California Follows Massachusetts on Civil Rights

(I've said it before: Every day is Earth Day @ BMG. - promoted by Charley on the MTA)

It appears the California Supreme Court decided, 4-3, to extend marriage rights to all couples in America’s largest state (over 10% of the USA’s population).  Of course, there’s an initiative to amend the CA constitution to ban marriage equality, and a similar initiative (a law not an amendment) once passed with 63% of the vote.  In the face any possible backlash to civil right’s progress, I say…

What Digby Said:

This is one state where the huge youth turnout could really make a tangible difference in real people’s lives immediately. If they come out in the numbers we expect in November, I believe we will defeat this on the ballot, no matter how many reactionary wingnuts get excited about it.

It’s fitting that in an election year where we are dealing head on with all these issues of race and sex that we’re going to have a showdown on gay marriage in the most populous state in the union. The chances have never been greater to defeat the forces of bigotry and discrimination. It’s a risk, but there will probably never be a better time to take it. Bring it on.

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45 Comments . Leave a comment below.
  1. simple majority

    and in CA, only a simple majority is needed to amend the constitution.  it'll be dicey.  the good news is taht the ruling apparently goes into effect in 30 year, so people can start marrying at the end of june.

    as for youth voters, you know who famously attracts them like the pied piper.  wonder if he'll have anything new or useful to say about the advancement of equality.  or will it still be "together we can...abide by institutional discrimination"?

    sympathetic business people in CA will need to communicate loudly and clearly how much money they're making with the influx of out-of-staters flocking to CA to marry.  many people could care less about my civil rights, but they care a lot about the tax base and rolling in profits.  we can appeal to that demographic much to our benefit in novmeber.

  2. Seriously,

    I'm so ecstatic over this!!!!!!!  

  3. I think this is great

    but I worry how this decision and realization that "equal rights are on the march" will motivate reactionaries in swing states -- states where civil unions aren't even the norm -- to turn out to vote GOP.

    I don't know how many people this is, nor do I know how this will change their likelihood of voting... but I don't like the idea of poking at a hornets nest.

    • Effect on the '08 Election

      My guess is that it won't have nearly the effect it did on the 2004 elections (which, in any case, was vastly overrated as it was).

      First of all, the Republican brand is toxic, and this won't change that. Secondly, most states that could manage to pass a state constitutional ban on gay marriage already have. Third, I'm not sure how the fact of the California allowing gay marriage would motivate otherwise dispirited GOP'er to turn out for McCain or their local Republican. Anyone that concerned about U.S. Supreme Court appointments on this issue (to the extent they think the Supreme Court would be the next to expand rights) is already voting for McCain.

      It's a worthwile concern, certainly, but I don't think this will have much of an effect on the Presidential or congressional races.

    • when it comes to ruling or legislating positively for gay people,

      there is no good time.  there will ALWAYS be the most important election ever just on the horizon. i undersatnd your concerns, but frankly i'm pretty tired of being told or wished  to wait more MORE MORE MORE.  NO MORE!  and if there is no good time, ALL times are good.  NOW is a wonderful word to the disenfranchised.

      • In this case

        sometime in July, when it would have been too late for the haters to get an anti-marriage referendum on the 2008 California ballot, might have been a better time.

        • no, they had it cooking all along.

          in fact, the sec'y of state is working to certify the signatures.  all delaying the decision until july would have done is prevent s-s couples from marrying one more month. we need all the lead time we can get before the november vote for the positive press coverage of loving couples finally marrying to take effect.

          • Let's hope there's coverage

            in Ohio and Florida when loving couples return from their weddings.  More planning time means more out-of-state weddings.  I wonder if this could be a fifty state sweep?

            • yes, let's!

              i would love for florida voters to have a whole summer to see happy families tying the knot.  it will make their november vote on their constitutional amendment less abstract.  they will have in their minds the images of actual people in love, actual families overjoyed at being able to legally protect the families they've already made.

              as for ohio, they've already passed a very draconian amendment.  cali won't induce them to the polls.  been there, done that.  the gop's anti-gay hate campaign can still do some damage, but it's useful days are numbered.  you can only pass one amendment per state.

              • also on florida,

                there will be floridians who travel to cali to marry.  their families and friends will be celebrating with them.  the circle of love widens. :)

      • For the record,

        I sure didn't tell you or anyone else to wait [as if I had the power to control these timings anyway].

        That doesn't mean that I can't also wonder about how the timing impacts other events in addition to being supportive of the decision.

