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Tuesday, May 26, 2009

Wait... Did We Win Today In California?

Posted by on Tue, May 26, 2009 at 6:48 PM

Some people think we did. A reader of Sullivan's describes today's ruling as "a blockbuster pro-gay-rights decision," and Seneca Doane at Daily Kos writes...

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.

Go read the whole thing.


Comments (44) RSS

Newest First Unregistered On Registered On Add a comment

maybe you could wear a really big gaudy zirconium wedding ring.

and always whip out pictures of the kids....

and double-triple post about your special marriage.

Posted by be sure to carry barf bags on May 27, 2009 at 6:48 PM · Report this
DaveinSF 43

Ok, I know there is a huge temptation to spin the CA Supreme Court decision upholding Proposition 8 as some sort of "longer term" victory for marriage equality.

Sorry, but no. The only "victory" in the court's decision was the victory of the tyranny of the majority. The CA Supreme Court has said loudly and clearly that if you can get enough votes, (50% plus one), you can take away civil rights from any group you want. You get enough votes from right handed people, you can ban left handed people from getting married!

Sounds silly? Apparently not if you are on CA Supreme Court.

It's time the LGBT Community realizes that marches, rallies, blogs, youtube videos and bumper stickers are NOT going to win this fight. What will? The answer is found by looking at the history of, interestingly enough, the Revolutionary War.

Lately we have seen conservatives holding "tax protest tea parties." These protests sought to invoke the spirit of the Boston Tea Party and early American tax resistance.
Well, ok. In the 1770's the issue was "Taxation Without Representation"

From Wikipedia, -

"No taxation without representation" began as a slogan in the period 1763–1776 that summarized a primary grievance of the British colonists in the Thirteen Colonies. In short, many in those colonies believed the lack of direct representation in the distant British Parliament was an illegal denial of their rights as Englishmen, and therefore laws taxing the colonists (the kind of law that affects the most individuals directly), and other laws applying only to the other groups in several different countries over similar disputes."

Hmmm.. ok, so let me see if I understand this. Being TAXED as a full citizen of a country, while not having the full RIGHTS as other citizens of that country was considered tyranny. So much so that it was worthy of not only tax resistance but even armed rebellion.

Now let me be very clear. I AM NOT IN ANY WAY advocating armed rebellion against the government. ( Besides, the Texas Republican Party has already taken that idea and ran with it.)

But the TAXATION question is an interesting one.

LGBT Americans are taxed as full citizens of our nation while being officially relegated to second-class citizenship. The Republican Party is quite happy with that arrangement, and the Democratic Party is too scared of being painted as being to "pro-gay" to do anything more than just talk about it while doing nothing.

In CA the answer is clear. The State of California is literally broke. The fiscal crisis that looms over our state is massive and overshadows nearly all other issues. If even a moderate percentage of LGBT Californians went and zeroed out their state tax payroll withholding, it would bring the state to a crashing grinding halt nearly overnight.

The answer in the fight for LGBT equality is to use the power of the Gay Dollar. It's time to tell the rest of America that if LGBT Americans are not treated as full citizens, then we refuse to be taxed as such.
Posted by DaveinSF on May 27, 2009 at 11:04 AM · Report this
I'm one of those 18,000 gays who was lucky enough to have their marriage affirmed by the decision yesterday. Any suggestions on how I can use this fact in everyday life to help others get the right back? Just constantlly refer to my husband around straight people ( but I want to be careful not to sound like I'm rubbing it in around gays)? Something else I can do? I feel a bit sheepish today. My relationship is safe, but I'm sad and angry everyone else's isn't.
Posted by Mason on May 27, 2009 at 9:41 AM · Report this
I'm one of those 18,000 gays who was lucky enough to have their marriage affirmed by the decision yesterday. Any suggestions on how I can use this fact in everyday life to help others get the right back? Just constantlly refer to my husband around straight people ( but I want to be careful not to sound like I'm rubbing it in around gays)? Something else I can do? I feel a bit sheepish today. My relationship is safe, but I'm sad and angry everyone else's isn't.
Posted by Mason on May 27, 2009 at 9:41 AM · Report this
Yes this is all legal and shit duh, but many, many rights are achieved this way through subtle innoticed holdings that are unnoticed just because of the impact of who wins the particular case.

