Cali appeals court upholds gay marriage ban

[lawrocket 3]

Snippets from th intro to the court's lengthy freaking opinion:

"We are called upon to decide only whether the statutory definition of marriage as the union of a man and a woman—which has existed, explicitly or implicitly, since the founding of our state—is unconstitutional because it does not permit gays and lesbians to marry persons of their choice."

"All can agree that California has not deprived its gay and lesbian citizens of a right they previously enjoyed; same-sex couples have never before had the right to enter a civil marriage. It is also beyond dispute that our society has historically understood “marriage” to refer to the union of a man and a woman. These facts do not mean the opposite-sex nature of marriage can never change, or should never change, but they do limit our ability as a court to effect such change. The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage."

"We conclude California’s historical definition of marriage does not deprive individuals of a vested fundamental right or discriminate against a suspect class, and thus we analyze the marriage statutes to determine whether the opposite-sex requirement is rationally related to a legitimate government interest. According the Legislature the extreme deference that rational basis review requires, we conclude the marriage statutes are constitutional. The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat."

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I think the court hit on a court's proper role quite nicely there. For political purposes, I disagree with the holding of the court. I think gays SHOULD be entitled to the costs and benefits of marriage.

I think, however, that courts should not be finding that right. It'll be interesting where this pans out.

[url]http://www.courtinfo.ca.gov/opinions/documents/A110449.DOC*** - text of full opinion.

My wife is hotter than your wife.

[Michele 1]

Jer, I was under the impression that California had a civil union thing which was legally binding - it came out in January of '05, iirc. It's the same thing as a marriage legally speaking, just isn't named that. Takes 6 months to dissolve, community property, survivor's rights, spouse's rights, things like that are included.

So is it just the definition of marriage that the court upheld? Or is it the concept? Both? Neither? Because we definitely do have something in place approximating a marriage for gays and lesbians.

Ciels-
Michele

~Do Angels keep the dreams we seek
While our hearts lie bleeding?~

[kelpdiver 2]

seems like the same reasoning could have been made in a decision to uphold bans on interracial marriage.

[Nightingale 0]

From what I heard on the news, the holding was based on California's strong civil union laws which, according to the court, basically grant the same rights as a marriage. I disagree, but it was expected that the appellate court would uphold the status quo, and the case will end up in the California Supreme Court.

[narcimund 0]

I'd respond to this interesting development, but I've been told in no uncertain terms that I'm not welcome to participate in threads about gay issues.

First Class Citizen Twice Over

[diablopilot 2]

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I'd respond to this interesting development, but I've been told in no uncertain terms that I'm not welcome to participate in threads about gay issues.

By who?

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You're not as good as you think you are. Seriously.

[unformed 0]

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I'd respond to this interesting development, but I've been told in no uncertain terms that I'm not welcome to participate in threads about gay issues.

If you let me know what you want to say, I'll be more than happy to state it for you.

Fuck the Man, I will have nothing to do with other people's rules. (Unless they can kick me off of here, that is.)

This ad space for sale.

[georgerussia 0]

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The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage.

I would completely agree with this court statement. Courts are not legislations.

* Don't pray for me if you wanna help - just send me a check. *

[Andy9o8 3]

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The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage.

On the other hand, courts sometimes also acknowledge and expressly reaffirm certain rights that had always been inherent in the Federal or state Constitution, but previously there had never been either the willingness or the perceived need to reaffirm their existence.

See, for example, the right to privacy discussed by the U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception. The Supreme Court nullified the statute (and reversed Griswold's conviction), holding that under the First, Third, Fourth, and Ninth Amendments to the Constitution, taken together, there exists a right to privacy in marital relations, and the statute impermissibly interfered with this right.

Put more simply – and this is a debate that has raged at least since Eisenhower appointed Earl Warren as Chief Justice, especially during the Civil Rights era of the 1960's – one man's "legislating from the bench" is another man's "reaffirmation of existing constitutional rights."

[lawrocket 3]

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courts sometimes also acknowledge and expressly reaffirm certain rights that had always been inherent in the Federal or state Constitution, but previously there had never been either the willingness or the perceived need to reaffirm their existence.