  4. The Myth of the Backlash

    As Scott Lemieux points out, we can expect to see articles & columns warning of great backlash against civil rights--but the backlash didn't happen in Massachusetts, nor in New Jersey.

    Moreover, if anybody says this Court usurped power to make this decision, they are wrong.  The legislature passed this legislation and Governor Schwarzenegger asked the Court to decide.  And the Court decided gay people are people, too.  It is important to hold the line if commentators falsely accuse this court of "judicial activism."  The elected legislature voted it up, and the elected governor vetoed it, weakly saying "I want the Court to rule."  That's a solid democratic process, two out of three branches favoring progress.

    • backlash

      One backlash that is very real is that when issues of LGBT rights are all over the news youth often face violent attacks at school becuase of the spike of discussions at home - discussions that are unfortunately often homophobic.

      Gender variant people often face violence in the streets as well during times when gay rights are at the top of everyone's mind.

      It's an unfortunate reality, and one of the many reasons why our community should always continue to fight discrimination on all fronts and not be lured into focusing 100% just on marriage - it is important but not the be all end all.

  5. Looks like the decision was regarding the name

    It's a long decision, but it seems like they are simply saying that as long as the DP's gave all the rights of marriage, then they should be called marriages.  They take pains to point out that

    The question we must address is whether, under these circumstances ["these circumstances" referring to "both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage"], the failure to designate the  official relationship of same-sex couples as marriage violates the California Constitution. It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.  We are aware, of course, that very strongly held differences of opinion exist on the matter of policy, with those persons who support the inclusion of same-sex unions within the definition of marriage maintaining that it is unfair to same-sex couples and potentially detrimental to the fiscal interests of the state and its economic institutions to reserve the designation of marriage solely for opposite-sex couples, and others asserting that it is vitally important to preserve the long-standing and traditional definition of marriage as a union between a man and a woman, even as the state extends comparable rights and responsibilities to committed same-sex couples.  Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.

    It'll be intersting to see how the CU supporting candidates react.  Will they come up with a rational reason that same-sex couples should not have all the same rights of both sex couples?  Because there is no longer any refuge in simply saying that the names should be different.  They have to describe what the difference should be in terms of rights.  Hopefully they've been following the issue closely and already know what to say.

    • $quot;Both sex$quot; couples?

      Hermaphrodites of the world unite?

      Seriously, though, you raise a good point; it will be interesting to see what transpires.

      For now, tho, a good day for equality!

  6. Hurray for marriage

    Terrific news for anyone who supports the fine institution of marriage. Strong relationships, strong families, strong communities, strong country.

    It is such a pity that the regressive wing of the Republican Party appears to have staked out a position against marriage, but one hopes they will come around to the pro-family side of the equation.

    Anyone care to speculate why the "aristocratic" branch of our government (as opposed to the "monarchical" President and the "commons" legislature, to use the theories of the 1700s) is ahead of the elected branches on this issue.

    • Maybe...

      they don't have to compromise on equality and fairness to ensure election in the next few months or years?

      (I have no idea how states (s)elect their state supreme court justices)

    • they're not much ahead, i hate to say.

      have you read the crap that came out of the WA, NY, etc. state supreme courts?

  7. It's a Great Day for Civil Rights

    This is a great day for Civil Rights.

    Let's celebrate another milestone on the road to Equality and the total repeal of DOMA!

    Ed O'Reilly Democratic Candidate for U.S. Senate www.edoreilly.com  

    • Ladies and gentlemen...

      ...a true Democrat.

      sabutai   @   Tue 4 Dec 7:00 PM
    • How close will that vote be?

      How close do you anticipate the vote to repeal DOMA vote will be, Mr. O'Reilly?  Would John Kerry really be the one vote standing in the way of repeal if he were there instead of you?  Would you try to get Congress to also give federal recognition to same-sex Civil Unions, or simply repeal it so that same-sex marriages are recognized but not same-sex CU's?

      If a couple with a Vermont or NH CU travels to California, their CU will presumably be recognized as a marriage when they arrive.  How will the federal government treat it?

      What will happen if some states rule that out of state marriages are contrary to their public policy interests?  (We'll be finding this out soon enough, even with DOMA in place - DOMA doesn't keep any state from choosing to recognize an out of state SSM, so repealing it won't affect that).  

  8. FYI

    Keep in mind that if you want to donate to Equality California, there is a maximum donation:  

    Please enter a maximum donation amount of $2147483648"

    You might need to make two seperate donations to get around that...

    • Good news and bad news

      I made a much lengthier essay on a personal web page regarding this decision. For the most part I think it was good but I am troubled by a few things.

