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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?

Voters thought that they were putting an end to gay couples being able to take a legal step that gave them the privileges and immunities of marriage.  They thought that they were undoing In re Marriage Cases.  What the Supreme Court said, essentially is: "OK, public, we will give you the ground that we technically have to cede -- and not a millimeter more.  Except for the one thing that you have specifically forced us to change, In re Marriage Cases stands as we wrote it.  Except now it's not a 4-3 decision, it's 7-0."

The Court explains, as I've tried to do in comments, on pages 126-135 why it was OK to let existing marriages stands.  It is using time-honored legal principles used to determine when a statute has to be determined to have a retroactive effect.  The intent has to be explicit, especially when it is taking away vested rights.  If the language is not explicit, it has to be crystal clear from context.  In this case, as they note, the issue of retroactive application was not even raised in the voter guide statement submitted by proponents.  That's not nearly enough for retroactive application.

However, the reason should be even more clear when you realize what they actually did here.  In re Marriage Cases was, let's say, 95% substantive and 5% symbolic.  If they recognized Prop 8 as taking away 100% of what they did in those cases -- or even 50% or 25% -- then perhaps there would be a close call involving retroactive application.  However, if the only difference is what label gets sewn onto the same dress, then we're arguing about 5% of it.  That 5% is still significant enough -- this is, after all, an "official insult" aimed by the voters at gays and lesbians -- that they can prevent retroactive application.  But underlying that is this idea, in which I paraphrase the Court:

We now have two kinds of marriage in the state: those conducted up until the day Prop 8 passed and those conducted starting the day after it passed.  For the former marriages, those conducted by both heterosexual and homosexual couples can be called marriage.  For the latter marriages, heterosexual marriages can be officially called marriages and homosexual marriages -- which are still marriages in fact -- have to be called something else.  So don't bother us about retroactivity; this difference between pre- and post-Prop 8 marriages is no big deal.

I still, I expect, would have signed onto Moreno's partial dissent.  (I'm not done with my reading.)  But if you look at who won and who lost today, we lost something emotionally important and our opponents, the people who paid for Prop 8, lost almost everything of substance.  In time, they will realize that the battle was really over In re Marriage Cases, and they got their butts kicked.

So, while I'm disappointed, I'm no longer outraged.  It's hard to be outraged when a unanimous California Supreme Court just reiterated that California law gives every couple regardless of gender the fundamental right to be married in fact, even if voters have messed with the labels.  Our opponents lost more today than we did.

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.

Originally posted to Doane Spills on Tue May 26, 2009 at 11:51 AM PDT.

Poll

Who lost more today?

16%560 votes
16%574 votes
40%1386 votes
23%821 votes
3%107 votes

| 3448 votes | Vote | Results

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  •  Tips for upholding "In re Marriage Cases" (454+ / 0-)
    Recommended by:
    Deep Dark, Renee, cdreid, Alfred E Newman, DavidW in SF, JR, CJB, Bill in Portland Maine, Sean Robertson, m3, Peace JD, Gabriel Fuentes, MadRuth, ferg, ogre, Rayne, skywaker9, AlanF, Geenius at Wrok, alisonk, Fenric, Rolfyboy6, Tuffy, kainah, its simple IF you ignore the complexity, RunawayRose, bread, Robespierrette, Khun David, rincewind, Hummingbird, Eman, Lipstick Liberal, Jay C, AAbshier, KateG, dkistner, vawolf, freelunch, SallyCat, mataliandy, exNYinTX, Caneel, gilacliff, sardonyx, geordie, Dumbo, DJ Adequate, opinionated, monkeybiz, TheMomCat, justme, mentaldebris, dlcampbe, understandinglife, Ian S, mkfarkus, Aquarius40, luaptifer, chimpy, dtremit, khloemi, samddobermann, bjeanh1, slangist, Fe, Miss Blue, BruinKid, MazeDancer, Mber, UK LibDem Dave, Shaniriver, fumie, wonmug, kitebro, Cedwyn, SensibleShoes, dksbook, wader, IM, SneakySnu, pjphilter, steve04, dejavu, Nag, BleacherBum153, TexDem, oldjohnbrown, Dallasdoc, Dr Colossus, jlynne, Eddie in ME, elmo, mskate, 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    so decisively and unequivocally.

    This is a very sneaky decision in some ways.  As one who isn't gay, I have to stand aside and accept that gays and lesbians are going to take this an a vicious slap in the face, and I can't change that.  But there are some times when, as a lawyer, one can look beyond the emotional impact of a decision and look to the substantive impact, and sometimes you tell your client "this looks bad, but it's better than it looks."

    The Prop 8 forces took their best swing at gay marriage and the best they could do was scrape it.  In substance, it's still there.  In time, it will be entirely healed over.  And they think that this is a win for them?  They should read page 36 again.

    They tortured people to get false confessions to fraudulently justify invasion of Iraq.

    by Seneca Doane on Tue May 26, 2009 at 11:51:04 AM PDT

      •  This decision appears inconsistent w Amendment 14 (58+ / 0-)

        I do not believe that a bare majority has the right to strip the Constitutional rights of a minority. American justice has been plagued by this problem since before Independence from England was declared.

        Ultimately you can't have 3/5 of a person or mirage instead of marriage.

        Equal protection under the law is a basic principle that isn't met by this decision.

        But this is an excellent diary and analysis.

        Thanks.

        And, Arken, back to you (OT) I hope you are feeling better.

        "It's the planet, stupid."

        by FishOutofWater on Tue May 26, 2009 at 12:17:38 PM PDT

        [ Parent ]

        •  I'd probably side with Moreno, but (34+ / 0-)

          the notion that George and the rest of the Court were actually having our back on this after all -- finally, the decision being 6-1 makes sense! -- makes it one hell of a lot easier to take, in my book.

          They tortured people to get false confessions to fraudulently justify invasion of Iraq.

          by Seneca Doane on Tue May 26, 2009 at 12:20:15 PM PDT

          [ Parent ]

          •  Well, one way or another... (21+ / 0-)

            They were going to have to split some very fine legal hairs. But I agree with your take. They went out of their way to say what Prop 8 DOESN'T say. But I think they had to to save face. Their decision in the Marriage Cases went out on a limb. They would have had to do even more tap dancing to retreat from that.

            I also note that they specifically said that same-sex marriages performed outside CA before Nov. 5 were not at issue and remain unresolved.  I think that when those cases are filed and reach them they will rule that any such marriages are as valid as those performed in CA. Also at issue will be whether marriages performed after Nov. 5 outside CA can be disolved in CA. I think probably that will be allowed as well.

            "Troll-be-gone...apply directly to the asshole. Troll-be-gone...apply directly to the asshole."

            by homogenius on Tue May 26, 2009 at 12:55:58 PM PDT

            [ Parent ]

            •  Interesting analysis.... (12+ / 0-)

              So all they have to do is create a new term like "broomstick jumped", "goblet smashed" or "ring bound" and have laws passed that the participants that agree to that condition to have the same rights, privileges  and obligations as a man and a woman receive when they are married.  That would be legal?

              I recognize the insult that has been made and affirmed but if they still have the rights under a different name I hope that helps at least for now.

              As a white/hetro/married/male I don't intend to be insensitive and I hope no one perceives that in this disjointed rant I feel compelled to post.

              There was some sanctimonious smug asshole prig of a preacher on NPR today bragging about how his side won and how they would be celebrating on Sunday.  Who Would Jesus Marry I wonder?  It was probably in one of those dozen odd books of the bible that the church threw out a thousand years ago.  

              I think Jesus would say love is precious, go together and live in peace.

              I am here to represent the democratic wing of the Democratic Party.

              by Josiah Bartlett on Tue May 26, 2009 at 02:04:36 PM PDT

              [ Parent ]

              •  Yes, I think it would be legal. (15+ / 0-)

                After my first quick reading I thought a gay couple should go to the courthouse, take a marriage application, cross out the word, replace it with "nupital bonding" or some such, and file for a civil ceremony.  "Ring bound" is also a good serious one.

                If they are denied the ceremony, it seems as if it would be a direct violation of today's ruling.

                I also hope that wiser heads than mine work on tight wording for the proposed amendment to reverse Prop 8...

                Something like "an amendment to restore use of the word 'marriage' to the legally binding civil joining of same sex couples..."

                I think the diarist's analysis is right on - the Supremes gave the wingnuts the definition of the word for now, but upheld all rights of civil marriage for same sex couples.

                "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

                by Eman on Tue May 26, 2009 at 03:04:55 PM PDT

                [ Parent ]

                •  How about (4+ / 0-)

                  After my first quick reading I thought a gay couple should go to the courthouse, take a marriage application, cross out the word, replace it with "nupital bonding" or some such, and file for a civil ceremony.  "Ring bound" is also a good serious one.

                  Union of Love ~ Love Bond.... I'll think of some more as soon as my brain calms down

                  My marriage doesn't need protecting, thank you very much.

                  by GeeMa on Tue May 26, 2009 at 05:03:15 PM PDT

                  [ Parent ]

                •  If this is true, then how about "Husbands" (4+ / 0-)

                  or "Wives". Or "Legally Wedded". Or just "Wedded".

                  Did the court rule out "Wedding" or anything like that? Or is "Marriage" the only word eliminated?

                •  Please (5+ / 0-)

                  Something like "an amendment to restore use of the word 'marriage' to the legally binding civil joining of same sex couples..."

                  Make that any couple.  Or even better "any group" - the Mormons will love that.

                  Best Wishes, Demena Left/Right: -8.38; Libertarian/Authoritarian: -6.36

                  by Demena on Tue May 26, 2009 at 05:36:45 PM PDT

                  [ Parent ]

                  •  Yes, you and MazeDancer are both right (1+ / 0-)
                    Recommended by:
                    Josiah Bartlett

                    ANY couple (group)...

                    Cross out the word "Marriage" on an application and write-in "Wedding."  

                    According to the Cali Supremes (there should be a song here) it would be totally legal.

                    "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

                    by Eman on Tue May 26, 2009 at 05:47:19 PM PDT

                    [ Parent ]

                    •  CA law invalidates ANY modification to a marriage (5+ / 0-)

                      licence...

                      I am one of the  estimated 18, 000 couples who was married last year (08/08/08).

                      You can't just cross out terms on the marriage licence application-it invalidates the application.

                      I am not sure I agree with this analysis of Strauss.

                      We (LGBT Californians) already had the substance of equal rights under the law after the In Re Marriage Cases ruling from May 15, 2008.

                      However, by saying that we can't access the word marriage means that we have no access to FEDERAL rights that go along with marriage in our current judicial system. Until THAT is modified, same-sex couples in CA are "equal under the law" but not in practice.

                      •  I agree with you, but... (3+ / 0-)
                        Recommended by:
                        Josiah Bartlett, julifolo, empathy

                        "You can't just cross out terms on the marriage licence application-it invalidates the application."

                        Yes they can.  Some clerk may not recognize it, but that sets the next legal case.

                        If someone does just that and says to the clerk, "OK, join us legally," they would be doing exactly what the Supremes just said they could do - all the rights except the word.  Sure, it would become a court test, but all the better.

                        As to federal rights, it isn't just same-sex couples in CA, but everywhere.  I don't think MA couples can file joint federal tax returns either.  Certainly couples in the rest of the states can't.

                        "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

                        by Eman on Tue May 26, 2009 at 07:30:57 PM PDT

                        [ Parent ]

                        •  If a witness screws up their signature (1+ / 0-)
                          Recommended by:
                          Josiah Bartlett

                          the county clerk will void the license.

                          We didn't get an official CA marriage license for a couple of months because one of our witnesses couldn't sign his name without making a mistake.

                          •  I understand. That is what I want to see... (1+ / 0-)
                            Recommended by:
                            Josiah Bartlett

                            some county clerk voiding the license after some couple crosses out the word marriage.

                            If the Supreme Court has ruled we get EVERY benefit in California except the word "marriage" then the county is required to hitch any two people and give them state sanction without that word.  That is what the ruling implies.

                            I'm not arguing with you at all.  I agree it would be rejected at the local level.  I want it rejected at the local level.  I'm suggesting someone needs to make this a new test case based upon the Supremes' ruling.

                            Or someone leaning left (say like the mayor of San Francisco) prints up official forms with some other word and starts issuing "hitch-together" licenses which are identical except for the word.

                            "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

                            by Eman on Wed May 27, 2009 at 06:18:41 PM PDT

                            [ Parent ]

                          •  Ha-ha -- I just saw this post! (0+ / 0-)

                            Given our arguments on the Burris diary I wrote today, it's good to see us so much in synch on this one!

                            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                            by Seneca Doane on Thu May 28, 2009 at 09:29:44 PM PDT

                            [ Parent ]

                      •  That would be the test case (4+ / 0-)

                        Look, Marriage Cases established the right to a marriage as a fundamental right.  That is a serious and a significant status.  I highly doubt that a law against defacing a marriage certificate would withstand the level of scrutiny required if it was the sole bulwark against people legally exercising their fundamental right under Marriage Cases.

                        I'm not making any firm promises, but this is how I read the decision.

                        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                        by Seneca Doane on Tue May 26, 2009 at 07:47:43 PM PDT

                        [ Parent ]

                      •  Actually (2+ / 0-)
                        Recommended by:
                        Renee, Seneca Doane

                        under DOMA you don't have any federal recognition of your marriage either.  

                        DOMA must end.

              •  it amazes me (7+ / 0-)

                Back in the day, the watchword about Christians was supposed to be, "See how they love one another!" Now it seems to be, "See how they fear teh gayz!" Even some socially conservative Christians realize that this is... well, I guess the word is perverted.

              •  There is nothing in any utterance attributed to (4+ / 0-)

                Jesus that indicates he had any issue with homosexuality. In fact he had little to say about sex in general, and wasn't all that keen on the hetero nuclear family. Given that he defended a prostitute and shamed her detractors, it's likely that he didn't even recognize a distinction between sexual orientations. The Romans certainly didn't.

                I never liked you and I always will.

                by Ray Blake on Tue May 26, 2009 at 03:48:31 PM PDT

                [ Parent ]

                •  What he might have had to say about Teh Gay! (4+ / 0-)

                  The story of the healing of the Roman centurion's "slave" (interpreted by some as "younger male lover"), told in both Matthew 8:5-13 and Luke 7:1-10. See an excellent discussion of the words used in the original Greek and the context that points pretty clearly to a gay relationship here.

                  But then, WTF do *I* know? I'm merely an AIDS carrying, child molesting, dog fucking, marriage busting, Christian hating, clueless privileged white male faggot!

                  by The Werewolf Prophet on Tue May 26, 2009 at 06:44:04 PM PDT

                  [ Parent ]

                  •  It certainly makes sense in light of Jesus' (1+ / 0-)
                    Recommended by:
                    Josiah Bartlett

                    behavior and statements against being judgemental. One of his best lines is the one about how we should remove the plank in our own eyes before pointing out the speck in our neighbor's. Or in the King James, "Judge not lest ye be judged". Fundies always ignore the quotes that explicitly forbid judging and condemning others. There's no question in my mind that Jesus would have broke bread and stood with Harvey Milk. I believe in throwing Jesus right back at these hypocrites.

                    I never liked you and I always will.

                    by Ray Blake on Tue May 26, 2009 at 09:32:01 PM PDT

                    [ Parent ]

              •  So Much Left to Work Out (2+ / 0-)
                Recommended by:
                Josiah Bartlett, En Passant

                Will the State goverment, employers and business owners be compelled to extend the same set of rights to "marrijezz" as they do to "marriages". If they don't, will a new suit be brought to prove that this is not only separate but also unequal?  Personally, I would be happy for "marriage" to be a religous thing and have the state only be in the civil union biz, and I say that as a straight, married,  atheist.

                I wonder why churches that perform same-sex marriage haven't argued that is it religious descrimation for the state to refuse to recognize some of their marriages.

              •  No. (7+ / 0-)

                The alternate term already exists--It's "domestic partnerships". The court is claiming that separate is equal. Basically, they're talking out of both sides of their mouths.

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

                "Troll-be-gone...apply directly to the asshole. Troll-be-gone...apply directly to the asshole."

                by homogenius on Tue May 26, 2009 at 06:03:10 PM PDT

                [ Parent ]

                •  However, the clear establishment of ... (4+ / 0-)
                  Recommended by:
                  Bronxist, Josiah Bartlett, empathy, jayden

                  ... a "separate but equal" institution is the devious brilliance of the Court's decision. They have created a set of circumstances that will FORCE the GLBTI equivalent of Brown v. Board of Ed.

                  But then, WTF do *I* know? I'm merely an AIDS carrying, child molesting, dog fucking, marriage busting, Christian hating, clueless privileged white male faggot!

                  by The Werewolf Prophet on Tue May 26, 2009 at 06:46:34 PM PDT

                  [ Parent ]

                •  rec'ed for the Peter Cook (2+ / 0-)
                  Recommended by:
                  Josiah Bartlett, Seneca Doane

                  Princess Bride reference, gave me the first smile I've had all day while reading reactions to this ruling that seems to me to hurt so deeply not only our GLBT friends and family, but does allow the majority of voters to take away basic rights from minorities with ballot propositions.

                  I think the time is coming for a movement to demand a constitutional convention in California. It would take several years and a hell of a lot of work, but there's some seriously out of whack power balances that have damaged California for decades. Combined with the ability to put initiatives and props on the ballot by organizations that do not have the interests of the state's citizens or their well being as their intent, whatever good came out of the progressive ideas of a century ago has been drowned in billions of dollars spent, trillions of lies told by corporations and organizations to control the state to the detriment of its people.

          •  We already had civil unions in CA (11+ / 0-)

            The Court said in In re Marriage Cases that our unions not only couldn't be substantively different but had to be called the same.  Now they say they can't be substantively different but can't be called the same thing.  So the real questions are whether there is any way in which a couple joined by a registered domestic partnership has less rights than a couple joined by marriage.  Is there full faith and credit for RDPs?  Tax-wise and benefits-wise there is no difference under CA law.  It is symbolic, but it is powerful symbolism.

            Democracy needs accountability. Investigate and prosecute the Torture Thirteen.

            by Mimikatz on Tue May 26, 2009 at 01:24:33 PM PDT

            [ Parent ]

          •  Seneca, I haven't read the decision yet.... (0+ / 0-)

            And probably won't have time to do so for at least a couple days. So I have some questions. Did the 6-justice majority all sign onto one decision? Do any concurrences or the dissent address this "prohibiting marriage in name only" issue? Is this issue mentioned/addressed anywhere else in the opinion? And, just curious (because I've had a number of legal discussions with you), what kind of law do you practice?

            Oh, and thanks so much for spending the time to parse the opinion and write this diary.

            •  Five justices signed the main opinion (1+ / 0-)
              Recommended by:
              Bronxist

              George, Kennard, Baxter, Chin, and Corrigan.  Kennard also concurred, as did Werdegar.  Moreno wrote a concurring and dissenting opinion.

              After clerking on the Ninth Circuit for a year, I practiced commercial law (and about half-time pro bono, including appeals dealing with both statutory and constitutional interpretation in Manhattan.  (You'd probably know the firm.)  I haven't practiced since then (except doing contract work), though I'm probably about to start again.  (Most likely IP and plaintiff's side employment law.)

              Between August 2006 and November 2008, I was doing politics as my main gig, generally unpaid but a fair amount of the time full time.  Since December, I've been in legal academia.

              What about you?  ;7)

              They tortured people to get false confessions to fraudulently justify invasion of Iraq.

              by Seneca Doane on Tue May 26, 2009 at 08:05:28 PM PDT

              [ Parent ]

          •  But what about the laws on the books (1+ / 0-)
            Recommended by:
            NMRed

            which specifically use the word "marriage" in the application of rights? From what I understand there are 1100 Ca laws which apply the word "marriage" to the requirement.

            If Prop 8 narrowly refers to the label "marriage" how do we then separate "marriage" from existing law without amending or changing them or creating new ones legislatively which supersede them?

            I'm Ron Shepston and I'm not done yet. There's much left to accomplish.

            by CanYouBeAngryAndStillDream on Tue May 26, 2009 at 08:01:51 PM PDT

            [ Parent ]

            •  I think *Marriage Cases* settles that (2+ / 0-)

              Those laws apply to RDPs (or whatever new status the Lege sets up.)  Voters may have changed the label on same-sex marriage, but they did not try -- or, as the court sees it, even attempt to try -- to change any other substantive rights.

              This is only my opinion, but I think that Strauss is wide open to it.  Unless someone convinces me otherwise, I hope that there are test cases in the most congenial jurisdictions as soon as possible.

              They tortured people to get false confessions to fraudulently justify invasion of Iraq.

              by Seneca Doane on Tue May 26, 2009 at 08:07:48 PM PDT

              [ Parent ]

        •  as a Federal matter... (41+ / 0-)

          ....minorities can't strip rights from majorities.

          But under the California constitution, with its provisions for amendments being passed by bare majorities of votes cast, apparently it can.

          So it takes 50%+1 to deny a minority's rights, and 2/3 to increase taxes.  Sacrificed on the altar of Mammon once again.  

          However there are all kinds of grounds left open for lawsuits to deal with this further.

          And the first thing we in California have to do is pass something that will unequivocally ban out of state money from influencing state elections in any way.  After that, the rest is easy.

          •  This is the one thing I do not miss (11+ / 0-)

            about Calif. The nuttiness of term limits and Prop 13 and outside group ballot initiatives. Direct democracy works in Vermont towns.

            Anyone who has the power to make you believe absurdities has the power to make you commit injustices--François-Marie Arouet

            by CA Berkeley WV on Tue May 26, 2009 at 12:56:04 PM PDT

            [ Parent ]

            •  There's nothing nutty about term limits (0+ / 0-)

              I think there's a better than even chance that GW might be in his third term if we didn't have them.

              Away, I dream. I cannot, will not, return from where I came.

              by dRefractor on Tue May 26, 2009 at 01:29:53 PM PDT

              [ Parent ]

              •  Eh? (6+ / 0-)

                What's the scenario where the least popular president ever would have been reelected, if only he had been allowed to run?

                •  Diebold. Republican disenfranchisement. (6+ / 0-)

                  Cheney wags the dog. Or he waterboards KSM again and comes up with a whopper about nukes in NYC. Or one of those FBI entrapment efforts involving mentally-challenged people, except the FBI actually gives them real explosives "by mistake". I could go on, there's so many many ways a putative election involving Nukular Man could have gone badly.

                •  That McCain ran relatively close to (3+ / 0-)
                  Recommended by:
                  bablhous, julifolo, Seneca Doane

                  someone who was massively better gives me little faith in the voting public. The repub politicos would have been far more vigorous in promoting GW for another term than they were with JMC. The power structure was there, the media was bought and paid for... Of course, the financial meltdown probably would have been GW's downfall, but if not for that he could have won again.

                  Away, I dream. I cannot, will not, return from where I came.

                  by dRefractor on Tue May 26, 2009 at 01:59:27 PM PDT

                  [ Parent ]

                •  Bush re-elected (1+ / 0-)
                  Recommended by:
                  neroden

                  What's the scenario? Fearfearfearfear. I'm sure that Roviacs would be setting off their own bombs if that's what it took to re-elect W. Thank God for term limits!

              •  For a state legislator (1+ / 0-)
                Recommended by:
                terjeanderson

                it means that they can increase future spending in the Prop 13 world and let th next guy worry about the budget. It also means that staff and lobbyist become even more powerful as institutional knowledge goes out the door.

                Look at the mess Gov.Gilmore left in Virginia for example. They got a different Sen. Warner out of it, but state services took a hit for a while over cutting taxes and not spending, true Republican budgeting.

                I was not referring to the term limits on Article II.

                Anyone who has the power to make you believe absurdities has the power to make you commit injustices--François-Marie Arouet

                by CA Berkeley WV on Tue May 26, 2009 at 01:47:22 PM PDT

                [ Parent ]

                •  Anecdotal governance gaffes (0+ / 0-)

                  don't serve all that well as anti term limits arguments, imo. And the whole notion that lobbyists would somehow get MORE power than they already have seems disingenuous. I don't see that issue as intrinsically getting better or worse with term limits.

                  It all depends on the quality of people being elected and for myself, I'm perfectly willing to believe that as long as you stagger the forced limits, there will be plenty of institutional knowledge to help the newcomers.

                  Away, I dream. I cannot, will not, return from where I came.

                  by dRefractor on Tue May 26, 2009 at 02:13:17 PM PDT

                  [ Parent ]

                  •  You're absolutely wrong. (1+ / 0-)
                    Recommended by:
                    neroden

                    Forcing term limits onto the federal legislators would turn the entire legislature over to the lobbyists without the pesky interference of the elected representatives.  Congressional staffers would be targeted by the lobbyists, and they would be much more inexpensive to own.

                    My cousin is a lobbyist in New York.  Believe me, he and his cohorts' favorite dream is that term limits will be enacted for Congress.

                    "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

                    by SueDe on Tue May 26, 2009 at 08:08:37 PM PDT

                    [ Parent ]

                    •  I'm glad you're so absolutely sure (0+ / 0-)

                      But at least 3 things substantially challenge your argument

                      1. Staggering term beginnings. E.g., if the lower state house had 3 terms of 2 years each, the beginning terms for each seat would rarely, if ever have a completely new set of legislators. Statistically something in the neighborhood of 2 of 3 legislators would not be newbies -- this number could obviously fluctuate quite a bit, but it would not be a legislative assistant free-for-all by any stretch.
                      1. You must assume that newbies are ignorant puppies easily led by nefarious staffers into the all-powerful hands of lobbyists. I find this argument extremely presumptive. It is no more true than assuming all career politicians are fully in the pockets of long established relationships with lobbyists and donors, though I would argue the latter more likely.
                      1. The argument of lost institutional knowledge is bogus on face value. Term limits do not prevent lawmakers from moving from house to house, from state to federal level. A successful lawmaker could spend at least half a lifetime in politics even with term limits.
                      - Think of it in terms of the military which operates primarily on meritocracy. If you're good at one level of governance, you get promoted and so on until you reach your level of competence (or incompetence) and are forced to rejoin the civilian population which you nominally serve. It's a pretty good model, imo.

