Gay marriage legalized in California

The California Supreme Court has overturned the state's gay marriage ban...

...and it's not even the top story on Drudge. (Nor is Mark Halperin paying enough attention to realize that Florida, not California, is the "Sunshine State," last time I checked.) I'm not sure if this reflects a decrease in the level of national polarization caused by this issue, or if everybody is just too wrapped up in talking about President Bush's "bulls**t...malarkey" at the Knesset to pay attention.

But anyway: there it is. Gay marriage, legalized in California, by order of the court. Andrew Sullivan has more, of course, as does Boi From Troy.

Here's the opinion (PDF), which I haven't read, and probably won't for the moment. (After work, I'm going to see James Carville tonight.)

This being California, there will undoubtedly be a state constitutional amendment initiative to overturn the ruling -- but, on that front, Sullivan notes:

One key fact: the ruling takes effect in 30 days - which means thousands of couples will be able to marry long before any initiative attempts to reverse it. So the initiative question becomes: do you want to divorce thousands of already-married couples? Or do you want to keep things as they now are? That's a big advantage for the pro-equality forces.

Indeed.

UPDATE: More from Sullivan -- including a point that seems to contradict the above-quoted passage, though I may be misunderstanding him -- in a post titled "Judicial 'Activism'?":

As usual, the lazy critics are uninformed. The California court has not over-ruled the legislature: in fact, the legislature has voted for full marriage equality twice already. And the court has not "created" a right to marriage for gay couples. It has argued that if the state has conceded that domestic partners should have, under state law, all the benefits and responsibilities of married couples, the designation of a separate and distinct category must be suspect, under strict scrutiny, to the inference that the designation is based on a desire to deny gay couples equal dignity and recognition. This is the same point I've made in the past; isn't constructing a separate and distinct category an example of pure animus? You have conceded the substance, but cannot concede the name. Since no heterosexual couple's rights would be affected in any way, what exactly is the rationale for maintaining the distinction? Except bias?

One other political note: the Republican governor of the state, Arnold, has already come out against the ballot initiative designed to reverse this ruling. And the initiative will not be able to affect the thousands of marriage licenses that will be granted before then. So the legislature, the governor and the court have all now supported equality. So back to the people ... for one last chance to keep the stigma in place.

Speaking of the Governator, he has reiterated that he respects the Court's ruling and opposes its reversal.

Comments

[Angrier and Angrier]

To reiterate, that "clapping" you hear in California isn't applause.

[Brendan Loy]

I have a dumb question for those who, unlike me, have been following this case. I thought the Knight Initiative (which I proudly voted "no" on, by the way) was a constitutional amendment. How can a constitutional amendment be
unconstitutional? Or was the Knight Initiative not a constitutional amendment? And if not, why not? If they can pass a constitutional amendment by initiative, why didn't they? I forget how California's initiative system works. Like I said, I'm sure this is a dumb question; I haven't followed this case at all, and indeed have barely skimmed the articles I'm linking to here. But anyway, I figured maybe somebody can briefly fill me in on that one point of confusion.

[copndor]

Oh my God. Biden called Bush's comments "bullshit"!? Don't get me wrong, I think this is one of the most egregious remarks the president has made, and that's in a presidency characterized by egregious remarks. I can't believe that a Senator called it "bullshit," though. That's beyond the pale.

[David K.]

I think i took that picture...

[David K.]

Didn't you switch your voter registration specifically to vote on that one?

[Becky]

Maybe McCain does have a chance after all.

[Brendan Loy]

It was part of the reason I switched my registration, yeah. I was wavering between staying registered in CT and registering in CA, and the Knight Initiative helped tilt the scale in California's favor.

That, and I wanted to vote on a real voting machine, on election day. :)

[Joe Mama]

Egregious my a$$. Bush hit the hail right on the head about the dangerously naive foreign policy of Obama (or Jimmy Carter, or Nancy Pelosi, or John Edwards . . . there's any number liberal Democrats he could've been referring to), whose campaign is now trying in vain to pretend that he never said he would meet unconditionally with Ahmadinejad, when Obama said precisely that during the debates.