I can go back farther than Griswold to a case that expressly reaffirmed a certain right that had always been inherent. It's what the SCOTUS did in Lochner v. New York (1905) 198 U.S. 45, when it struck down economic legislation under the guise of the right to due process. It held that the "right to free contract" was implicit in the Due Process Clause of the Fourteenth Amendment. It became a verb to "Lochnerize" that is as familiar to the legal profession as the verb "Borked."

Actually, in 1955, the SCOTUS killed off Lochner for good in Williamson v. Lee Optical of Oklahoma when it wrote, ""The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. 'For protection against abuses by legislatures the people must resort to the polls, not to the courts....'" (348 U.S. 483, 484). Here's a link. Sixth paragraph. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/williamson.html

And yet, within ten years, we have the SCOTUS finding fundamental rights in Griswold that were previously unstated, but implicit - abuses by the legislature that the anti-Lochner crowd should have been dealt with in the polls.

This means value judgments by the courts. Lochner supported values I appreciate, and I defend the outcome, though I will not defend how the SCOTUS REACHED the outcome. Likewise, I defend the outcomes of the Warren Court, though I will not defend how they REACHED the outcome.

As much as I appreciate and support the political ramifications of Casey, Griswold, Brown v. Board of education, etc., it is intellectually dishonest to suggest that Lochner was bad because it found implicit rights while the Warren era's decisions that found other rights are good ones.

My wife is hotter than your wife.

[kelpdiver 2]

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The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage.

I would completely agree with this court statement. Courts are not legislations.

so to either of you - accepting the premise that gays should have the SAME rights as others, how else besides the courts are they able to obtain it?

There is no legislative recourse available.

Courts eliminated the ban on interracial marriage and appear to be the only solution to the ban on same sex marriage.

[sundevil777 102]

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so to either of you - accepting the premise that gays should have the SAME rights as others, how else besides the courts are they able to obtain it?

There is no legislative recourse available.

Courts eliminated the ban on interracial marriage and appear to be the only solution to the ban on same sex marriage.

No legislative recourse? Why not? The state could pass a law making it legal, and strike the law that bans gay marriage, correct?

An amendment to the constitution could be passed, correct?

People are sick and tired of being told that ordinary and decent people are fed up in this country with being sick and tired. I’m certainly not, and I’m sick and tired of being told that I am

[kelpdiver 2]

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No legislative recourse? Why not? The state could pass a law making it legal, and strike the law that bans gay marriage, correct?

An amendment to the constitution could be passed, correct?

neither are available options when the majority doesn't support the right of the minority.

[lawrocket 3]

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neither are available options when the majority doesn't support the right of the minority.

That's a loaded comment to say "the right of the minority." There is no right until it is given. That's the point.

I agree that there should be a right. I also agree that it isn't up to the courts to give that right - it's up to the legislators.

The federal Constitution does not have a right of privacy. But the California Constitution does - that law was passed. It can be that simple.

My wife is hotter than your wife.

[livetofall 0]

They allready had civil unions there. Stepping aside that marriage is a religious sacrament of all religions and is being desacrated, there is one big problem. That is them wanting to adopt children being that now they are "married". These couples dont really give a shit about what that kid is going to have to go through mentally and emotionally. My friends wifes brother is gay living in CA. they got a civil union over 20 years ago, and adopted kids. They allready ended up being autistic, both. If they were perfectly normal, they could have challenges that a regular normal kid wouldnt have to deal with. Its all about the children here, thats what gays dont understand about the majorities feelings on the issue.
When you put this issue to the rest of our world conflicts it stands strong. Islamo extremists hate america for our perversity and how it spreads everywhere else as our country is looked up to. Its this whack shit that just cant be kept in the closet that is our biggest enemy. We have become sodom and gommorah, that is why they want to destroy us. Before you start writing that I am fucking nuts, read the Koran. A homo would get his throat slit in a Islamic nation.
Sorry if that wandered off topic, but Im tired of the limp wrists spouting about the war, when it is protecting their rights in a big way

www.911missinglinks.com the definitive truth of 9/11..the who and why, not how

You can handle the TRUTH www.theforbiddentruth.net

[lawrocket 3]

Even the civil union laws in Cali are ever changing. There was an opt-out provision for civil unions until December 31, 2004. Much of the protections were notional or local. Legal presumptions of the famiy code did not apply to dissolution of partnership, meiang the rules of civil litigation applied. A real bear.