                      If you analyze most of the "horror" stories of bad politicians let into the system that replaced term limited politicians, there are several solutions that would lessen the likelihood of repeat performances such as requiring runoffs and, er, um, lobby reform...

                      Away, I dream. I cannot, will not, return from where I came.

                      by dRefractor on Tue May 26, 2009 at 11:11:32 PM PDT

                      [ Parent ]

                    •  We need to eliminate gerrymandering.... (0+ / 0-)

                      If we can do that, we don't need term limits; it becomes possible to vote people out of office.

                      -5.63, -8.10. Learn about Duverger's Law.

                      by neroden on Wed May 27, 2009 at 07:52:52 PM PDT

                      [ Parent ]

              •  Not a chance in hell. (1+ / 0-)
                Recommended by:
                dRefractor

                IMO.

                They only call it class warfare when we fight back.

                by rb608 on Tue May 26, 2009 at 02:22:07 PM PDT

                [ Parent ]

          •  We need a constitutional convention (8+ / 0-)

            After today, more than ever.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 01:00:37 PM PDT

            [ Parent ]

            •  We vote on Sundy hunting rights (3+ / 0-)
              Recommended by:
              terjeanderson, Seneca Doane, JesseCW

              in the Constitution here. How long has your Constitution gotten? Ours is under 50 pages, and most of the last few Amendments, which we vote on simple majority after it passes the ledge 2/3, were for veterans benefits or other bond issues.

              I don't know why the term limits and it's unintended consequences has not sunk in either.

              Anyone who has the power to make you believe absurdities has the power to make you commit injustices--François-Marie Arouet

              by CA Berkeley WV on Tue May 26, 2009 at 01:21:39 PM PDT

              [ Parent ]

        •  See the Slaughterhouse Cases. This case was not (1+ / 0-)
          Recommended by:
          Tropical Depression

          argued on an equal protection basis. Even if it had been, it's hard to see a violation of due process requirements in this matter. nt

        •  I've always wondered (1+ / 0-)
          Recommended by:
          BoxNDox

          what would happen to "equal protection under the law" in relation to marriage equality if that question came before the SCOTUS.  

          I pretty sure even the RATS (Roberts, Alito, Thomas and Scalia) would have second thoughts about stating that the US Constitution and Bill of Rights somehow deny marriage equality.  

          How could they manage to find a denial of equal protection in relation to Brown v Board of Education and Loving v Virginia (I'm not a lawyer, I'm sure there are plenty of other cases I could have referenced).  

          What do our lawyer friend think about this?

          Whenever people are well-informed they can be trusted with their own government. Thomas Jefferson

          by jaf49 on Tue May 26, 2009 at 01:26:45 PM PDT

          [ Parent ]

        •  They do in CA (2+ / 0-)
          Recommended by:
          FishOutofWater, Seneca Doane

          This is a CA right. If it were a federal right you would be--right.

          The whole purport of the opinion is that the Prop method trumps Constitutional rights.  Moreno and I disagree.

          Now full faith and credit may be implicated here--since this would discriminate against people married in Iowa who move to CA--a federal court issue.

          Denial is complicity.

          by Publius2008 on Tue May 26, 2009 at 01:55:09 PM PDT

          [ Parent ]

          •  If I understand correctly... (0+ / 0-)

            what would happen in the case of a gay or lesbian couple married in another state is that they would be entitled to all of the rights associated with marriage but would, for the purposes of California law, be considered to be "domestic partners."

            If my understanding is correct, then that is some sort of cold comfort.

            Also if my understanding is correct, the import of today's decision is that, contrary to what was enunciated a year ago, "marriage" is now just a word. Back then it wasn't. That is no comfort at all, since it implicitly reinstates a doctrine of "separate but equal" which previously had been rejected.

            •  Take comfort in the notion (1+ / 0-)
              Recommended by:
              Bronxist

              That the prop 8 people just destroyed their own marriages, made them meaningless.  As you say "marriage" is now just a word.

              Best Wishes, Demena Left/Right: -8.38; Libertarian/Authoritarian: -6.36

              by Demena on Tue May 26, 2009 at 05:43:15 PM PDT

              [ Parent ]

        •  Their rights haven't been stripped (4+ / 0-)

          A same sex couple has the same rights that my husband and I do.  The state just won't use the word "marriage" to recognize those rights, they'll use some other designation.  The couple is still "married" for all intents and purposes.  The state just isn't using that word.  Prop 8 proponents really sorta screwed their ends.  The Diarist is right, they lost substantively.

          We can call the legal union of same sex couples whatever we please.

        •  The courts disagree (0+ / 0-)

          The Supreme Court gets to decide this issue. What you and I believe is not relevant. Get to the ballot box if you want to change this. :-)

      •  So as a (8+ / 0-)

        matter of California Constitutional Law, I read the section in this diary as meaning Civil Unions are mandated.  

        Seem pretty clear, and this is a great diary, Seneco Doane.  In the past on this site it would be front paged, though that doesn't happen very much now.  But this diary should be front paged.  

        The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

        by fladem on Tue May 26, 2009 at 01:11:07 PM PDT

        [ Parent ]

        •  That was *status quo* (1+ / 0-)
          Recommended by:
          andreww

          Why would we FP a diary that seems to rather deeply misunderstand the situation?

          We've had domestic partnerships (what we call civil unions) since 2003.

          I just don't see what this diary adds, and I am concerned it is spreading misinformation about what has actually occurred today.

          I'm not part of a redneck agenda - Green Day

          by eugene on Tue May 26, 2009 at 01:23:33 PM PDT

          [ Parent ]

          •  Tell us, what it is that DP in California DOES (0+ / 0-)

            NOT give that 'marriage' does. I know the decision hurts but I need to understand the substantive difference if there is one.

            •  I want to first be clear (5+ / 0-)

              I know you do not intend to do this. But you are repeating the arguments used against us by the Yes on 8 side. You're implying that civil unions and domestic partnerships are an acceptable substitute for marriage.

              "Marriage" means you can go to the county clerk, get a license, and be legally married in the eyes of the state and in the eyes of the federal government. There are something like 1100 specific rights which the word "marriage" confers that domestic partnerships do not.

              Seneca Doane wants us to believe that the CA Supremes have found a way to confer those rights. I do not believe they did so.

              I think the problem is that Seneca Doane did not understand what In re Marriage Cases was about and did not understand what Prop 8 was about. He seemed to think Prop 8 was an effort to take away anything resembling marriage rights from LGBT peoples. It wasn't. It was specifically designed to deny the word "marriage" - which the court has now agreed to.

              I'm not part of a redneck agenda - Green Day

              by eugene on Tue May 26, 2009 at 01:41:14 PM PDT

              [ Parent ]

              •  Agreed, but.... (4+ / 0-)

                "Marriage" means you can go to the county clerk, get a license, and be legally married in the eyes of the state and in the eyes of the federal government.

                With regard to federal recognition, that's never going to happen until the Defense of Marriage Act is repealed and/or invalidated by the U.S. Supreme Court. Nothing Californians (or Iowans or Bay Staters or...) could possibly do on their own can change that. All of the Massachusetts full-blown gay marriages that have taken place in the past five years have not resulted in federal recognition; nor, under DOMA, could they possibly do so.

                Otherwise, I agree with you across the board--and I doubt too many people here are interested in actually defending DOMA.

              •  Not so much (11+ / 0-)

                Seneca Doane is pointing out that what was once a "grant", subject to the whim of the Legislature, has been unanimously affirmed as a Right.

                Also, if I'm reading correctly, all privleges and immunities have to be recognized now, like the right not to testify against ones spouse.

                There is a silver lining here.

                This means the Word really is the only issue - going forward, once we overturn Prop 8, the Legislature cannot suddenly come up with "gay marriages don't get this or that tax deduction".

                Which is some good stuff, although there is a fight to be fought.

                Crush the Horror.

                by JesseCW on Tue May 26, 2009 at 01:55:24 PM PDT

                [ Parent ]

              •  that was my impression (2+ / 0-)
                Recommended by:
                sfbob, tdub

                that the problem is that there is a huge amount of written law on various levels that uses the word "marriage," and now it will be necessary to fight a lawsuit about every single one of them to ensure equal opportunity. Beyond that, it still does not address the issue of emotional weighting of the word "marriage" and social stigma attached to not being legally allowed to say one is married.

                I suggest people do it anyway. Take over the language and work on finishing taking over the law.

                "Anybody who's made bread knows what happens when yeast sits in its own juices for too long. It dies." - Anonymous Bosch

                by mieprowan on Tue May 26, 2009 at 03:04:00 PM PDT

                [ Parent ]

              •  Had a court wanted to, the text of Prop 8 (1+ / 0-)
                Recommended by:
                neroden

                could have been read expansively enough to make your eyes bleed.  That was a viable possibility in today's decision.  There was nothing demanding that the Court read it as incredibly narrowly as it did and preserve almost all of Marriage Cases.

                Saying that this right has been around since 1999 or 2003 ignores the tremendous significance of Marriage Cases, which based on your reasoning ought to have been a gimme.

                I am not satisfied with this opinion; I hope that that is clear.  But unless there is a truly compelling reason not to bring test cases to use the language here to claim every square millimeter of disputable rights, I hope that those cases will begin, in sympathetic jurisdictions, as soon as possible.

                The notion that we can't be angry and hopeful at the same time -- or, worse, that seeing hope dilutes our anger and therefore makes our chances of overturning Prop 8 in a year and a half less likely, is not persuasive to me.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Tue May 26, 2009 at 08:18:23 PM PDT

                [ Parent ]

                •  I read the opinion (1+ / 0-)
                  Recommended by:
                  neroden

                  as encouraging such test cases.  I agree with an earlier poster, and with this diarist:  the California Supreme Court went out of its way to narrow Prop 8 to an enactment about a word, not about a status.  I think this case stands for the proposition that wherever state law refers to marriage, it must be read as including domestic partnerships as well.

                  And I like your new term for gay marriage, Seneca Doane.  My suggestion earlier today was that straights can get married and gays can get marrried.  The Constitution only says that marriage is between a man and a woman; it says nothing about marrriage.

                  We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

                  by DParker on Tue May 26, 2009 at 09:12:14 PM PDT

                  [ Parent ]

    •  Meh. (33+ / 0-)

      Even with good ol' Page 36, today's decision still represents the court dragging California back from a full-marriage-rights regime to an old-style, Baker v. Vermont civil unions regime.

      That would indeed have been fabulous--in 2000. In 2009, it's a shit sandwich.

      •  true (13+ / 0-)

        but at least it's not a double decker shit sandwich.

      •  I am not even convinced that that's true (40+ / 0-)

        Remember the bit from Alice in Wonderland, making the distinction between what something is, what it is named, what it is called, and what its name is called?  I think we're seeing something similar here.

        Civil unions are same-sex marriages in California.  They have all of the force of same-sex marriages, inside and outside the state.  Thanks to the voters, they can't officially have that name.  But that is what they are.

        We should call them that.  It's what they are.  Let our opponents choke on it.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 12:23:16 PM PDT

        [ Parent ]

        •  What's in a name? (10+ / 0-)

          I think some dude named Shakespeare tackled that question a while back.

        •  Well... (7+ / 0-)

          ...they don't, since those domestic partnerships do not get federal recognition.

          I'm not part of a redneck agenda - Green Day

          by eugene on Tue May 26, 2009 at 12:27:51 PM PDT

          [ Parent ]

          •  Then let's repeal DOMA. (18+ / 0-)

            Whether the State of California calls it "marriage," "mirage," or "icky-wicky teh butt sex" same-sex couples do not get full federal civil rights regardless of today's outcome.  

            CA Supremes can't touch federal law.

          •  Right. The word marriage is important in the (9+ / 0-)

            federal context of entitlement law et al.

            •  DOMA has to go. (9+ / 0-)

              We've now got multiple states with same-sex marriage (explicitly called that), and other states with "enjoy the same/similar rights as marriage" same-sex partnership contracts.

              Full faith and credit is NOT being extended across state lines, due to DOMA. Beyond the tax-unfairness, there are going to start being ugly inheritance, custody, divorce(!), etc. proceedings, where couples, or members of couples wind up in different states than where they entered into the contract.

              I look forward to more states getting some kind of rights on the books, but DOMA is the real problem.

              "Have nothing in your houses that you do not know to be useful or believe to be beautiful." -William Morris

              by Robespierrette on Tue May 26, 2009 at 01:33:03 PM PDT

              [ Parent ]

            •  No, DOMA explicitly rejects that. (3+ / 0-)
              Recommended by:
              Bronxist, wayoutinthestix, whaddaya

              Retrieved from wikipedia:

              Definition of 'marriage' and 'spouse':
              In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

              http://frwebgate.access.gpo.gov/...

              It doesn't matter what the state calls it.  

              You're better off reading Josh Marshall in the first place.

              by Inland on Tue May 26, 2009 at 06:29:30 PM PDT

              [ Parent ]

          •  eugene, that would be true either way (11+ / 0-)

            At the state level, they are marriages.  Just not at the federal level -- which is also true for the 18,000 legacy same-sex marriages.

            I read today's decision as saying that everyone has to treat them as marriages.  Of course, the federal government can refuse the state.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 01:02:21 PM PDT

            [ Parent ]

            •  No, they aren't (6+ / 0-)

              I don't have time to go back through In Re Marriage Cases but what I am seeing here is that they do not have to treat the same-sex couples as "married". The word matters.

              I have to confess I'm a bit surprised at you for writing this diary. I understand the desire to find a silver lining here. But the line of argument being advanced here basically rips out the underpinnings from a repeal effort.

              I don't see how, at the state level, future same-sex domestic partnerships will be treated like "marriage". They will be treated as domestic partnerships, which already enjoy all the state-level rights of married couples.

              The court is basically endorsing the status quo.

              I'm not part of a redneck agenda - Green Day

              by eugene on Tue May 26, 2009 at 01:08:57 PM PDT

              [ Parent ]

              •  Prop H8 is an insult to same-sex couples (6+ / 0-)
                Recommended by:
                ferg, julifolo, Eloise, JVolvo, Losty, DParker

                It should be repealed because of that.  It will be repealed because, having been whittled down to a stick, it's stupid.

                I'm surprised that you're not on board.  What I'm doing here is similar, if anything, to what Gavin Newsom did in allowing gay marriages in San Francisco.  It is aggressively pressing the rights of gays to marry based on In re Marriage Cases and daring anyone to try to stop anything more than the official label.

                We can disagree about this.  I'm going to argue for an aggressive legal strategy to force the issue of Domestic Partnerships now become de facto marriages under state law, and you can keep people mad enough to overturn this at whatever expense.

                Meanwhile, I say we call gay people married and call them husbands and wives, every damn thing that is not explicitly prohibited by the narrow language of Prop 8.

                I honestly don't think I'm going to undercut your efforts.  I think that dressing Prop 8 in a clown suit will make its proponents decide not to work so hard to save it.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Tue May 26, 2009 at 01:17:58 PM PDT

                [ Parent ]

                •  They already ARE de facto marriages (4+ / 0-)
                  Recommended by:
                  Rieux, andreww, craigkg, Predictor

                  That's been the case for some time now.

                  Here's my problem: the Yes on 8 people had as one of their key arguments this notion that "Prop 8 doesn't take away rights, same-sex couples still get all the benefits of marriage, just not the name."

                  How is what you are saying any different?

                  I'm not part of a redneck agenda - Green Day

                  by eugene on Tue May 26, 2009 at 01:25:21 PM PDT

                  [ Parent ]

                  •  What you fail to realize is that ... (2+ / 0-)
                    Recommended by:
                    Predictor, DParker

                    ... the decision has boxed the H8ers into a corner by creating an unambiguous "separate but equal" situation that is also powerfully nuanced in the direction of getting the State out of the "marriage" business entirely.

                    Indeed, the Cali Supreme Court has shoved the word "marriage" so far down the throats of the H8ers that the only way to resolve the inevitable legal conflicts is to separate the religious ceremony called "marriage" from the State-endorsed contractual agreement called "domestic partnership."

                    The decision is one brilliant bit of lawyering and, since it was 6 to 1, the majority has also hidden in the thicket of the law from any recall effort once the radical reich figures out they've been had; nobody in their right mind would attempt to recall six of seven sitting justices and nobody would support it, either.

                    But then, WTF do *I* know? I'm merely an AIDS carrying, child molesting, dog fucking, marriage busting, Christian hating, clueless privileged white male faggot!

                    by The Werewolf Prophet on Tue May 26, 2009 at 07:06:19 PM PDT

                    [ Parent ]

                  •  No they weren't (1+ / 0-)
                    Recommended by:
                    DParker

                    They were something different conveying the same rights as marriages.

                    My argument is that, taking Marriage Cases and Strauss together, now they are marriages, but ones with the foolish provision that the state -- and only the state -- is enjoined from labeling them as such.

                    Gotta go pick up my daughter; back in 40 minutes.

                    They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                    by Seneca Doane on Tue May 26, 2009 at 08:21:34 PM PDT

                    [ Parent ]

        •  isn't that what this issue has ALWAYS been? (11+ / 0-)

          it is divisive on both sides, and makes me very upset with both sides' bigotry.  all over - a word.  i have long been an advocate, regardless of the attacks i get for it, of civil unions for all, and to get marriage out of the civil lexicon.  oh, yes, i know how tough it would be.  i don't care - it's got to go.

          I can break Sean Hannity by giving him a middle seat in coach. -Wanda Sykes

          by jj24 on Tue May 26, 2009 at 12:29:44 PM PDT

          [ Parent ]

          •  I was just told it was DEPRAVED to think that way (5+ / 0-)
            Recommended by:
            Jay C, snakelass, jj24, drache, whaddaya

            whereas I'm thinking that the gay couples of Illinois may get civil unions equal in all but name to marriages before CA even figures out what these decisions mean.

            As the conservatives helpfully point out, the change of the word in the Illinois bill is a sop to the religious that doesn't mean anything legally.

            http://americansfortruth.com/...

            You're better off reading Josh Marshall in the first place.

            by Inland on Tue May 26, 2009 at 12:37:13 PM PDT

            [ Parent ]

          •  i can't see many attacks for that (3+ / 0-)
            Recommended by:
            delver rootnose, jj24, whaddaya

            civil unions for all, marriage to be recognized or not recognized by whatever church, group, commune, whatever you wish.

            makes perfect sense to me

            I understand that and I will watch you on Fox News and feel bad about myself Our President is Awesome

            by TobyRocksSoHard on Tue May 26, 2009 at 12:37:27 PM PDT

            [ Parent ]

            •  you'd think it would be a win-win. (0+ / 0-)

              not so - thou shalt not avoid the use of the word marriage, by god.

              I can break Sean Hannity by giving him a middle seat in coach. -Wanda Sykes

              by jj24 on Tue May 26, 2009 at 04:19:06 PM PDT

              [ Parent ]

              •  And the abortion debate would go away... (0+ / 0-)

                ....if everyone would use condoms correctly in conjunction with contraceptives like the morning after pill.

                Simply not a realistic solution, and probably precluded by the many marriage amendments that have passed in the last decade.

                What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                by Alec82 on Tue May 26, 2009 at 09:27:53 PM PDT

                [ Parent ]

          •  "both sides' bigotry"? WTF? (25+ / 0-)

            Fuck that fucking shit. Denying my civil rights has no moral equivalent on the other side. Nobody is advocating denying rights to fundies, catholics, or mormons.

            Spare me the false equivalency. It's pure unadulterated bullshit.

            "Troll-be-gone...apply directly to the asshole. Troll-be-gone...apply directly to the asshole."

            by homogenius on Tue May 26, 2009 at 12:59:13 PM PDT

            [ Parent ]

          •  No, I think this goes beyond that (8+ / 0-)

            The danger today was that the Supreme Court would read Prop 8 expansively to negative much or all of In re Marriage Cases.  They didn't.  They resoundingly didn't.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 01:03:40 PM PDT

            [ Parent ]

            •  They resoundingly DID (2+ / 0-)
              Recommended by:
              craigkg, ChiTownBlue2000

              The whole point of In re Marriage Cases is that same-sex couples should be able to get married. Go in, see a clerk, get the license, get married, return it, and have it be recognized by CA and the feds.

              Is that still the case? I don't see you saying anything to suggest that it is.

              I'm not part of a redneck agenda - Green Day

              by eugene on Tue May 26, 2009 at 01:27:34 PM PDT

              [ Parent ]

              •  The Feds have DOMA, a separate problem. Only (1+ / 0-)
                Recommended by:
                svboston

                the Feds can change what the Feds can do, not this court.

                •  The diarist is misleading people (4+ / 0-)
                  Recommended by:
                  Rieux, sberel, andreww, craigkg

                  Into believing this decision somehow preserves marriage equality in the eyes of the state. It doesn't. It says the status quo prior to May 2008 holds - that same-sex couples can get the equivalent of marriage but not the name.

                  I'm not part of a redneck agenda - Green Day

                  by eugene on Tue May 26, 2009 at 01:42:37 PM PDT

                  [ Parent ]

                  •  But that IS what the diarist just said. n/t (3+ / 0-)
                    Recommended by:
                    jj24, tdub, drache
                  •  RDPs were not *really* the equivalent of marriage (1+ / 0-)
                    Recommended by:
                    julifolo

                    I know that people said that they were; they were whistling in the dark.  There was a lot of unsettled law related to them.

                    Marriage Cases established marriage as a fundamental right.  After that, same-sex couples had that right, definitively.  Today's decision could have kept the name and the substance (had the Justices believed that the state Constitution allowed it), or the substance, or -- had it construed the language of Prop 8 broadly -- neither.  It took the middle of these courses.  However, the meat of Marriage Cases -- that marriage is a fundamental right and gays have to have it substantively -- remains.  The exclusion to equal protection is determined to be as narrow as possible.

                    So now we have to press the point.  If this is solely a limitation on the state's ability to label something "marriage," then we should press every disputable area related to that right, including the right of everyone but the state -- and the obligation of employers -- to decree this arrangement to be marriage by law and worthy of every right.  Does the ability to "Go in, see a clerk, get the license, get married, return it, and have it be recognized by CA and the feds" conflict with this narrowest possible reading of Prop 8?  Only insofar as the state recognizes it as marriage by name.

                    Stop calling it a civil union or a domestic partnership.  Call it what is is: a marriage.  You're not the state; Prop 8 doesn't limit you or anyone else.

                    They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                    by Seneca Doane on Tue May 26, 2009 at 09:11:35 PM PDT

                    [ Parent ]

                    •  If you're going to pretend (0+ / 0-)

                      Why did we need this decision? We could have called commitment ceremonies from 20 years ago marriages if we so desired, that doesn't end the real discrimination: the state setting up a second class citizenship.

                      Check out Calitics: California's progressive blog.

                      by UTBriancl on Tue May 26, 2009 at 10:19:25 PM PDT

                      [ Parent ]

                      •  It's not pretending (0+ / 0-)

                        See the arguments I've made elsewhere.  Under Marriage Cases, it has to be a marriage.  Under Strauss, it can't be called a marriage -- at least by the state.

                        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                        by Seneca Doane on Wed May 27, 2009 at 08:03:18 AM PDT

                        [ Parent ]

            •  Lipstick. Pig. (10+ / 0-)

              You can put a guarantee on a box of shit, but at the end of the day you have a box of shit.

              Basically, this diary is the inevitable quasi-scholarly entry talking from a purported position of more knowledge coupled with this instinct to say it's not that bad.

              I think your glasses are very, very rose colored. I view this exactly the opposite.

              The point isn't that a Plessy-like "equal" situation was enacted to deal with mere semantics; the point is rather that the California Supreme Court abandoned the idea that California is a Constitutional Democracy.

              That's a pandora's box not just for gays, but for anyone who isn't willing to bet their liberty on the federal Constitution, which, despite today's appointment still has a way down to hit its nadir with all of the Bush appointees on the circuit courts.

              Would we say, good show, very scholarly if the decision had been a popular vote overturning Brown v Board?

              I don't think so. Laws matter. Laws affect people's lives. No one was going to be affected by a repeal of Prop 8 in any concrete way. This decision, on the other hand, now tells Californians: you live at the mercy of the mob.

              Palin: I can see Russia from my house! Obama: I can see Lafayette Park from mine.

              by Attorney at Arms on Tue May 26, 2009 at 02:11:07 PM PDT

              [ Parent ]

              •  Comment. of. the. day. (1+ / 0-)
                Recommended by:
                sberel

                Painful as it was to read.

                Thank you.

              •  Oh, this is a DISASTER for the state constitution (1+ / 0-)
                Recommended by:
                julifolo

                I don't dispute that at all.  The Justices essentially said that, under the state Constitution, something being a fundamental right is worthless if a majority says otherwise.  I would not have believed that this was possible -- but that part of the opinion is pretty compelling, evem if I'm not convinced.

                So I agree with your conclusion there.  But that is not what this diary was about, so you're actually snarking at me for not writing a different diary.

                The other diary I would write, and probably will, says that this is strong evidence that the state absolutely needs a Constitutional Convention.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Tue May 26, 2009 at 09:14:49 PM PDT

                [ Parent ]

        •  I really wish people would stop saying this. (14+ / 0-)

          They have all of the force of same-sex marriages, inside and outside the state.