And yes leaving 18K marriages intact will just lead the knuckledraggers ever so slowly to realize that gay marriage means nothing to them, and they do nto even know, or care, if that dude next to them at Kinko's or in the PTA is married to a dude or a gal, whatever.
Posted by PC on May 27, 2009 at 8:31 AM · Report this
zephsright 39
This is all fine and dandy, but in upholding Prop 8 they are still saying that it's A-OK for the majority to vote on the rights of the minority. Is that ok? No, no it's not. They are cowards.

Also I'm really tired of this west coast citizen initiative/proposition crap. Isn't Prop 8 and Tim Eyman (sp?) proof that the people have no business writing legislation?
Posted by zephsright on May 27, 2009 at 8:26 AM · Report this
Violet_DaGrinder 38

I don't know, I'm not a lawyer. But my read would be that they could be sued for discrimination if they recognize marriage but not mawidge. :)
Posted by Violet_DaGrinder on May 27, 2009 at 8:21 AM · Report this
Violet_DaGrinder 37
I'd like to second this emotion (from Daily Kos comments):

"Personally I prefer 'mawidge', as in 'Mawidge is what bwings us togevvuh'."

Will you mawwy me?
Posted by Violet_DaGrinder on May 27, 2009 at 8:19 AM · Report this
Steven Bradford 36
Violet, how will that affect all the laws regulations and private company HR policies that only use the word marriage?
Posted by Steven Bradford on May 27, 2009 at 8:11 AM · Report this
Violet_DaGrinder 35
If the state offers otherwise identical civil unions, and straight people can get them too, then I'd be pretty happy to see progressives of all orientations start getting civil unions instead of marriages, making the whole fucking title issue moot.
Posted by Violet_DaGrinder on May 27, 2009 at 8:06 AM · Report this
@18: My read of the opinion is that the California Supreme Court expects marrijes contracted in California to be recognized as marriages in Massachusetts, Iowa, Connecticut, etc., and by the Federal government if and when DOMA is repealed. No-one will have to get married again.
Posted by BABH on May 27, 2009 at 7:23 AM · Report this
Fnarf 33
@31, the fact that the pre-Prop. 8 couples will continue to be legally married (unless they divorce) just reinforces that there are two classes of gays and three classes of Californians now. That's going to create a legal and ethical stress on the state that can't stand for long. Gays have won their rights, and they'll win their name for those rights before too long.
Posted by Fnarf on May 27, 2009 at 6:57 AM · Report this
Dan, you're right!

This ruling means We ARE Winning!!


In a related note-
the BCS has just announced that they are going back and awarding the college football championship to the 0-12 Washington Huskies!!!!

Posted by I'm SO EXCITED I Just Pee'd On Myself ! on May 27, 2009 at 6:05 AM · Report this
Uriel-238 31
Timothy @ 19, I did read the statement (rather, large chunks of it -- I'm still slogging through segments) and am not yet buying that civil unions are truly equal to marriage in all things but nomenclature.

Somehow I suspect civil union licenses will still be on a different form, or at least with a different mark checked, than marriage licenses.

I suspect that it will still be thrown to the courts the first time an insurance company that covers spouses but not members of a civil union is requested to cover someone in the latter category.

I'll wait until I hear the state of New York express that they regard California civil unions as marriages before I believe it.

I'd say I'd believe it if we could go five years without a single case going to the courts in challenge to the equality of both types of relationship, but I hope by then we'll have changed the law so that all such relationships are the same in nomenclature as they are in legitimacy. But I'd wager we'll see something in the courts before that change is made through legislation.

