California's legislature became the first in the nation yesterday to pass a bill allowing gays to get married. Not just civil unions, but actual marriage. Unfortunately, it looks like Ahnold is going to veto the bill. The only thing that could prevent that veto from lowering my opinion of him is that my opinion of him couldn't possibly be any lower. Still, I think this is a big moment for the gay marriage movement. This is the pattern that we've always seen, courts begin to cut in to discriminatory laws then legislatures slowly follow suit. We've now seen court action in Massachusetts and Vermont force the issue, then Connecticutt passed a law allowing civil unions, now California passes a bill allowing full gay marriage. It's another step down the inevitable path. It's inevitable despite halfwits like this:
"Marriage should be between a man and a woman, end of story. Next issue," insisted Assemblyman Dennis Mountjoy (R-Monrovia). "It's not about civil rights or personal rights, it's about acceptance. They want to be accepted as normal. They are not normal."
Yeah, and they're uppity too. And if we don't stop this here, they'll be coming for your sons and daughters next. But then again, maybe that's the point - they are your sons and daughters, aunts and uncles, friends and neighbors. They are normal in every relevant sense, every bit as capable of love and commitment as we are. And every bit as deserving of recognition for that fact. End of story.
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I am for the policy of this bill (allowing gay marriage) but not for the way it's being done.
California passed Proposition 22, saying that only marriage between a man and a woman is recognized in California. I voted against it, but that's the law in this state. It's also the law in this state that changes to the law made by initiative (like Proposition 22) cannot be altered by the Legislature without submitting the change directly to the voters for their approval. I see no indication that the Legislature is planning to submit this law to the voters (and it would be voted down if they did). Instead, they're just making flimsy and unsupportable arguments that it doesn't contravene Proposition 22.
I think sentiment on this issue is changing, but accomplishing it in an illegal way is not the way to do it.
Patterico at September 7, 2005 04:20 PM
I assume that you would suggest the same for inter-racial marriage. Unfortunately for your position, the courts would disagree with you.
What about "equal protection of the law" do you apparently not understand?
Patterico-
I didn't know the details on Prop 22. If indeed it says that the state legislature cannot change the terms of that amendment without resubmitting it to a vote, then you're right, the legislature must submit it as a proposition for a general vote. But that's not really the point for me on this issue. I think this is a big step, regardless of how it's done. I'm lauding the cultural significance, not necessarily the legal technicalities.
This bill appears to be in violation of the California Constitution.
Ed,
I agree that it's a big step, and it would be nice to see -- if it were legal. To me, though, it *is* important that it be done in a legal fashion.
I'm not responding to your commenter. The tone isn't necessary.
Josh-
Because of Proposition 22 or some other section?
I thought terminator was a "fiscal conservative, social liberal"?
Patterico at September 7, 2005 08:18 PM
I'm not responding to your commenter. The tone isn't necessary.
Obviously, you have no response.
"Obviously, you have no response."
raj, I don't know what you find wrong with Patterico's point. He specifically says that he supports gay marriage; what is wrong with him pointing out that he wishes it was done legally (assuming that what he wrote about the rules for California amending Prop 22 are correct). What specifically are you saying that Patterico would suggest the same for interracial marriage?
"What about "equal protection of the law" do you apparently not understand?"
Uh, with all respect raj, what part of Prop 22 do you not understand? I personally agree that the proposition is discriminatory, but the fact seems to be that the people of California do not agree with my assessment. Although I agree that it'd be nice for the Governator to take a stand, doesn't circumventing the amendment rules as P. stated them just lead to more of a bureaucratic legal morass that just bogs down a potentially more productive strategy of amending the proposition according to the rules?
I looked at the text of Proposition 22 and Patterico is right, it does say that it cannot be changed simply by legislation but only by resubmitting it to the people. And that was duly passed by referendum, whether we like it or not. Now, the legislature could submit this bill as a referendum after passing it, but it doesn't look like they're going to do that. Some supporters of the bill are making a highly disingenuous argument that Proposition 22 only dealt with recognition of marriages performed outside of California, so the new law doesn't violate it. But that's just not a tenable position, however much I might like it to be. If the governor does sign the bill, a state court will have no choice but to strike it down as the state law is very clear. Any court override would have to come as the result of a Federal court challenge to Prop 22.
Could a court not strike down Prop 22 instead? Or would someone have to challenge it specifically, rather than it being struck down in the course of a challenge to the new law?
Ginger Yellow wrote:
It would have to be challenged specifically.
A state court judge has, in fact, already declared Proposition 22 unconstitutional. The case is now in the appellate courts. My sense is that this decision will be reversed. If not, then the law just passed would be fine to go forward.
As for raj, I've seen enough in comments on this site to reasonably expect that he is not going to be civil to me in the future (as evidenced by the tone of his first comment to me in this thread), and I have better things to do with my time than discuss issues with people who aren't going to be civil.
He will no doubt trumpet my failure to respond in the future as a concession of every point on which he challenges me, as he has done here. I will respond simply with a link to this thread, in which I have explained my refusal to engage him.
If he ever drops the attitude and engages me in polite discussion, I may change my mind.
Patterico wrote:
Ah, well that changes things a bit. That at least means that the legislature is not acting against the state constitution as it stands now. Future court actions may change that, of course. I presume that Prop 22 is not legally enforcable now that a state judge has struck it down, at least not unless or until a higher court overrules that. I was surprised to see that the text of Prop 22 specified that it was not a constitutional amendment, but still set it above regular statutory language. It's almost like a super-statute. I'd never heard of such a thing before. Referenda are usually constitutional amendments. Perhaps that's not unusual in California, but I'd never heard of it before.
I don't know what effect a ruling by a single state court judge has. My *guess* would be that it's like one by a federal judge -- as you say, binding until overturned.
Problematic for me is the fact that I think that the judge's ruling is likely to be overturned. So even *if* the Legislature could sneak this by now, the rug would probably get pulled out later.
It's not simply the text of 22 that makes it irreversible by the Legislature. It's the structure of the California system. The California constitution provides:
So the language in 22 refers back to a constitutional provision making it illegal to alter referenda without the approval of voters (unless the referendum authorizes it, which 22 doesn't).