to do.
Dan
13 - Cindy D
Unintended being the infringement on freedom of religion. Yeah, that would be unintended. (at least i hope it would) my bad (is 47 too old to say that?) woops!!!
14 - Zedd
Cindy,
What's not to understand. Are you saying that opening society for people to marry whatever human they chose regarding of gender, is NOT a massive change in our social structure?
You would agree at this point.
I would then add that it is these massive changes in a species behavior that affect the evolution of the species. In this case, the change will be social.
Because I don't believe that people are born gay but that they choose to live a gay lifestyle, I believe more people will be open to mating with the same gender. Over time there will be no such thing as sexual orientation. Mating rituals will be altered tremendously which means that human behavior will be altered immensely.
Just a few simple things:
Think about movies
Think about dating rituals
Think about fashion
All marketing
These off course are minute examples of what will cease to exist in the form that we know. Human society has been molded by the male/female dynamic. If that dynamic ceases to exist, then society will change tremendously.
15 - Dave Nalle
Dan, I've read the decision, and while I'm not a lawyer I've taken rhetoric classes and it sure doesn't seem purely reasoned to me. It's actually remarkably clear, by the numbers reasoning. The only place I see a possibility of disagreeing with it is in rejecting the assumption that gay marriages should be treated like interracial marriages, which it all descends from. I think that comparison is right, but it's at least arguable.
Dave
16 - Clavos
Human society has been molded by the male/female dynamic. If that dynamic ceases to exist, then society will change tremendously.
My nominee for Unintentionally Funniest Line of the Year
17 - Baritone
I would say that Dan has clearly laid out just what a convoluted mess this all may become.
But, of course, had the original law banning same sex marriages never been enacted, none of this would now be of concern.
I think Zedd's fears are disproportionately reactionary. I don't see a major change in dating, mating & co-habitating (ooh, that rhymes) habits in the offing. To suggest that this court decision or homosexuality in general will have evolutionary consequences is nonsense in the extreme.
There have been some reported instances of homosexual behaviour amongst some primates (other than homo sapien sapien, er sapien, etc., etc.) The last I heard, there was no shortage of baboons, and certainly not manly, hard drinkin', truck drivin', gun totin' baboons.
Some declared homosexuals may have "decided" to take up their mating proclivities. But, while no expert, I am quite willing to believe what most gays and lesbians say regarding their being hard wired (as it were) with their particular sexuality. I don't know what Zedd's expertise is on this matter, but gays and lesbians are far more intimate with their particular reality than she.
Regardless, whether one becomes a homosexual by conscious decision, or is so via genetic predisposition, should be of no consequence as a legal matter. There is obviously a belief by many that homosexuality is by its nature bad - a sin, the work of the devil, or whatever the hell. It is rather, as I see it, essentially benign, and in the end, nobodys damn business!
There are no extant serious or conclusive sociological or phsychological studies of which I am aware that even suggest any deleterious effects of homosexual behaviour, or same sex unions on either the individual or society at large. Typically, the worst effects of a gay lifestyle have come at the hands of Neanderthalic, supposedly god fearin', christian redneck assholes who have taken it upon themselves to beat the living shit out of any "limp wristed faggots" they come across.
Again, as I've stated here and elsewhere on a number of occasions, the law should stay the hell out of people's bedrooms.
While, I certainly am no lawyer, the situation as Dan has elucidated it here could wind up being one hell of a rat's nest, with possible entanglements no one (except perhaps, Dan) anticipated. We might need Bear Grylls to lead us out of this wilderness. Anyone up for eating scorpions?
B-tone
18 - Dan Miller
Baritone,
But, of course, had the original law banning same sex marriages never been enacted, none of this would now be of concern. . . . [Homosexuality] . . . should be of no consequence as a legal matter. . . .It is rather, as I see it, essentially benign, and in the end, nobodys damn business!
"quoted for truth;" i.e., I agree completely.
There have been some reported instances of homosexual behaviour amongst some primates (other than homo sapien sapien, er sapien, etc., etc.)
I have noticed that among our five dogs, three females and two males, all of whom we had "fixed" long enough ago that they should have no vestigial sexual urges, there is behavior which looks very much like mating; but two of the females do it to the males. I think it's a dominance thing, since the two females are quite dominant and one of the males is about as non-dominant as they get. The other male is less so, but still yields to the two dominant females about ninety percent of the time.
So much for animal psychology for this morning.