Biden is a putz.

[Ken]

Brendan....the Knight initiative was not a constitutional amendment...it simply added a Section 308.5 to the Family Code. Because it was added as an initiative, the legislature can not repeal the statute without submitting such a repeal to the voters. However, of course it is still subject to constitutional review by the California Courts. (As to why it was not done as a Constitutional amendment, I don't recall at this point though perhaps one needs a super-majority to pass a constitutional amendment and they did not think they could get that. I'm just speculating at this point because I have not checked on this.)

Also of note is that the California Supreme Court is a Republican dominated court (6-1) and that the vote in the case was 5-2.

[Ken]

FYI - concerning Knight...it looks like my speculation may have been wrong as initiative constitutional amendments only require a majority vote. One difference is that the threshold of voter signatures is higher for initiative constitutional amendments...8% rather than 5% of voters in the prior gubenatorial election...but I doubt that would have been too hard to achieve. So someone else will have to answer the why Knight was a statutory provision rather than a constitutional provision.

[David K.]

Yeah Joe Mama, because all liberals have the exact same foreign policy plans. And clearly Dubya's foreign policy has worked so incredibly well, we definitely want to keep going in that direction. Stop seeing the world in black and white.

[Angrier and Angrier]

Joe Mama-

There's nothing naive about talking. What is naive is the idea that you can blow up some guy's family and then expect him to be your buddy.

As for negotiating with terrorists, it was the Reagan Republicans who negotiated with the Mujahadeen in Afghanistan and Saddam in Iraq and who sold arms to the Iranians to pay for a civil war in Central America. As I recall, Bush Sr., Dick Cheney and Rumsfeld were up to their elbows in that shit at the time.

[dcl]

Joe, talking to someone does not equate to appeasement. You can talk to someone and still come to the conclusion that it is necessary to get involved in a war to stop them from doing... whatever.

The question comes down to a foreign policy mentality. It basically boils down to, "Fuck you," followed by repeated punching in the mouth, followed by retaliatory punching ending in a massive brawl.

Or: "We don't want you to do X" ... "We'll we are going to do X" ... "If you do X , we will need to stop you, by force if necessary." etc. etc. etc. Now that can still end in a fight, but at least there was some effort to stop the fight before is started.

Honestly, I think that is more effective long term than just saying, fuck you. There are a heck of a lot more shades of gray in diplomacy that Mr. Mama or our President seem want to accept. And that is a serious problem. Taking things off the table for no reason other than it being uncomfortable to talk to someone is stupid. It's stupid not to talk to your enemies. Doesn't mean you will capitulate to them and frankly such thinking is just stupid. But ignoring an opportunity for détente is simply foolish and criminal. It doesn't mean there is an agreement, it does not mean you settle anything at all. But to ignore the opportunity is criminal and dumb and short sighted.

[Sandy Underpants]

Where's the celebration parade tonite?!?

I gave up voting in Cali years ago, because if ever there were proof that your vote doesn't matter, it's California. The people voted to screw over the Mexicans with Prop 187 and AFTER it passed the state legislature ruled it unconstitutional. The people voted to legalize marijuana (for medicinal purposes) and the state over-turned the vote. The people voted against gay marriage and now it's legal. Your vote counts only when the government is of the same position. That's not democracy.

[JT]

The biggest problem with Bush's comments as far as I'm concerned is where he made them. He stood on a hilltop in Israel and invoked the Holocaust to attack a man that might be our next president. If he wants to make hypocritical and dishonest attacks on political opponents he shouldn't do it while addressing a foreign government on a holy site.

On the Gay Marriage thing - in the cnn article I read on this, the reporter says the case will likely be appealed to the US Supreme Court. Can CNN not afford a legal correspondent that has taken civics? My understanding is that this case involved equal protection under the CA Constitution and did not involve any interpretation of equal protection under the US Constitution. If so, then an appeal to the US Supreme Court isn't happening.