The first dompestic partnership law in the nation was in West Hollywodd in 1985. California as a state didn't do anything until 1999, which established a registry. In 2001, they were given the right to sue for wrongful death, make medical decisions for a partner, etc.

It wasn't until the California Domestic Partnership Rights and Responsibilities Act of 2003 that allowed older, different sex couples who met the tatutory requirements by providing that alternative to marriage by way of domestic partnership.

The system now has extremely minor differences from marriage, but it isn't called marriage. There was certainly no gay civil union 20 years ago, except as recognized by some localities.

I think that gays should be allowed to adopt.

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We have become sodom and gommorah, that is why they want to destroy us.

Many would reasonably disagree - there's more to it than that.

My wife is hotter than your wife.

[georgerussia 0]

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so to either of you - accepting the premise that gays should have the SAME rights as others, how else besides the courts are they able to obtain it?

The way everybody else went - through the legislation. This way we can see whether majority things that gays should have the SAME rights as others.

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Courts eliminated the ban on interracial marriage and appear to be the only solution to the ban on same sex marriage.

The interracial marriage ban was basically groundless. The marriage was never defined as "union between a man and a woman of the same race".

* Don't pray for me if you wanna help - just send me a check. *

[Royd 0]

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If they were perfectly normal, they could have challenges that a regular normal kid wouldnt have to deal with. Its all about the children here, thats what gays dont understand about the majorities feelings on the issue.

I believe that they do understand, but they desire to appear to be more magnanimous than the "ordinary people", all with the intention of destoying the structure of society.

[Nightingale 0]

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The way everybody else went - through the legislation. This way we can see whether majority things that gays should have the SAME rights as others.


The interracial marriage ban was basically groundless. The marriage was never defined as "union between a man and a woman of the same race".

They didn't need to spell out that marriage was between people of the same race, because, of course, back then, everyone knew that marrying someone who was a different color was Just Not Done.

Not everyone else went through "legislation" as you claim. The courts have usually been the ones preserving our rights while legislation tries to take them away. The Supreme Court has struck down legislation such as the Missouri Compromise, New Deal economic recovery acts, the post-Watergate campaign finance law, statutes to curb pornography on the Internet, the line-item veto, and provisions of anti-gun laws. -D. R. Tarr, & A. O'Connor (Eds.), Congress A to Z.

Courts have struck down legislation such as "grandfather clauses" aimed at preventing certain people from voting.

I can't think of any legislation that has been passed saying that it is okay to do something, and a court striking it down. They certainly strike down a lot of "you can't do that" legislation, though.

[kelpdiver 2]

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The way everybody else went - through the legislation. This way we can see whether majority things that gays should have the SAME rights as others.

again, history shows that the majority doesn't care about, and rather tends to trample the rights of the minority.

And it's quite false that every minority went through the legislative process to fix it.

Livetofall demonstrated the futility of that process for gays. Gay adoptive parents causing autism has got to be the most ridiculous line of BS ever.

In any event, the appellate level decision was never going to be the deciding one. The next level is the only one that does.

[livetofall 0]

Ok glad you corrrcted me, the truth is I forgot about her brother (havent seen them in a while) and was talking about the my two dads stuff and teachers being open about their preference with gradeschoolers(which I dont agree with) and conversation got heated (whoops,sorry Phil). Anyway she must have said they have been together 15 then not 20. Their one son is in highschool. I realy dont keep up on that stuff. I didnt evenknow about the civil unions that long ago until i threw the turd on the table. She actually doesnt believe they should of adopted but says they are good parents. I just think it is something that would confuse a child by their inborn nature, and ofcourse harrassment by schoolmates.

Oh, I need to mention, when i was going on about the Koran I was not directing it at you lawrocket. Frankly, I enjoy what you have to say and you always have civil debate. I just replied to you as the thread starter. I know you woulndt callme fucking nuts, in fact you were civil by saying there is more to it thatn just that which is true, but it is a major thing with them..our lifestyle. Alot of poeple forget that there were signs of "Clinton is Devil" as much as "Bush is Devil"....leader of the great satan

www.911missinglinks.com the definitive truth of 9/11..the who and why, not how

You can handle the TRUTH www.theforbiddentruth.net