      First of all from a constitutional, legal, property rights and civil rights perspective, essentially a reasonable perspective, this decision upholds freedom and equality and merely extends a civil institution to all the members of the body politic. Civil marriage was already a far cry away from traditional marriage, and the sacred traditional marriages of Church's are a completely different institution from this marriage which is merely giving people property rights they already had under both CAs and the US constitution.

      Secondly for supporters of traditional marriage, myself included, this decision does not affect us since for us traditional marriage is a religious institution anyway that is wholly seperate and unaffected by what civil governments do. The judges made it painstakingly clear that traditional marriage is not threatened by this ruling since it is already in place in denominations across the country. No priest, rabbi, or minister will be forced to marry against his will.

      So by protecting freedom and equality without altering traditional marriage as some religions define it this was a great decision.

      From a third standpoint, what I would call a cultural standpoint, this was not a good decision. I am sure it is the goal of many here on BMG, and certainly a goal I share, to help foster and create a society where all men and women, including gays and lesbians, are respected and viewed as full members of society. A marriage contract is just that, a civil contract devoid of any spiritual, social, or cultural meaning. Gays seeking those sorts of marriages can find them in several denominations, but the state by itself, especially an unelected court, cannot codify those extralegal rights-the right to be accepted and integrated into mainstream society and I fear that some of the language the court used was misleading in asserting that it could do that.

      Judges acting as non partisan neutral interpreters of the law can make no other ruling IMHO they have to rule in favor of marriage equality. That said they have no power to say how a society should behave, and while I agree ours is still behaving badly when it comes to its treatment of gays, a court cannot and never will change that. A sustained push by legislative agents as representatives of the people, pro equality ballot initiatives, and a new civil rights movement to raise awareness and promote equality can do that. The court can now be rightly painted as social activists for making a reasonable legal decision that can now be painted as progressive social activism. While I agree with progressive social activism such activism has no place in the courts and even conservatives IMHO if they thought about this from a purely legal standpoint would support gay marriage, but because decisions like this are clouded with language that takes active sides in a culture war such meaningful dialogue concerning the law and the constitution will be forever clouded in religious, social, cultural, and semantic arguments.  

      • not sure i agree

        on this: "A marriage contract is just that, a civil contract devoid of any spiritual, social, or cultural meaning."

        there is tremendous cultural meaning in a civil marriage contract.  i bet when you meet a couple for the first time and recognize that they are married, you don't have a clue as to whether they tied the know at the court house or in a cathedral.  the justices, as in the goodridge decision, recognized that civil marriage does have great social meaning.  this is partly why they determined that domestic partnerships didn't cut it, even if equal to civil marriage on paper.  "on paper" is not the real world experience.  we all recognize this, i think.

        it sounds like you've read the decision much mroe thoroughly than i have.  i'd be interested if you would pull out some excerpts to demonstrate what you're concerned with in your last paragraph.  reference page numbers would help too (very long doc, as you know).

        • they tied the knot in bed

          that's what you know when you meet a married couple.  

          You are the first person so far to acknowledge that the issue was the name.  It is against the California Constitution to give it a different name, because there's no rational reason to do that, it's just mean.

        • Parsing of words

          Certainly a marriage of any kind holds greater symbolic weight as a socially constructed institution, more so than a piece of paper. But a civil marriage is merely that, the actual contract does not require people to be in love, merely to desire a shared property status since that is all the document conveys. The document by itself offers absolutely nothing in regards to love, building a stable relationship, etc.

          That said I would agree that most people that get married do so for more significant reasons than mere property sharing, but the license itself does not convey that social significance. Private ceremonies be they religious or civil or otherwise do convey that, and the way families and friends react, and raising children, all those establish far more social legitimacy on the relationship than the mere license. And gays and lesbians should both argue that this is merely property rights since thats the essential battle and the essential goal they want, rights that ought to be theirs naturally but are denied due to foolish politics and legal fiat. The other argument, having mainstream America accept gays and lesbians is one that cannot be won in the courts but is won in the streets, the hearts, and the minds of the American people. That battle is far from over.  

          • you might find this interesting.

            this is from Arthur Leonard's blog (link below)

            The court found that calling same-sex relationships domestic partnerships rather than marriages had symbolic importance, and would lead people to see them as effectively "a mark of second-class citizenship," leading to confusion in everyday life and unequal treatment. Furthermore, the court said that different nomenclature even threatened to violate privacy rights of same-sex partners, since every time an individual identified herself as "domestically partnered" rather than as "married," she was effectively also having to come out as gay, regardless of the circumstances. This "may expose gay individuals to detrimental treatment by those who continue to harbor prejudices that have been rejected by California society at large," and would violate privacy rights guaranteed by the state constitution.