[Angrier and Angrier]

This brings a whole new meaning to the term "Pac-10."

Um, no Sandy, your vote counts as long as its part of the process. Democracy also involves following the rules of the process, that includes the possiblity that an initiative can be ruled unconstitutional. The legislature is also empowered with enacting laws. If you don't like what they are doing, vote them out.

[CD]

JT:

US constitution supercedes any state constitution, therefore one can seek to challenge something state specific on federal grounds if they have an argument that it is unconstitutional in the federal sense. Look up the controversy surrounding Oregon's attempt to legalize medical marijuana or euthanasia for examples.

[Alasdair]

JT - going by what Bush is reported to have said "Speaking before the Knesset, Bush said that “some people” believe the United States “should negotiate with terrorists and radicals, as if some ingenious argument will persuade them they have been wrong all along."

"We have heard this foolish delusion before," Bush said. "As Nazi tanks crossed into Poland in 1939, an American senator declared: 'Lord, if I could only have talked to Hitler, all this might have been avoided.' We have an obligation to call this what it is — the false comfort of appeasement, which has been repeatedly discredited by history."", it sounds more like he is speaking truth to power ...

The ones who are taking offence are simply outing themselves as holding the appeasement beliefs to which Bush is referring ...

Oh - and it's good to see the California Supreme Court doing the right thing ... instead of the popular thing ...

Remember - Democracy is Four Wolves and a Lamb voting on what to have for Lunch ...

[Ed]

I am at a loss as to the last time there was more clarity in the body politic than today.

First, Bush formally cited the litany of failed appeasement policy in the Knesset, without naming any current western politician. Then, like rats on a sinking ship, they self-identified. Staggering.

Then, the CA Supremes overturned the clear (as in more than a super majority) will of the people, and decades of settled law (CA may statutorily define licensing requirements) in a breathtakingly broad fiat.

I don't know what ju-ju McCain has been invoking, but lately it is just paying off phenomenally. He needs to energize a highly cynical, burned, and jaded, base. No way could he do this on his own.

He was presented with Wright, Obama the appeaser, and perhaps the most egregious overreaching in jurisprudential histoire.

Clarity is a killer to the Dem leadership. Bring on the disinfectant!

And Sandy - we never have lived in a democracy. We live in a republic.

[Joe Mama]

Spare me the nonsense about "ignoring an opportunity for détente". Thus U.S. ambasador in Iraq, Ryan Crocker, has plenty of contacts in Baghdad with the Iranian ambasador. If the Iranians want to talk to us (or if we want to talk to them), it's quite easy to do so. The issue is, on what terms?

There's nothing wrong with talking, when there's something worth talking about and the other side can be negotiated with reasonably. But when the other side repeatedly calls Israel a "stinking corpse" that they want to "wipe off the map" (there's the "Fuck you"), and continues to supply IEDs to kill U.S. soldiers in Iraq, and on top of it all has shown not the slightest inclination towards retracting such rhetoric, abandoning its nuclear weapons program, stopping the exporting of IEDs, or no longer sponsoring terrorism (including the terrorist groups Obama and his advisors can't wait to sit down with to apologize for how "arrogant" the U.S. has been), then there's nothing to negotiate, and having formal diplomatic relations with such people will accomplish nothing except enhance their standing and prestige. This has nothing to do with seeing things in "black and white", "gray", or any other color.

The biggest problem with Bush's comments as far as I'm concerned is where he made them. He stood on a hilltop in Israel and invoked the Holocaust to attack a man that might be our next president. If he wants to make hypocritical and dishonest attacks on political opponents he shouldn't do it while addressing a foreign government on a holy site.

What a joke. First of all, Bush never invoked the Holocaust. Secondly, wasn't it Nancy Pelosi, America's Mother-In-Law, who went to Syria amid State Dept protest and kissed President Assad's ass just to spite ChimpyMcBushHitlerHalliburton?

[Alec]

"We live in a republic"

... yes - a representative democracy.

