Same-sex, whole-milk marriage: 50 Shades of Gay

[nerdanel]

I just jumped up from my desk and yelled out loud. I'm shaking so hard I can barely type...this is unbelievable. My two states - Massachusetts and California - lead the nation. That's all I can think right now. And of the weddings I'll get to go to for so many of my friends. This is so unbelievable. I am nearly hysterical ... sorry guys. Will post more when coherent. I can't stop shaking.


http://www.courtinfo.ca.gov/opinions/do ... 147999.PDF

[nerdanel]

OMG - reading this opinion - we got strict scrutiny!!! This isn't a rational basis decision - sexual orientation is now a suspect class (heightened scrutiny - not yet sure if it's strict scrutiny or if the strict scrutiny is on the basis of fundamental right) in California. This is a historic, unbelievable day.

[Primula Baggins]

Oh, it isn't all good news. It means I get to carry out my threat of dancing at your wedding someday.

[nerdanel]

No matter whom I might happen to marry....

Still shaking...

[Voronwë the Faithful]

Wow, nel. I'm pretty shocked. Haven't read the opinion yet, but I look forward to doing so.

[Jnyusa]

Ain't it nice to win one for a change?

[Teremia]

Well, hurrah!!!!

I read the first few pages, and it's even written in English!!

So -- what happens now in the legislature, with crazy initiative drives, with constitutional amendments, etc? Any chance of staving off the reaction with a few thousand "normal" gay marriages, as happened eventually in Massachusetts?

When does this go into effect? Right away?

Really, it should have been California BEFORE Massachusetts, but second's not so bad.

[nerdanel]

Really, it should have been California BEFORE Massachusetts, but second's not so bad.

I still don't know when - I'm struggling to get through the (very easily readable) opinion because I'm feeling so emotional - let me go look for a news report on WHEN. I'm already getting emails about people I know buying engagement rings - this is here, NOW, happening!!!!!!!

And you know, I generally would agree about CA before MA - but I sorta like being in each state as this happens.

[Cerin]

I would very much mind if the price of having this ruling come down at this time is John McCain picking the next four justices of the Supreme Court (along with the numerous other grievous problems that will be perpetuated if he becomes President).

People may recall that the Massachusetts ruling made same-sex marriage an election issue in 2004 and caused numerous state ballots to entertain the question, with the result of bringing people to the polls specifically to vote on this issue, who then voted for Bush. This ruling may energize a similar response.

[axordil]

Cerin--

Well, on the other hand, pretty much all the states where it was advantageous for the GOP to do so in, have now done so. It's not like they can put up a ballot initiative that says "Do you want to reaffirm what we did 4 years ago?".

Actually I suppose they could, but I suspect it might backfire in a few places...

[Cerin]

I guess we'll see.

[nerdanel]

One of the best analyses ever of the "civil unions/domestic partnerships are equal" fallacy:

Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes — by drawing a distinction between the name assigned to the family relationship
available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry. As observed by the City at oral argument, this court’s conclusion in Perez,
supra, 32 Cal.2d 711, that the statutory provision barring interracial marriage was unconstitutional, undoubtedly would have been the same even if alternative nomenclature, such as “transracial union,” had been made available to interracial couples.

[Voronwë the Faithful]

There already were plans for a ballot initiative here in California before the ruling. This will of course make it more imperative to the opponents of same sex marriage, but it certainly not going to result in John McCain winning in California.

[nerdanel]

I'm still reading - and they do say that sexual orientation is subject to STRICT SCRUTINY under California's equal protection clause. To say I'm elated by this is an understatement - this is highly significant in every way.

I suppose it makes sense, because gender is also subject to strict scrutiny under CA law - as it should be. I love this state.

[Voronwë the Faithful]

nel, do they refer to the fact that the legislature has established sexual orientation as a protected class as a justification for considering it subject to strict scrutiny?

Never mind, I'll read it myself when I get the chance.

Edit to add: This is really great news for anyone who cares about civil rights or human rights, let alone gay rights.

[axordil]

Not to mention states' rights.

[nerdanel]

Well, here we have four unelected justices imposing their will on the people ... an elected legislature that has TWICE passed a bill legalizing same-sex marriage and, um, sought to impose its will on the people ... and a elected governator who said that he doesn't like the elected legislature imposing its will on the people but is fine with the unelected justices imposing their will on the people, so we can infer that the governator is now also imposing HIS will on the people (he has already promised to help fight the constitutional amendment) ... so, um, California is really a heinous dictatorship where the unelected and elected branches of government are TOGETHER imposing their will on the hapless people, and I'm sure that's not what McCain and his ilk mean by states' rights.

[Voronwë the Faithful]

Wow, they held that scrict scrutiny applies BOTH because sexual orientation should be considered a constitutionally suspect basis upon which to impose differential treatment (like race, gender, etc.), AND because a fundamental right is being impinged.

Wow.

[nerdanel]

It's simply incredible - this is a far stronger decision than Goodridge (though with less flowery rhetoric in the majority opinion that can be read at the soon-to-be-occurring same-sex marriage ceremonies.) The Court really did live up to the reputation they created for themselves sixty years ago in Perez - and yet again, inserted themselves in the history books (next to Massachusetts, of course ).

This is a civil rights victory for sexual minorities in this state that extends far beyond the marriage issue. The strict scrutiny holding is going to work wonders in the future - in tandem with the (now) friendliest set of laws for gays and lesbians in the entire country (e.g. even Mass doesn't have domestic partner family leave, etc.) Today - a warm sunny blue-skies California day in San Francisco - this state really, truly is the Golden State.

[Voronwë the Faithful]

In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation.

Isn't it amazing that they even have to say this?

Meanwhlie, for yov:

We disagree, however, with the Court of Appeal’s conclusion that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” Although we noted in Sail’er Inn, supra, 5 Cal.3d 1, that generally a person’s gender is viewed as an immutable trait (id. at p. 18 ), immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. California cases establish that a person’s religion is a suspect classification for equal protection purposes (see, e.g., Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 128; Williams v. Kapilow & Son, Inc. (1980) 105 Cal.App.3d 156, 161-162), and one’s religion, of course, is not immutable but is a matter over which an individual has control. (See also Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 292 [alienage treated as a suspect classification notwithstanding circumstance that alien can become a citizen].) Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.