History has shown us that separate but equal rights never are for very long.
Posted by Uriel-238 on May 27, 2009 at 2:02 AM · Report this
Timothy - Civil unions/domestic partnerships, already were legal in California and those couples had all the same rights and benefits (from the state - not federal gov. obviously) as married couples, but without calling it marriage. The 2008 CA supreme court decision basically stated that to not allow those couples to call it "marriage" was discrimination. Enter Prop 8. Today's decision (with the exception of the 18,000 couples who married when it was legal to call it marriage) essentially put us back to where we were before the 2008 decision. So essentially, we are once again sitting at the back of the bus. They can tell us we have the same rights, we just can't call it "marriage" - but we all know that separate is not equal.
Posted by so sad on May 27, 2009 at 12:44 AM · Report this
lizzie 29
I would be very, very happy if we never repeal Proposition 8 and, instead, the courts rule that the term "marriage" is itself discriminatory. The entire history of "marriage" is of ownership, slavery, dependence, discrimination, and harmful traditions.

Get rid of tainted government "marriage" for homosexuals and heterosexuals. Civil unions for everyone who wants one.
Posted by lizzie on May 27, 2009 at 12:21 AM · Report this

And anti-miscegenation laws weren't racist, because blacks were still free to marry someone of the same race. Right?
Posted by sigh92 on May 27, 2009 at 12:04 AM · Report this
Will in Seattle 27
My argument in the Washington Post blogs was that this was a victory for tens of thousands of legally married gay couples who are now entitled to all the rights and priveleges of straight couples.

Including divorce ...
Posted by Will in Seattle on May 26, 2009 at 11:40 PM · Report this
Original Andrew 26
@ 21 & 22,

Yes yes that's all true, but the headline on CNN is "California Supreme Court Upholds Gay Marriage Ban" not "Court Upholds Rights, Ban on Term 'Marriage.' You and I may be able to appreciate the legal nuance and poison pill of real politik that went into that nasty witches' brew of an opinion, but the vast majority of asshole US America thinks that if loopy, lefty Caleefurnya says it's A-OK to hate the gays, then it must be--yee haw!

Honestly, I don't think judges really give a flying fuck about how their rulings effect people.
Posted by Original Andrew on May 26, 2009 at 11:18 PM · Report this
Original Andrew 25
@ 21 & 22,

Yes yes that's all true, but the headline on CNN is "California Supreme Court Upholds Gay Marriage Ban" not "Court Upholds Rights, Ban on Term 'Marriage.' You and I may be able to appreciate the legal nuance and poison pill of real politik that went into that nasty witches' brew of an opinion, but the vast majority of asshole US America thinks that if loopy, lefty Caleefurnya says it's A-OK to hate the gays, then it must be--yee haw!

Honestly, I don't think judges really give a flying fuck about how their rulings effect people.
Posted by Original Andrew on May 26, 2009 at 11:18 PM · Report this
Lord Basil 24
Last I checked, there is no "gay" box to check on the marriage license application form.

Therefore, a gay man or gay woman is still free to marry someone of the opposite sex.
Posted by Lord Basil on May 26, 2009 at 11:10 PM · Report this
CA not just "can", but "must" recognize these family relationships.
Posted by Chris in L.A. on May 26, 2009 at 10:27 PM · Report this
This opinion is not all bad. Yes, Prop 8 was upheld. But the court has to interpret the constitution as written. The constitution was properly (yet disgracefully) amended, not revised. So those 14 words are in the constitution, and the court interpreted them narrowly. Read the language of the earlier version of Prop 8 (it's in footnote 8), the one that would have prevented the legislature and the courts from granting incident-to-marriage rights to anyone outside of an opposite-sex marriage.

Under today's ruling, Prop 8 takes from same-sex couples the right to use the term "marriage" but the state can still officially recognize same-sex family relationships. The money language is in section II.F.2.

From the opinion: "[T]he new constitutional provision cannot properly be interpreted as having repealed . . . the preexisting state constitutional right of same-sex couples to enter into an officially recognized and protected family relationship except insofar as that preexisting constitutional right included the right of access to the designation of marriage."