          It's simply not true.  Yes, CA law states that they have the same rights as marriage, but those rights DO NOT apply on the federal level.  And they are not even applied equally within the state.  Same sex couples have to jump through pointless legal fabrications in order to have the same rights as conferred by the word "marriage."  I would argue that makes them "similar rights" not the same.

          Hari Seldon 2012 -8.25, -6.25

          by smellybeast on Tue May 26, 2009 at 12:32:32 PM PDT

          [ Parent ]

        •  Does CA even have Civil Unions? (1+ / 0-)
          Recommended by:
          whaddaya

          Somehow I thought that CA had only Civil Marriage and Domestic Partnerships.

          Civil unions are same-sex marriages in California.  They have all of the force of same-sex marriages, inside and outside the state.

          illegal, n. A term used by descendents of European immigrants to refer to descendants of Indigenous Americans

          by ricardomath on Tue May 26, 2009 at 12:43:57 PM PDT

          [ Parent ]

          •  Seneca's point (5+ / 0-)

            (or, perhaps, my paraphrase of Seneca's point) is that today's ruling is that same-sex couples in California are guaranteed civil unions. (Except for the couples who got married before Prop 8 passed, who get to keep those marriages.)

            I don't know the details of domestic partnership status in California, but to the extent that it falls short of granting all of the (state) rights and privileges that marriage does, the upshot of today's ruling is that D.P.s are insufficient to provide gay couples with the equal protection of the law.


            The whole point of the "civil union," since it was dreamed up in the wake of the Vermont Supreme Court's 1999 Baker decision, is to be an institution that's marriage-in-all-but-name.

            Nine years ago, civil unions were a very significant step forward. Today they look a hell of a lot more like Plessy v. Ferguson. As a result, I have a hard time being as encouraged by Page 36 of today's opinion as Seneca is.

            •  No, my point is that what the state calls (10+ / 0-)

              Domestic Partnerships (or civil unions) are marriages, and the state and private citizens are constrained to treat them as marriages, including referring to those involved as "husbands" and "wives" -- because Prop 8 didn't explicitly address that, either -- and that we should call them marriages, and that eventually Prop 8 is going to collapse because no one will be able to look at this silly state of affairs and argue that it isn't ridiculous and not worth preserving.

              But by all means, I will relish the chance to vote to overturn.

              They tortured people to get false confessions to fraudulently justify invasion of Iraq.

              by Seneca Doane on Tue May 26, 2009 at 01:21:40 PM PDT

              [ Parent ]

              •  But... (2+ / 0-)
                Recommended by:
                LuvSet, sfbob

                [T]he state and private citizens are constrained to treat them as marriages....

                But the court did not say that. The court made it clear that California must continue to respect GLBs' "right to establish an officially recognized family relationship" that includes the various state rights and privileges granted to married couples. That is not the same thing as "treat[ing]" ORFRs "as marriages."

                A civil union is not a marriage, and it never has been. The California court itself recognized that point, in strong and ringing terms, in the Marriage Cases. You seem to me to be resisting it rather doggedly.

                •  How else do you harmonize *Strauss* with (0+ / 0-)

                  Marriage Cases?  Same-sex couples who want to be married must have access to the same exact status as marriages, except that Strauss says that that arrangement can't be called "marriage."  Well, it can't be called "marriage," but it still has to be "marriage."  Now that things called "marriages" are unavailable to same-sex partners, the things that are available -- RDPs -- have to be construed as being actual-marriages-that-can't-officially-be-called-marriages in order to satisfy Marriage Cases.  What's your alternative reading that honors both holdings?

                  They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                  by Seneca Doane on Tue May 26, 2009 at 09:21:28 PM PDT

                  [ Parent ]

                  •  No "alternative reading" is necessary. (0+ / 0-)

                    What you have just described is civil unions, which is exactly what Ken Starr argued for at oral argument. You're taking the outcome he wanted--and got--and declaring it just spiffy for gay rights. It isn't. It's a severe setback. What you call "cut to the bone" is actually precisely what Starr argued for--though it appears you've forgotten that.

                    Civil unions have always been supposed "actual-marriages-that-can't-officially-be-called-marriages." And they suck.

                    You seem to be able to look at a shit sandwich and call it ambrosia. It's not.

                    •  What do you think a conservative court (0+ / 0-)

                      could do with the language of Prop 8 in the Constitution, if it were not just cut back to the bone?  You're an appellate lawyer; if you had a viciously homophobic client, what could you do with it.

                      Whatever that is -- and I'll bet it's plenty -- now you can't.

                      Prop 8 itself was the setback, by the way.  This decision just acknowledges that we don't have a Constitution worth the name, which many of us had supposed we had.

                      I've addressed other aspects of your comment in other replies to you.

                      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                      by Seneca Doane on Wed May 27, 2009 at 04:42:42 PM PDT

                      [ Parent ]

              •  Then your point. (3+ / 0-)
                Recommended by:
                Rieux, craigkg, sfbob

                Is wrong and is, at best, based on dicta. The holding of the Court sustains the language and creates separate but "equal" regimes. We've been through that in this country.

                Palin: I can see Russia from my house! Obama: I can see Lafayette Park from mine.

                by Attorney at Arms on Tue May 26, 2009 at 02:14:19 PM PDT

                [ Parent ]

        •  Then what's the whole point? (3+ / 0-)
          Recommended by:
          eugene, Hummingbird, slapper95

          I think I understand your take on this ruling, and I think I agree that this does virtually nothing other than saying "You gay couples can't call your unions marriages." So I guess I just don't undertand what this accomplishes one way or the other. If it's about nothing more than the WORDS "marriage", "married", "marry", etc., then...

          Actually I'm not even sure what I'm trying to say/ask here. I mean, so gay couples have every single right that straight couples do, other than the right to say "we're married"? Well, who exactly is gonna enforce such a rule? In fact, what are the PENALTIES for violating that rule. A couple guys walk up to a cop and say, "We're married and we're happy." Is the cop gonna say, "Hey! You're not allowed to use that word!"

          In other words, what's to keep gays from calling their unions marriages if they want?

          "Any dictator would admire the uniformity and obedience of the U.S. media." -- Noam Chomsky

          by ratmach on Tue May 26, 2009 at 01:26:53 PM PDT

          [ Parent ]

          •  Probably nothing (1+ / 0-)
            Recommended by:
            ratmach

            I think it's just that the state won't call them marriages.

          •  No, they *have* the right to say "we're married" (2+ / 0-)
            Recommended by:
            julifolo, ratmach

            They are married.  Only the state is enjoined from saying so.  Well, too bad for the state.  They're still married, because they did what was necessary to avail themselves of the fundamental right that was established in Marriage Cases.

            That's just my opinion, but I'd happily push for a test case.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 09:24:59 PM PDT

            [ Parent ]

        •  Words are at issue here so... (1+ / 0-)
          Recommended by:
          Predictor

          California DOES NOT HAVE civil unions. We have "domestic partnerships." They allegedly (per page 36) now are a basic right and include all of the rights that come with marriage...for heterosexuals. There is an enormous tension here on numerous levels that will ONLY be resolved by having a single name for a relationship, recognized uniformly at both the state and the federal level. And equivocating on the terminology creates as many problems as it it intended to solve.

          •  then lets call them all (0+ / 0-)

            Civil Unions.  We should remove the religious language from this.

            •  "Marriage" is legal language (4+ / 0-)
              Recommended by:
              julifolo, A Citizen, sfbob, Predictor

              The churches are johnny-come-latelies in teh marriage biz. Best way to remove the religious language is to say that churches can no longer act as agents of the state in marrying people. Do what they do in Europe--if you want to get married, you must do so in a civil ceremony. You go to the town hall, the registry office, the mayor's office, or the office of some other state official. You state your intentions. You sign the necessary paperwork in the presence of witnesses. And you're married.

              If you choose, you may then have a religious ceremony to bless the marriage. But it can only happen after the civil ceremony, and it has no legal effect.

              That option is available in the United States, too--but most people don't think of it that way. They think "wedding" implies "church." But it doesn't. And it never should have.

        •  No offense (0+ / 0-)

          But DPs already carried all of the rights and responsibilities.  This fight was explicitly about the word.

          And we today we lost.  That's why the fight to repeal Prop 13 is so important.

          Check out Calitics: California's progressive blog.

          by UTBriancl on Tue May 26, 2009 at 09:59:01 PM PDT

          [ Parent ]

    •  Maybe. But the fact of the matter is ... (49+ / 0-)

      ...that my lesbian stepdaughter cannot today - as she could have from last May until November 4 - walk into a county clerk's office and apply for a marriage license. She can get the rights of a domestic partnership, as all California adults have been able to do since 1999, but she is, in fact of law, unequally protected.

      I agree with you that, ultimately, the foes of equal rights will lose, but they didn't lose today. And to read the decision in the way that you have means that you clearly believe that Chin, Baxter and Corrigan have changed their minds since last May's decisions. I don't believe that.

      "Oh. Who's being naive, Kay?" - Michael Corleone

      by Meteor Blades on Tue May 26, 2009 at 12:07:17 PM PDT

      [ Parent ]

      •  What Chin, Baxter, and Corrigan did (26+ / 0-)

        is agree that settled law is settled law.  They may not like In re Marriage Cases -- they disliked it enough to vote against it -- but it is settled law in California.  I respect them for respecting that.  As such, it must be enforced.

        As I read the decision, your lesbian stepdaughter can get married in California -- but while you and I and they and the officiant will call it that, the state won't -- yet.  They have every substantive protection, as recognized in In re Marriage Cases, except for the quasi-substantive one that the state is not allowed to call it marriage.  However, the state must treat it as marriage, as much all employers, courts, and other actors who have to deal with it.

        This is a legalistic distinction, MB, but it's not a minor one.  The Supreme Court says that "this is still a marriage, even if we can't call it that."

        I'd like to see us spread that word.  You no doubt understand that the battle now is over what they did and what its effects will be.  Let's fight it, eh?

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 12:27:49 PM PDT

        [ Parent ]

        •  Your argument is that consequent to ... (9+ / 0-)

          ...today's decision Los Angeles can issue a license for and have a state-paid employee officiate over a ceremony that grants a gay couple the same rights as have the 18,000 gay couples who married between June and November 2008 as long as the license and the officiant don't call what takes place "marriage"?

          I need more convincing.

          "Oh. Who's being naive, Kay?" - Michael Corleone

          by Meteor Blades on Tue May 26, 2009 at 01:20:50 PM PDT

          [ Parent ]

        •  Disagree. (4+ / 0-)
          Recommended by:
          Meteor Blades, myriad, LuvSet, craigkg

          What Chin, Baxter, and Corrigan did is agree that settled law is settled law.

          They did? Sure, they signed on to (someone else's) opinion that treats the Marriage Cases as settled law; but that falls far short of lead-pipe-cinch evidence that they're going to follow it assiduously from this day forth. Meteor Blades is clearly skeptical (as am I) that their signing on implies anything like the 7-0 support for the Marriage Cases that you represent it as.


          As I read the decision, your lesbian stepdaughter can get married in California -- but while you and I and they and the officiant will call it that, the state won't -- yet.

          That is indeed your interpretation, but I'm afraid that you're reading far too much into that favorite passage of yours. In fact, "they"--the court--today decided precisely that they will not call the union of Meteor Blades' daughter and her spouse a "marriage." They'll call it something else, as you and I have both quoted:

          By its terms, the new provision [Proposition 8] 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 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.  ... 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.

          (Boldface added.)

          The court specifically does not call the institution in question a "marriage"--they call it "an officially recognized family relationship." Which is a bit short of inspiring.


          Now, given that the court makes it clear that the "ORFRs" they mandate are to be given all of the rights and privileges California extends to married couples, they're not totally disgusting; they're marriage-in-all-but-name--i.e., civil unions.

          But then the proper response to this decision ought to be driven by the status of civil unions. To the extent that civil unions are a good and valuable thing, today's decision is indeed a good outcome for GLB people and those who care about them. But to the extent that civil unions are ugly, limited in their real-world impact, and reeking of Plessy and seperate-but-equal, today's decision is not good at all.


          However, the state must treat it as marriage, as much all employers, courts, and other actors who have to deal with it.

          No--treating a civil union/Officially Recognized Family Relationship "as marriage" is precisely what today's decision says California and Californians are not required to do.  California is required to extend to gay ORFRs the same rights and privileges as it does to marriages--except for the name "marriage." That is not the same thing, and it is not "treating it as marriage."


          I'd like to see us spread that word.  You no doubt understand that the battle now is over what they did and what its effects will be.  Let's fight it, eh?

          Indeed so. And going into the fight to overturn Prop 8, which description of today's ruling is going to be more helpful?

          As the state supreme court ruled in May 2009, Prop 8 took away our right to marry the people we love! Please don't uphold ballot box bigotry!

          or

          As the state supreme court ruled in May 2009, Prop 8 barely did anything to our right to marry the people we love--their decision says that we can marry our beloved, but the state just won't call it "marriage." Please help us get the word back; don't uphold ballot box word revision!

          It seems to me that seeing today's decision (along with the Proposition it leaves standing) as an insult makes a positive outcome in 2010 more likely, not less. Rhetoric that minimizes the pernicious effect of Prop 8 doesn't help the cause.

          •  Yup, yup, yup, yup and yup. Having ... (0+ / 0-)

            ...now discussed this with two lawyers who also have read the case, I am now not just skeptical but hardened in my view that this is exactly what the headlines are saying it is: a victory for Prop. 8 backers and a defeat for our side.

            "Oh. Who's being naive, Kay?" - Michael Corleone

            by Meteor Blades on Tue May 26, 2009 at 05:44:30 PM PDT

            [ Parent ]

            •  See my reply to Rieux, below yours (0+ / 0-)

              Ask your attorneys how they harmonize Strauss and Marriage Cases.  Ask them what they think that narrowing Prop 8 to addressing how the state can "designate" a relationship means substantively, in light of Marriage Cases.

              Moreno's opinion would have been better, I agree.  But it may just be that our Constitution is a piece of tissue paper, that we need to recast into something sturdy.  I explicitly don't call this a "victory" for us in the diary text.  The question is whether it's a victory for the other side.  They got a construction of Prop 8's language so narrow that it leaves it almost ludicrous.  It limits only the state's "designation" -- not even the reality of what the arrangement really is.

              You know what else would be worse?  Saying that we lost a decision 6-1 on the merits, when if we interpret this properly, it's a 6-1 "loss" that says that Prop 8 doesn't really much matter.  And if we push ahead with test cases, we can roll it back further.

              What Prop 8's supporters won is destroying the credibility of the state Constitution.

              They tortured people to get false confessions to fraudulently justify invasion of Iraq.

              by Seneca Doane on Tue May 26, 2009 at 09:50:23 PM PDT

              [ Parent ]

          •  Taking your comment blocquote by blockquote (0+ / 0-)

            (1) They signed onto an opinion that says it's settled law.  They can try to reverse themselves, I suppose, if they want to be embarrassed.  Nevertheless, that is what they did, without writing a concurring opinion saying "but we still think this should not be considered settled law."

            (2) The question of whether they will call it a marriage is analytically distinct from the question of whether it is a marriage.  Per Marriage Cases, and given this maximally narrow reading of Prop 8, it must be.

            (3) The key word there for me is "designation."  The voters said, under the judges' gloss, "hey, to defend marriage, the state can't call this arrangement 'marriage'."  The judges said "OK, you can keep it from being designated 'marriage'."  By making this all about the label, they leave open the prospect, established in Marriage Cases, that whatever the state designates it as being, it still is marriage.  ("Designate": "assign a name or title to.")

            (4)-(6) Oh, I can imagine that it would be better politically for Prop 8 to do as much violence to individual gay couples as possible.  Now, let me ask you this: if I'm right that a gay couple can, tomorrow, get married in fact and that all but the state can call it "marriage" (and those that aren't willing to do so still have to treat it as such), are you willing to say that any couple who wants to be married has to abjure that right because the political optics would be better for some potential future initative that may not qualify for the ballot or, if it does, pass?

            To hell with that.  To hell with anyone who would force gay couples not to get married in all but official name, if they have that right, because it doesn't serve one's long-term political purposes.  And you can quote me on that.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 09:41:27 PM PDT

            [ Parent ]

            •  The Emperor's New Hair (for splitting) (0+ / 0-)

              They can try to reverse themselves, I suppose, if they want to be embarrassed.

              Gee. Conservative justices won't be able to contradict themselves anymore, because that would mean being inconsistent and (in your eyes) embarrassed. Now that will assuredly keep us safe. (Rolls eyes)


              The question of whether they will call it a marriage is analytically distinct from the question of whether it is a marriage.

              That is indeed an... interesting analytical hair that you are doggedly trying to split. I'd like you to find a single other lawyer who shares your belief that the distinction between (1) civil unions and (2) your wonderful new institution that "is" marriage but just isn't called marriage makes any sense at all. (I'm a practicing appellate attorney too, BTW, though not in California.)

              Civil unions have always been declared to be marriage-in-all-but-name. If your entire program here is anything other than swooning over the wonders that are civil unions (gag), then you need to explain how the institution you think the California Supremes have set up is somehow superior to civil unions.

              Civil unions are not "called" marriage, obviously. They also aren't "designated" marriage. Supposedly they are marriage in everything but name. The Officially Recognized Family Relationships mandated by yesterday's ruling are different... how?

              It seems to me that this energetic hand-waving you're doing about the difference between what something is designated and what it is is entirely meaningless--and it certainly won't translate into any concrete advantage to GLB Californians.


              if I'm right that a gay couple can, tomorrow, get married in fact and that all but the state can call it "marriage" (and those that aren't willing to do so still have to treat it as such)

              But that's civil unions. Precisely.


              are you willing to say that any couple who wants to be married has to abjure that right....

              Abjure what right? The right to an Officially Recognized Family Relationship, as recognized by the court yesterday? Of course not; that's dead-center civil union, no different from a gay Vermont couple getting hitched in 2001.

              Can the couple getting an ORFR/civil union call it a marriage? Of course they can; the same goes for that 2001 Vermont couple, or the San Francisco couples who tried to get married on the City Hall steps several years ago... or for that matter any gay couple who held a (legally meaningless) wedding ceremony pretty much anywhere in the U.S. twenty years ago. The fact that the state doesn't recognize it as marriage (and that's exactly what the California court held yesterday is the law of the land now) doesn't stop a GLB couple or their allies from calling them married.

              The "right" you maintain the California court has created appears to be to some kind of Platonic ideal marriage form that "is" marriage (in an ineffable way that a civil union isn't) but just can't be called marriage by the state. You're trying mightily to split a hair, but I'm afraid that hair doesn't actually exist.


              To hell with anyone who would force gay couples not to get married in all but official name, if they have that right....

              Oh, whatever. Oodles of gay couples have gotten civil unions and domestic partnerships and other kinds of sub-marriage arrangements. There's nothing wrong with anyone doing so. But the notion that that half-assed, Plessy-ish measure is any less inadequate today than it was on Monday is just silly.

              •  Again, blockquote by blockquote (0+ / 0-)

                (1) They signed an opinion stating that this is settled law.  In controversial matters, judges usually don't do that if they don't think that the law is settled.  But what I think protects us most isn't so much that they'd be reversing themselves as that there are only three of them.

                (2) How do you harmonize Strauss with the great majority of what is left of Marriage Cases?  Did the Supreme Court tacitly overrule what they explicitly denied overruling?

                The only way I can see to do so is, as Werdeger says, say that now courts have to ensure that these official relationships are equal to marriage in all respects but the official name the states give them -- which I don't think was quite settled law when it comes to civil unions.  Case in point: federal recognition of marriage rights.  Under current federal law, this may not matter, but when federal law allows recognition of same sex marriage I think that Marriage Cases requires the state to remedy the possibility of these being considered by other sovereigns as "less than marriage" by conveying to them that these new institutions should be construed as tantamount to marriage for all legal purposes.  I don't think that that was clear Tuesday at dawn.

                (3) Do I need to go over horror stories of how civil unions haven't sufficed?

                (4) Abjure the right to bring test cases, is what I meant.  The question is: has Prop 8 been reduced to all insult and no injury to gays?  (It being injury alone is enough to warrant its repeal, as I have said repeatedly here.)  One test: can a same-sex couple go into a clerk's office and demand to have their "tantamount to marriage" relationship solemnized by the state?  On Monday, the answer was "no."  Today, I argue that the state has to do it; not to do it introduces injury to accompany the insult of Prop 8 and means that Prop 8's effect has not been reduced to merely a matter of designation.  Some people here seem to think that it's bad politics even for people to bring such a test case, because it makes Prop 8 look less bad than it is.

                (5) Again, we have to distinguish between injury (loss of substantive rights) and insult.  If the state has to treat all couples the same except for a label, and grant the same rights, and if private actors have to do the same, and other states and the federal government have to do the same (so far as they agree to do it with "official" gay marriages), then the actual effect of Prop 8 is some extra administrative burden on the state and an big fat insult to gays and lesbians.  In that case, is what we have a "sub-marriage arrangement"?  Only to the extent that involves the state issuing a state-mandated insult.  Otherwise, what we have is a "marriage arrangement."  Why do you not want to assert that status for it?

                Even so, the gratuitous insult remains, so Prop 8 should be repealed.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Wed May 27, 2009 at 04:39:16 PM PDT

                [ Parent ]

              •  One other thing that you're well-qualified to do: (0+ / 0-)

                I'd like you, as an appellate lawyer, to consider the argument I'm making -- and I readily admit (and have done so above) that it is only an argument -- as a litigation strategy.

                Assume arguendo that I'm wholly unconvinced that these marriage equivalents can be established in court to eliminate all of the injuries at issue -- and that in fact there will still be many state rights, private law rights, and federal rights (before and after DOMA is repealed, if ever) that same-sex mates won't have but that opposite-sex mates do.  (I can say right now that the assumption I'm asking you to make is untrue, but let's leave open how off-base it is.)

                I assume that you'd agree that I would not say "well, I don't believe that this would work for a moment, but here's an argument someone could try."  No, instead, I would make a declarative statement about the state of the law given these decisions.  Would I not?

                Now, what might that lead to?  Test cases, pressing every substantive right that arguably should be present if my theory is correct.  Maybe those test cases succeed.  In that case, I come back and jeer at you.  (Or maybe I don't, because I was, again arguendo, well-raised.)

                But maybe those test cases don't succeed.  What happens then?  The confident assertions I made in a Daily Kos diary (or elsewhere) turn out to be wrong!  Heaven forfend!

                Yeah, but something else happens to.  It becomes clear that Prop 8 imposes actual injury on people instead of insult, and that it's not the case that a Kenneth Starr can argue that this is all just about symbolism.  See, right now, Kenneth Starr has a viable argument to make.  If we lose some test cases, he doesn't.  If we win all the test cases, he does -- but he doesn't have much left of Prop 8.

                Losing test cases, should it happen, may not help my reputation, but it surely does help the drive to repeal Prop 8.  (Of course, this only matters if you think that, despite my saying that I care about repealing Prop 8, I somehow do actually in fact care about that, implausible as that may sound.)

                So I'd be interested in your sense of whether this makes sense as legal strategy.

                There's also political strategy, of couse.

                What is lost by asserting an optimistic theory, aside from the undeniable benefits of leaving more people feel as bad and hopeless as possible on a dark day?  I guess that argument could be made that if they think that there's even a glimmer of hope that Prop 8 can be reduced to merely an -- entirely unacceptable, of course -- injury, that they will somehow not be activated to take part in the drive to repeal Prop 8, despite my saying that they should, unless they think that Prop 8 imposes substantive as well as symbolic injury.

                I simply don't buy it.  I doubt that a single person didn't go to a rally because they read my diary -- in fact, if anything I'd expect the opposite effect -- and barring unforeseen events, no voters are going to remember my diary in a year.

                Part of what this is about, in my opinion, is a difference in strategies.  The Prop 8 opponents want to win a repeal campaign the same way that they fought the initial campaign: appeals to pathos (see how people are victimized!) and ethos (it's unfair!)  If the voters accepted either view, it would be an advance.

                I suggest a different approach, one that does not depend on converting voters to the cause of gay civil rights, but also doesn't necessarily mean that they are converted if we win this time: pointing out that Prop 8 is pointless and ineffectual.

                The probability is that sooner or later, either strategy would succeed.  Unless the next vote is in Nov. 2012, minority voters won't be out as strongly in force.  That will help (at least a little.)  Also, as more and more old people die off and are replaced in the electorate by young people, Prop 8 will eventually be repealed.  Besides, as Prop 8 proponents note, the existence and continued success of the 18,000 "legacy same-sex marriages" will sap the will to fight against their legality.

                So what's at issue here?  It's timing.  Between now and when Prop 8 is repealed -- 2010, 2012, or whenever -- lots of people who would like to vindicate their rights will either give it a shot in court and maybe win, if my theory is viable or else will do nothing, if they're convinced that Prop 8 is a powerful monster, indefatigable in court.  The "price" of losing such a lawsuit is making the case against Prop 8 stronger; the benefit of winning is that people get to vindicate their rights sooner, and in some cases perhaps at all.

                You're arguing on the side of saying "don't bother with test cases."  Why?

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Wed May 27, 2009 at 05:29:51 PM PDT

                [ Parent ]

      •  I wonder (1+ / 0-)
        Recommended by:
        Seneca Doane

        if the '99 Law is enough to fullfil the passage quoted in the bottom of this diary.  I am inclined to think it does not, and I read this as requiring civil unions, which would be an expansion of the '99 law.

        Not a member in Calif (only NY and DC) but that is how I would read it.