[Alasdair]

Alec - to the best of my (Scots) understanding, the US has never been a pure democracy ... the Founding Fathers (sexist beasts that they were) were also very careful to ensure that the US would not become a pure democracy ... they carefully built in checks and balances to prevent the "Tyranny of the Majority" as much as they could ...

Joe Mama - Rove has been officially out of the GOP picture for a while, but Bush's speech was classic Rove-a-Dope, and the Dem Dopes rose to the bait in classic fashion ...

Samizdata has a wonderfully appropriate quote posted just now ...

""Two substantive political issues are the federal budget deficit and the war in Iraq. Now, if you're electing Democrats to control government spending, then you're marrying Angelina Jolie for her brains. This leaves the Democrats with one real issue: Iraq. And so far the best that any Democratic presidential candidate has been able to manage with Iraq is to make what I think of as the high school sex promise: I will pull out in time, honest dear.""

[JT]

CD, yes federal law supersedes state law. However, this case was about interpreting a clause in the state constitution. The US Supreme Court cannot rule on the meaning of something in the state constitution. There is no federal issue in this case. Now, if the federal government tries to pass a law banning gay marriage in all states and someone challenges that law, there will be a federal issue. I believe the Oregon case had to do with whether congress had the power under the commerce clause to ban marijuana in states. In that case, there was a federal issue. Please point out to me the federal issue in this case.

Alasdair,

I agree - the US is not, and has never been, a 'pure' democracy (ie a direct democracy).

But it is a representative democracy.

That is my very simple - and not terribly interesting - point.

[Alec]

Alasdair,

I agree - the US is not, and has never been, a 'pure' democracy (ie a direct democracy).

But it is a representative democracy.

That is my very simple - and not terribly interesting - point.

[Aaron]

I was astonished to learn, and before reading about this ruling would never have guessed, that California's constitution can be amended by initiative with just a simple majority. Which raises the question, has anyone ever proposed by initiative a constitutional amendment to ban constitutional amendment by initiative?

[Jim]

By Ed's logic, it would be okay for Reid to come out and say, "We have a bunch of criminals right here in Washington D.C., who should be tried for the murder of innocent Iraqi civilians."

And if Bush or any of the Republican leadership balked and called them on the fact that it was clearly directed at the Bush administration, two things would be true:

1.) Their original assertion is correct. By acknowledging the statement, there must in fact be war criminals in D.C.

2.) Any person angry about the statement must be one of said war criminals.

It's ridiculous. It doesn't even stand up to mild logical consideration.

In case it needs to be spelled out, reacting to a statement does not make the statement correct, nor does it make the people who react to it guilty of what ever it is that you say.

[Nameless One]

Two substantive political issues are the federal budget deficit and the war in Iraq. Now, if you're electing Democrats to control government spending, then you're marrying Angelina Jolie for her brains.

That must make the Repbulicans the Paris Hilton of government spending control then given that they have far outspent the Democrats. Quick, which of the last two Presidents balanced the budget? Which of the last two Presidents spent so much we have a record deficit? Try again Alasdair, next time with more truth and facts involved.

[CD]

JT:

The Supreme Court can rule on the US constitutionality of a state law or provision of a state constitution. Just because it is in the state constitution does not make it immune to having to not contradict the US constitution. So, to take this issue to the US Supreme Court, it would have to be argued that the decision violates the US Constitution. I don't see an argument there unless Bush has been successful in getting a constitutional amendment for a gay marriage ban. However, lawyers often find many creative (many failing) ways to construe something as unconstitutional, so who knows. Whether something is a federal issue is about whether and how you convince someone it is such an issue based on interpretation of federal law and the US Constitution.

[CD]

"unless Bush *had* been successful" is what it should say up there. Obviously he has not been thus far in this regard.

[Alasdair]

Nameless One - small problem with your Davidian logic ...

Congress can override a Presidential Veto ... a President cannot make a Presidential Veto stick ...

The Federal Budget is the responsibility of the Congress, not the Executive ... a President can propose a Budget - and the Congress, as it has many times in the past, can turn around and declare what he proposes as a Budget to be "Dead on arrival" ...

