PROP 8 "CUT TO BONE" - Read Page 36 - Critical LOSS For The Other Side?

[kpete]

Read page 36. They just cut Prop 8 to the bone.
by Seneca Doane

Tue May 26, 2009 at 11:51:14 AM PDT

Being an activist progressive blogging lawyer requires wearing four hats, one for each word. My first response to Strauss, today's decision on Prop 8, was outrage and disdain. That came from wearing my first three hats. This diary comes from wearing my fourth one. There is still cause for anger, no doubt, but I think that -- as with the "defeats" for progressives in Bakke (regarding affirmative action) and Casey (regarding abortion rights) people have so far missed the most critical aspect of today's decision.

It's on page 36.

I'm not going to say that this decision is a win for our side. But in the most critical ways, it's a loss for the other side.

In last year's landmark 4-3 decision, In re Marriage Cases, the California Supreme Court decided that same-sex couples have a fundamental right under state law to every single advantage that heterosexual couples do, including the right to call their legal union "marriage."

Today, the court unanimously upheld the substantive fundamental right.
Liberal to conservative, they all now accept it. They construed Prop 8 as narrowly as possible: as a initiative that addressed what we would label these relationships that we normally call marriage. The voters said that we can't call these relationships "marriage" when they involve same-sex couples. That's an insult to gays and lesbians and I hope and believe that it will not last. But note what this does not say.

..................

Prop 8, now that the Supreme Court has stripped it down to a bare bone, does not say any of the following:

***(1) It does not say that any provision of California law that invokes the label marriage does not also apply to these "civil unions" or whatever we call them -- how about "marrijezz"? -- that same-sex couples will henceforth undertake.

***(2) It does not even say that these legal relationship aren't marriages. It just says that the voters decided that in California, if they occurred after a certain date, we aren't going to call them that. This isn't a minor point: it means that if a couple that has had a California "marrije" leaves the state, they have the right to say that they are "married" and have a correctly spelled "marriage" and -- when the Full Faith and Credit case eventually comes down -- have the same right to full faith and credit as does anyone from another state who got officially and legally married.

***(3) It doesn't say that the participants in "marrijezz" can't call each other "husband" or each other "wife" -- or that they can't legally demand to be able to call themselves husbands and wives. This was, in the eyes of the California Supreme Court, entirely about cutting a particular tag off a dress before allowing same-sex couples to buy it. Do you think that the "this is called a marriage" tag is the same as the "I can call this man my husband or this woman my wife" tag? Nope -- that's a different tag. If voters want to eliminate the words "husband" and "wife" from same-sex partners, they have to pass a new initiaitve. Does that start to convey a sense of how deeply the Court carved down Prop 8 today?
read the rest:
http://www.dailykos.com/storyonly/2009/5/26/735571/-Read-page-36.-They-just-cut-Prop-8-to-the-bone.

UPDATE Here's pages 36-37, starting halfway down the former:

Applying similar reasoning in the present context, we properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: "Only marriage between a man and a woman is valid or recognized in California." By its terms, the new provision refers only to "marriage" and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than "marriage." Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of "marriage" under California *\37 law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of "marriage" to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

more at:
http://www.dailykos.com/storyonly/2009/5/26/735571/-Read-page-36.-They-just-cut-Prop-8-to-the-bone.

[sandnsea]

1. I've been saying that for a while

Except it comes a lot quicker than Page 36.

Page 7
"Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as 8 available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.

[Sinistrous]

5. A quick read of the section you posted makes it seem that

the CA Supreme Court effectively disemboweled Prop 8 as a prohibition against legal privileges accruing to same-sex couples. If I am correct on this, is there in place a process that same-sex couples can employ to obtain legal sanction for the rights of their union? If there is no such process, what is needed to change the law to provide it.

[sandnsea]

7. Legislature will have to pass something

And I would hope people would move quickly to make it equal Civil Unions For All and you can have any kind of religious person do whatever they want and sign the Civil Union document.

[napoleon_in_rags]

2. marridge anybody?