Dan
19 - Dave Nalle
Dan, I've seen dogs hump cats to prove their dominance, which the cats really don't appreciate at all.
Dave
20 - troll
...I have it on good authority that baboons were slated to be the dominant earthly species but that their indiscriminate intra-gender fucking brought them low
but in any case: 500,000,000 or bust
21 - Dan Miller
Dave,
Have you considered sensitivity training?
For the cats, I mean.
Dan
22 - Cindy D
Zedd,
What's not to understand. Are you saying that opening society for people to marry whatever human they chose regarding of gender, is NOT a massive change in our social structure?
You would agree at this point.
So far, so good. Yes I would agree at this point. But, maybe for a different reason? I would agree because people are gay whether they can marry or not. I don't see where this change comes from.
Your state your beliefs as being:
Because I don't believe that people are born gay but that they choose to live a gay lifestyle, I believe more people will be open to mating with the same gender. Over time there will be no such thing as sexual orientation. Mating rituals will be altered tremendously which means that human behavior will be altered immensely.
Okay,
First: Do you think you could choose to be gay Zedd? This is a serious question. Think about it. I know I can't choose to be gay. Because if I could have, there was a time when I would have preferred to be gay.
Second: I will play the devil's advocate. Let's say sexual preference is a choice. Let's also say that if gay people can get married more people will choose to be gay.
Okay, the way I see it, this would be a benefit to humankind worldwide. And in a number of ways:
1) We have a serious overpopulation problem. We have limited resources, yet our world population is growing exponentially. If more people turned gay, that would mean less couples could procreate. What an excellent way to help the environment.
Gay is Green!
2) We have numerous unloved, uncared for children around the world. The more gay people the more homes for unwanted children.
So Zedd, if I did think gayness was a choice, I surely would hope more people would choose it.
23 - Baritone
Yeah Dan, dogs may not be a particularly good example. I witnessed a little Daschund of mine vigorously humping a rock. A rock, for cripe's sake! And he still possessed his little jewels. I don't know if it had anything to do with dominance. It probably had more to do with the fact that the rock provided something against which to... well you get the picture (and I apologize for that, by the way.)
I suppose long neutered animals don't really have any idea which way to turn as it were. They probably receive a mish-mash of mixed hormonal signals which turn off and/or on any number of "switches" in their little minds.
I would note, though, the fact that apparently such "switches" likely do exist lends credence to the claims made by most homosexuals regarding the source of their sexual alignment.
Cindy may also make some valid points. My wife brought up the over population issue last nite.
However, if we accept that most gays and lesbians are so not by choice, but by heredity or some other genetic mechanism, one would expect to see no significant jump in their numbers even if all laws and social taboos were lifted. There would be some, I suppose. Some still closeted might bust out into the open, but the numbers would, I believe, remain fairly constant. There might be a spike in bi-sexual behaviour, but that certainly would have no particular ramifications to our evolutionary status.
In the end (and at this juncture, it doesn't matter which end) it being that there are those who find homosexual behaviour repugnant, they are entitled to their opinion, and they certainly are under no obligation or set of expectations to participate in such behaviour. But for such people to seek and demand legal sanctions against those who are not of their mind is, IMO far more repugnant. Tend to your own damn knittin'.
B-tone
24 - El Bicho
"Because I don't believe that people are born gay but that they choose to live a gay lifestyle,"
I have yet to meet a gay person who chose that lifestyle. What's interesting is that you don't know, but "believe" based on who knows what. Possibly your own denied homosexual or bisexual feelings, perhaps?
Look the Supreme Court is not going to retroactively nullify all heterosexual marriages and force everyone to marry someone of the same sex.
What's truly hysterical is this Chicken Little mentality you display, although it does explain why you are concerned about humans evolving as your way of thinking approaches extinction.
"Over time there will be no such thing as sexual orientation."
So in your imaginary world more people "choosing" to be gay will somehow evolve the species into asexual beings and wipe out both homo and hetero?
If you think fashion is going to change with more gay people, you don't know anything about fashion. Check out Project Runway.
25 - Baronius
"Possibly your own denied homosexual or bisexual feelings, perhaps?"
Ding Ding Ding Ding Ding!
This is as dependable as Godwin's Law. If you question homosexual activity online, it is inevitable that you'll be accused of anti-gay violence, supressed homosexual desire, or most likely anti-gay violence driven by supressed homosexual desire.