        The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

        by fladem on Tue May 26, 2009 at 01:16:32 PM PDT

        [ Parent ]

      •  Seneca Doane's Analysis (2+ / 0-)
        Recommended by:
        julifolo, UpstateAlan

        The analysis above strikes me as a hopeful reading of today's opinion, and I think it is correct in the long run.  Unfortunately, if this decision stands, same-sex couples will have to sue for each and every right afforded to "married" people under California law.  Even if the right is afforded a "spouse", "husband", "wife", "widow", "survivor", or any other traditional synonym for a married state, even without using the constitutionally-defined word "marriage", because same-sex people cannot be "married", they will have to fight, and win, every court case for each and every right "married" people enjoy by fiat today.  Were I in their shoes, I would be depressed by that prospect.

    •  Help me out, Seneca (11+ / 0-)

      when you say the labels 'change', but that marriage 'in fact' doesn't, does that mean the same legal and financial rights accrue to 'mary-ed' Gays as they do to married straights?

      Same checkboxes on the EZ1040?
      Same hospital visitation rights, etc?

      DelicateMonster a slightly left of center reading experience

      by DelicateMonster on Tue May 26, 2009 at 12:10:37 PM PDT

      [ Parent ]

      •  IRS won't be bending (22+ / 0-)

        until long after DOMA is overturned.  Whatever California does, is irrelevant there.

        In-state hospitals are probably covered, though.  Just don't get sick away from home.  

        "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

        by lgmcp on Tue May 26, 2009 at 12:11:53 PM PDT

        [ Parent ]

        •  a big boon the the CPA buisness (2+ / 0-)
          Recommended by:
          LuvSet, lgmcp

          the need for two different tax returns. Most states returns are based on federal returns. The feds say you do not have a "murregis" but the state says you have one.

          So do one 1040 like to separate people. Then do another one like a couple filing jointly and use this to file state. If I had to do this as a member of "marriages", I would call it cruel and unusual punishment and run under cover of the 8th Amendment!

          Anyone who has the power to make you believe absurdities has the power to make you commit injustices--François-Marie Arouet

          by CA Berkeley WV on Tue May 26, 2009 at 01:29:27 PM PDT

          [ Parent ]

          •  Personally I've always had my doubts (1+ / 0-)
            Recommended by:
            sfbob

            about that alleged "marriage penalty".  If it truly exists, they oughta be ANXIOUS to get our extra revenue.

            "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

            by lgmcp on Tue May 26, 2009 at 01:31:49 PM PDT

            [ Parent ]

            •  I don't know about that either (1+ / 0-)
              Recommended by:
              lgmcp

              I remember a co-worker hose spouse was a teacher had extra withheld before this "marriage penalty" adjustment to make sure they were not short on withholding I guess it was because they both were in one bracket as single, but with joint income in the next higher one.

              I just know personally I would dread doing our federal return TWICE to satisfy this dual DOMA tax world. Aapply that to ALL hetero couples, and you would get equality PRONTO!

              Anyone who has the power to make you believe absurdities has the power to make you commit injustices--François-Marie Arouet

              by CA Berkeley WV on Tue May 26, 2009 at 01:42:48 PM PDT

              [ Parent ]

              •  I always have to do mine & my spouses (1+ / 0-)
                Recommended by:
                CA Berkeley WV

                several different ways, already, to find out WHICH of us can more advantageously claim the mortgage interest this year.  If we could file jointly, I certainly would.

                In general, I find it's best to apply the mortgage to whoever grossed more, but then she has all kinds of home-based business deductions that make it trickier.  I'm too stubborn to get a CPA, it's just me and my Turbotax -- but I flatter myself I do okay!

                "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

                by lgmcp on Tue May 26, 2009 at 01:52:18 PM PDT

                [ Parent ]

                •  even though we bought a house (1+ / 0-)
                  Recommended by:
                  lgmcp

                  we have a large family and a small mortgage so itemizing on the 1040 never made sense. We so have a Sched. C, that is complicated enough. We have bartered with a CPA friend for help some years with this, but I never wanted to push that too much.

                  Anyone who has the power to make you believe absurdities has the power to make you commit injustices--François-Marie Arouet

                  by CA Berkeley WV on Tue May 26, 2009 at 01:56:40 PM PDT

                  [ Parent ]

      •  No and Yes. (26+ / 0-)

        I'm 100% certain that even if there had been no prop 8 (i.e. like it is in Massachusetts) you can't check the married box on the 1040. There has been no granting of federal rights as of yet to gay couples.

        Hospital visitation rights are almost certainly protected, and would be granted under civil union laws. In fact you can just get that right assigned (medical power of attorney) even in the absence of any civil union or gay marriage.

        I know, because I did that 8 years ago. Then we went to Vermont, and did the whole circuit of incremental legalizations, including being one of the "18,000" who are legally AND illegally gay-married in CA.

        What a World.

        Joe Lieberman is a Chode.

        by dnamj on Tue May 26, 2009 at 12:15:14 PM PDT

        [ Parent ]

      •  For all state rights, yes (6+ / 0-)

        That is how I read In re Marriage Cases.  For federal rights, alas, no.

        In fact, I think that, having been reaffirmed, the rights are now stronger.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 12:29:02 PM PDT

        [ Parent ]

        •  The federal rights are what matter (2+ / 0-)
          Recommended by:
          craigkg, NY brit expat

          Dude, I need to sit you down with Cleve Jones, who will explain this to you. It's clear to me you aren't really understanding what was at stake in In re Marriage Cases or in Prop 8 and that you don't seem to understand why the word "marriage" mattered so much to all that.

          I think your point here is that the court could have done more damage and chose not to. That would be fine. But you're twisting that into saying this decision is actually a good outcome for us, and I think that is totally misreading what is going on.

          I'm not part of a redneck agenda - Green Day

          by eugene on Tue May 26, 2009 at 01:35:08 PM PDT

          [ Parent ]

          •  Sit me down with him, then (3+ / 0-)
            Recommended by:
            JVolvo, Losty, NY brit expat

            My position is that once one crosses the state line, California same-sex couples have the right under state law to be considered "married" de jure as well as de facto.  They should be able to press that right.  The Obama Adminstration should accede to it.  In re Marriage Cases says that these couple have the right to be construed as having all of the benefits of marriage -- that's the state speaking, inter alia, to the federal government.  I don't know if Cleve Jones has considered how to make this decision work in the favor of obtaining whatever federal rights can be obtained, but I'm guessing he's lawyer enough to do so.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 01:46:44 PM PDT

            [ Parent ]

            •  I don't think you've thought this through (1+ / 0-)
              Recommended by:
              craigkg

              How do they "press that right"? The CA courts are now closed to them. Nobody wants to go to the SCOTUS and from what many argue, they couldn't win if they tried since homosexuality is not a protected class.

              What your diary is going to produce are a bunch of people saying today's decision is OK. It's already got a bunch of people saying that civil unions are an acceptable substitute for the word "marriage".

              Which is certainly an opinion one can take. But that is not what Prop 8 or In re Marriage Cases was about. Those were both about the word "marriage." Why won't you understand that?

              Under this theory there is no way to undo Prop 8. You are inherently arguing that we should live with Prop 8 and pursue rights on the federal level.

              I don't understand what you think we should do going forward. You're undermining the strategy a whole movement has laid out, and you're doing so using flawed evidence.

              I'm not part of a redneck agenda - Green Day

              by eugene on Tue May 26, 2009 at 01:52:28 PM PDT

              [ Parent ]

              •  Live with Prop 8? (6+ / 0-)

                No, I want to see that insult repealed.

                I think where you and I disagree is this: I say that, under In re Marriage Cases, same-sex couples should now be considered married in fact.  They will have to press that right in various venues, I realize.  But we should whittle down Prop 8 to where all it does is force the state to say "mm-mmm" rather than "marriage."  At that point, who is going to put $40M into defending it?

                At any rate, don't worry.  If I'm wrong, my position will go away and people won't remember it in a week.  But after seeing how Prop 8 itself was handled, I hope you will pardon my unwillingness not to assume that the people making big plans on our side warrant unquestioned deference.  Nonetheless, you'll have time to convince me -- and if I am convinced, I will write a nice big diary here and say so.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Tue May 26, 2009 at 01:57:06 PM PDT

                [ Parent ]

              •  And now I really have to get off to my meeting (0+ / 0-)

                Sorry not to be able to continue.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Tue May 26, 2009 at 01:57:31 PM PDT

                [ Parent ]

        •  States' Rights (0+ / 0-)

          A slightly peripheral note, but states' rights were defined a bit by the SCOTUS recently in Haywood v. Drown.

      •  Community Property with Right of Survivorship? (0+ / 0-)

        Not an option the way the current California Code is written.

        "We are one, after all, you and I, together we suffer, together exist, and forever will recreate each other."
        Teilhard de Chardin

        by exmearden on Tue May 26, 2009 at 03:04:41 PM PDT

        [ Parent ]

        •  I would make the argument that (0+ / 0-)

          the state now has to read that language expansively to bringing "whatever arrangement same-sex couples have that can't be called 'marriage'" within the ambit of the statutory language there.  That's a perfect example of where we should move ahead boldly to take any disputed territory under this ruling.

          Walk through the logic with me:

          (1) That Code section expresses right that is available to married people.

          (2) Same-sex couples have a fundamental right to have an arrangement fully equivalent to marriage with respect to all rights.

          (3) Prop 8 says that such an arrangement cannot be designated "marriage."

          (4) To give force to both (2) and (3), the statutory language must be construed to encompass whatever relationship it is that same-sex couples have, even if it's only RDPs.

          They tortured people to get false confessions to fraudulently justify invasion of Iraq.

          by Seneca Doane on Tue May 26, 2009 at 09:57:14 PM PDT

          [ Parent ]

          •  Actually (0+ / 0-)

            California already has domestic partnership with community property rights.

            This decision, even p. 36, is not a win. Perhaps you could argue that it now constitutionally requires domestic partnerships, but we already had those.

            This is a loss, we just have to work to overturn it.

            Check out Calitics: California's progressive blog.

            by UTBriancl on Tue May 26, 2009 at 10:12:20 PM PDT

            [ Parent ]

            •  We agree that we have to work to overturn it (0+ / 0-)

              But I maintain that, when you take Marriage Cases and Strauss together, RDPs now have to be construed as actual marriages by all but our state.  I'm sure that you're also aware of the limitations and unresolved questions about RDPs.

              After processing your sig line, I just realized who you were (what's tht "UT" doing there?)  I'll say to you what I've said to eugene.  I think that the notion that people should not push to vindicate ever possible right that they have, under this ruling, because it may make repealing Prop 8 more difficult is indefensible.  First, you don't know that we will be able to repeal Prop 8 the next time.  Second, there are two motivations that voters can have to do so: one is that they're so sorry that they have wronged gays and lesbians and now they regret it so they will vote to undo what they've done; the other is that Prop 8 turned out to be a joke that isn't worth saving so why fight back.

              My sense, especially having attended my local rally in Santa Ana last evening, is that you want to win in a way that reflects public contrition and new acceptance of gays and lesbians.  I can't blame you for wanting to win that way, but then you're really putting the emphasis on changing society rather than the Constitution -- and you're fooling yourself if you think that a 52-48 vote the other way truly represents social change.

              By rejecting the other argument against Prop 8 -- that is ridiculous hairsplitting and can't stop society from recognizing these solemnized legal relationships as marriages if the people in their everyday lives decree them to be so -- you overlook what is probably a stronger and surer path to repeal.  When Prop 8 is construed as nothing more than an otherwise ineffectual insult towards gays -- and furthermore as one that it takes all sorts of effort to maintain, to no useful end, as if we had passed a law requiring government officials to do an officially mandated five minute song and dance every time they said the word "homosexual" or "same sex" -- then it will be easy to get people to reject.

              Where you and eugene disagree with me is that you think that my approach makes your approach less likely to work.  Well, first, if your political strategy is so fragile that it can be disrupted by a DKos diary from someone you forgot to notify to take a particular party line when the decision came out, your planned strategy has bigger problems than this diary alone.  Second, I see no problem whatsoever with people moving forward with these approaches in parallel.  Some voters will be moved by repentence, as you want, others will be moved by disgust with clownish legislation.

              By overstating, from what I can tell, the power of RDPs, you're able to say that my argument is that there is no effect of Strauss retaining Prop 8.  But of course that is not my argument.  Prop 8, at base, is an official insult to gays and lesbians.  That's why it galls even if it has no other effects; that's why in that case, which I think is the case, it is unacceptable.  But this decision could have been so much worse.  Do I really need to explain to you what a broad construction could have done?  Do you really not understand that it would have been a tidier -- and massively more destructive -- legal resolution to the problem?

              As for where we stand now, I offer you two visions of how we might proceed.

              In one, we have what I saw at the rally: for example, an eloquest blonde women lamenting: "the state says that I can't marry my Filipina girlfriend."  It tugs my heartstrings and those of the 500 people assembled there, but frankly voters are not likely to care that much and a 52-48 victory rather than a defeat really doesn't reflect a lot of social change or increased acceptance.  In this view, the anti-Prop 8 side devotes its efforts into winning the battle because the battle is there to win; the goal is to make the other side say "uncle."

              In the other vision, these two women march into the Old County Courthouse in Santa Ana -- although one would probably choose a better jurisdiction for the test case -- and say this:

              "We are getting married.  We realize that you in the state can't call it marriage because of this stupid law.  But it still has the effect of marriage, and it is marriage, whatever you're allowed to call it, and other states and the federal government (and here they ideally brandish an Attorney General's opinion) know it is marriage.  So we hereby claim our right to have you perform a ceremony here and now, which everyone except you can and should call marriage, and to be treated henceforth as spouses, which is a term that Prop 8 does not prevent you from using for us."

              Once that happens, and once voters know that that happens, then the question voters have to ask themselves is: "if they are getting married anyway, and if the only legal effect of Prop 8 is that it causes some confusion and extra paperwork, while the emotional impact is that these people have to endure an official state insult, then we have to ask ourselves whether the so-called 'benefit' of being able to insult gays by not allowing the state to call this marriage what it is is worth it."

              I prefer the second example, but I'm happy to see both tried in tandem.  (And hey, if the test case fails, then now you get to wave the bloody shirt over it.)  But institutional bigotry doesn't usually fail because the bigots have grown to love and respect the targets of their bigotry, it fails because it's too damn much work for too little payoff.  That leads to toleration.  And once you have toleration, and interactions where the humanity of the targets of bigotry becomes clear, then bigots learn that they should not have been bigoted in the first place.

              Gays and lesbian couples should seize the moment and declare that the RDP process now leaves them married in fact, and we should all assert that that is what happens.  In that circumstance, Prop 8 is weak and pointless and won't survive.  The desire for Prop 8 to be made into something as huge and debilitating as possible -- rather than what it is, an indefensible and gratuitous insult -- may or may not be a viable political strategy, but it surely isn't the only one.  I think you're going to be surprised at how ineffective it is and will come to wish that rather than making Prop 8 into a monster you had made it into a stupid, impotent, unfunny travesty.

              They tortured people to get false confessions to fraudulently justify invasion of Iraq.

              by Seneca Doane on Wed May 27, 2009 at 08:56:01 AM PDT

              [ Parent ]

    •  If your reading prevails, really good news. (21+ / 0-)

      And this is an example of why I LOVE DKos...

      willingness to delve beyond the surface.

      Proponents made their argument on the language, and they got a decision on the language.

      HAH!

    •  Thanks for the analysis. (7+ / 0-)

      Numbers are like people . . . Torture them enough and they'll tell you anything.

      by Actuary4Change on Tue May 26, 2009 at 12:12:56 PM PDT

      [ Parent ]

    •  I don't know about this (6+ / 0-)
      Recommended by:
      rincewind, dksbook, craigkg, sfbob, ancblu, whaddaya

      What I see them saying is that civil unions - or "domestic partnerships" as we call them in CA - are not impacted at all by this decision, but that it's OK to withhold the term "marriage."

      This is going to actually make it much more difficult to repeal Prop 8.

      One of the most effective Yes on 8 talking points during the campaign was that "this doesn't take rights away from anyone - it just says who can claim the term 'married.'"

      The Supreme Court has just given their imprimatur to that argument.

      So it IS a win for them because the court has embraced their sophistry. And embraced the notion that semantics can trump the equal protection clause.

      I'm not part of a redneck agenda - Green Day

      by eugene on Tue May 26, 2009 at 12:27:14 PM PDT

      [ Parent ]

      •  You know why Prop 8 is going down? (17+ / 0-)

        It will collapse under the weight of its own ridiculousness.  The Court has stated, in effect, that Prop 8 did nothing of substance.  So what are people fighting for?  That, and the 18,000 marriages -- no creative misspelling needed there -- will doom it, once the H8rs realize that they in effect lost today.  They thought they were voting for something they weren't, and the Court called them on it.

        What this does reinforce is that the California Constitution cannot protect civil rights from simple majority attack.  We did as well as we did here because the court decided to construe Prop 8 as a twig rather than a club.  What this really does is strengthen the case for a Constitutional convention that gives our fundamental rights the supermajority protection that fundamental rights warrant.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 12:32:38 PM PDT

        [ Parent ]

        •  I agree it strengthens the case for a convention (1+ / 0-)
          Recommended by:
          whaddaya

          But I'm still not buying your argument that this is going to collapse Prop 8. I think the court has found a way to ensure its survival.

          The opponents of repeal will just tell voters "the Supreme Court said Prop 8 didn't take away any rights, and that same-sex couples still enjoy equality. They just don't get to call it 'marriage' and that's OK."

          That's going to be difficult to respond to.

          I don't think they lost a damn thing. A total victory.

          I'm not part of a redneck agenda - Green Day

          by eugene on Tue May 26, 2009 at 12:42:44 PM PDT

          [ Parent ]

          •  Wow -- well, then we disagree (4+ / 0-)

            Prop 8 could have been used to peel In re Marriage Cases down to a stump.  That's what an activist conservative court would have done with it.  That's probably what voters thought that they were voting for.  That would have been a "total victory."  This?  They paid $40 million for this?  Gays should just go on getting married -- married in fact -- whether or not the state can call it that.  That's not bad.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 01:08:02 PM PDT

            [ Parent ]

            •  Don't call it marriage then. (1+ / 0-)
              Recommended by:
              Alex of the Sea

              Call it what it is, gay marriage.  The amendment only said that "marriage" was to be defined as between a man and a woman.  Start a ballot initiative formally calling it "gay marriage".  

              That would piss them off even more.

            •  The logic doesn't hold together (1+ / 0-)
              Recommended by:
              sfbob

              OK, so gays go on forming same-sex domestic partnerships - the CA version of "civil unions."

              How would that ever change?

              Barring a subsequent vote of the people, the CA Supremes have spoken on this.

              And if a same-sex couple tries to get a marriage license, and are denied, the CA Supremes will NOT rule in their favor.

              They cannot go on "getting married" because the court just said they cannot "get married."

              If you don't think that's bad then I am afraid you seem to have totally misunderstood what this fight has been all about.

              As the Massachusetts Supreme Court pointed out, and as I am fairly sure the CA Supremes said last year, the word "marriage" matters. It matters a great deal. You're arguing the word is meaningless and that it's OK that the court says we can deny it to same-sex couples. How is that any different from the Yes on 8 position?

              I'm not part of a redneck agenda - Green Day

              by eugene on Tue May 26, 2009 at 01:31:31 PM PDT

              [ Parent ]

              •  This is a subtle but meaningful distinction (0+ / 0-)

                They cannot go on "getting married" because the court just said they cannot "get married."

                The Court didn't say that they could not longer "get married."  The Court said that the state could no longer designate that arrangement as "marriage."  But that they can't designate it as "marriage" does not mean that it is not "marriage."

                That here I call you "eugene" does not mean that you are not who you are on Calitics.

                You may call that wordplay.  Well, a lot of statutory and constitutional interpretation might be called wordplay.  One presses forward and makes the best of it one can.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Tue May 26, 2009 at 10:01:37 PM PDT

                [ Parent ]

    •  thanks for a rational view of the decision... (3+ / 0-)
      Recommended by:
      Seneca Doane, TomP, whaddaya

      and hopefully it will carry us over until there is full marriage equality.

      I can break Sean Hannity by giving him a middle seat in coach. -Wanda Sykes

      by jj24 on Tue May 26, 2009 at 12:27:37 PM PDT

      [ Parent ]

    •  hmmm. A "Fammiage" sounds the same as a civil (2+ / 0-)
      Recommended by:
      Seneca Doane, whaddaya

      union or domestic partnerhood, plus kids, custody and care of which is governed for all people by provisions of various codes in California. So it affirms various rights in place even before In re Marriage Cases, no? And wasn't the emotional tag exactly what gay marriage activists wanted? Not that I want to label you as pollyanna....I just like arguing with you....;-)

    •  To be clear (3+ / 0-)
      Recommended by:
      skrekk, sfbob, pragprogress

      What bugs me about this diary is the misleading title.

      The court did not "cut Prop 8 to the bone" - the only way they can be assumed to have done so is if we believe they wanted to take away all LGBT equality.

      They didn't. They didn't go after domestic partnerships. They went after marriage. That was the whole point.

      And it worked. They won.

      What I don't understand here is the way you frame this. It is as bad as it looks. There is no way In re Marriage Cases was upheld, since it was all about providing "marriage" and not just leaving it at DP's.

      I don't get this.

      I'm not part of a redneck agenda - Green Day

      by eugene on Tue May 26, 2009 at 01:21:01 PM PDT

      [ Parent ]

      •  I live with fundies who supported this bigotry. (4+ / 0-)
        Recommended by:
        LuvSet, MattR, julifolo, Seneca Doane

        The target of prop 8 was to remove both the name and the rights of marriage from gays. The reason for their bigotry doesn't come from any mythical "keep marriage traditional" concept; it comes straight from Leviticus 20:13, where god-fearing people are urged to murder all gays.
        They did, of course, provide a less radical statement on many of their campaign works. If they had campaigned that they want gays to be unable to visit their dying spouse, inherit their family possessions, and file joint taxes, they'd have had 20-30% of the vote. And if they had campaigned for their true intentions where gays are executed after a fair trial by 12 pastors...well, the asylums would be full again.

        Now, I'm not sure the diarist is correct in their interpretation, I certainly hope s/he is. But if you assume the fundies don't want all LGBT people to be forced into a gender straight-jacket...well, that's a foolish assumption.

    •  I say we call them (4+ / 0-)

      "Maaaawwwwiiiidge"s, pronounced as Peter Cook in The Princess Bride.

      They'll be lining up to change it back to "marriage" in no time.

      Now for the hard part...

      by justme on Tue May 26, 2009 at 01:28:11 PM PDT

      [ Parent ]

    •  How does this coordinate on a Fed level (0+ / 0-)

      for example, how CA SS couples may or must file Fed individual income tax returns?  "Domestic partnerships" aren't eligible to file as MFJ.

      My Karma just ran over your Dogma

      by FoundingFatherDAR on Tue May 26, 2009 at 01:34:48 PM PDT

      [ Parent ]

    •  It suddenly occurs to me (2+ / 0-)
      Recommended by:
      LuvSet, Seneca Doane

      That the Legislature can do something.

      Require that those in "Domestic Partnerships" be legally refered to as "spouses".

      Probably more I'm not thinking of right now.

      Crush the Horror.

      by JesseCW on Tue May 26, 2009 at 01:42:05 PM PDT

      [ Parent ]

    •  So how (1+ / 0-)
      Recommended by:
      Cali Techie

      does a same sex couple go about establishing a legal "marrije" in California? I assume they can't get a "marriage" license or sign a "marriage" certificate, so how do they get the legally recognized family status to which the court refers?

      Overall, I think the court did everything they could given the circumstance. I hope people understand that.

      Can't this go to the US Supreme Court next? Seems like a clear 14th amendment case.

      Trust those who seek the truth. Doubt those who find it. - Andre Gide

      by slapper95 on Tue May 26, 2009 at 01:49:02 PM PDT

      [ Parent ]

    •  While your reading is probably correct, I find it (2+ / 0-)
      Recommended by:
      craigkg, Cali Techie

      disturbing that a majority can vote to violate the rights of a minority, even a (literally) nominal right.  I thought courts served a role to protect against just this kind of abuse.

    •  You're Right... (3+ / 0-)
      Recommended by:
      Bronxist, Cali Techie, tempus binder

      You're right, many of us gay and lesbian Californians do take this as a huge slap in the face, and we will be reacting from a very wounded place. This is why I'm grateful that there are straight allies who will be looking towards the substantive impacts and helping us to see where to go when the rage has subsided. Thank you.

    •  I Just got Done Reading All 185 Pages (11+ / 0-)

      All of the opinions, and while as a lawyer I definitely agree with your bottom-line analysis, I still am left with a very nasty taste in my mouth from the disingenuousness of the majority opinion when it comes to playing the "what's in a name" game.  This very concept (i.e. the right to call one's civilly sanctioned partnership a "marriage") was discussed in Marriage Cases and what was concluded then by the Court, albeit by a slender majority, was "everything."  Todays' majority decision essentially pretends that this prior reasoning and conclusion doesn't mean anything after all.  It's "just a name", today.  I certainly agree with you that the court is making crystal clear that it will strike down any difference in substantive rights between civil unions and "marriages."  So in that sense you're right - the batshit crazy homophobes took a beating today.  But in terms of the original fight, which was the right to use a thousands-year old label which culturally has been imbued with dignity respect by the body politic in a way that few others ever have? Sorry, but today's decision is a complete travesty.

      •  Yeah, it's silly (1+ / 0-)
        Recommended by:
        julifolo

        But imagine if they hadn't construed Prop 8's language down to the bone.  This could have been so much worse.  And by distinguishing between label and nature, we can peel away so much of Prop 8 that even its advocates won't think it worth saving.