            The court found totally unavailing and noncompelling the state's purported justifications for maintaining the distinction, finding that traditional nomenclature had no special claim for deference in light of the seriousness of the constitutional deprivation. It decisively rejected an argument advanced by some of the non-state parties that somehow the California Constitution had itself frozen the definition of marriage based on the common law meaning of the 19th century because of some references to the opposite-sex aspect of marriage in that document. And it rejected the state's argument that there would be a violation of constitutional separation of powers for the court to "redefine" marriage. According to the majority of the court, it was not "redefining" anything, but rather determining whether the exclusion of certain individuals from access to a fundamental right was based on a permissible ground. Wrote George, "a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.

          • But its not just property rights

            It's the right to make medical decisions for your incapacitated spouse.

            It's the right to pick up your spouse's kids from school.

            It's the right to the fifth amendment.

            It's so much more than sharing of property legally.

            • Two things

              Certainly I would first say I agree with you Laurel that using the term civil marriage offers in my view, the fullest possible legal protection for gay unions. The court also opened up the possibility of calling all civil marriages civil unions or domestic partnerships. Personally as long as they convey the exact same rights I do not care what the name is, though like you pointed out everyone straight or gay should have the exact same name for their union and to me marriage as a civic institution is old and traditional and I think itd be easier to extend that nomenclature to gay unions as opposed to extending a whole new nomenclature to all unions.

              As for stomv I would still argue those can be defined broadly under Lockian notions of property rights. Pursuing ones happiness is considered a property right and this includes all those other rights, medical decisions for incapacitated spouse (in that instance since they can no longer make decisions they are in a wierd way property of you), same with children (entitled to rights property in the normal sense are not to, but still under a legal subjugation that adults are not), fifth amendment, etc.

              But for the sake of using universal nomenclature I will use a term that modern society understands more, which is civil rights. Gays are entitled to full civil rights and civil gay marriages are the best way to give them.

              And I think we are all in agrement on that. All I was saying is that the court overstepped its bounds and made a statement, that I agree with, but a statement a court cannot make. And they said they deemed this marriages culturally and socially acceptable. Doing that opens up charges of elitism, legislating from the bench, being activist etc. that damages the strong legal legitimacy of the decision. There is so much good in that decision and its a shame conservatives and the media will pick up that one sentence regarding changing society and culture and turn what is really a civil rights issue that any American, even a homphobic one, should support, to a culture war issue that becomes more divisive.  

              • A salient point...

                ... was brought up by Glenn Greenwald today (emphasis original):

                (4) The Court did not rule that California must allow same-sex couples the right to enter into "marriage." It merely ruled that if the state allows opposite-sex couples to do so, then same-sex couples must be treated equally. The Court explicitly left open the possibility that the state could distinguish between "marriage" (as a religious institution) and "civil unions" (as a secular institution) -- i.e., that California law could leave the definition of "marriage" to religious institutions and only offer and recognize "civil unions" for legal purposes -- provided that it treated opposite-sex and same-sex couples equally. The key legal issue is equal treatment by the State as a secular matter, not defining "marriage" for religious purposes.
  9. A great victory and a great day

    The America that is moves closer to the America that it dreams to be today.  A victory song:

    You tried to hold us down You tried to hold us back You tried to make us wrong You tried to make us crack

    You wanted to see us cry You wanted to see us leave You didn't count on the tide You didn't count on the pride You didn't count on me

    I am a giant And you will not make me fall And you will not make me crawl I am a giant And I'm not alone Winds of change have blown And walls come tumbling down

    --"Giant", Melissa Etheridge.

    sabutai   @   Tue 4 Dec 7:00 PM
  10. Question: does the CA ruling mean...

    that couples from California can legally marry in Massachusetts?

    • yes

      i do believe so.

      • Shoot, there goes our cash cow

        we missed the chance.  I bet we'll see that 1913 law go before 30 days is up.

        • Totalirarian Tactics

          I support Gay Marriage, but I have a real problem with some of their tactics. A perfect example is Neighbor for Neighbor. Why did they have to publish the names of people who are against gay marriage, I thought we had a right to privacy. I knew an old woman in my town who was harassed by telephone on a regular basis because she signed something at the supermarket. You know what, you may not agree with her but she has a right to her opinion.  

          • Shame

            Shaming is a harsh, but many times legitimate tactic for social change.  It is used frequently by Churches, pundits, officials, and all manner of people.