If anyone deserves credit for a budget surplus at the end of Clinton's terms, it is the then-Congress ... hmmmm - I wonder which party controlled Congress then ?

Nameless One - did you actually fail as many of your Civics classes in school as would seem from your postings ?

As for record deficits - for logic, you and David are tied, neck and neck right now ...

[yea]

hooray for equal rights

[copndor]

"Nameless One - small problem with your Davidian logic"

Is that "Davidian" as in "Branch Davidian?"

[kcatnd]

"If anyone deserves credit for a budget surplus at the end of Clinton's terms, it is the then-Congress ... hmmmm - I wonder which party controlled Congress then ?"

Wasn't Al Gore the one who broke the tie in the Senate to pass the balanced budget? Or am I confusing this with something else?

[copndor]

No. Al Gore broke the tie in the Senate vote on whether or not to invent the internet. He voted "yea."

[Wobbly H]

Not only that, KC, but no Republicans voted for it.

[Joe Loy]

Alasdair, I dunno what's wrong with this Samizdata character but better he should read my Lips: Angelina Jolie has very fine Brains. :}

But Those aside, your "(Scots) understanding" of the American constitutional scheme is quite sound, laddie. / And what California needs to do is, to go into collective Rehab for to Take the Cure for its hogwild Initiative & Referendum addiction ;>. Yes, rigorous Talk Therapy centered around readings from The Federalist Papers, accompanied by daily dosages of the powerful steroid Contraplebiscitum, would work wonders :). Then the Californians can follow the wise example of the citizens of Norwalk CT who, in a 1975 municipal Referendum, voted "NO" on a plan to Increase the future frequency of municipal Referenda. :)

And NOW, what I'd like to learn about is your (Great Brits :) understanding of today's pledge by Senator McCain to institute President's Question Time when he takes office. :> Is there a potential Separation of Powers problem, here? Who will be the Parliamentary Party? (Actually to me McCain seems rather a Roundhead himself but nevermind about that now :) Will the Senate serve as Lords? (Lord Kerry. I like it. :) And above all, do we really want to hear Speaker Pelosi screeching "ORDER! ORDER! The House will be in ORDER!!" :)

[David K.]

I love how nothing is EVER the fault of George W Bush and is ALWAYS the fault of Bill Clinton in your world Alasdair, you are one messed up moron.

[Joe Mama]

Alasdair is merely the yin to your yang, David.

[Jim Hu]

By Ed's logic, it would be okay for Reid to come out and say, "We have a bunch of criminals right here in Washington D.C., who should be tried for the murder of innocent Iraqi civilians."
Based on his willingness to call Gen Petraeus a liar in public, I doubt that Sen Reid would try to be that subtle.

[copndor]

New add from Tennessee GOP edits Michelle Obama's comments, bleeps "really" from her statement "For the first time in my life I am really proud of my country."
It's all here:
link

[USC 2L]

The Supreme Court can also overturn a state court ruling on state law if they believe the state court ruling is affected by federal law (eg, if the state constitutional provision at issue tracks the federal constitutional provision)

Or if they think the state court ruling was influenced by a misinterpretation of federal law (eg, the state court ruled as they did because they believed the alternative was to run into a federal law that they misinterpeted)

Or 2 or 3 other ways the SCOTUS has used to overturn state court interpretations of state law.

[Jim Hu]

I don't think they doctored the video.

It appears she had two versions. The first, in Madison is what they're playing. She added "really" in Milwaukee, later the same day. It also looks like omitting it in Madison was an error and the "really" was in the prepared text, based on it being in the version reported in the UW student paper, but not in some of the other coverage, including video from that day. My HS math teacher always said the written record is what counts, but that was many years before Youtube.

I also don't think those who were looking to be offended were particularly mollified by the second version. A lot of the coverage of there being a controversy used the "really proud" version, and I have to say that I don't see a huge difference. It's better to think that until then she had only been sort of proud of her country?

