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Same-sex marriage (SSM), civil unions,
& domestic partnerships in California

Brief summary of developments 2008 to 2012-JUL

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Quotations:

bullet "If marriage means everything, it means absolutely nothing." Dr. James C. Dobson, of Focus on the Family.

bullet "The extension of the Common Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity." Chief Justice Jeffrey L. Amestoy, of the Vermont Supreme Court in a decision that led to the legalization of civil unions in Vermont.

bullet "A loving man and woman in a committed relationship can marry. Dogs, no matter what their relationship, are not allowed to marry. How should society treat gays and lesbians in committed relationships? As dogs or as humans?" Posting to an Internet mailing list; used by permission of the author.

bullet "... They went running down the hall of their preschool singing 'Mommy and Mama are getting married.' And they looked at me with such happy eyes." Comment by Beth Hillman, a professor at the University of California Hastings College of the Law in San Francisco, CA after she told her two daughters at school about the California Supreme Court decision to legalize same-sex marriage.

bullet "As California goes, so goes the nation." Ancient adage of unknown origin.

bullet Four comments on Proposition 8 which ended the right of same-sex couples to marry on 2008-NOV-06:
bullet "This vote on whether we stop the gay-marriage juggernaut in California is Armageddon," Chuck Colson, Watergate felon and founder of Prison Fellowship Ministries.
bullet "I call upon Californians who supported Proposition 8 to make an honest and dedicated effort to learn more about the lives and experiences of lesbian and gay humanity whose constitutional rights are unfairly targeted by this measure'." Episcopal Bishop J. Jon Bruno of the Diocese of Los Angeles.
bullet "It's more important than the presidential election. We will not survive [as a nation] if we lose the institution of marriage." Tony Perkins, president of Family Research Council.
bullet "It's bittersweet right now because we just watched the first African-American president elected. We were watching it with our African-America son, there were tears coming out of our eyes, and we went to look at what's happening at [Proposition] 8. We're speechless right now." Jose Ronni Pahl, one of the first same-sex spouses to be married in Santa Clara County, CA

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Overview:

After one proposition, many lawsuits, a pile of bills passed by the Legislature, and two vetoes by the governor, the California Supreme Court legalized same-sex marriage on 2008-MAY-14. California became the second state to do so, after Massachusetts. Loving, committed California same-sex couples began marrying on 2008-JUN-16.

Proposition 8 was organized by a coalition of Roman Catholics, members of The Church of Jesus Christ of Later-day Saints (the Mormons) and various fundamentalist and other evangelical Christian groups. Its intent was to re-define marriage in California as a special privilege restricted to opposite-sex couples. The public voted voted on Prop. 8 on elecion day, 2008-NOV-04. It narrowly passed 53% to 48%.

The Supreme Court of California heard oral arguments on a lawsui challenging the constitutionality of Prop. 8 on 2009-MAR-05. As expected, on 2009-MAY-26, the court upheld its constitutionality, thus continuing the current ban on SSM. However, he court also ruled that the Proposition was not retroactive. Thus, same-sex couples who were legally married during 2008 before election day would continue to be considered married; they would not be forcibly divorced against their will. This is one more example that same-sex couples who are interested in marrying should proceed with all possible speed as soon as SSMs are legalized within their state. Their right to marry may be snatched away at any time.

This decision leaves the civil rights of any minority group at danger. Any group who is unhappy ha a particular racial, religious, or other minority has equal rights can now raise a proposition in California to eliminate any civil right enjoyed by that minority. If the Proposition is passed by at least 50% of the voters plus one, the minority would be reduced to second-class citizenship. Atheists' are at particular risk, because of the public's high level of dislike and intolerance towards them.

The due process and equal protection clauses of the 14th Amendment of the U.S. Constitution apparently no longer apply in California.

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Challenging Prop. 8:

A lawsuit was launched in federal court to overturn Prop. 8.The argument was based on the due process and equal protection clauses of the Fourteenth Amendment of the U.S. Constitution. On 2010-AUG-04, Federal District Judge Vaughn Walker ruled that Proposition 8 is unconstitutional because it violates both clauses.

The proponents of Prop. 8 obtained an injunction from the United States Court of Appeals for the Ninth Circuit. This would keep SSMs unavailable for the time being. They have launched an appeal of Judge Walker's decision to the same court. However, it is not at all clear whether they will be considered to have standing to make an appeal. The team who organized Prop. 8 and who led the fight in the Federal District Court may not be able to demonstrate that they are a "legally interested party" in this case. To appeal a case, a person or group has to first establish that they would suffer harm unless an Court of Appeals hears an appeal to overturn the lower court ruling. Having one's ideological beliefs bent out of shape are not usually considered a sufficient harm.

The state of California certainly could appeal on behalf of he public. However both the Governor and the Attorney General consider Prop. 8 to be unconstitutional and undesirable. The proponents of Prop. 8 have petitioned the Court of Appeals to force the Governor and Attorney General to defend Prop. 8.

The case is appealed to the Court of Appeals by the proponents of Prop. 8. They lost their appeal due to the coincidence of four factors:

  • That court is well known for its liberal philosophy.

  • Judge Walker's ruling very convincingly argues that Prop 8 violates two clauses of the U.S. Constitution.

  • The proponents during the trial at the lower court were unable to present convincing evidence that SSM would have any negative impact on the state.

  • The plaintiffs were able to quote cinvincing studies that conclude that children are not harmed by having been brought up in a family led by parents of the same sex.

An appeal to the U.S. Supreme Court is expected. They may decide to not hear the case because it affects only California. If they hear the case and rule in favor of same-sex marriage, it would only legalize SSM in this one state because the decision of the Court of Appeals only covers situations in which SSMs were first legalized, and later terminated by a citizen initiative. It is likely that on appeal, the Supreme Court will overturn the Court of Appeals' ruling for two reasons:

  • Every justice of the Supreme Court that has been confirmed over the past three decades has exhibited a more conservative philosophy than the justice that they replaced. Thus, the entire court has been continually shifting to the right.

  • The four strict constructionist Justices of the court, all of whom are male and Roman Catholic, are certain to vote as a block against the plaintiffs. That would require all five of the remaining judges to vote together in favor of the plaintiffs.

The Prop 8 issue is being actively debated at Living Vote.org. See: http://www.livingvote.org/

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Copyright © 2008 to 2012 by Ontario Consultants on Religious Tolerance
Latest update: 2012-JUL-24
Author: B.A. Robinson

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