        I think that the Court was making the best of a bad hand.  They weren't saying "names don't matter"; they were saying "because our constitution can't protect fundamental rights any better than cheesecloth, we can't keep you from changing the designation of this legal arrangement, but we can keep your win from making much difference."

        To that extent, it's a loss.  We still need to repeal Prop 8.  But it's a Pyrrhic victory for our opponents, and I want to rub their noses in it.  Among other things, I think that that's good for morale.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 10:06:36 PM PDT

        [ Parent ]

    •  I almost think the next initiative needs to be: (2+ / 0-)
      Recommended by:
      mimi9, Hummingbird

      The state shall not recognize marriage between anyone. The state will only recognize civil unions between 2 people.

      Get the state out of the marriage business. Consenting adults can apply for a civil union recognized by the state. Churches or any other organizations are free to sanction symbolic (but not legal) marriages.

      The crooks are leaving have left office, unprosecuted and scot-free.

      by BentLiberal on Tue May 26, 2009 at 03:40:14 PM PDT

      [ Parent ]

    •  Great Diary and recd......... (0+ / 0-)

      And thank you for giving us the legal insight on this matter.  I am curious though,  in layperson's terms, can you come up with specific examples of how the wording will affect us in specific, day-to-day instances?   Do lgbts, as a result of the wording of today's decision,  have any additional rights that we didn't have before today?  

      (-6.25, -4.36) Just another socialist lesbian undermining the sanctity of marriage by breathing

      by Gertrude on Tue May 26, 2009 at 03:46:30 PM PDT

      [ Parent ]

      •  Part of what happened is: we dodged a bullet (0+ / 0-)

        Prop 8 could have been construed as far-reaching.  Instead, it's piddly-reaching.

        I also think that the state logically ought to construe that new RDPs, at a minimum, have to be construed as legally equivalent to marriage in all ways, and as being marriages to any governmental entities and private actors other than the state itself.

        People will disagree with that one -- they already do -- but I think it has force.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 10:10:42 PM PDT

        [ Parent ]

        •  DPs have been functionally equivalent to marriage (0+ / 0-)

          for a couple of years now. Perhaps there is a very minor victory in that they are now constitutionally required, but we got nothing that we didn't already have.

          Check out Calitics: California's progressive blog.

          by UTBriancl on Tue May 26, 2009 at 10:14:50 PM PDT

          [ Parent ]

          •  I think that the jury was out on that (0+ / 0-)

            until last year -- when Marriage Cases said that there was a difference -- and this year Prop 8 could have been construed to undermine it further.  Part of what we won is that we didn't lose what we could have lost.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Tue May 26, 2009 at 10:32:51 PM PDT

            [ Parent ]

    •  I don't think ANYONE should be married. (1+ / 0-)
      Recommended by:
      Hummingbird

      Civil Unions for all. Marriage as a religious ceremony only which means NOTHING to the government!

      End Marriage!

      (And I just got fucking engaged Saturday!)

      There's something attractive about invincible ignorance... for the first 5 seconds.

      by MNPundit on Tue May 26, 2009 at 04:11:52 PM PDT

      [ Parent ]

    •  Important to note that Prop 8 was the slap... (1+ / 0-)
      Recommended by:
      Seneca Doane

      ...rather than the court's decision, which softened the blow considerably.  Is there still hurt?  Sure.  But remember to target the response where it belongs - towards Prop 8's proponents.

      We have enough wealth already - what we need is prosperity!

      by richBixby on Tue May 26, 2009 at 04:14:40 PM PDT

      [ Parent ]

    •  Thanks so much for clarifying this (0+ / 0-)

      I didn't understand what the Supreme Court was doing.  I've always thought that the label "marriage" is too affiliated with religion anyway.  As long as same-sex couples can have the same rights as heterosexual couple have, and they can also have a religious ceremony in any number of churches in CA, then though disappointing, it's not a bombshell.  So my Gay friends, go get a civil union, and you can call yourself married if you want to! F the Mormons. This looks like it's boiling down to semantics.

    •  I voted "other". (1+ / 0-)
      Recommended by:
      Seneca Doane

      Because I don't feel anyone has "lost".  I don't even think the "can't call it marriage" will last long.  The court made it risible and ridiculous.

      You mean people have to prove what sex they are before they can call their marriage a marriage?  How is that going to work out on the street?  

      The porp 8 people just did more to harm their own marriages than they dreamed gay's would do.

      Call them on it.  "How do I know yours is a real marriage?  Both of you strip please"

      Best Wishes, Demena Left/Right: -8.38; Libertarian/Authoritarian: -6.36

      by Demena on Tue May 26, 2009 at 05:33:14 PM PDT

      [ Parent ]

    •  Does that mean this is like the New Jersey ruling (1+ / 0-)
      Recommended by:
      Seneca Doane

      The one where they ordered the state legislature to provide an equivalent of marriage (New Jersey civil unions) with all the same legal rights and obligations?

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Wed May 27, 2009 at 07:48:38 PM PDT

      [ Parent ]

      •  I think that *Marriage Cases* means (0+ / 0-)

        that it is more than that.  I think it can be read to convert RDPs (or whatever else is set up) into actual marriages (per Marriage Cases) with there being an absurd, voter-mandated, gag order on the state (per Strauss) preventing it from calling them that.  That's how I harmonize the two.  It's just a theory.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Wed May 27, 2009 at 11:57:42 PM PDT

        [ Parent ]

  •  They didn't touch equal protection (21+ / 0-)

    Which is the only way you're going to get prop 8 overturned (in the courts anyways)...

    "Polls are like crack, political activists know they're bad for them but they read them anyways."-Unknown

    by skywaker9 on Tue May 26, 2009 at 11:52:39 AM PDT

    •  Yeah, just like separate but equal schools didn't (2+ / 0-)
      Recommended by:
      homogenius, whaddaya

      As we all know from Brown v. Board.

      ...oh, wait a minute...

      •  That is not a logical analogy. (1+ / 0-)
        Recommended by:
        Seneca Doane

        Apples and oranges. The schools were NOT equal, period. Civil unions and marriages are equal in all respects but the name. That's a very different thing.

        •  Absurd. (0+ / 0-)

          Sit down and actually read Brown vs. Board of Education sometime.

          It's not only a "logical analogy", it's pretty much the only logical analogy that can be made, given the precedent.

          •  The better analogy would be towards (0+ / 0-)

            a law that made Blacks sit in the back of the bus, but even that is not quite appropriate.  The front and back of the bus may have been equal (although I'm sure they weren't), but that forced Blacks to actually do something different physically from whites, as well as undergo the humiliation of doing so.

            The remaining point of Prop 8 -- at least after it has been denatured by the Court -- is the humiliation, the insult.  That is and will always be reason enough to work to repeal it.  But the difference here is that gays and lesbians can reject that humiliation and point out, if they have the gumption to do so, that they are sitting in the front of the bus along with everyone else, and that the state's hanging a sign over wherever they are sitting saying "this is the back of the bus" doesn't make it so.

            I don't deny that there is injury remaining in Prop 8.  But to state that that injury is of a kind with having to attend substandard schools because you were not fit to attend schools with the superior race borders on obscene.  Have some perspective.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Wed May 27, 2009 at 09:05:02 AM PDT

            [ Parent ]

            •  Actually, you need to take off the rose-tinted... (0+ / 0-)

              ...glasses and have some perspective yourself.

              Your entire argument--your entire diary--is sophistry.  Period.  Flat-out sophistry.

              "Marriage"--the word--has certain legal ramifications that "something-that-can't-be-called-marriage" doesn't have.  There are at least 1043 federal rights and privileges attendant to "marriage".  If DOMA gets repealed, California's "merriaj" won't count.

              Sit down and read Brown.  Seriously.  This is exactly the kind of thing it was talking about.

              •  If DOMA gets repealed (0+ / 0-)

                then California can, under this ruling, inform the federal government that for purposes of federal recognition the new "whatever it is" relationship should count as marriage.  Prop 8 does not clearly require otherwise.  Chances are that it'd have to be litigated.

                I've written about Brown.  That may be why I think that your comparing this situation to that state on affairs attending Brown is obscene.  I suggest that you sit down and read some of Derrick Bell's critiques of Brown.  The difference between your opinion and mine depends on the assumptions we make as to how far courts are willing to trim back Prop 8 until the difference between the rights it affords are entirely in the area of insult -- which still means it should be repeated -- rather than material injury.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Wed May 27, 2009 at 04:20:25 PM PDT

                [ Parent ]

  •  Cool... (8+ / 0-)

    President Obama, are aliens real? Response: I think so. Mitt Romney has several who mow his lawn.

    by David Kroning on Tue May 26, 2009 at 11:54:58 AM PDT

  •  California Supremes to voters (35+ / 0-)

    STFU. We decided what was right, and we don't like you messing around with our decision. So we'll give you the barest minimum of respect.

    Smiting trolls on the tubes since 1977!

    by blue aardvark on Tue May 26, 2009 at 11:58:31 AM PDT

  •  First, I don't think (2+ / 0-)
    Recommended by:
    Civil Writes Activist, whaddaya

    that the proponents of Prop 8 argued for a broader ruling.  If I recall, even prior to the Marriage Cases, California already had enacted civili unions with all of the rights of marriage.  Neither the Marriage Cases nor Prop 8 changed that.

    Second, Full Faith & Credit Clause has never been held to require cross-state recognition of marriages of any kind.

  •  Labels DO Count... (30+ / 0-)

    And it still sets up a (temporary) separate-but-equal paradigm in the state of California.

    I think it WILL be overturned in 2010. And I think it does mark the beginning of the end for the power of the religious right in the US' political processes. I'm praying it marks the eventual end of the current sorry state of the California Constitution and its pathetic amendment-by-ballot-initiative weakness.

    We can't deny-- it hurts us. We take comfort in the fact that the Prop H8 supporters KNOW they've really lost the war and are now labeled for posterity as bigots, haters and ignorant zealots. And their children and grandchildren will look at them with pity and scorn for their bigotry.

    Until we are all equal, no one is equal. Pass ENDA NOW!! MARRIAGE EQUALITY NOW!!

    by CajunBoyLgb on Tue May 26, 2009 at 11:59:37 AM PDT

  •  Fascinating interpretation (15+ / 0-)

    and I hope you are correct.  I can't tell, personally.  It still seems weird to me, in that the only thing lamer than having fundamental rights subject to the tyranny of the majority, is having them divvied up according to date.  

    Besides which, the label on the dress CAN matter, in that individual employers, IRS employees, and others, will set their own rules:  you must have designer garb to enter here.

    But, clearly the dam is cracked and leaking.  Sooner or later, the water will come flooding through.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Tue May 26, 2009 at 12:00:29 PM PDT

  •  Excellent diary! One question: (8+ / 0-)

    Can I go to the justice of the peace after a certain date, with my same sex partner, and obtain a 'marrj' license?

    Blagojevich/Palin '12.

    by fou on Tue May 26, 2009 at 12:05:04 PM PDT

  •  Is there any means today (5+ / 0-)
    Recommended by:
    SallyCat, julifolo, lgmcp, 1BQ, whaddaya

    other than "marriage" to get the "substantive fundamental rights" that go with a state-sanctioned marriage?

    It seems to me that the Supreme Court basically said "separate but equal is good enough for us", but (to the best of my knowledge), there is no "separate but equal" means to get those rights in CA.  

    "They're trying to fool you. They're trying to scare you. And they're not telling you the truth." Obama '08

    by bawbie on Tue May 26, 2009 at 12:05:50 PM PDT

    •  It might officially be called a civil union (7+ / 0-)

      but it is a marriage.  Prop 8 only affected the official label for it.

      Read the opinion.  It reaffirms In re Marriage Cases.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 12:14:44 PM PDT

      [ Parent ]

      •  How explicit & detailed is the civil unions law? (2+ / 0-)
        Recommended by:
        julifolo, whaddaya

        Does it REALLY enforce ALL the rights and privileges of marriage, in ALL circumstances?  Fou, above, says no.

        "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

        by lgmcp on Tue May 26, 2009 at 12:27:08 PM PDT

        [ Parent ]

        •  but that's the point (6+ / 0-)

          According to Seneca's reading, this ruling gives all the rights of marriage, not just the civil union rights, so it's an extension of rights.

          The single exception is that the state cannot use the sequence of letters "marriage" in its official documents.

          "At the end of the day, the public plan wins the game." Sen. Ben Nelson

          by ferg on Tue May 26, 2009 at 12:32:51 PM PDT

          [ Parent ]

        •  Which laws? (2+ / 0-)
          Recommended by:
          Seneca Doane, whaddaya

          For us non-lawyer luddites, I wish someone would compile a list of the actual legal rights that would not apply.  Power of attorney?  Hospital visitation rights?  Employer benefits?  Why is everyone being so damn vague about the actual laws and rights affected here?

          •  Along these lines ... (2+ / 0-)
            Recommended by:
            BruinKid, whaddaya

            Marriage Benefits List© 2000, Demian http://www.buddybuddy.com/...

            ----------------------------------------------------
            Legal marriage conveys upon the couple a wide variety of rights and responsibilities. Because each state creates its own set of marriage laws, the laws number between 170-to-350 depending on the state. Within the Federal system, more than 1,138 laws are triggered by legal marriage. [See
            U.S. Federal Laws for the Legally Married.] The following lists some of the typical rights conferred by the state and federal governments.

            State-Granted Legal Marriage Rights  Assumption of Spouse’s Pension
            Automatic Inheritance
            Automatic Housing Lease Transfer
            Bereavement Leave
            Burial Determination
            Child Custody
            Crime Victim’s Recovery Benefits
            Divorce Protections
            Domestic Violence Protection
            Exemption from Property Tax on Partner’s Death
            Immunity from Testifying Against Spouse
            Insurance Breaks
            Joint Adoption and Foster Care
            Joint Bankruptcy
            Joint Parenting (Insurance Coverage, School Records)
            Medical Decisions on Behalf of Partner
            Certain Property Rights
            Reduced Rate Memberships
            Sick Leave to Care for Partner
            Visitation of Partner’s Children
            Visitation of Partner in Hospital or Prison
            Wrongful Death (Loss of Consort) Benefits

            A couple married by a state government is automatically granted a broad range of rights at the federal level. In addition, marriage partners of federal employees, such as civil servants and members of the military, enjoy a broad range of benefits.

            Federally-Granted Legal Marriage Rights  
            Access to Military Stores
            Assumption of Spouse’s Pension
            Bereavement Leave
            Immigration
            Insurance Breaks
            Medical Decisions on Behalf of Partner
            Sick Leave to Care for Partner
            Social Security Survivor Benefits
            Sick Leave to Care for Partner
            Tax Breaks
            Veteran’s Discounts
            Visitation of Partner in Hospital or Prison

            "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

            by lgmcp on Tue May 26, 2009 at 12:45:17 PM PDT

            [ Parent ]

    •  Can legislature pass a bill to change the (5+ / 0-)

      name of the procedure and have the forms changed thru out the state... so licenses can be granted to applicants, regardless of orientation?

      •  I believe so (8+ / 0-)

        In the In Re Marriages decision the court seemed to say that it would be perfectly acceptable (consistent with equal protection) for California to decide that it didn't want to use the word "marriage" at all. Nothing in Prop-8 changed that: Prop-8 just defines a class of circumstances where the legislature now can't use the word, but doesn't require it to be used anywhere, either.

        On the other hand, it would be politically difficult, I think, because it would make the "this is all a secret plan to abolish marriage" crowd feel vindicated.

        "See a world of tanks, ruled by a world of banks." —Sol Invictus

        by Delirium on Tue May 26, 2009 at 12:22:31 PM PDT

        [ Parent ]

        •  Yeah, that civil-unions-for-all argument (9+ / 0-)

          is a non-starter, no matter how idealogically appealing many sypathetic straight kossacks seem to find it.

          Look how hysterical they are that legal recognition of my loving life partnership will harm theirs, just by EXISTING.  Now imagine how much MORE hysterical they would be if concessions made on my behalf ACTUALLY changed their status in any way.  Sure, they could still get the legal rights, but (omg) under a different label!  Anyone (not you) who doesn't think the haters would go 10x more ballistic than they already have, is dreaming.

          "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

          by lgmcp on Tue May 26, 2009 at 12:30:38 PM PDT

          [ Parent ]

          •  Oh, I'm sure they would. (1+ / 0-)
            Recommended by:
            lgmcp

            And then we could put them in jail for the damage they cause when they go ballistic. They're on the edge now as it is. They lost today and they know it. They're whining about it. Look up Randy Thomasson's bitching about it if you want a real kick (and can control your gorge while reading).

            There is an art to teaching that is independent of the subject matter. - daveinojai

            by Killer of Sacred Cows on Tue May 26, 2009 at 05:51:34 PM PDT

            [ Parent ]

          •  I had a rather loud discussion at our local (1+ / 0-)
            Recommended by:
            julifolo

            Democratic Club on tuesday night ...

            " ' Marriage' is the term in the Bible and it's been the term for "a man and a woman" since Adam and Eve. It cannot be changed because of its history. But I have no problem with two men or two women in civil unions. It's the word marriage that I want to keep for a man and a woman for the children."

            "Then I hope you and those who think like you are prepared to change the entire US civil code to substitute civil union for marriage," said I.

            He said, "yes, that's fine with me."

      •  They could change the name of the civil union (3+ / 0-)
        Recommended by:
        julifolo, Seneca Doane, whaddaya

        procedure, but I'm not sure what that would accomplish, other than highlighting the absurdity of separate methods of legally recognizing unions. Proposition 8, as an amendment to the CA constitution will trump legislation aimed at reversing its effect, much like an article of or amendment to the United States Constitution cannot be circumvented by Congressional action.

        -1.50, -3.95 | VA 2009: Deeds / Wagner / Shannon

        by Red Sox on Tue May 26, 2009 at 12:24:34 PM PDT

        [ Parent ]

        •  the decision only restricted the use of the WORD (0+ / 0-)

          not the benefits of civil unions - or at least so said several commentators..

          IMHO - civil union is the better term - if a couple wants "marriage", they should ALSO go to church or synagogue or temple or...

      •  They *could* (5+ / 0-)
        Recommended by:
        Seneca Doane, brein, MarkMarvin, whaddaya, lyta

        Of course, by doing so they'd be denying Californians access to the federal benefits of marriage and create all sorts of difficulties for married couples who moved from CA to another state.  

        This is why a federal showdown is inevitable, because that has been happening to gay couples.  But there's no way in hell the California legislature is going to do that.  Nor should they.  

        What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

        by Alec82 on Tue May 26, 2009 at 12:38:45 PM PDT

        [ Parent ]

  •  Can you quote the page not paraphrase? (11+ / 0-)

    I'm reccing this provisionally, because I hope it's true, and because it'll really screw with righties' heads.

    You're better off reading Josh Marshall in the first place.

    by Inland on Tue May 26, 2009 at 12:07:31 PM PDT

    •  Here's pages 36-37 (15+ / 0-)

      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.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 12:17:33 PM PDT

      [ Parent ]

    •  Here's the text: (6+ / 0-)

      [W]e 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 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.

      I think Seneca is making more of this than it deserves, though. Yes, the court is declaring that it's only the word "marriage," and not the substantive rights, that Prop 8 has knocked out--but given that California has offered domestic partnerships for many years, that's hardly a step forward.

  •  a rose by any other name smell as sweet? n/t (5+ / 0-)
    Recommended by:
    Cedwyn, lgmcp, pgm 01, Seneca Doane, whaddaya

    "be a loyal plastic robot boy in a world that doesn't care" - Frank Zappa

    by Unbozo on Tue May 26, 2009 at 12:08:46 PM PDT

  •  Leave it to a lawyer to make lemonade (10+ / 0-)

    out of lemons!

    I have no special talents. I am only passionately curious. ~Albert Einstein

    by Civil Writes Activist on Tue May 26, 2009 at 12:09:52 PM PDT

  •  TT (Tangential Topic) (18+ / 0-)

    I don't get how a document can be a "constitution" if it's changed by a simple majority vote. It just looks like some laws in a different folder to me.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Tue May 26, 2009 at 12:10:28 PM PDT

  •  Civil Unions... (12+ / 0-)

    Again, I say that we should all have civil unions for court records and legal rights, and leave marriage definitions to religions.

    I got married in a civil court, and I am not offended by being in a civil union with my wife.  In fact, as an agnostic, I prefer it.

  •  I voted "other". (15+ / 0-)
    One of your choices is that "the label mattered more than the substance".  You've completely missed an important point:  for an institution this basic and fundamental, label is substance.

    This water fountain, and that water fountain both dispensed the same 'substance', but removing the ugly labels which perpetuated racial discrimination was an important step forward.  

    California has returned to the Plessy vs. Ferguson era of separate-but-equal institutions, and nothing on page 36, or any other page, negates the fact that the institutions of marriage and domestic partnership are separate.

    In 79 AD, the GOP platform included Vesuvius denial.

    by osterizer on Tue May 26, 2009 at 12:13:11 PM PDT

    •  Well said. (4+ / 0-)

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Tue May 26, 2009 at 12:18:14 PM PDT

      [ Parent ]

    •  Don't take it too far. (3+ / 0-)
      Recommended by:
      Seneca Doane, Pris from LA, lyta

      "Separate but equal" as applied to segregation based on race also applies to the difference between existing civil unions and marriages, but not in the case where 'civil unions' and 'marriages' confer identical rights.

      Under "separate but equal," racial minorities--specifically blacks--did not have the same rights as whites to access the same physical, substantive things (water fountains, schools, etc.). But under a legal regime in which "civil unions" and "marriages" confer identical rights this isn't so.

      If two homosexual people can file taxes jointly, have a say in medical care, etc., by going through exactly the same legal procedure as two heterosexual people, but merely have their state-sanctioned relationship called something else, then there isn't really a "separate but equal" condition at play. Moreover, the state-granted label has absolutely zilch to do with whether a homosexual in a "civil union" calls his or her partner "husband" or "wife" or "partner." The label matters in the very long scheme of things, but as far as addressing the more immediate need of equal rights it's relatively inconsequential.

      •  I disagree with your premise. (2+ / 0-)
        Recommended by:
        billlaurelMD, brein
        You write,

        but not in the case where 'civil unions' and 'marriages' confer identical rights.

        I reject your implicit assumption that civil unions and marriages confer identical rights.  Civil unions are available to all couples, including opposite-sex couples, but they don't confer any federal rights, because they are not "marriages".  So, even among opposite-sex couples, they're unequal.  In the future, when the federal government comes to its senses on marriage equality, couples who are civil-unioned may not be 'grandfathered in'.  That's a tangible right that civil unions do not, and cannot, convey.

        An important intangible right is also not conveyed by civil unions -- the right to equal dignity.  There aren't any legal distinctions between a high school diploma and a GED, but there are some definite cultural attitudes that attach to these credentials.  As long as civil unions have a different name from marriage, same-sex couples will be barred from the millenia of favorable cultural attitudes that have attached to the word 'marriage'.

        Would you join a whites-only country club? Then would you marry in the United States?

        by osterizer on Tue May 26, 2009 at 12:44:56 PM PDT

        [ Parent ]

        •  Federal law doesnt' care what we call it. (2+ / 0-)
          Recommended by:
          Seneca Doane, whaddaya

          Civil unions are available to all couples, including opposite-sex couples, but they don't confer any federal rights, because they are not "marriages".

          No, the federal government doesn't recognize same sex anything, no matter if it's called a marriage or union.  That's DOMA.

          http://en.wikipedia.org/...

          You're better off reading Josh Marshall in the first place.

          by Inland on Tue May 26, 2009 at 12:58:17 PM PDT

          [ Parent ]

        •  I didn't have an implicit assumption. (0+ / 0-)

          "I reject your implicit assumption that civil unions and marriages confer identical rights. "

          Note what I actually wrote:

          "'Separate but equal' as applied to segregation based on race also applies to the difference between existing civil unions and marriages, but not in the case where 'civil unions' and 'marriages' confer identical rights."

          I explicitly noted that existing civil unions are not equal in any way to existing marriages.

    •  With respect, you have it backwards (8+ / 0-)

      What you have now, under your analogy, is one water fountain.  When a white person drinks a sign comes up that says "this is a white water fountain."  When the black person standing next in line comes up and drinks, the sign says "this is something other than a white water fountain."  But anyone who tries to treat it as other than the same water fountain gets a ton of bricks dropped on them.

      The sign is stupid.  We should get rid of the sign.  But the court refused to say that there are, in reality, two different water fountains.  That's huge.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 12:47:33 PM PDT

      [ Parent ]

      •  How can someone request a "formerly known as (4+ / 0-)
        Recommended by:
        lirtydies, julifolo, Seneca Doane, ancblu

        marriage" in California if they can't say (and I mean request the LEGAL function of) marriage?  

        Yes, your honor, I want one of those M-word thingies, but we'll call it Tomato Juice today.

        Will the option for a non-Marriage marriage (and I don't mean a Civil Union!) be actually provided?  Your reading says that the needle COULD be threaded that way, but WILL IT?

        I'm not so sanguine about that.

        Nice analysis, btw.

        Happy little moron, Lucky little man.
        I wish I was a moron, MY GOD, Perhaps I am!
        -Spike Milligan

        by polecat on Tue May 26, 2009 at 12:53:43 PM PDT

        [ Parent ]

      •  No. No. No. (3+ / 0-)
        Recommended by:
        julifolo, brein, ancblu
        I don't at all agree with this, and I've made the case in my reply to Malamaureus's comment above.  

        The name is important.  Suppose California passed an amendment that called my children 'sons' and 'daughters' but called your children 'parasites'.  And while our children had the same right to a public education, your children had to check the 'parasite' box on forms, and were addressed as 'parasites' by public employees.  