And from Werdegar's concurrence, a succinct summary: "Proposition 8 affects only nomenclature and not the other rights associated with marriage." You don't have to be married to obtain those rights.
Posted by California on May 26, 2009 at 10:18 PM · Report this
Original Andrew...if I hadn't read the decision myself tonight, I'd likely agree with you.

Now that I've read the decision, I think the CA Supreme Court were really brilliant in how they've now moved this issue forward in CA.

I, personally, don't believe that Civil Unions, as an end-game, would be a win. But, Civil Unions as granted in California by today's decision? A Big Win.
Posted by Timothy on May 26, 2009 at 10:14 PM · Report this
Original Andrew 20
That’s the kind of yoga-esque semantics that only a lawyer could love.

The fact is that words matter. Gay and lesbian Americans–and this does greatly effect people outside California–have been told that we are less than human, that we don’t deserve the same rights as everyone else even though we pay into and contribute just as much to society as everyone else. That we’re different and meant to be socially ostracized.

In tandem, it’s affirmed the knuckledraggers’ views that ‘those gawdam preverts should be illegilized from gettin’ married.’ Also, that so-called fundamental rights are essentially meaningless, and that minorities should be forced to go through the reprehensible process of begging majorities that hate them to grant them equality.

While the writer may indeed be correct on the actual legal implications of the ruling, all Joe and Jane Cul-de-Sac hear is ‘Caleefurnya hates fags.’

The CA SC had plenty of perfectly valid legal reasons to rule our way and take the high road, but they didn’t. To paraphrase another comment I read online “this is exactly what you’d expect from a California court these days: A ruling that infuriates everyone, pleases no one and solves nothing.”

P.S. Tey cn suk my thik kahk kthnx.
Posted by Original Andrew on May 26, 2009 at 10:08 PM · Report this
@18 Uriel...

In today's decision, the CA Supreme Court held that their reasoning in last years' "Marriage Cases" which legalized gay marriage holds.

What they said today was the Prop 8 was legal in the way it modified the State Constitution, but that all it did was stick a clause into the Constitution that merely limits the use of the term "marriage" to opposite-sex couples.

What Prop 8 didn't do, according to the CA Supreme Court...and I think this answers your to modify all of the right to privacy and equal protection clauses of the State Constitution; and because it didn't do that, it would be ruled Unconstitutional to discriminate in any way, other than by the usage of the term "marriage", against same-sex couples.

So, I understand your point, but by my reading of the decision, they upheld all attendant rights and responsibilities of marriage, save the usage of the term.

It's a win, and frankly, I'm shocked that it has been missed. Just read the decision. You only need to read 40 double-spaced pages. You can download the pdf here:
Posted by Timothy on May 26, 2009 at 9:46 PM · Report this
Uriel-238 18
Here's a question:

When DOMA gets repealed, and gay marriages are legal nationwide, will all California non-marriages have to apply for a fresh wedding license?

Can insurance companies differentiate between how they insure members of a gay non-marriage and those in a marriage?

Can employers so differentiate?

How about other states that recognize same-sex marriages, can they so differentiate?

If California law is changed in regards to marriage, do gay non-marriages require a separate provision to change as well?

If the answer to any of these questions is yes, then today's ruling is not a win. Then, at best, this is a step towards a win.
Posted by Uriel-238 on May 26, 2009 at 9:36 PM · Report this
drewl 17
@13 Kleenex and Aspirin used to be trademarked names, and now are generic terms.
Posted by drewl on May 26, 2009 at 9:31 PM · Report this

I just read the entire decision, and it is pretty explicit and clear:


How did everyone miss this? It is not hidden. In fact, you can see them set up the decision throughout the entirety of it.

This will be the big story tomorrow.

WE WON!!!!!!
Posted by Timothy on May 26, 2009 at 9:31 PM · Report this
I'm with @9; let's call them all civil unions or domestic partnerships and let "marriage" be the colloquial term that everyone can use to connote their favorite scene from Ozzie and Harriet.
Posted by Valkyrie on May 26, 2009 at 9:28 PM · Report this
Urgutha Forka 14
I hope this means religious fundies can call themselves pious, but I can call them fucked up and it still means the same thing.

