"@Marriage
I still don't get what your complaint is about the judges. It seems like they are serving their purpose. If there wasn't anything in the law that defined marriage as between a man and a woman, then it's the judicial branch's duty to say you can't stop two people of the same sex from getting married. The legislature can rectify this oversight by passing a new law and/or voters can ammend their constitutions."

If that were the chain of events and the facts existed as stated I would be in agreement. For lack of a better example, going back to California once again: in the recent (past 10 years) the legislators rather than dealing with it themselves allowed a referendum onto the ballot which defined marriage as only between a man and a woman, the judges stated that it was unconstitutional and overturned that law, another referendum was put on the ballot and also won, and now the judicial branch has stated it is constitutional. I call that chaos. I object to that first ruling as there was no settled law from which to base their opinion. I even object to their second ruling for the same reason. It is not their role to babysit a stagnant and useless legislature, that is the role of the people. More chaos will ensue once the nearly toothless executive branch attempts to create a mechanism to enforce these laws and non-laws that are destined to be tried in court over and over. The entire process was a waste of everyone's time, when all it would have taken to resolve this amicably was a legislature that had a spine.

 

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If this article can be trusted, everything has citations, then it seems like it happened exactly as I explained it.
http://en.wikipedia.org/wiki/Same-sex_marriage_in_California





The original law doesn't specify between a man and a woman. Proposition 22 was passed by the electorate. California's supreme court found this violated the state's constitution. I can't confirm, but it seems likely, that Proposition 22 was just a law. Laws can be overturned by courts for violating constitutions.

Proposition 8, was a constitutional amendment. The court can't overturn constitutional amendments, which as of today, they didn't.

Seems like the judicial branch acted appropriately.

 

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I guess you would also disagree with the California Supreme Court reversing the state's ban on interracial marriages in 1948, which was used in the In re Marriage Cases opinion? Is it any different?


Because according to your arguement, they should have waited for a vote.


Now let's talk about the two different terms: CHECKS AND BALANCES and SEPERATION OF POWERS:


To prevent one branch from becoming supreme, and to induce the branches to cooperate, governance systems that employ a separation of powers need a way to balance each of the branches. Checks and Balances would then be the system based regulation that allows one branch to limit another. <3 Wiki.

 

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Though I do not rely on Wikipedia for this level of analysis, the article looks accurate enough to me. It does however not address my point about the unconstitutional ruling of the first referendum (referred to as Proposition 22 in the article) being based upon no settled law whatsoever. The paragraphs in question are these:

"On May 15, 2008, the Supreme Court struck down California's existing statutes limiting marriage to opposite-sex couples in a 4-3 ruling.[38] The judicial ruling overturned the one-man, one-woman marriage law which the California Legislature had passed in 1977 and Proposition 22. After the ruling, Governor Arnold Schwarzenegger issued a statement repeating his pledge to oppose Proposition 8, the ballot initiative that would override the ruling.

The opinion, written by Chief Justice Ronald M. George, cited the Court's 1948 decision in Perez v. Sharp where the state's interracial marriage ban was held unconstitutional. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution. Associate Justices Joyce L. Kennard, Kathryn Werdegar, and Carlos R. Moreno concurred.[4] It is the first state high court in the country to do so.[39] The Massachusetts State Supreme Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its gay-marriage ban on rational basis review.[40]" - Wikipedia (Same-sex marriage in California)

The article gives the impression that a logical flow from sexual orientation as a protected class through the Equal Protection Clause of the state leads directly to a status of unconstitutional. Steps 2 and 3 logically follow, so in essence it is only step 1 that has to be achieved to get to the ruling. So where did the judges get that sexual orientation was a protected class? It's not mentioned in the article. Being tall or short is not a protected class, so why is sexual orientation? There must be a list somewhere; surely some settled law supports this claim. Well, you won't find it because it did not exist. Instead, they 'chose' to make sexual orientation a protected class so that they could create a logical argument. Maybe sexual orientation deserves special protections or maybe not, but how can a court create and manipulate such a list? Either by fiat or by settled law; there is no third way. No law or statute existed stating that sexual orientation is like race and gender. It just felt right to the judges that these three groups should all be listed together and offered the same protections under the Equal Protection Clause of the state.

I dislike fiat rulings by courts. The concept of 'separate but equal' comes to mind. Fiat decisions always lead to chaos.

 

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"I guess you would also disagree with the California Supreme Court reversing the state's ban on interracial marriages in 1948, which was used in the In re Marriage Cases opinion? Is it any different?

Because according to your arguement, they should have waited for a vote."

Without doing some research I could not say for sure. If there was no settled law on race in California in 1948 then yes waiting for legislation would have been prudent.

"Now let's talk about the two different terms: CHECKS AND BALANCES and SEPERATION OF POWERS:

To prevent one branch from becoming supreme, and to induce the branches to cooperate, governance systems that employ a separation of powers need a way to balance each of the branches. Checks and Balances would then be the system based regulation that allows one branch to limit another. <3 Wiki."

