Will Arlo Wear Taffeta?
Hot off the presses:
A judge ruled Monday that California's ban on gay marriage is unconstitutional, saying the state could no longer justify limiting marriage to a man and a woman.
In the eagerly awaited opinion likely to be appealed to the state's highest court, San Francisco County Superior Court Judge Richard Kramer said that withholding marriage licenses from gays and lesbians is unconstitutional.
``It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners,'' Kramer wrote.
The judge wrote that the state's historical definition of marriage, by itself, cannot justify the denial of equal protection for gays and lesbians.
``The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional,'' Kramer wrote.
Perfectly reasonable. What does this mean for conservatives? It means they ought to shitcan their rhetoric about "activist judges". This is exactly the kind of ruling that will propel a case to the Supreme Court. Bush called for a constitutional amendment not because of "activist judges" (as he indicated), but because he knows that there is no current constitutional basis for denying the right of gay people to marry; if there were, the Supreme Court would simply rule on the issue and be done with it. Like the judge in San Francisco, however, no Supreme Court judge will be able to draw any constitutional arguments to deny equal protection. Hence the necessity of an amendment to the constitution. Thankfully, most people don't support such an amendment. And so the showdown is kicked up a notch, with a happy outcome not only possible – but likely.
9 Comments:
Your knowledge of judicial process leaves something to be desired. The Supreme Court cannot rule on issues simply on a whim, or on issues that have not been brought before it. Many laws and rulings currently in force are very likely unconstitutional, but have not yet endured the process of appeal to the Supreme Court. Furthermore, any decision with regard to a state issue could very likely (and rightly) be grounded in the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This would hold the will of the people - as expressed by their duly elected legislators - as the final arbitor of this issue instead of the judiciary.
Hells bells, my knowledge of the judicial process leaves everything to be desired. However, I’m not so dense as to be unaware of how cases come to be heard before the Supreme Court. “Whim” is a rather flippant term for the very real process whereby constitutional courts (federal or state) decide whether or not to hear an appeal; but the decision is still theirs to make. The Supreme Court, as you are aware Anonymous, rejects numerous petitions of appeal. They don’t have to, but they exercise their judgment. My original point is that this case (or one like it) is exactly the kind of case that would likely get a hearing in a federal court and eventually the Supreme Court. Why? Because in my view (which is probably contrary to your own) the equal protection clause in the federal constitution is a right guaranteed by the United States. The statement, “any decision with regard to a state issue could very likely (and rightly) be grounded in the 10th Amendment” is all well and good, but equal protection is not a state issue. It’s a federal issue. If, in the case of gay marriage, it were not, the President would never have highlighted the need for a constitutional amendment. This decision is a blessing for both conservatives and liberals: it frames the issue correctly by asserting that the denial of equal protection is anathema to constitutional law.
I think Kelly is right that this ruling will start the legal process, similar to the way a sperm entering the vaginal canal starts but doesn't guarantee the process of fertilization, that will likely lead to a Supreme Court SHOWDOWN. Of course there has to be an appeal to a higher court, that court has to decide if anything was done wrong in the lower court or if the legal reasoning is off base, then that decision needs to be appealed and so on, and so on, and so on, until Court TV takes a moment of their time to cut away from the Michael Jackson child-molestation trial to note that the Supreme Court may rule on the constitutionality of gay marriage bans.
For the record, I know Kelly's knowledge of the judicial process isn't perfect but it's also not perfectly lacking. Can we mathematically ascertain the exact value of what Kelly's knowledge of the judicial process leaves to be desired? I'd guess, ballpark, that it would be around 64.34892% but it could be much higher.
Just post the results and I'll read it. Thanks.
Also, I think gay marriage bans should be declared unconstitutional. I'd like to see more gay marriage and more gay adoption. Since when is the profession of mutual love and dedication a bad thing in our society?
Strange title, considering during the past few years of our secret love affair, Kelly has always been the woman. He already has a girlie name.
Nevertheless, my feeling has been that the word "marriage" should be removed from the law books and everything should be civil unions. If two people--of any gender combination--who enjoy having sex (or don't) want to assume each other's debts and share medical coverage and speak to the other in confidence so they don't have to testify against each other, then dammit, let 'em. We already have an infrastructure for that, but we call it "marriage," which implies a union of heart and soul. Sorry, but my heart and soul have nothing to do with government regulation. I'm going to love who I love, and that's that.
And I love you, Kelly, and despite all of the lipstick and lingerie I've purchased you over the years, and even if I'm always the top, I will still wear taffeta when the government allows us to have our big day. I just want my schmoopie-poopkins to be happy.