Posted by Urgutha Forka on May 26, 2009 at 9:28 PM · Report this
MirrorMan 13
Circular reasoning.
It's whats for dinner!

Seriously, what they are saying is that MARRIAGE, in California, is only between heterosexuals. Anyone else can enter the same binding legal contract, they just can't use the same name. I still think it should be called marriage, but at this point, I will take what I can get!

And the fundies explode in five...four...three....
Posted by MirrorMan on May 26, 2009 at 8:57 PM · Report this
This is exactly what one of the justices pointed out at oral argument in this case: gays didn't just win the right to marry in last years' decision, they also won recognition as a suspect class (a good thing under the law even if it doesn't sound like it) and the benefits and obligations of marriage were held to be fundamental right. It really is just all about a word now at the state level.
Posted by Mason on May 26, 2009 at 8:53 PM · Report this
Sargon Bighorn 11
So can Gay/Lesbian and hetero couples still get a Domestic Partnership in CA that is the same as the marriages of Gay/Lesbian and Hetero Californians in everything but name? There are now 3 kinds of unions in California: Straight Marriage, Gay Marriage, and Domestic Partnerships. Gheezuz was a mess.
Posted by Sargon Bighorn on May 26, 2009 at 8:40 PM · Report this
So, then, did today's ruling affirm that civil unions are legal in California? And if so, why aren't civil licenses being offered in California? It seems, on my reading of this, that the Justices are saying that per their ruling last year, and since that point, civil unions are the law of the land in California.

So, San Fran, why not just start issuing civil licenses tomorrow?
Posted by Timothy on May 26, 2009 at 7:59 PM · Report this
Does this mean that since A) Same-sex couple still deserve equal protection under the law and B) the term "marriage" can only be used for heterosexual couples then C) Another term/institution has to be created that can apply to both homo and hetero sexual couples so they can enjoy equal protection under the law?
Posted by crystina on May 26, 2009 at 7:43 PM · Report this
A slick bunch, those Cal supreme court justices. Seneca Doane makes the important point that everyone else seemed to miss: that the upholding of prop 8, while disheartening on a symbolic level, does nothing to harm the rather-more-important legal and official statuses and protections of 1) those already in pre-prop 8 marriages and 2) those who will be joined in the not-called-marriages-in-california-anymore-but-still-officially-recognized-and-legal unions in the future.
Posted by bitethemailman on May 26, 2009 at 7:42 PM · Report this
shhh Dans gay.

If you haven't read the other 10000000000000000000000000 posts today, you'd not know.
Posted by quit playing with your zits on May 26, 2009 at 7:39 PM · Report this
Heather 6
I think what it means is that couples in California have all the rights of marriage through a domestic partnership, but the arrangemet does not have the legal title marriage. However same sex couples can call it a marriage or churches can call them weddings and nobody can stop us from calling it that.

In other words are winning.
Posted by Heather on May 26, 2009 at 7:37 PM · Report this
The court said prop 8 only applies to the name of marriage and doesn't affect a fundamental right to certain nonspecific family relationships presumably including domestic unions...
though presumably, a majority could take that away, by amending the constitution with the right magic words to do that
which prop 8 didn't even try to do or come close.

Posted by PC on May 26, 2009 at 7:24 PM · Report this
Urgutha Forka 4
I don't get all that legal mumbo-jumbo. Could someone please explain all that in a twitter?
Posted by Urgutha Forka on May 26, 2009 at 7:15 PM · Report this
I would love to see California rename its Domestic Partnership laws to "Marriaje" laws.
Posted by dis on May 26, 2009 at 7:14 PM · Report this
How is this different from the everything-but-name-only domestic partnerships that I thought were the status quo ante?
Posted by cgd on May 26, 2009 at 7:11 PM · Report this
emma's bee 1
Here's to transforming "marrijezz" to marriages, everywhere and soon!
Posted by emma's bee on May 26, 2009 at 7:05 PM · Report this

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