        Would you consider that to be the "same water fountain"?  Would you not be insisting that equal rights included the right to the same name?

        Your 'water fountain', Seneca, is given a name that has millenia of positive and favorable connotations associated with it.  Generations of poets, playwrights, and composers have produced mountains of art celebrating your water fountain. You have Romeo and Juliet, Shariar and Sheherezade, Ricky and Lucy, Mickey and Minnie.  We have Adam and Steve.  You can't claim that our water fountain has the same cultural respect or social dignity.

        Would you join a whites-only country club? Then would you marry in the United States?

        by osterizer on Tue May 26, 2009 at 01:07:26 PM PDT

        [ Parent ]

        •  You have a (very limited) point (1+ / 0-)
          Recommended by:
          Seneca Doane

          I also addressed that point in my comment which you chose to ignore and pretend that I wrote something else: the near term equality of rights is far more important and meaningful than the long-term "dignity of the same label" argument.

          Consider this: suppose instead of calling what we now call "civil unions" "civil unions," we start calling them "marriage." Does that mean they're suddenly equal? Of course not. The label has power in a far more abstract and less tangibly meaningful way than the actual rights conferred by what we currently call marriage. Changing "civil unions" so that "civil unions" confer exactly the same rights as those conferred by "marriage" leaves only the label left, and that can be remedied given time.

          I guess it's a matter of priority. I believe that it is possible to make meaningful, real progress toward legitimately equal rights without worrying about the particular semantics of marriage. Some, such as yourself, apparently believe that it's of dire importance that everything happen at once. That's fine; it's a matter largely of personal opinion. However one opinion recognizes the realities of the American political landscape and the other either ignores it or is ignorant of it (or both).

          True equality for minorities has yet to develop completely in this country, and there has been a long and well-documented, progressive fight to achieve the goal. Expecting instance and complete change on this matter is, frankly, irrational and absurd.

          •  I'm still not persuaded. (0+ / 0-)
            You write,

            Changing "civil unions" so that "civil unions" confer exactly the same rights as those conferred by "marriage" leaves only the label left, and that can be remedied given time.

            as if such a thing were possible.  I believe that it is impossible per se to craft something that has "exactly" the same rights as those conferred by marriage without calling it marriage.  

            At best, it's possible only to craft a parallel status that has no statutory distinctions, but I think it's narrow to envision that all of our rights are enumerated in statutes.

            Would you join a whites-only country club? Then would you marry in the United States?

            by osterizer on Tue May 26, 2009 at 01:56:18 PM PDT

            [ Parent ]

            •  You can believe anything you like. (0+ / 0-)

              I think your insistence on effectively meaningless--from a legal standpoint--linguistic change in addition to actual, real, legal equality, only hampers efforts toward actual, as opposed to semantic and therefore fanciful, equality.

              The question of whether all our rights are enumerated in statutes is a non-sequitir.

              I suppose we'll just have to agree to disagree on this point. I'm happy to do so, as it isn't going to impact how vigorously I fight for equality.

            •  Why??? (0+ / 0-)
              Based on this they could literally use the term wedded or matrimony for anyone. They all mean the exact same thing, the state of California could simply just change the term to one of the above for all couples and be done with it.

              What we do for ourselves dies with us, what we do for others and the world remains and is immortal. (Albert Pine)

              by laughingriver on Tue May 26, 2009 at 02:25:21 PM PDT

              [ Parent ]

              •  They can't do that. (1+ / 0-)
                Recommended by:
                julifolo
                The word "marriage" permeates not just California law, but federal law as well.  As well, the federal constitution requires California to recognize out-of-state (opposite sex) marriages unconditionally.

                They can't legally just do away with the word marriage.

                But on a more practical basis: would any politician ever dare propose this anyway?  

                Would you join a whites-only country club? Then would you marry in the United States?

                by osterizer on Tue May 26, 2009 at 02:51:55 PM PDT

                [ Parent ]

                •  I did not say do away... (1+ / 0-)
                  Recommended by:
                  julifolo

                  with it, but they could easily write into law that the term "mariage" applies to only opposite sex couples entered into union after november 8th, 2008 and the term "wedded" or "matrimony" can be used for any couple entering into union as a alternate to the term "mariage".

                  And the reasoning is because of the legal complications that are going to arise from this, the only solution for california at this point given the contradictions is to find another word and allow it to be applied to anyone who wants to use it as a term for an officially recognized union between two people by the state...

                  What we do for ourselves dies with us, what we do for others and the world remains and is immortal. (Albert Pine)

                  by laughingriver on Tue May 26, 2009 at 03:41:41 PM PDT

                  [ Parent ]

                •  If they did do away with it, (3+ / 0-)
                  Recommended by:
                  Hummingbird, osterizer, julifolo

                  it would force a federal confrontation about DOMA. Disenfranchising 13% of all Americans from marriage benefits? That will NEVER fly. The federal government will have to give in if everyone in California has a civil union and not a marriage.

                  Bureaucrats and politicians are married to semantics. So let's exploit that weakness.

                  There is an art to teaching that is independent of the subject matter. - daveinojai

                  by Killer of Sacred Cows on Tue May 26, 2009 at 05:57:55 PM PDT

                  [ Parent ]

        •  I didn't say that labels are UNimportant (0+ / 0-)

          They are important.  Prop 8 is an insult.  It should be repealed.

          However, it is not nearly the same as having segregated schools.  Really, the comparison is sort of obscene.

          The other thing you're missing is that we can control a great deal of how labels are deployed.  Prop 8 said the state can't call it "marriage"?  We can still press for domestic partners to be called "spouses" by the state, and we can call it "marriage" ourselves.  What the state calls it is not determinative of what it is, and it's not determinative of what everyone but the state calls it.

          They tortured people to get false confessions to fraudulently justify invasion of Iraq.

          by Seneca Doane on Tue May 26, 2009 at 10:44:36 PM PDT

          [ Parent ]

  •  I would have agreed (9+ / 0-)

    But then I read the dissent.  And although IANAL, I think Moreno nailed it....and the majority.

    •  Moreno is right - absolutely (9+ / 0-)

      But looking at this from the viewpoint of a court taking on some of the conflict of laws stuff that will now arise - I think this'll be a short, and Pyrrhic "victory" for Pro-8.

      There's mutually-exclusive laws here, and they will end up in court. The Supremes made it very, very clear what they did  - and did NOT - do with this decision.

      It's almost as good as JR getting shot on the last episode of "Dallas" that season. (I know. I'm dating myself. Last time I had a TV...) This leaves the door open for good things to come.

      And - as much as it sickens me to say this, I don't see how they could've tackled the issue otherwise, once they declined to take it as a constitutional revision, rather than merely an amendment. (And I do believe, after reading the precedent cases where they addressed those questions, that they were following precedent well in declining the "revision" path.)

      I'm glad you're still married, as well as my not-bro and his husband, and roughly 17,998 other couples. Now it's a matter of taking care of the conflicts presented today, as well as the dual path of getting on the ballot in 2010.

      "I like to go into Marshall Field's in Chicago just to see all the things there are in the world that I do not want." M. Madeleva, C.S.C.

      by paxpdx on Tue May 26, 2009 at 12:22:30 PM PDT

      [ Parent ]

    •  Moreno's dissent isn't the law (1+ / 0-)
      Recommended by:
      whaddaya

      George's opinion is the law.  Until we overturn Prop 8, do you really object to the notion -- which I think is pretty clear -- that a civil union document now marries you in all but name, and that everyone but the state can call it marriage?  If you like that reality -- if you like the heartburn it will cause the h8rs -- then get on board and proclaim the law.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 12:49:43 PM PDT

      [ Parent ]

    •  OK, but note where Moreno agrees with the majy (7+ / 0-)

      I also agree with the majority opinion that Proposition 8 does not entirely repeal or abrogate a same-sex couple’s substantive state constitutional right to marry as set forth in the Marriage Cases, but rather carves out an exception by "reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples."

      Moreno p. 2 / PDF p. 152

      Moreno cites p. 7 of the majority opinion, which says inter alia:

      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.

      If "all" means "all," then methinks Seneca Doane has made a good point.

      •  I disagree--we already HAD full DP rights (0+ / 0-)

        I don't think Seneca Doane quite understands what the litigation over In Re Marriage Cases was all about...

        It is entirely about having the word marriage given to the relationship that the state of California allows same-sex couples to enter into.
        That legal entity is called a CA domestic partnership but is NOT the same thing as a marriage, even though it gives ALL of the rights and responsibilities the state of California can assign it simply because it is NOT CALLED a marriage!

        •  So let's call it a marriage (0+ / 0-)

          Prop 8 doesn't bind us.

          If you look at the language of Prop 8, and imagine what Antonin Scalia could have done in construing it, I think you will see how bad this could have turned out.

          They tortured people to get false confessions to fraudulently justify invasion of Iraq.

          by Seneca Doane on Tue May 26, 2009 at 10:46:56 PM PDT

          [ Parent ]

  •  Glad to see this... (16+ / 0-)

    IAAL (non-practicing) - and I'm skimming through the opinion when I'm supposed to be doing my Day Job. What I'm seeing is analysis that tells me that the Catholic hierarchy & LDS leadership spent $40M to buy themselves a word - "marriage".

    Not that it's OK that only their chosen people can have that word, mind you - but what we have here is now a classic case of "separate but equal".

    I predict that as more and more people and commentators delve into the decision, it'll be more of a glass half-full.

    I expect the bottom-crawlers over at RedState, etc., to "get it" a few days later, though. The opinion does use big words, and it's pretty long.

    I don't believe they won.

    "I like to go into Marshall Field's in Chicago just to see all the things there are in the world that I do not want." M. Madeleva, C.S.C.

    by paxpdx on Tue May 26, 2009 at 12:17:12 PM PDT

  •  by their own logic this is a huge loss for YesOn8 (14+ / 0-)

    the narrow reading of Prop8's effects combined with the 18000 legal gay marriages left standing mean that all of the stuff they tried to scare voters with must certainly come to pass, no?

    religious liberty and impressionable schoolchildren are no more "protected" than before! by their own logic, they've succeeded in nothing more than sunsetting legal gay marriage like maybe 70-80 years from now when the last legal couple dies out.

    "I don't think they're going to be any more successful in 2010" -Yes On 8 co-manager

    by jethropalerobber on Tue May 26, 2009 at 12:17:27 PM PDT

    •  i now see Savage is sounding similar note... (4+ / 0-)

      if the anti-marriage people do not now push a constitutional amendment to anull the 18000 gay marriages, they stand exposed as lying hypocrites (my paraphrase).

      the wolf is now in the house to stay and they're going to claim they're satisfied that they've barred the door?!

      "I don't think they're going to be any more successful in 2010" -Yes On 8 co-manager

      by jethropalerobber on Tue May 26, 2009 at 12:28:27 PM PDT

      [ Parent ]

    •  And in a few decades many of the OLD religous (0+ / 0-)

      people who did this will have passed away as well. But it seems they have been able to in shrine separate but equal in our Constitution and I am not okay with that. Prop 8 has to be repealed. I for one would be much happier if my hubby and I had a civil union over a marriage. I prefer this non religious recognition of what is really a social institution as opposed to a religious one. I just don't see my marriage as a religious thing.

      Insulin in Ca public schools ruling STAYED during appeal. Great ruling for 15,000 diabetic students. http://preview.tinyurl.com/dxafql

      by foggycity on Tue May 26, 2009 at 08:37:11 PM PDT

      [ Parent ]

  •  Dude. (4+ / 0-)
    Recommended by:
    billlaurelMD, Rieux, lirtydies, johnnygunn

    This just establishes separate but equal. That's no victory.

    Palin: I can see Russia from my house! Obama: I can see Lafayette Park from mine.

    by Attorney at Arms on Tue May 26, 2009 at 12:23:03 PM PDT

    •  and we know what happened to (2+ / 0-)
      Recommended by:
      lirtydies, Killer of Sacred Cows

      separate but equal the last time (schools).  

      It was sunk by the courts in a manner that would have done the US Navy proud.  

    •  Of course it is. (6+ / 0-)

      For example, a person in a marij whose partner dies has the same rights in intestacy.  That's a victory.

      Has the same right to be at the hospital bed.  That's a victory.

      Has the same rights in a divorce.  That's a victory, believe it or not.

      These are rights by which people's lives are changed.  What it's called in the statute book....not so much.   You know we don't have divorces in Illinois anymore, according to statute?  I don't think anyone cares.

      You're better off reading Josh Marshall in the first place.

      by Inland on Tue May 26, 2009 at 12:43:19 PM PDT

      [ Parent ]

    •  No it doesn't (4+ / 0-)
      Recommended by:
      Nim, AlyoshaKaramazov, brein, MarkMarvin

      A couple that gets marreed is married, and everyone can say so but the state.

      A Black child, by contrast, could not fiat his way into a white school.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 12:51:26 PM PDT

      [ Parent ]

      •  and the feds. (0+ / 0-)

        And therein lies the rub. And you are presuming to know how future courts will rule on the distinct issue you are talking about. You don't know what they will say. You're guessing.

        Elsewhere you've said they didn't "touch" equal protection, right? (Maybe that wasn't you...) whoever said that hasn't read the opinion. It's dealt with at length starting at page 2.

        Palin: I can see Russia from my house! Obama: I can see Lafayette Park from mine.

        by Attorney at Arms on Tue May 26, 2009 at 02:20:45 PM PDT

        [ Parent ]

        •  I'm making an argument based on the text (0+ / 0-)

          I make no apologies for being an advocate for a position here.  Should I?

          Do you really think we're better off saying "Oh, woe is us, the court whipped us 6-1?"  Or do you think we're better off noting that this decision is nothing near what it might have been, that it reduces Prop 8 to the most ridiculous and formalistic statement, and that we can and should press and win test cases all over the place to press our point?

          I mean, seriously -- the Official Anti-Prop 8 Party Line here seems self-defeating.  Replying on pathos may or may not work.  Dressing Prop 8 in a clown suit?  I like it!

          They tortured people to get false confessions to fraudulently justify invasion of Iraq.

          by Seneca Doane on Tue May 26, 2009 at 10:50:37 PM PDT

          [ Parent ]

  •  What a nonsensical opinion. (1+ / 0-)
    Recommended by:
    lirtydies

    So now I see justice in California as even more of a joke.

  •  Thanks for the superb writing (6+ / 0-)

    and the note of much-needed, albeit qualified, optimism.

  •  What we seem to be saying here (2+ / 0-)
    Recommended by:
    HeyMikey, FarWestGirl

    Is that labels don't matter, and that equal protection under the law is offered to same sex couples, even if we're not going to call their monogamous homosexual relationship a 'marriage'.

    How'd I do?

    Justice, mercy, tolerance, hope, love, grace, and redemption are all Judeo-Christian values.

    by Benintn on Tue May 26, 2009 at 12:25:01 PM PDT

    •  It's more than that (11+ / 0-)

      It's also, "maybe we can't call a rose a rose, but it's a rose nevertheless."  The State must give me as a gay man the right to enter something identical to marriage -- all the rights, all the obligations, all the tax benefits, all the whatever else -- the state just can't use the word "marriage" when it discusses this right.  From a logical point of view, it is an incredibly stupid result.  From a legal point of view, I don't like it.  From a political point of view, I want to repeal Proposition 8.  From a tactical point of view, the lawyers who attacked Prop 8 preserved quite a bit for the gays and lesbians in the state.  Kudos go to them.

    •  WE CAN CALL IT MARRIAGE (13+ / 0-)

      It is marriage and we can call it what it is.  Prop 8 only enjoins the state.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 12:52:16 PM PDT

      [ Parent ]

      •  If the "LABEL" has been enjoined, how does (1+ / 0-)
        Recommended by:
        FarWestGirl

        the state provide the service and document the legal status?

        Happy little moron, Lucky little man.
        I wish I was a moron, MY GOD, Perhaps I am!
        -Spike Milligan

        by polecat on Tue May 26, 2009 at 12:54:49 PM PDT

        [ Parent ]

        •  Basically, you would take all the laws that say (2+ / 0-)
          Recommended by:
          Seneca Doane, FarWestGirl

          the word "marriage," and whatever you call the legal relationship between same sex partners (I like the idea of something like "merriage"), arguably the two Supreme Court opinions read together mean that everywhere the law says "marriage," then you just substitute the word "merriage" in its place in terms of how "merriage" works.  So you'd get a "merriage" certificate and get "merried" by magistrate or clergy, etc.  In fact, the language on 36-37 seems to indicate that you HAVE to do this, and if whatever civil union/merriage law exists in California does not function this way, then you could sue.

          "Even if we cannot hope to complete the task, we are not allowed to shirk it." - Jewish Saying

          by rameyko on Tue May 26, 2009 at 03:28:35 PM PDT

          [ Parent ]

          •  Somebody has to ISSUE the "merriage" cert. (2+ / 0-)
            Recommended by:
            julifolo, FarWestGirl

            Somebody has to perform the administrative end of aforementioned the-same-but-for-the-name process.

            The ball is in the State's court.  They COULD do what the diarist proposes.  But that doesn't mean it is a done deal.  There is no legislative end forcing the Kalifornia executive to act.  And he might not.

            Happy little moron, Lucky little man.
            I wish I was a moron, MY GOD, Perhaps I am!
            -Spike Milligan

            by polecat on Tue May 26, 2009 at 06:16:52 PM PDT

            [ Parent ]

            •  No, it's not a done deal (1+ / 0-)
              Recommended by:
              polecat

              We have to push for it, rather than simply follow the strategy of being aggrieved.  This is, in my view, pretty much what Gavin Newsom did; that turned out OK.

              They tortured people to get false confessions to fraudulently justify invasion of Iraq.

              by Seneca Doane on Tue May 26, 2009 at 10:52:10 PM PDT

              [ Parent ]

      •  Sorry - but the state and the laws are everything (1+ / 0-)
        Recommended by:
        julifolo

        The haters won something with Prop 8.  We need to win it back. saying we can still call it marriage is precisely walking into the Mormon playbook: "you can call it marriage in private, why do you need to bother the rest of us with it?"

      •  doesn't matter what WE call it-who will recognize (0+ / 0-)

        It matters what the federal government and other states will call it...and whether they will recognize it

  •  Wow. Thank you for putting in that last part (5+ / 0-)

    where you quote from the opinion. It reconfirms my sense that I probably need to stay as far away from the law as possible! :-) I can't make it all the way through some of the sentences and manage to remember what the main subject and verb are.

  •  Who lost? (4+ / 0-)
    Recommended by:
    musing85, Rieux, lirtydies, axel000

    As a whole, the American people lost today, as the ghost of Plessy has again been embraced by the judiciary.

    "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

    by jlynne on Tue May 26, 2009 at 12:26:17 PM PDT

  •  I can't believe I'm gonna say this... (10+ / 0-)

    but, thank god for lawyers.  Even after reading it I still don't know what it says, thanks.

    What Would Jesus Do? Obviously get Jack Bauer to torture someone!

    by Dahankster on Tue May 26, 2009 at 12:29:27 PM PDT

  •  You know very well (13+ / 0-)

    that there are times I disagree with you -- but more times I believe you are spot on.  Fine diary.  Thank you.

  •  It still sucks (6+ / 0-)

    And it's cold comfort to my friends in California.  But it's good to know that this is at best a Pyrrhic victory for the forces of inequality.

  •  Absolutely Right (18+ / 0-)

    I am a CA lawyer and have skimmed the majority opinion (I skipped all the historical stuff), and read the concurrence and the dissent.  I would have signed on with Moreno, and at a philosophical level, I hate the majority discussion about revision/amendment.  It seems to me the concurrence is better argued on that point.  

    However, on the question of interpreting Prop 8, Seneca Doane is right.  In essence, the Court unanimously said that gays and lesbians in California have the right to a statute saying "We hereby create a relationship called 'A Two-Person Relationship We Can't Call Marriage.' People in this new relationship are entitled automatically to every single substantive benefit of every single California state and local law that people in a relationship called 'Marriage' get, including the right to go to Massachussetts, Connecticut, etc. and have the name of their relationship changed to 'Marriage.'"  The Court then basically said, and if the Legislature doesn't adopt something like that, we will interpret the existing Constitution to make sure gays and lesbians get those rights anyway.

    Along with pushing for the repeal of Prop 8, Californians should get the Legislature cracking on formalizing this law.  Lord knows the CA Legislature is dysfunctional, but this should only require a majority vote, and Arnie has no choice but to sign it....  There are also some weird Full Faith and Credit issues -- how the devil is Massachussetts supposed to give Full Faith and Credit to the new relationship -- but nothing that cannot be solved.  

    All said, it is probably the best outcome we could have reasonably expected from this Court.

    •  Call it a Dierram (4+ / 0-)
      Recommended by:
      cwech, Seneca Doane, brein, MarkMarvin

      ... "married" spelled backwards.  It rhymes with Dear One, and it's easy to remember, and if you use a mirror, it's the exact same thing.

      If y'all need a word while the state of CA has you stuck in a holding pattern over the airport, this one would work.  

      "Toads of Glory, slugs of joy... as he trotted down the path before a dragon ate him"-Alex Hall/ Stop McClintock

      by AmericanRiverCanyon on Tue May 26, 2009 at 12:48:21 PM PDT

      [ Parent ]

    •  But can we still say (1+ / 0-)
      Recommended by:
      Killer of Sacred Cows

      this falls under "separate but equal"?  

      Please help me get to Netroots Nation! Please.

      by Ellinorianne on Tue May 26, 2009 at 12:59:06 PM PDT

      [ Parent ]

      •  Yes, it's Separate But Equal (6+ / 0-)

        I do not like it either.  Once the Court accepts the notion that it has to live with the amendment, however, separate but equal is its only fallback position.

        The outstanding question, and I do not have an answer for it, is whether the Court really means "equal."  The opinion goes to great lengths to essentially say "equal really does mean equal, not like it meant during the days of segregation."  It repeats all the prior language about gays and lesbians being members of a suspect class, that the government must meet the highest standards before treating gays and lesbians differently, etc.  I am willing to put some faith in the Court that it means what it says here.  I do not think the Court liked reaching the decision it did, but the judicial philosophy of its majority regarding "the will of the people" compelled this result.

        Indeed, where this Court blows it, and seriously, is overly exalting the "will of the people" when it is clear that the result is the creation of second-class citizenry.  

    •  Let's take it to the next level, then (3+ / 0-)

      and call it a win for "our" side, and begin insisting on such legislation:

      The Court then basically said, and if the Legislature doesn't adopt something like that, we will interpret the existing Constitution to make sure gays and lesbians get those rights [described] anyway.

      We'll say that Proposition 8 is an entitlement for Gay and Lesbian unions, that this interpretation comes down from the California Supreme Court, and that the next step is to formalize this into codified law.

      In other words, we'll use their $85 million dollars against them, all in the name of their own Propositon 8.

      They tortured the lies right out of them.

      by thenekkidtruth on Tue May 26, 2009 at 02:06:44 PM PDT

      [ Parent ]

  •  Excuse me if I don't get this... (3+ / 0-)
    Recommended by:
    polecat, julifolo, leonard145b

    But I thought one of the main issues over Prop 8 was that, while Civil Unions are afforded all the rights of marriages inside of CA, they don't get equally protected status outside of the state. When a partnership is recognized as a marriage by a state, it must be treated as even outside of that state.

    So how is it that, as you said in the diary, a couple with a domestic partnership/civil union in CA can make it into a "marriage" as soon as they leave the state? Or do I not fully understand how states recognize marriages and CU/DPs?

    I own half a house- it's a duo.

    by EsnRedshirt on Tue May 26, 2009 at 12:39:38 PM PDT

    •  You aren't the only one confused (2+ / 0-)
      Recommended by:
      julifolo, leonard145b

      There may have be some work between CA and the states that recognize same-sex marriage to say that these other states will recognize the new relationship as a marriage.  If the only difference is CA says "merrridge" and Massachussets says "marriage," it's hard for me to see that this is a problem.  The Domestic Partnership issue created a problem because it clearly was "not" a marriage in all but name.  This new relationship is much different.  I suspect we need some time for this to settle out.  Hopefully, Prop 8 will be repealed by then, and we do not have to sort out this legal mess.

    •  *In re Marriage Cases* says that (3+ / 0-)

      they have to be able to obtain all the rights and privileges of marriage.  If a civil union is how we do it, fine, but it's still a marriage, and we can call it one and demand it be treated as one, even if the state can't call it a marriage.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 12:56:08 PM PDT

      [ Parent ]

    •  This didn't make many headlines but... (1+ / 0-)
      Recommended by:
      Seneca Doane

      here in Washington DC, the city council recently voted to recognize same sex marriages from other states. That seems to me to imply that same sex marriages are not automatically recognized outside of the state where they are created.

      If that's true then I think your assertion that

      When a partnership is recognized as a marriage by a state, it must be treated as even outside of that state.

      is probably false.

      I'm pretty sure for example that the states of Georgia and Mississippi don't recognize the same sex marriages from the handful of states that do allow them.

      "crush in it's birth the aristocracy of our monied corporations which dare already to challenge our government" -Thomas Jefferson

      by Phil In Denver on Tue May 26, 2009 at 01:10:50 PM PDT

      [ Parent ]

    •  Outside the state: never in the cards. (I think.) (1+ / 0-)
      Recommended by:
      lyta

      From the diary:

      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.

      I am skeptical the diarist is right about this. Marriage has historically been viewed as an exception to the Full Faith & Credit clause. Examples:

      1. A hetero couple gets married in state A when the wife is age 14, which is legal in state A. The couple moves to state B, in which 14-yr-olds can't get married. State B is NOT required to recognize the marriage.
      1. Hetero cousins get married in state A, which is legal in state A. The couple moves to state B, in which cousins can't get married. State B is NOT required to recognize the marriage.