Interesting insight. I'm still disappointed, specifically that they failed to recognize marriage as a term of faith, protected by the 1st amendment. This would protect various definitions under freedom of religion. But it sounds like they did a decent job of separating the cultural battle (like the meaning of the term marriage) from the actual legal stuff. I personally don't care as much about the culture wars, but anybody taking my legal rights away is a MAJOR issue.

[stopbush]

3. Unless gay couples can be "merried" or whatever by the state and have that union

be recognized as a legally binding "merriage" just like the 18,000 gay "marriages" that were performed, I don't see that your point is valid.

Please explain.

[napoleon_in_rags]

10. Ooh, I like that: 'Gays' getting 'merried'.

It all sounds so joyful. :)

[Touchdown]

4. I prefer "Mary'd" as opposed to marrijezz

:evilgrin:

In any event, this is a disappointment, but thanks for putting it in perspective.:hi:

[theboss]

6. But isn't the word what the fight is all about?

"Civil unions" could probably be voted into law by 20-some states tomorrow. That's never really been an issue. You could probably even get recognition out of Congress.

But every single one of those would say, "It ain't marriage. It ain't what mom and dad have."

[EFerrari]

8. My fiend's UCLA prof said this:

The court upheld the STRICTEST protection for homosexuals in the Constitution. I'm cc'ing Hasmik and Rex as I'm sure they'll know about this...
while they did uphold Prop 8 the Court was careful to say that gays have strong protected rights in California. In fact giving gay rights "strict scrutiny" in anti-discrimination cases is akin to making gay the same as black when it comes to lawsuits of discrimination. Most people won't know what they're reading when they read this but our civil rights professor took a lot of time to explain to us that this isn't even used for women. It means the burden of proof rests with the defendant and they have to prove a compelling state interest in order to discriminate. It's nearly impossible for a racist statute or decision to be upheld under that kind of scrutiny.

I believe it is only a matter of time before gay marriage is legal. California is the only state in the United States to put gays on par with blacks in discrimination cases.

[theboss]

9. They have a strict scrutiny test, but that cannot overcome a Constituional Amendment

If you passed an Amendment to the Federal Constitution banning inter-racial marriages, the strict scrutiny test could not overturn it.

You have to get the Amendment out of the Constitution first.

Otherwise, you can't pass any law that goes against it or around it.

[rucky]

15. Or make a federal challenge

?

[cagesoulman]

14. So blacks and gays are equally protected and chicks aren't?

"In fact giving gay rights "strict scrutiny" in anti-discrimination cases is akin to making gay the same as black when it comes to lawsuits of discrimination. Most people won't know what they're reading when they read this but our civil rights professor took a lot of time to explain to us that this isn't even used for women. It means the burden of proof rests with the defendant and they have to prove a compelling state interest in order to discriminate. It's nearly impossible for a racist statute or decision to be upheld under that kind of scrutiny."

[havocmom]

16. Thank you for that explanation. It makes a lot of sense

And the mormon church will surely get their knickers in a twist if they try any sort of bullying on this one now.

I feel SOOOO much better. Equality will prevail yet.

[Bolo Boffin]

11. And don't forget footnote 48

http://www.americablog.com/2009/05/fascinating-footnote-48.html

Where they left the option of going to get married somewhere else and then getting your marriage legally recognized by California completely on the table.

[starroute]

12. So does this mean that "wedding" is ok?

Does it mean that if you just changed the name of marriage licenses to "wedding licenses" that would cover it? And that gay couples could have weddings, send wedding announcements to their friends, march down the aisle to Mendslssohn's "Wedding March," live in wedded bliss, and celebrate their fifth, tenth, and fiftieth wedding anniversaries?

Sounds to me like the California Supremes are playing games with the conservatives' heads here.

[norepubsin08]

13. Interesting, there is hope!!!

[havocmom]

17. a kick for this solid good news tucked in with all of today's heartbreak

:kick:

[riderinthestorm]

18. This post is too important to drop. K and R.

I'm no legal scholar but perhaps the CA Supremes knew they were tacitly opening the back door? While adhering strictly to the law, they've perhaps shown the way (by keeping the 18k marriages intact) to gaining full civil rights for gay partnerships?