Bittersweet

Bitter:  The State Supreme Court of California has allowed a bunch of religious bigoted fundamentalists to change the constitution.  Amazing.  The ruling was 4 For and 3 Against (***correction—It was a 6-1 vote***)—so it wasn’t unanimous.     All it takes is a majority of people to vote away the rights of a minority.  I will be looking forward to seeing what else the ‘majority’ has up its sleeve.  Who else is going to be told their rights are taken away?  Maybe the handicap?  Who knows.  However, I do agree that the people have the right to amend their constitution—just not to take away rights. 

Here is a bit of the Court’s decision:

Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5.

The good thing is that the majority has dropped from 61% to 51.9% in just 8 years.  In another couple of years, they won’t be the majority and the state definition of marriage will be changed to include all free people who live in this state. 

The Sweet (although this is still bittersweet if you ask me):  Here is what the court has to say about my own marriage:

 

Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.

That means that although the State does not recognize same-sex marriages, it does recognize same sex marriages for a few people.  Unbelievable. 

 

Here, same-sex couples who married after the decision in the Marriage Cases, supra, 43 Cal.4th 757, was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples’ reliance upon this court’s final decision in the Marriage Cases was entirely legitimate. A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court. By contrast, a retroactive application of Proposition 8 is not essential to serve the state’s current interest (as reflected in the adoption of Proposition 8) in preserving the traditional definition of marriage by restricting marriage to opposite-sex couples; that interest is honored by applying the measure prospectively and by having the traditional definition of marriage enshrined in the state Constitution where it can be altered only by a majority of California voters.

Under these circumstances, we conclude that interpreting Proposition 8 to apply retroactively would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause. In the absence of a clear and unambiguous statement that the new provision is to have such an effect, the general legal guideline that requires courts to interpret potentially conflicting constitutional provisions in a manner that harmonizes the provisions, to the extent possible, further supports the conclusion that Proposition 8 properly must be interpreted to apply only prospectively.

Accordingly, applying these well-established principles of interpretation relating to the question of retroactivity, we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects.[1]


[1] We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time. None of the petitioners before us in these cases falls within this category, and in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings.

 

 

 

But the language of the Court’s finding is interesting.  No longer does the bigoted religious fundamentalists have the right to say that only they are the only families (the italics are in the original document):

Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” (Marriage Cases, supra, 43 Cal.4th 757, 781.) Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.

These people have tried to define what a family is, but clearly, a real family is not what these bigots recognize as a family.  

Here is a dissenting view by one of the State Supreme Court Judges (Justice Moreno):

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

This could not have been the intent of those who devised and enacted the initiative process.  In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

MORENO, J.

 

So now I truly am in a protected minority.  I have no clue what this means to all those glbt couples who were planning on getting married and now can’t.  Now the movement begins to make sure all free citizens in the state get equal protection.  The ballot fight will soon start.

And tonight we will be going to Palo Alto to take part in the protests against this decision and against the tyranny of the bigoted religious fundamentalists who have just imposed their religious beliefs on all of us. 

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7 Responses to Bittersweet

  1. Cassie says:

    I\’ll be with you in spirit! The Court\’s decision was wrong and everybody but the knuckleheaded judges KNOWS it!!!

  2. Justin says:

    Kevin, it saddened me greatly when I heard the Courts decision in this case. What this court edict has done is of its own stupidity to create a minority within a minority. The ignorant majority did not want this. They wanted all gay marriages banned and now they will go after those whom the court has said remain married using constitutional guidelines. It is un-constitutional to favor one minority over another both in the state constitution and in the Constitution of the Federal Government.The court said: "Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5."As you know I am a life long student of history and democracy in this country and I would advise the justices to read the words of the actual writer of the Constitution. "All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Thomas Jefferson ""It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others: or their case may, by change of circumstances, become his own. Thomas Jefferson"I fear Californians have allowed a small group of so called "dogmatic christians" who have been proven to be nothing more than bunko artist start the state on a slippery slope. While I am unable to stand with you physically I want you to know that I stand by you in spirit and will continue my writing campaign to correct this wrong. The battle will not be pretty and it will be long but as Jefferson said: "All tyranny needs to gain a foothold is for people of good conscience to remain silent." If people who believe in justice and equal rights remain silent to the tyranny of the radical christian right it will turn this country into a theocracy. Kevin,Stand Tall, Stand Strong and above all show your opponents that your resolve will not falter.

  3. Robert says:

    I find the Court\’s decision today, and the Court\’s decision that lead to same sex marriage to be confusing. They liking same sex marriage to the struggle for Blacks, when the law stated that that Blacks and Whites could not get Married, and now they will uphold a ban that is once again excluding a group of people? If you ask me, I think the Court was afraid to stand up to the Religious Right. Either we believe in freedom or we don\’t.

  4. Cassie says:

    Well, I said it in my blog entry "Justice Denied in California" but I\’ll say it again here"Now we see what happens when judges try to be politicians. In California today their High Court upheld Proposition 8 in an attempt to please the bigots—yet stated that those same-sex couples who had married would STAY married—in an attempt to please sane people.These judges aren’t judges.They are mugwumps. ( A wag once defined a “mugwump” as a person sitting on a fence with his mug on one side and his wump on the other—which is a far cry from the original meaning of the word in the Algonquin Indian Dialect which was “war leader”—thus synonymous with the Latin “dux bellorum” from which the title “Duke” derives).In their pathetic attempt to compromise and try to please both sides they have pleased no one. The bigots aren’t happy because they want same-sex marriage banned COMPLETELY…including the dissolution of all unions that now exist.And everybody else is unhappy because they wanted to see same-sex marriage legalized for now and for all time to come.The court forgot what they are for. They are NOT there to compromise but to dispense CIVIL justice and they should have thrown out Proposition 8 as the bigoted. hate-driven, fear inspired piece of legislative garbage that it IS.I am glad that my friend Kevin is still married but angered by this wishy-washy judicial waffling on the part of the High Court in a state that I called home for over 30 years. A state where my mother’s grave and the graves of my grandparents are. A state that once was called “the Golden state” but it turns out to be only fool’s gold after all.

  5. Kevin says:

    Hi everyone,Thanks for the comments. It has been a weird day here. I have to say I don\’t understand this ruling. How can the state of California only recognize marriages between straight people but at the same time the law must recognize my marriage as a marriage? Reading through the court ruling, it appears that the justices have much sympathy with the glbt cause. However, they found that the majority can change the constitution. They found that the word \’marriage\’ belongs to one group, while the other group can retain all its so-called \’rights.\’ It doesn\’t make sense and I agree, Cass–these judges compromised when they should have done the correct thing.

  6. Kevin says:

    Hi Kevin,You can find the Court Ruling here: http://www.courtinfo.ca.gov/courts/supreme/You can also see a briefer version here: http://www.courtinfo.ca.gov/presscenter/newsreleases/NR29-09.PDF

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