      Note: state B can CHOOSE to recognize the out-of-state marriage in both these examples; or state B can CHOOSE to call it "voidable" and not necessarily "void." But state B is not REQUIRED by the US Constitution's Full Faith & Credit clause to recognize the out-of-state marriage.

      Disclaimer: though I'm a lawyer, I'll bet the diarist has researched this question more thoroughly and more recently than I have. I fervently hope the diarist will have some reason why I'm wrong.

      "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

      by HeyMikey on Tue May 26, 2009 at 01:24:42 PM PDT

      [ Parent ]

      •  It hasn't yet been adjudicated, and I hope that (0+ / 0-)

        it won't be until one of the five conservatives has been replaced by a liberal.

        A "marrij" probably wouldn't be recognized in any state where gay marriage isn't recognized, but these arrangements should be recognized as such, despite Prop 8, even if our state doesn't do so itself.  That's the difference between "being" something and "being called" something.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 10:58:41 PM PDT

        [ Parent ]

    •  Not since DOMA was enacted. (0+ / 0-)

      When a partnership is recognized as a marriage by a state, it must be treated as even outside of that state.

      Would be nice if this were true, but it's not.

      There is an art to teaching that is independent of the subject matter. - daveinojai

      by Killer of Sacred Cows on Tue May 26, 2009 at 06:03:50 PM PDT

      [ Parent ]

  •  Proposition 9 (5+ / 0-)

    The state of California no longer recognizes the term "marriage" as representing the contract defining officially recognized family relationships.  All such relationships are henceforth declared as "civil unions".  All federal benefits conferred to "marriage" are hereby also applied to "civil unions".  

    (Yeah, I got my degree from Liberty U, but they deny it... :)

    The right to be heard does not automatically include the right to be taken seriously. -- Hubert H. Humphrey

    by Memory Corrupted on Tue May 26, 2009 at 12:40:01 PM PDT

  •  have you read (1+ / 0-)
    Recommended by:
    SallyCat

    Adam B on the Front Page? (Sorry... I am speed reading today, cant digest all this now but I thought I would point it out).

    Buy the ticket, take the ride. ~HST

    by Lady Libertine on Tue May 26, 2009 at 12:40:57 PM PDT

  •  Huh. That's a very intelligent analysis. (2+ / 0-)
    Recommended by:
    Seneca Doane, MarkMarvin

    I'm linking this article on my blog.  Thanks for the illumination.  The word matters, but if we get everything else, and the H8ers get nothing else, then that's not as bad as it could be.

    Visit Sinister, the home of a left-handed left-wing former Okie Jew living in PDX.

    by ethanthej on Tue May 26, 2009 at 12:47:07 PM PDT

  •  If they create a "Mawwiage" (5+ / 0-)

    Me and my wife (hetero couple) will try and get our "marriage" changed to a"mawwiage' as that is the institution that we would rather be assoicated with.

    I will not speak with disrespect of the Republican Party. I always speak with respect of the past. -Woodrow Wilson

    by Gangster Octopus on Tue May 26, 2009 at 12:47:41 PM PDT

  •  Does this help set up a Federal civil rights case (0+ / 0-)

    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, ...

    This passage made me think the court was leaving the door open to proceeding to federal court under an equal protection argument under the US Constitution.

    Could that be where it leads?

    •  It does seem that this is the first move (3+ / 0-)

      in an expected series of moves.

      What remains to be seen is whether the State of California creates the institution of "mawwiage" or decides to do nothing (in which case gay couples are screwed until the 2010 election).

      Happy little moron, Lucky little man.
      I wish I was a moron, MY GOD, Perhaps I am!
      -Spike Milligan

      by polecat on Tue May 26, 2009 at 12:57:35 PM PDT

      [ Parent ]

      •  I don't think gays are screwed (2+ / 0-)
        Recommended by:
        Killer of Sacred Cows, Justus

        A civil union is now a marriage.  Get unified and marrified, all at once!

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Tue May 26, 2009 at 12:59:26 PM PDT

        [ Parent ]

        •  thanks for the diary! I'm still confused though (4+ / 0-)

          As I understand what you're saying a gay person can not  fill out a marriage license because of the word marriage on the form?

          However, the state can offer civil union licenses to anybody which will then offer all the legal protections of marriage, except for the name?  

          Does the state offer these kinds of licenses right now?

          Or is it something going forward cities will be allowed to institute?  

          Right now is there another method to "marry" (Domestic partnership doesn't offer all the same rights as marriage, does it?)?

          Or going forward do cities offer the same type of license just call it something other than a marriage license?

          Will this be the loophole until Prop 8 is repealed?  

          Thanks in advance for taking the time not only to post your diary but to field these kinds of questions.

        •  In the long run, I've no doubt that you are right (1+ / 0-)
          Recommended by:
          julifolo

          but how long will it take for that interpretation to "trickle through" the system?  For that to become accepted fact?

          In the meanwhile, what do people do?  This didn't formally recognize all previous civil unions as non-marriage marriages, did it?

          Hence my skepticism.

          Happy little moron, Lucky little man.
          I wish I was a moron, MY GOD, Perhaps I am!
          -Spike Milligan

          by polecat on Tue May 26, 2009 at 01:31:44 PM PDT

          [ Parent ]

  •  I live in California... (14+ / 0-)

    ...and in a very conservative county.  When gay marriage was allowed, the county where I live in would have no part in it...so it simply stopped doing weddings by judges.  Only one other county in California did that..that was Kern county.  So, if you're really smart, you'll know which county I live in.

    Well, there are lots of folks here who were very Yes on 8.  Now they realize they've only started what they want to happen.

    I've already been asked to sign petitions for propositions to define the word "family," as being only heterosexual.  The aim is to NOT ALLOW same sex couples to adopt children.

    Another petition going around is about NOT ALLOWING single people to adopt children...the intent is to NOT ALLOW unmarried gay couples from having "families."

    Keep your eyes open...they have only just begun.  Since the have successfully "defined the word marriage," they are going to attempt to define more "words" as a way to further take away rights from teh gays.

    "Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences." --Paradise50

    by paradise50 on Tue May 26, 2009 at 12:57:17 PM PDT

  •  They should abolish marriage! (2+ / 0-)
    Recommended by:
    Dave in RI, your neighbor

    In the in re Marriage Cases, the court said that same-sex and opposite-sex relationships had to have equal protection.  Thus, they argued (they, not me) that either both groups were entitled to marriage or neither group was so entitled.  Today's opinion re-affirms that all the rights of marriage still apply to same-sex couples, just not the label.  If the original reasoning still holds, now that same-sex couples can't be "married," it seems that neither can opposite-sex couples.  Both will be entitled to everything that we normally associate with marriage except the label.  That's actually the position I prefer: leave "marriage" to religions and have the state sanction "civil marriages" (with a catchier name) for all.

  •  Can gay/lesbian couples still get a license? (5+ / 0-)
    Recommended by:
    ferg, SneakySnu, oortdust, julifolo, Jyrinx

     Can gay/lesbian couples still get some sort of license like before? If all they don't get is the label marriage, all benefits are still there, I'd be laughing like hell if it were me. I'd be working like heck on the repeal and smacking the Prop Hate backers around with the fact that it had no substantial effect.

    "Not dead ... yet. Still have ... things to do." -Liet Kynes

    by Stranded Wind on Tue May 26, 2009 at 12:58:52 PM PDT

  •  Best Prop 8 Decision diary of the day. nt (7+ / 0-)

    Bah. Typoed during acct creation. It's Ezekiel 23:20

    by Ezekial 23 20 on Tue May 26, 2009 at 01:00:18 PM PDT

    •  here's your Ezekiel 23:20 right here: (0+ / 0-)

      New American Standard Bible (©1995)
      "She lusted after their paramours, whose flesh is like the flesh of donkeys and whose issue is like the issue of horses.

      GOD'S WORD® Translation (©1995)
      She lusted after her lovers, whose genitals were like those of donkeys and whose semen was like that of horses.

      King James Bible
      For she doted upon their paramours, whose flesh is as the flesh of asses, and whose issue is like the issue of horses.

      American King James Version
      For she doted on their paramours, whose flesh is as the flesh of asses, and whose issue is like the issue of horses.

      American Standard Version
      And she doted upon their paramours, whose flesh is as the flesh of asses, and whose issue is like the issue of horses.

      Bible in Basic English
      And she was full of desire for her lovers, whose flesh is like the flesh of asses and whose seed is like the seed of horses.

      Douay-Rheims Bible
      And she was mad with lust after lying with them whose flesh is as the flesh of asses: and whose issue as the issue of horses.

      Darby Bible Translation
      and she lusted after their paramours, whose flesh is as the flesh of asses, and whose issue is as the issue of horses.

      English Revised Version
      And she doted upon their paramours, whose flesh is as the flesh of asses, and whose issue is like the issue of horses.

      Webster's Bible Translation
      For she doted upon their paramours, whose flesh is as the flesh of asses, and whose issue is like the issue of horses.

      World English Bible
      She doted on their paramours, whose flesh is as the flesh of donkeys, and whose issue is like the issue of horses.

      Young's Literal Translation
      And she doteth on their paramours, Whose flesh is the flesh of asses, And the issue of horses -- their issue.

      "Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences." --Paradise50

      by paradise50 on Tue May 26, 2009 at 01:04:31 PM PDT

      [ Parent ]

      •  wth? nt (1+ / 0-)
        Recommended by:
        HeyMikey

        A song about life
        Why aren't you more like Gandhi? Why aren't I?

        by drache on Tue May 26, 2009 at 01:25:57 PM PDT

        [ Parent ]

        •  He looked up my screen name ;) n/t (0+ / 0-)

          Bah. Typoed during acct creation. It's Ezekiel 23:20

          by Ezekial 23 20 on Tue May 26, 2009 at 01:29:04 PM PDT

          [ Parent ]

          •  yeah but I fail to see how that is a response (0+ / 0-)

            that should not be hidden.

            It would seem to be blatant baiting, but I wanted to give the above commenter a chance to explain themselves.

            A song about life
            Why aren't you more like Gandhi? Why aren't I?

            by drache on Tue May 26, 2009 at 01:36:11 PM PDT

            [ Parent ]

            •  Well, given that he didn't say anything further (1+ / 0-)
              Recommended by:
              paradise50

              I don't know whether he just found it amusing, thought I didn't know the verse, or what, shrug.

              Bah. Typoed during acct creation. It's Ezekiel 23:20

              by Ezekial 23 20 on Tue May 26, 2009 at 01:37:51 PM PDT

              [ Parent ]

              •  I was just being amusing... (1+ / 0-)
                Recommended by:
                Ezekial 23 20

                ...in that the verse is rather strange...don't ya think?  I mean what were they really talking about?  You could, if you chose to, interpret it in a number of different ways.

                Sorry to be confusing.  Another point I was trying to make is that that verse is interpreted in so many different, though subtle, ways.  And these quotes are from different versions of the Bible.

                Query...is there ONE TRUE BIBLE?  And how many ways can you interpret each version of each verse in any single Bible.

                So yeah, I was making a little joke...worked about as well as a juke box in a leprosy ward playing, "What's eating you up, baby?"

                "Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences." --Paradise50

                by paradise50 on Tue May 26, 2009 at 05:06:40 PM PDT

                [ Parent ]

                •  Heh (1+ / 0-)
                  Recommended by:
                  Seneca Doane

                  That's part of why I chose it for my handle.

                  I find it incredibly odd that so many people claim to live by the Bible, yet have never actually taken the time to read it all, and realize just how many weird passages there are.

                  Of course old Testament is much more 'fun' than new, from the oddities standpoint.

                  Bah. Typoed during acct creation. It's Ezekiel 23:20

                  by Ezekial 23 20 on Wed May 27, 2009 at 05:50:30 AM PDT

                  [ Parent ]

      •  I know, isn't it great ;) (1+ / 0-)
        Recommended by:
        Seneca Doane

        And another reason the Bible should only be sold to those 18 and up, in a plain brown wrapper ;)

        Bah. Typoed during acct creation. It's Ezekiel 23:20

        by Ezekial 23 20 on Tue May 26, 2009 at 01:28:06 PM PDT

        [ Parent ]

  •  Same-sex couples lost more . . . (6+ / 0-)

    . . . because labels matter:  Civil unions, by whatever cute cartoon name you choose to refer to them, are not afforded all the same legal recognitions as marriages.  And because no one stood up to the Mormon Thuggery and told them it is not okay to strip away other people's civil rights.

    "Americans are a wonderful people: They will always do the right thing--after exhausting every other possible alternative."--Winston Churchill

    by keikekaze on Tue May 26, 2009 at 01:10:38 PM PDT

    •  uh NO (5+ / 0-)

      labels really do not matter.

      If I give you a diamond but call it a strawberry are you going to hand it back and say well I wanted something else?

      You can not change what something fundamentally is just by calling it something else.

      Today was the definition of a Pyrrhic victory for the prop 8 people. As all they 'won' was a word and I do not even expect that 'victory' to last past 2012 (at the most).

      In the end no rights really were stripped away.

      A song about life
      Why aren't you more like Gandhi? Why aren't I?

      by drache on Tue May 26, 2009 at 01:28:52 PM PDT

      [ Parent ]

      •  Sometimes words matter when it comes to (2+ / 0-)
        Recommended by:
        Killer of Sacred Cows, keikekaze

        human relationships.  Try telling a woman you're 'very fond' of her when she wanted you to tell her you love her.

        Barack Obama in the Oval Office. There's a black man who knows his place.

        by Greasy Grant on Tue May 26, 2009 at 02:28:45 PM PDT

        [ Parent ]

      •  um YES (1+ / 0-)
        Recommended by:
        ge0rge

        Labels do matter, because, as I just said above, you don't get the same legal rights with a "civil union" that you get with a marriage.  You don't necessarily get the same spousal rights, inheritance rights, power-of-attorney rights, even hospital-visitation rights as a "partner" that you get as a spouse.  As a partner, you can be denied all the above by anyone determined to deny them to you.

        These things are important, and not to be sniffed away with Pollyanna-ish sophistry.  Marriage is marriage, equality is equality, and nothing less will do.

        "Americans are a wonderful people: They will always do the right thing--after exhausting every other possible alternative."--Winston Churchill

        by keikekaze on Tue May 26, 2009 at 02:42:59 PM PDT

        [ Parent ]

      •  innocent, please (1+ / 0-)
        Recommended by:
        keikekaze

        labels really do not matter.

        So it makes no difference whether I call you a veteran or a victim (of PTSD) ?   Or a threat ?

        It makes no difference whether I call you black vs. African-American?

        Labels are about DISTINCTION.
        The people who insist on different labels are INSISTING on difference in a context where difference IS NOT legitimate.

        There IS a history with this, you know (no,actually, you don't).
        The LABEL for this history is "Separate But Equal".
        There has been a good and relevant
        diary on this.  And if labels didn't matter, I could just call you "idiot" for NOT ALREADY KNOWING THIS before you IGNORANTLY PRESUMED to pontificate.  Bu they do.  So I can't.
        And I won't.  And I haven't.
        Funny how you don't actually feel any better, though, isn't it?

        The road to hell has not YET been paved with Republicans, but it SHOULD be -- Corrected BumperSticker

        by ge0rge on Tue May 26, 2009 at 02:59:20 PM PDT

        [ Parent ]

        •  some of that is meaningless straw men (0+ / 0-)

          that said, what is the difference between black and african american? Mostly it's just preference as I have known people that prefered both labels.

          And seperate but equal is tricky here and it in and of itself (as I a nonlawyer understand the law) a complete argument.

          That said, if I could I would completely remove 'marriage' from the laws books and every would apply for a civil union.

          All that aside, cease and decist your straw men please. 'Labels really do not matter' is not the same thing as 'labels do not matter'.

          Go grow up and learn how to read before you pointless try to insult someone for your hang up and misconception.

          A song about life
          Why aren't you more like Gandhi? Why aren't I?

          by drache on Tue May 26, 2009 at 03:56:59 PM PDT

          [ Parent ]

      •  no, (0+ / 0-)

        Language is important.  BTW, I would rather have the strawberry.

        Language is important because when we all agree on what the terms are, we can UNDERSTAND each other.

    •  Eh, LEGALLY all anyone has in this country (0+ / 0-)

      is a "civil union" I don't think they care so much about the label, as long as they get the RIGHTS.

      A word to the wise ain't necessary, it is the stupid ones who need all the advice.
      My Friend's Facebook Status

      by Muzikal203 on Tue May 26, 2009 at 01:30:30 PM PDT

      [ Parent ]

    •  Then pick a name for them that includes the word (0+ / 0-)

      'marriage'.

      Did Prop 8 outlaw hyphenates or something?

      Gay-marriage. Gay-married. Rub the unions in the right-wing's faces. Make them say the word gay whenever they talk about them, or break their own rule about marriage being man-woman only.

      Drop one of the Rs if there's yowling about it. Prop 8 said nothing about mariage. And it sounds the same, so they'd be right back at the same linguistic choice.

      And then when the US government decides to get around to allowing federal marriage rights to gay couples, go after CA again if the gay-mariages don't count as married for that.

      Can you see this inaugural, Dr. King? Did you see this?

      by Cassandra Waites on Tue May 26, 2009 at 02:41:28 PM PDT

      [ Parent ]

      •  It's a free country with free speech (0+ / 0-)

        Which means ANYbody can call the unions ANYthing they want to.  More to the point, the marriages that took place during the time when they were legal ARE STILL LEGALLY called marriages, and the civil unions taking place outside that window ARE STATUTORILY EQUIVALENT IN ALL but name, at least in theory (in practice, of course, it will be different).

        You call them what they are.
        You call them marriages.
        What the state chooses to call them is, until we win the relevant political battle, simply WRONG.
        This will NOT be the first time the state has been wrong about something; let's just be real about making it right.

        The road to hell has not YET been paved with Republicans, but it SHOULD be -- Corrected BumperSticker

        by ge0rge on Tue May 26, 2009 at 03:01:13 PM PDT

        [ Parent ]

    •  My argument is that (0+ / 0-)

      if they didn't before, they have to now, based on Marriage Cases and Strauss.

      Civil unions, by whatever cute cartoon name you choose to refer to them, are not afforded all the same legal recognitions as marriages.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:05:06 PM PDT

      [ Parent ]

  •  Page 36-7 (0+ / 0-)

    If a gay married couple comes to CA from Iowa, CA does not recognize marriage??  Did CA SCt. set up a full faith and credit challenge to Prop. 8??

    Denial is complicity.

    by Publius2008 on Tue May 26, 2009 at 01:13:13 PM PDT

    •  Hmm.. maybe (2+ / 0-)
      Recommended by:
      Hummingbird, Seneca Doane

      But the more I read of the opinion (on page 83 now, and counting...) the more I have to wonder if they didn't know precisely what they were doing.

      They decided the constitutional principle pretty much as they had to. Same with keeping the 18,000 marriages. And now they're making everything line up carefully with good text for the inevitable sequels.

      And there will be sequels. After all, this is California.

      (Still pissed that 52% of voters thought that it was A-OK to vote to take away rights from others. That's a deeper, more intractable problem, IMHO.)

      "I like to go into Marshall Field's in Chicago just to see all the things there are in the world that I do not want." M. Madeleva, C.S.C.

      by paxpdx on Tue May 26, 2009 at 04:44:14 PM PDT

      [ Parent ]

    •  Unclear (0+ / 0-)

      The current Supreme Court might say that denying the label is not a cognizable harm and would deny standing.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:06:28 PM PDT

      [ Parent ]

  •  Isn't this decision essentially (1+ / 0-)
    Recommended by:
    misreal

    'separate but equal' and isn't that not kosher?

    Picture a bright blue ball just spinnin' spinnin' free. It's dizzy with possibility.

    by lockewasright on Tue May 26, 2009 at 01:14:00 PM PDT

    •  "Separate but equal" was different in my opinion (4+ / 0-)

      if this diary is correct, all that's been changed is the term, not the actual rights. The problem with "separate but equal" was the fact that the African Americans really weren't being treated equal. In every way, they were treated as inferior. If the state of California is still going to give the Gays and Lesbians the same RIGHTS as everyone else, I don't think it matters what it legally can and cannot be called.

      A word to the wise ain't necessary, it is the stupid ones who need all the advice.
      My Friend's Facebook Status

      by Muzikal203 on Tue May 26, 2009 at 01:32:57 PM PDT

      [ Parent ]

      •  Or to the point, this isn't "separate but (4+ / 0-)

        equal", in that it's not separate. It's more like "euphemism but equal"; since according to SD's analysis of the ruling, the CSC very narrowly interpreted Prop 8's nullification of same sex marriage to the state's use of the word.

      •  well, I think it matters some (1+ / 0-)
        Recommended by:
        Seneca Doane

        When it came to "separate but equal," the court emphatically ruled that segregation was inherently unconstitutional. To quote the syllabus: "Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other 'tangible' factors may be equal."

        This truly is "separate but equal," and as such, it stinks. The court, apparently (if Seneca Doane has it right), decided that it couldn't prevent CA voters from doing that, but it can insist that "equal" means equal.

        •  It's not separate but equal, though (1+ / 0-)
          Recommended by:
          Seneca Doane

          In that regime, a black kid can't go to a white school, period, end of discussion. That's separate.

          In this regime, by analogy, a black kid goes to the white school, but the state is required to call the "school" an "educational facility" whenever it refers to a black kid going there. No separation. Just euphemism.

          •  I don't really buy the analogy (1+ / 0-)
            Recommended by:
            Seneca Doane

            If there is any point to establishing multiple names for statuses that confer the same rights, it is to separate the people in one status from the people in the other status. I understand the view that a distinction without a difference isn't truly a distinction, but in real life I think it is.

          •  That's not what separate but equal was (0+ / 0-)

            SBE was the government saying they could have segregation, but the facilities/educational institutions of the African Americans had to be at least as good as the white ones.

            A word to the wise ain't necessary, it is the stupid ones who need all the advice.
            My Friend's Facebook Status

            by Muzikal203 on Tue May 26, 2009 at 02:39:29 PM PDT

            [ Parent ]

      •  Oh, and I think the word does matter, because (0+ / 0-)

        words are symbols, and they influence the way people think.

        But this ruling did seem to eviscerate Prop 8 to everything but that symbol.

  •  Call it a CArriage (3+ / 0-)
    Recommended by:
    nio, Seneca Doane, Muzikal203

    CAlifornia has always been a bit different.

    The invasion of Iraq was a war crime, a crime against humanity, and a crime against civilization itself. Prosecute the crime.

    by Positronicus on Tue May 26, 2009 at 01:22:43 PM PDT

  •  I don't get what the big damn deal is about the (1+ / 0-)
    Recommended by:
    Seneca Doane

    word "marriage" anyway. It's just a word.

    Speaking of words, I'm fixing your tags, I have no idea what the California Supreme "Sourt" is. LOL

    A word to the wise ain't necessary, it is the stupid ones who need all the advice.
    My Friend's Facebook Status

    by Muzikal203 on Tue May 26, 2009 at 01:29:02 PM PDT

  •  18,000 valid marriages? (1+ / 0-)
    Recommended by:
    tdub

    For me, the weird part of the court decision is the idea of validating the 18,000 marriages that took place prior to the passage of Prop. 8.  This creates two separate classes of people with differing sets of rights-- those who happened to take their vows prior to Prop. 8, and those who weren't fortunate enough to beat the deadline.  Seems to me this is a violation of the Equal Protection clause, and fertile ground for a lawsuit.

    Regulate banks, not bedrooms

    by Eagleye on Tue May 26, 2009 at 01:31:07 PM PDT

    •  What "right" is different? The right to a label? (0+ / 0-)

      I don't think the label is really all that important, we can still fight that fight, but if they get all of the OTHER rights that come with civil unions/marriages (which really are the same damn thing), I think they'll be fine.

      A word to the wise ain't necessary, it is the stupid ones who need all the advice.
      My Friend's Facebook Status

      by Muzikal203 on Tue May 26, 2009 at 01:34:07 PM PDT

      [ Parent ]

    •  No, it would have been weird if the court (0+ / 0-)

      had invalidated those marriages, as that would have directly violated the constitutional prohibition against ex post facto laws.  The court really had no choice on that, even if they had wanted.

    •  Yes, let's hope the Federal courts do the right (0+ / 0-)

      thing when post-Prop-8 "ring-bound" couples point out they are being treated by a different standard (even if it's just that "designation") than the 18,000.

    •  I address this in the diary text (0+ / 0-)

      This is a pretty standard application of a retroactivity analysis where the law doesn't explicitly call for its retroactive application and people affected would be divested of rights on which they had reasonably relied.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:09:30 PM PDT

      [ Parent ]

  •  Let's Call it by the French Word (13+ / 0-)

    Mariage.

    That way the wingnuts can hate it twice:  one for it's gayness and once for being French.

    The moral arc of the universe is long, but it bends towards justice. - Martin Luther King, Jr.

    by easong on Tue May 26, 2009 at 01:37:18 PM PDT

  •  Can I trade in my hetero 'marriage'... (7+ / 0-)

    ... for a hetero 'marrije'?

    I really don't want my relationship with my wife to be defined by something so hateful as fundie politics. You might say that 'marriage' undermines the sanctity of what my wife and I have together.

    'Marrije' on the other hand, is all about love.

    Regards,
    Corporate Dog

    -----
    Still pissed about FISA, but disgusted by the RNC 9/11 video.

    by Corporate Dog on Tue May 26, 2009 at 01:42:27 PM PDT

  •  This was my reading, too. (8+ / 0-)

    I think it comes as a natural consequence of two things: they want to maintain the voters' right to amend the constitution as they did, but they also want to argue that they weren't wrong with in re: Marriages and their decision still stands.  I don't think it's entirely successful - in fact their attempts to continue justifying in re: Marriages seems more bizarre to me than anything - but they're now boxed into a situation where same-sex couples get everything a marriage does but the name.  Which was already kinda the state of the law before the Marriages decision, so the whole thing collapses on itself in a black hole of unreason.