I am at a loss trying to discern your point here. Please clarify and use small words so that you know what you are saying.

 

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It's where it ruled in the opinion that marriage is a basic civil right.


...basic civil right 's you can't deny anyone.


Edit: When you have nothing left, insults! Cute.

 

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Gofor, I only respond in kind. If you want to discuss something I'm all ears, but so far the only thing you've been interested in is sniping from the side-lines. Which is perfectly fine; just don't expect to be treated with any deference when you do. I have plenty left so don't fret that I send insults your way because I have nothing better to say.

We can probably agree that a "marriage" should be a civil right. I don't think that anyone in this thread is disputing the philosophical or moral argument for same-sex partners to have access to the same civil protections as hetero partners. So far, only Vermont has put that into law via a legislative action. Having a court decide by fiat is what we have been discussing in the last few exchanges. I adamantly disagree with fiat rulings by the judiciary on this or any subject.

I proposed a solution written near the top of the thread: To alleviate the issues with a religious marriage that the concept of a civil marriage be put in place prior to adding this right into law so that we circumvent both the near-future problems with passage and far-future problems with changes to the definition of civil marriage as it is bound to happen and no one wants to repeat the idiocy that we see today regarding same-sex definitions. With that prescription, I believe that legislatures can be cajoled into doing their job.

So I'll start again and forget your sniping. Is there something about the above that you need explained further? Do you "get it" and just disagree? If you disagree, then what part and why? Do you just disagree with my point of view of judiciary fiat? Is that disagreement merely regarding this case or is it the point of view itself where you find a flaw?

 

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Horundik, I think you answered your own question. Prohibiting same sex marriage violated the state's equal protection clause. Same sex couples can't get married and by extension, they can't get divorced, they can't claim dependents, they can't claim benefits, they can't make emergency medical decisions, etc... The judges found it unconstitutional and overturned it. That was the supreme court's interpretation of the state's constitution. The judicial branch is required to interpret the constitution and overturn any laws that violate it.

I don't want to get into a insult match, but I think you have to ask yourself, "Is it ruling by fiat only when I disagree with their decision?" Can you give an example of where they ruled by fiat on something with which you agree?

I really don't see how you can stick to your guns on this one, when the supreme court overturned a law that violated the constitution, and then upheld an amendment to the constitution. That's what they are supposed to do.

 

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Benja, as to the list of things you think could not be done in California by same-sex couples, you need to go back and look at the domestic partnership that was available in that state since 1999. It had been the focus of the same-sex advocates prior to the 'marriage or nothing' concept in recent years, and it was well on its way to including all of the civil protections of marriage as each year more additions were put in place as the laws were refined. Though I did not consider it the ideal solution (obviously) it was perhaps the best example offered by any state. It was abandoned prematurely due to judicial shenanigans tricking the public into believing same-sex marriage was legal and domestic partnerships were no longer necessary.

Prohibiting same-sex marriage only violated the Equal Protection found in the California constitution if the assumption is made that sexual orientation was on equal footing with race and gender and thus deserving the same protections. The choice to make that assumption had no basis in settled law, it was by opinion only. That is why I call it 'rule by fiat', and each time that type of decision-making is practiced chaos is created in the system. Not once has everyone just said "oh, okay I guess that is just how it is going to work from now on" when such a move has been made in the judiciary.

Since I agree that same-sex couples should have the same civil protections as a hetero couple, then this very situation would be an example of where I agree with the outcome but oppose the process. Is that the kind of example you need?

 

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From the NY Times:

The California Supreme Court upheld a ban on same-sex marriage
Tuesday, ratifying a decision
made by voters last year.
The court’s decision preserves the 18,000 same-sex marriages performed between the justices’ ruling last May that same-sex marriage was constitutionally protected and voters’ passage in November of Proposition 8, which banned it.
The court’s opinion, written by Chief Justice Ronald M. George for a 6-to-1 majority, noted that same-sex couples still had a right to civil unions, which gives them the ability to “choose one’s life partner and enter with that person
into a committed, officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage.”
George wrote that Proposition 8 did not “entirely repeal or abrogate”
the right to such a protected relationship, but instead “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.”
The 18,000 existing marriages can stand, he wrote, because Proposition 8 did not include language
saying it was retroactive.
Heated reaction to the decision
began immediately, with protesters blocking traffic near the Supreme Court’s offices, in San Francisco, and advocates for same-sex marriage making plans for another ballot initiative.
In Los Angeles, Jennifer C. Pizer,
marriage project director for Lambda Legal, said the decision “puts it to us to repair the damage at the ballot box.” Equality California
pleaded for contributions to raise $500,000 toward “a massive
campaign to put an initiative on the ballot and win.”
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So basically it's not allowed to be called marriage. But teh ghey unions get all the rights and benefits of being married. Lets throw more money at this issue.

 

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