I'm not voting for him, but I don't think Obama's wife or pastor are good reasons to oppose him. If you like what you think he'll do better than what you think McCain will do, who cares what his wife and pastor think? In HRC's case, let's just say Safire was right, but I don't see that with Obama beyond a background level I'm willing to tolerate in politicians - i.e. Obama's Chicago roots and Rezko don't bother me more than some of McCain's baggage.

In my case, I think he's intelligent and basically honorable. I just disagree with him about more of the big things than I disagree with McCain.

[Jim Hu]

Oops. I had only watched the first few seconds of the ad. They doctored the second instance! mea culpa.

[Scared]

Where are we going, and why are we in this handbasket?

[Sandy Underpants]

We need a new thread. How about a link on John McCain's senile speech today about how wonderful America and the world will be in 2013 after his first term. That speech was so funny it may have rivaled Al Gore's fictional re-election state of the Union address on Saturday Night Live, only because John McCain was being serious!

'The Iraq war will be won and most of the troops will be home in 2013, even though I thought staying 100 years more was just fine 2 months ago.'

[Andrew]

Brendan, finally, I can ask the question that has been burning in my loins all these years: Will you marry me?

[David K.]

Thanks Joe Mama, thats the nicest thing you've ever said to me. Nothing I'd rather be than the opposite of a delusional partisan hack.

[Youngblai]

Andrew,

Um, I hate to say it, but I think Becky would kill you and seriously maim (think Lorena Bobbitt, but with a stop by the garbage disposal) Brendan if the subject was even broached. Just a feeling I have.

Et. al. RE: Bush's speech,

I think Obama (and the Dems) have made a huge error. Ol' '43 leaves office in a little under 8 months. Unless the words coming out of his mouth are, "America stands with you, and to demonstrate our resolve our combined forces are currently launching operations against Iran...", what difference does it make what he says?

No, jumping up and saying "How dare you talk about me that way?!" after he talks about appeasing and speaking with terrorists/radicals is basically a self-confession by the entire party. What is the point of this again when the Dems were looking at gaining 20+ seats this fall? It's like jumping up in the gallery during a murder trial when the prosecutor is describing the assailant--um, okay, you just made yourself a suspect.

Personally I think that Bush's speech was fairly reasonable given where he was standing, his previous foreign policy, and the situation currently going on in the Middle East. Now, before half of you go all nuts and engage in what passes for intellectual discourse these days (i.e., calling names and saying Clinton was better), I would also point out that his policies have all but ensured his words will remain meaningless. Iran is feeling cocky right now because they realize there's not a whole lot Bush can realistically do to them.

Now, as to McCain's speech--depends on what you consider a "win." Also depends on what you think the enemy (you know, the folks who get a vote) will do in response to said "win." I think it was a good speech to outline his policies. Unfortunately, as Sandy has shown, the meme is going to be that senile (read old) John is ranting about the future again. To which I will merely respond beats "Change," snarky comments, and thin-skinned behavior. Obama needs to launch a substantive counterattack on this, and it better be something other than "John McCain doesn't know what he's talking about...", as he's not going to be able to just run out the clock come November.

[Keith O]

Has anyone seen my diaper ? It is important that I retrieve it. I am "going green" (in more ways than one) but, environmentally, I need to find it back so I can re-use it for tonight's Special Comment.

[Delusional Partisan Hack.]

Bush is a stupid warmonger.

How DARE he call us appeasers!

This whole case reminds me that the courts and activist judges have too much power. "Sure, you as a voting public think this but screw you. We want this!" Just reinforces the fact that California ought to be blown up at the border and pushed off into the ocean to be it's own nation.

Obama doth protest too much.

[JO]

This whole case reminds me that the courts and activist judges have too much power. "Sure, you as a voting public think this but screw you. We want this!" Just reinforces the fact that California ought to be blown up at the border and pushed off into the ocean to be it's own nation.

But I sooo love vacationing in the OC!!! Would I need a passport to travel there or would my driver's license be sufficient proof for immigration purposes?