    But ultimately this is a decision that displeases everyone, and is untenable in the long run.  Which is sorta better for our side than at first glance.

    I also thought their avoidance of the issue of out-of-state married couples was kinda funny.  My guess is, that's the lawsuit that'll tear down part of the edifice, because while I can imagine a separate-but-equal system where pre-November marriages are honored but post- are not, I cannot imagine a system where "pre-November marriages performed in the state of California" are honored but "pre-November marriages performed outside the state of California but involving  pre-November California residents" are not.  Can you imagine the clusterfuck involved there?

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Tue May 26, 2009 at 01:42:35 PM PDT

    •  They're trying to have it both ways (2+ / 0-)
      Recommended by:
      pico, Cassandra Waites

      Basically it's a weasel decision with no clear winner.

      So what does the state do now? What do we call it? What is the same-sex equivalent of a marriage license and how do we go about obtaining it?

      Can the same people who perform marriage ceremonies perform the new same-sex version and will the state recognize it or is it just a matter of paperwork with no vows?

      How is this going to work?

      Now is the time to investigate, prosecute, and imprison the former Bush regime. -6.0 -5.33

      by Cali Techie on Tue May 26, 2009 at 02:16:40 PM PDT

      [ Parent ]

      •  You don't have to worry about what to call it (1+ / 0-)
        Recommended by:
        pico

        It is already called "civil union".
        There is no legal difference beyond the name between California civil unions and the actual marriages that were performed back when that was legal.
        The actual still-intact same-sex marriages are still called marriages.  That really does make the whole thing weasely.

        California needs a constitutional convention.
        If this didn't prove it then the budget debacle certainly would.
        Maybe they should re-assert a call FOR A FEDERAL constitutional convention WHILE THEY ARE AT It.

        The road to hell has not YET been paved with Republicans, but it SHOULD be -- Corrected BumperSticker

        by ge0rge on Tue May 26, 2009 at 02:54:21 PM PDT

        [ Parent ]

        •  Civil Union (0+ / 0-)

          is not a legal term in California. I can't find anything that shows it is. You can't go to City Hall and get a Civil Union License, it's a Marriage License. So far the only way to register a relationship outside of marriage with the state is to call it a Domestic Partnership, which is a status also afforded to certain Heterosexual couples.

          What good is having the rights if there's no way to get the state to recognize them?

          I'm a first class taxpayer and a second class citizen. -6.0 -5.33

          by Cali Techie on Wed May 27, 2009 at 08:55:25 AM PDT

          [ Parent ]

          •  There has to be a way to recognize them (0+ / 0-)

            Sometimes you just have to assert the right, like Gavin Newsom did in 2004.

            They tortured people to get false confessions to fraudulently justify invasion of Iraq.

            by Seneca Doane on Wed May 27, 2009 at 09:09:41 AM PDT

            [ Parent ]

            •  If there's no legal term for it (0+ / 0-)

              it's impossible for the state to recognize it and there was no order from the CA Supremes for the state to create the status. They already ruled Domestic Partnership wouldn't cut it.

              So if I'm afforded all the rights, how do I get the state to recognize my relationship with the person I've chosen as my life mate?

              I'm a first class taxpayer and a second class citizen. -6.0 -5.33

              by Cali Techie on Wed May 27, 2009 at 09:15:21 AM PDT

              [ Parent ]

              •  No, it's not impossible for CA to recognize it (0+ / 0-)

                They give it some sort of name.  The rest of us can admit that whatever that is, it's actually marriage.

                They ruled that RDP wouldn't cut it prior to this decision.  This decision, by not taking back all but a small part of Marriage Cases, suggests to me that now RDP has to cut it.  Something has to cut it, per Marriage Cases; RDP is all we have.

                They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                by Seneca Doane on Wed May 27, 2009 at 04:14:19 PM PDT

                [ Parent ]

  •  Enforcement... penalties (2+ / 0-)
    Recommended by:
    Inland, Killer of Sacred Cows

    If, in fact, this ruling means the ONLY difference between gay and straight unions is that certain words can't be used, I've got a question:

    What happens when a gay couple insist on saying, "We're married!" What can anyone do about that? Call the cops? File a lawsuit? What? They gonna be arrested? They gonna be fined? I don't get it...

    "Any dictator would admire the uniformity and obedience of the U.S. media." -- Noam Chomsky

    by ratmach on Tue May 26, 2009 at 01:48:28 PM PDT

    •  Uh, just in case my comment caused any... (2+ / 0-)

      ... confusion, I wanna say this. I am NOT saying the feelings of gay couples (and those who support them) should be taken lightly. I am NOT saying to them, "What's the big deal?" Just the opposite. I'm saying to the Prop8 bigots, "What's the big deal?" I'm saying to THEM, "So what are you gonna do NOW? This thing is unenforcable. You're just making yourselves look more and more idiotic by the day."

      "Any dictator would admire the uniformity and obedience of the U.S. media." -- Noam Chomsky

      by ratmach on Tue May 26, 2009 at 01:53:54 PM PDT

      [ Parent ]

      •  All it means is the state (3+ / 0-)

        can't say same-sex couples are married. What everyone else does isn't covered. Because same-sex couples are entitled to the same rights, the state has to come up with an equal designation and I don't think "domestic partner" or "civil union" (even though that's what all marriages are in the eyes of the state) is going to cover it.

        Probably what will happen is that the State will recognize solemnized committed relationships as a form of legal partnership and stop using all forms of the word "marriage."

        Now is the time to investigate, prosecute, and imprison the former Bush regime. -6.0 -5.33

        by Cali Techie on Tue May 26, 2009 at 02:20:01 PM PDT

        [ Parent ]

    •  Not only can *they* say it, we *all* can say it (1+ / 0-)
      Recommended by:
      ratmach

      And we can mean it.  It's true.  Only the state can't say it.

      As the Court construes it, Prop 8 didn't deal with what things are, only with what they can be called.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:11:36 PM PDT

      [ Parent ]

  •  Marrije. I like it. Only problem is (6+ / 0-)

    most of the Prop 8 supporters probably think that is how you spell marriage.

    -9.0, -8.3 We are getting tired of prying your guns out of your cold, dead hands. --Elayne Boosler

    by SensibleShoes on Tue May 26, 2009 at 01:52:33 PM PDT

  •  This was never about substantive rights (0+ / 0-)

    of the kind that you're referring to.

    California has had substantive domestic partnership laws on the books for years that conferred all of the same state-level rights as regular marriages. If this fight was about that, it was over years ago. The problem is that there are lots of other laws (federal, for example) and cultural practices/norms that are triggered by the word "marriage" so even if state law substantively recognizes the right to form a "family relationship", it still leaves same-sex couples out in the cold, under federal law, not to mention culturally.

    So to say that we "won" because the Court left in place a regime that predates and was not affected by this case, Prop. 8 and/or the In Re Marriage cases is pretty odd in my book. That's like a team that lost in the World Series saying that they really "won" because they still had the pennant.

    •  yes but DPs are routinely ignored (3+ / 0-)

      There are many stories from people being told by hospitals, for example, "we don't do that here" when claiming the right to be with their DP in the ER. Until each and every unenumerated right of marriage is litigated as part of DPs, we won't know for SURE That those rights are the same.

      •  No, I agree there (0+ / 0-)

        but the question is whether this decision has anything to do with that, which Seneca seems to think. I really think he's reading a lot into basically a throwaway line that simply confirms that the decision does not affect the existing recognition of dp rights in California.

      •  That became fundamentally illegal w/ In re marr. (0+ / 0-)

        If it's after that case, and still now, the hospital is behaving as illegally as singling out some married couple & telling them they can't benefit from the policy applicable to all the other married couples.

        (I don't know enough about the legislative limited grant of rights in the CA DP law to say whether it was illegal before In re Marriage Cases.  But after that case there's nothing the legislature can do to take it away if they wanted to.)

    •  I've addressed these sentiments elsewhere above (0+ / 0-)

      No, the fight was not over.  No, we can still call new such relationships "marriage" and the state can indicate to the federal government that they should classify them by substance and not by label.

      This case was as much about substantive rights as the Court wished to make it.  The text of Prop 8 could have been construed expansively or narrowly.  They chose "narrowly."  This could have been much worse.  Prop 8 proponents did not win much of what they thought they would win -- not derecognition of a fundamental right to marry, but only a gag order on the state being able to call it what it is.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:15:47 PM PDT

      [ Parent ]

  •  In a certain sense, I'm proud of the California (3+ / 0-)
    Recommended by:
    Jay C, Seneca Doane, BoxNDox

    courts, which were bound to upload the actions of those idiot voters, but seemed to try to keep some civility in place.

    (-9.88, -8.87) Namaste.

    by liberate on Tue May 26, 2009 at 01:57:38 PM PDT

  •  I'm not a lwayer (4+ / 0-)

    But it looks like the court told the Prop 8 folks "you got the word marriage stripped out, but otherwise it does not mean a damn thing". True, the word matters, but it's a hollow victory for the other side.

    "2012; that sounds like years away." - Sarah Palin

    by RandySF on Tue May 26, 2009 at 02:02:14 PM PDT

  •  Bakke was a good case (1+ / 0-)
    Recommended by:
    According to Fish

    I don't support quotas.

  •  I just wish the US Supreme Court would weigh (2+ / 0-)
    Recommended by:
    Cassandra Waites, La Gitane

    in and do away with all of this state-by-state discrimination.  Separate but equal is not equal and not fair.

    "To kill one person is murder. To kill thousands is foreign policy." Chinese writer Moh-Tze

    by ILean Left on Tue May 26, 2009 at 02:11:45 PM PDT

  •  Today's decision is messy. (3+ / 0-)
    Recommended by:
    bruh1, Seneca Doane, Cassandra Waites

    That is not surprising given the situation. Since the CA supreme court attempted to wade its way through a convoluted chain of reasoning, people who want to find a silver lining of sorts can plausibly do so. People who don't want to find one are not really compelled to do so. I think that the only thing that can be said about this decision with full certainty is that it has not likely made anybody happy.

    The only way the the injustice of this situation will be finally rectified in the current reality is to pass another initiative that fully reverses prop 8. Until that is done, it's pretty much a matter of picking over the bones of a dead horse.

  •  This is the part (0+ / 0-)

    That I think totally eviscerates the tortured logic of the opinion:

    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.

    Eliminating only the right...to equal access to...marriage??  Isn't that what the whole argument was about last year, and is still about over Prop 8????

    This sucks.

    "Mediocrity cannot know excellence." -- Sherlock Holmes

    by La Gitane on Tue May 26, 2009 at 02:17:54 PM PDT

  •  Handfast (3+ / 0-)

    I think this is a scottish term for marriage.

  •  An interesting point (4+ / 0-)

    If Prop 8 only defines the term "marriage" as being between a man and a woman, but does not prohibit a legal union that is indistinguishable from "marriage", except in name, then it is only a "revision" of the constitution and thus only requires a majority vote.

    HOWEVER, if Prop 8 is to be considered a change in the substantial meaning of marriage, then it must be considered an "amendment". In which case, the simple majority vote of a ballot initiative is not enough.

    So the proponents of Prop 8 are in a tough spot: either accept that it only limits the term, but not the substance, in which case it is constitutionally valid, or insist that it has real substance, in which case it was approved by an unconstitutional process.

  •  If not marrijjezz (3+ / 0-)

    How about espousals?  Instead of being married, you can be espoused.  If you look it up in the dictionary, you'll find the definition is...

    Married.

  •  I ws married during that narrow window, (0+ / 0-)

    and I don't see how this decision can stand. How is it that my gay marriage in CA is valid while someone else's is not?

    John Galt is the new Walter Mitty.

    by Bob Love on Tue May 26, 2009 at 02:33:17 PM PDT

    •  You are now legally living on your own (2+ / 0-)
      Recommended by:
      Bob Love, Killer of Sacred Cows

      special island. IMHO, it becomes part of a "separate, but equal" environment.

      Inevitably, that is the Constitutional standpoint from which Prop. 8 should be struck down.

      Today's decision appears to strengthen that line of reasoning by maintaining the status and legality of pre-Prop 8 gay marriages.

      "We are one, after all, you and I, together we suffer, together exist, and forever will recreate each other."
      Teilhard de Chardin

      by exmearden on Tue May 26, 2009 at 03:18:43 PM PDT

      [ Parent ]

    •  I address that in the diary text (0+ / 0-)

      If they had said in the text of Prop 8 "and this applies retroactively to all marriages that occurred prior to the enactment of this initiative" (or some such), then maybe they could have gone after your marriage.  (But maybe not.  Retroactivity law is complicated.)  They didn't do this.  They didn't even mention retroactive applications of the law in the statement in the Voter Guide.  (If they had, maybe it wouldn't have passed!)  So the Supreme Court said: "We don't have to do your dirty work for you and we aren't going to."

      Mazel tov, by the way!

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:21:06 PM PDT

      [ Parent ]

  •  I listened to the oral arguments of this (3+ / 0-)
    Recommended by:
    Eloise, Killer of Sacred Cows, lyta

    case and what I take away from this decision is that the court is strongly urging the legislative branch to change the term "marriage" in civil law to "civil unions" or some other term for all couples.

    Ironically if this occurred, the H8'ers would be "hoisted on their own petard" and will have caused their own worst fears.  Unfortunately, this will never happen.  The only way equality is going to be won back is at the ballot box in 2010.

  •  Methinks the lady doth endorse too much (0+ / 0-)

    Insisting on calling them something else is simply separate but equal, and separate never is equal.

    The road to hell has not YET been paved with Republicans, but it SHOULD be -- Corrected BumperSticker

    by ge0rge on Tue May 26, 2009 at 02:42:23 PM PDT

  •  Wrong diary is recommended (0+ / 0-)

    Prop.-8-and-Plessy-v.-Ferguson
    THIS Is the diary that SHOULD have been rec'd.
    Seneca Doane especially and personally should hurry
    up and goRecDAT before it ages off.
    That's the least that could/should be done by way of atonement.

    The road to hell has not YET been paved with Republicans, but it SHOULD be -- Corrected BumperSticker

    by ge0rge on Tue May 26, 2009 at 02:48:34 PM PDT

  •  Marriage by any other name = Semantic hair split (2+ / 0-)

    Thought-provoking diary, thank you SD... And what an odd knot we seem to be in, in California.

    But I think we'd all be better off pushing for and winning a popular repeal of Prop 8 on the merits of equal rights, no matter how difficult, rather than a solution via legal semantics.

    The sleep of reason brings forth monsters.

    by beijingbetty on Tue May 26, 2009 at 02:49:52 PM PDT

  •  Our counsel arrived at the same conclusion... (7+ / 0-)

    ... Prop 8 is effectively toothless once you get to the meat of the decision. Here is what our counsel came up with: "You may not have had a chance to read the Supreme Court decision on Prop 8 yet, but when you do, consider how narrow it is.  The court determined that the only change effected by Prop 8 is the unavailability of the nomenclature of "marriage" to same sex couples.  In all other respects, the court’s far-reaching Marriage Cases decision that prompted Prop 8 stands, including affirmation of same-sex couples’ constitutional right of privacy, due process, and equal protection.  As to practical impact, Justice Werdegar may have put it most succinctly when she wrote in a concurring opinion, "Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception.  For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains.""

    I'm sorry, the 18k club is not accepting new members at this time.

    by cooper888 on Tue May 26, 2009 at 03:15:14 PM PDT

    •  key sentence... (3+ / 0-)

      For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains.

      Inevitably, this is the opening to defeat Prop 8 in its entirety.

      Obligations to equal protection cannot be met when the "settled law", as Seneca phrases it (though I disagree with nomenclature in this case due to the timeframe of the proposition's passage and the challenges we have seen), segregates and enhances the status of an island of individuals who are effectively unique within their marriage relationship - those who legally married during pre-Prop 8 - and whose marriages have now been upheld by the state.

      "We are one, after all, you and I, together we suffer, together exist, and forever will recreate each other."
      Teilhard de Chardin

      by exmearden on Tue May 26, 2009 at 03:28:49 PM PDT

      [ Parent ]

    •  I'm going out on a limb here, but (0+ / 0-)

      I think that, for all of the talk of George vs. Moreno, years from now Werdegar's opinion may be the one that people remember and quote.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:23:40 PM PDT

      [ Parent ]

    •  I'd love to know which organization this was (0+ / 0-)

      since I have some people above telling me that I am full of beans!

      But I respect your privacy.  Darn it.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:24:29 PM PDT

      [ Parent ]

  •  will the process be the same for all couples? (3+ / 0-)

    When my partner (husband?) & I got domestic-partner'd we filled out a plain little form issued by the Secretary of State and had it notarized at a mailbox/copy center. Then we mailed it in.

    When we got Married last fall we had to go to the Alameda County Recorder's Office and pay a higher fee and fill out much more official-looking stationery and we had to have the Marriage officiated there or by an appropriately deputized agent of the state (we chose a Unitarian minister).

    If it is true that the California Supreme Court decided same sex couples get to have everything but the name will the process now be same for all couples? Will same sex couples get to / have to go to the county recorder and pick up a form that looks identical to the Marriage license except it says Merry-Edge License?

    How friendly will the Supreme Court be to same sex couples who face discrimination because they have a Merry-Edge rather than a Marriage?

  •  What a ridiculous sentence (0+ / 0-)

    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.

    Not one full stop; how is a normal person supposed to  understand that (without reading it sixteen times like I did)?

    "Error is the force that welds men together; truth is communicated to men only by deeds of truth." 0, -9.62

    by The Narrative on Tue May 26, 2009 at 03:21:51 PM PDT

    •  That's Legalize (1+ / 0-)
      Recommended by:
      Seneca Doane

      It is completely impossible for normal people to understand.  Seneca, please clean that up.

      •  oops, Legalese (0+ / 0-)

        Been reading these comments too long today!

      •  I'm not constitutionally entitled to clean it up! (0+ / 0-)

        They said what they said.  You can get the point if you read it this way:

        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, [Prop 8] 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.

        Such a relationship is marriage, regardless of what we can officially call it.

        They tortured people to get false confessions to fraudulently justify invasion of Iraq.

        by Seneca Doane on Wed May 27, 2009 at 09:14:30 AM PDT

        [ Parent ]

  •  Interesting... (1+ / 0-)
    Recommended by:
    Seneca Doane

    and I have to say, a little amusing.

    "Fine, if you insist, they can't call it marriage.  They can still do it, but they'll have to call it some other word."

    I'm not a legal scholar, but I would almost think you could attack Prop 8, under this legal understanding, on 1st Amendment grounds... if you have the right to have the "family relationship", there should be no law telling you what you can or cannot call it.

    "Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that." - Martin Luther King, Jr.

    by burndtdan on Tue May 26, 2009 at 03:36:56 PM PDT

  •  confused (0+ / 0-)

    What exactly does this mean?

  •  Has anyone suggested this? (0+ / 0-)

    We, the voters of California, pass an amendment to the constitution that states Mormons cannot legally be called Christians. This does not take away of their rights. They're just not legally Christians. Because we say so.

  •  Thank you for explaining that (2+ / 0-)
    Recommended by:
    Seneca Doane, Sun dog

    I feel marginally better.   This is really an issue that must be decided at the federal level  if gays are going to truly have all the legals rights bestowed on straights through the right to marry.

    •  It will be eventually (1+ / 0-)
      Recommended by:
      Seneca Doane

      We'll reach critical mass eventually and it will tip over.  We're not there yet, but it's just a matter of time.  And sweat, tears, pain and such.  But we'll get there.  

      "I'll put it to you this way: you give me a waterboard, Dick Cheney and one hour, and I'll have him confess to the Sharon Tate murders." Jesse Ventura

      by Sun dog on Tue May 26, 2009 at 04:54:57 PM PDT

      [ Parent ]

  •  Jump da Broom (4+ / 0-)

    In the pre-Civil War south, slaves were not allowed to "marry."  As the movie "Roots" shows, slaves were allowed, however, to "Jump da Broom."  Of course, in "substance" the partners to "Jump da Broom" felt just as married as their "superior" white masters. So by denying gay people the right to use the word "married," gays are relegated to the same 3/5ths of a person, second-class citizenship status enjoyed by the enslaved masses in Ante-bellum America.  Words matter.  As every Christian will tell you:  "In the beginning was the Word...."  Fair minded people must not allow this injustice to stand.

    Dan Marcum

  •  Religous fundies just argued for separation of (1+ / 0-)
    Recommended by:
    lyta

    church and state.

    If you have a church-approved marriage, then it's called a marriage.

    Any other legally binding relationship between two people who love each other when that that couple cannot reproduce a child without outside assitance? Well, that must be called something else.

    Therefore, the Church is now arguing for separation of church an state.

    Bill O-Rile-Thee, what say you? (don't get to exited, we really don't care, but you are amusing in kind of a "watching the drowning swimmer go under because he won't let go of the anchor" kind of way.)

    George Orwell is banging on the lid of his coffin and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

    by snafubar on Tue May 26, 2009 at 04:32:23 PM PDT

  •  Just call it gmarrige...but the g is silent (3+ / 0-)
    Recommended by:
    karenc13, Seneca Doane, Sun dog

    like gnsotic, gnat, gnome.

    I will not speak with disrespect of the Republican Party. I always speak with respect of the past. -Woodrow Wilson

    by Gangster Octopus on Tue May 26, 2009 at 04:41:13 PM PDT

  •  I heart seneca doane. (2+ / 0-)
    Recommended by:
    Seneca Doane, lyta

    Great diary.  It's amazing what happens when one reads the opinion.  As I tell my students: The best bits are always in the footnotes.

    Save your tears for the living

    by immanentize on Tue May 26, 2009 at 05:00:03 PM PDT

  •  Awesome analysis of the ruling Seneca. (1+ / 0-)
    Recommended by:
    Seneca Doane

    Thank you.

    FOX - The fear and panic news network

    by UpstateAlan on Tue May 26, 2009 at 05:43:06 PM PDT

  •  Problems with out of state recognition of DP (4+ / 0-)

    There are numerous places in the US (MA, CT, IA, VT, ME, NY, DC) and around the world (Canada, South Africa, Spain, Sweden, Norway, the Netherlands, Belgium) that recognize same-sex marriages (in the case of NY and DC they recognize marriages from other jurisdictions, but don't perform them there).

    A married California same-sex couple traveling to one of these places would be legally recognized as married (in the event of issues such as illness, medical decisions, family law, criminal and civil law, etc).

    A California couple traveling with a domestic partnership status would not enjoy any legal status in these places.

    The simple use of the word "marriage" would help protect the welfare of California couples traveling outside the state -- a very legitimate state function.  

    That protection of those benefits of marriage is not provided for in today's California Supreme Court decision - one example of the limitations of any "separate but equal" legal intepretation.

    Once social change begins,it cannot be reversed. You cannot uneducate the person who has learned to read...You cannot oppress people who are not afraid anymore.

    by terjeanderson on Tue May 26, 2009 at 05:45:16 PM PDT

    •  That's why I argue that we should call this (0+ / 0-)

      arrangement open to same-sex partners "marriage" and that the state should pronounce to the world that "even though we do not call this 'marriage,' other sovereigns are informed that it is exactly the same as marriage and should be treated accordingly.

      Those are things we can push for under the combined reasoning of Marriage Cases and Strauss.  We should start doing so immediately.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:31:36 PM PDT

      [ Parent ]

  •  Mawaagge is what brings us here today (2+ / 0-)
    Recommended by:
    Kestrel228, bodymind

    props to Princess Bride - a suggestion for a name for same sex unions?

  •  Thank you for the analysis! (1+ / 0-)
    Recommended by:
    Seneca Doane
  •  A new word for the blessing of unions -- Devotion (4+ / 0-)
    Recommended by:
    julifolo, Seneca Doane, Govinda, lyta

    I believe that all people should enjoy freedom and that gay people should be allowed full marriage rights. It has been suggested that a new term is needed, other than marriage for same sex unions. Of course the reasoning of the court is fallacious. To insist that a union can be afforded the same legal rights, save for the use of a word, is to establish that in fact that the legal rights provided are not in fact the same. Its Plessy v. Ferguson all over again.

    But I think perhaps the use of the term "devotion"  to describe the union of same-sex couples would help people to recognize the deep feelings of love and the humanity of the participants involved in gay marriages. It also has a religious connotation that challenges the notion that gay people suffer from  some kind of "shallowness" that the small hearted seem to cling to.

  •  It must suck to be gay and live in CA (4+ / 0-)
    Come to Iowa and enjoy the same rights as all other people.
  •  Undermining (2+ / 0-)
    Recommended by:
    MattR, Seneca Doane

    If same sex couples who have domestic parterships declare themselves as married, I think this could undermine the distinction. Have a marriage ceremony, even if legally, the contract is a domestic partnership. Separate the legalese from the relationship. Treat the distinction as an absurd technicality. The more people consider you can persuade to consider the distinction to be absurd, the more likely people are to consider things like Prop 8 to be absurd.

    The wolfpack eats venison. The lone wolf eats mice.

    by A Citizen on Tue May 26, 2009 at 08:13:56 PM PDT

    •  Precisely (2+ / 0-)
      Recommended by:
      SallyCat, CherryTheTart

      That is exactly what I'd like to see people do.  Assert their rights to name their own legal relationships that are equal to marriage.  Prop 8 doesn't bind us.

      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

      by Seneca Doane on Tue May 26, 2009 at 11:33:23 PM PDT

      [ Parent ]

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