            As I see it (feel free to disagree) marriage is a civil rights issue and I have yet to see or be given any reason against marriage for specific subsets of people that doesn't have its roots in actual bigotry.  The most common reasons given by non-pundits seem to be Religious.  Religious principals don't get a free pass in the marketplace of ideas just because it's religion.  Religious principals can be bigoted and should be criticized as such when they are.

            I for one have no problem in calling bigotry out at the macro or micro level.  If people should feel ashamed, but continue to be bigoted, shame on us if we let it slide.

          • $quot;their$quot; tactics

            please don't lump us all together as some uniform "them".  "We" don't all agree on tactics any more than would say, a random grouping of brown-eyed people.

            there was controversy within the lgbt & ally community about KnowThyNeighbor's online database.  some were completely against it, expressing opinions very much like yours (without the "they" lumping of course :).  some, like me, could see the value in it but were still uncomfortable at the confrontational nature implicit in shaming techniques.  and then some, of course, were completely behind doing it.  and while numerous people were ultimately in support, only a few people actually executed the idea.  many who opposed or were on the fence about it (me included) used it after it was online.  you see, it's not a simple situation.

            you should know that the MA secretary of state ALREADY had the information available online.  the difference was that his website was clunky and awkward.  so, i guess you ultimately need to take your beef to the secretary of state and your legislators, because by law names of petition signers is public information.

          • freedom of speech

            doesn't mean there's freedoms from the repercussions of that speech, and privacy doesn't apply when you sign your name to a petition - that's as public as singing at a karaoke bar. If someone wants to attach their name to a bigoted amendment, that's public knowledge. You're signing your own name!! Never do that lightly...

            Of course old ladies have a right to their opinions. But when you make that opinion public, others have a right to rebut it. That's also freedom of speech.

            Furthermore, KTN did a lot of good. By making those names public, they alerted the public to a major scandal surrounding those petitions. Many people thought they were signing a petition to legalize alcohol at supermarkets, but were duped into signing the marriage-banning petition. If KTN didn't do what it did, hundreds or thousands of people wouldn't have had a chance to clear their name.

  11. excellent synopsis of the decision

    an excellent synopsis of the decision can be found on Arthur Leonard's blog.

  12. What I find interesting...

    ...is that the Supreme Court of CA applied strict scrutiny in deciding this consolidated case.

    As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme  that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1)  the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents - like gender, race, and religion a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a samesex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

    The court stopped short of stating that homosexuality in and of itself should be considered a suspect classification, but they came darn close.  As far as I am aware all other courts have applied the rational basis test when deciding issues of same sex marriage whether it be NY which failed to find a constitutional violation in not permitting it or MA or NJ that decided that a constitutional violation did occur.  

    This decision is important not just in the context of marriage but in the greater context of civil rights in general.  Should other issues of governmental discrimination against gay people in California reach the courts it will be much harder for a party to argue that the rational basis test should be employed.  California already had a very good history when it comes to gay civil rights so this perhaps won't have a marked impact in the California courts, however, it is a signal to other courts.  It may not be binding precedent, but it is a persuasive argument that the issue of gay civil rights deserves a higher level of scrutiny than it is traditionally afforded.  It will be interesting to see if this has any impact beyond this ruling.

     

  13. Sorry....

    ...it should look like this.

    What I find interesting is that the Supreme Court of CA applied strict scrutiny in deciding this consolidated case.

    As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme  that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1)  the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents - like gender, race, and religion - a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same - sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

    The court stopped short of stating that homosexuality in and of itself should be considered a suspect classification, but they came darn close.  As far as I am aware all other courts have applied the rational basis test when deciding issues of same sex marriage whether it be NY which failed to find a constitutional violation in not permitting it or MA or NJ that decided that a constitutional violation did occur.  

    This decision is important not just in the context of marriage but in the greater context of civil rights in general.  Should other issues of governmental discrimination against gay people in California reach the courts it will be much harder for a party to argue that the rational basis test should be employed.  California already had a very good history when it comes to gay civil rights so this perhaps won't have a marked impact in the California courts, however, it is a signal to other courts.  It may not be binding precedent, but it is a persuasive argument that the issue of gay civil rights deserves a higher level of scrutiny than it is traditionally afforded.  It will be interesting to see if this has any impact beyond this ruling.

     

  14. Ellen & Portia to tie the knot.

    Seriously, the next prez needs to make Ellen an ambassador.  Watch the standing ovation she and Portia (who was present on set) got at the announcement.

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