My comment about the Supreme Court ruling on a "whim" was in reference to Kelly's statement that if there were constitutional issues with gay marriage "the Supreme Court would simply rule on the issue and be done with it." My point is that it is simply not the case. Furthermore, I don't think the "equal protection" clause is germane in this case, unless the "Protection of Marriage" act has not already been adjudicated by the High Court. (I simply don't know if it has or not.) If the "Protection of Marriage" act is found unconstitutional, then we could well be on our way to a constitutional amendment. Very few people want to tread this road, but not necessarily because they favor gay marriage. Lastly, ps206 asks, "Since when is the profession of mutual love and dedication a bad thing in our society?" This was probably meant rhetorically, but clearly society places customary and legal restrictions. There are social and legal prohibitions on connubial relationships between adults and children, brothers and sister, teachers and students, folks married - but not to each other, Michael Jackson and ...anybody, etc., etc. There are, of course, people who would like to erase all of the boundaries - much to the detriment of our social fabric. What is at issue here is not whether the boundaries exist, but where they should be placed with regard to the legal and SOCIAL institution of marriage, and NOT with regard to the expression of mutual love and dedication.
Yes, there are social and legal lines drawn, but those lines should only be drawn to protect the citizens of our country.
A child doesn't choose to be molested. Line drawn to protect children.
A woman (or man, for that matter) doesn't choose to be raped. Line drawn to protect women (and men, for that matter).
Teacher/student or coworker relationships have been covered here before. Lines drawn because it usually gets complicated. (Though I think lines have already been drawn in those cases. Complications from boffing the subordinate that interrupt work should be punished, not the boffing in and of itself. But if they're married, as some friends of mine who met at work are going to do soon, then it's a totally different matter.)
Brothers and sisters boffing pollutes the gene pool. Line drawn to protect everybody.
Extramarital affairs can hurt the legal partnership (which is all that a marriage is), thus it is a perfectly reasonable excuse for divorce. Line drawn.
So please, please, please tell me, Anonymous -- why is the line drawn on gay marriage? If gay marriage is to be banned, who is protected by that ban?
Unfortunately, I think the answer to that question is "the morality of the Christian Right." The Christian Right has a lot of money to give Republicans. And Republicans, wanting that money, are the ones pushing to ban gay marriage. Plus, if gays other than Andrew Sullivan voted Republican, none of this would be happening.
The job of government is not to protect our sensibilities. It's to protect everyone's life, liberty, and the pursuit of happiness, not just those who think the way the particular people in power think.
I believe that the Supreme Court, no matter who is adjudicating by the time this issue makes it there, will have a very hard time justifying a Constitutional reason for leaving marriage as a man/woman institution. Sorry, dude.
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And with this comment, Eponymagain, I just crossed it.
First, if you're going to post anonymously, at least have a nom de plume which is shorter and easier to write than "anonymous" and which, in theory, gives a link to evidence of how you tend to think. But it's not a really big deal. If it was I'd give my name to everyone, not just those "in the know."
Second, I think the issue of marriage, and subsequently gay marriage can best be approached from a different angle. If you want to take some kids to the zoo and you're totally legit and the kids will really have a good time, you still need parental approval. Why? Because of informed consent. The law stipulates that minors can't agree to anything, really, since they presumably don't have the knowledge, experience, nor the developmental advancement to make the kinds of decisions that are governed by informed consent law.
So, if you have an adult and a minor, no matter the age of the minor, and they have sex, even if the kid says it's OK, likes it, wants it again, initiated it, whatever, the law says the kid can't have legally made the decision to take part in that activity. And so, it can be adjudicated as statutory rape. Two minors can go at it, no harm, no foul. Two adults can give informed consent and go at it. But not an adult and a minor.
Also, you have to be of sound mind, presumably, to make legal decisions like the disposition of your estate following your demise. Taking part in the legal process, I guess, means you have to be sane. In some states they won't even give you the death penalty if you're nuts.
So, you have to be of age and sane to make legal decisions in this country. Since even the medical establishment finally has taken homosexuality off the mental disease list, you can be gay and sane at the same time. Long story made even longer, if you are a legal adult, you should have the right to enter into a legal contract with any other adult, that contract should have the full faith and credit of all governments within our federated republic, and those contractual arrangements which then make the parties of that contract eligible for public privileges should be available to everyone regardless of race, creed, color, or sexual orientation.
Any law which seeks to allow some law abiding adults legal advantages while restricting it for others is unconstitutional, best I understand the Constitution of the U.S.A. Gay sex shouldn't be illegal. Gay marriage shouldn't be illegal either. You can be a Catholic and not recognize 2 people as married because they haven't been joined in "holy matrimony" according to the rituals and traditions of that faith. But the separation of church and state restricts the establishment of religion and so that Catholic belief (in this example) can't be expressed in the law. This goes for other religions as well.
I don't think this Supreme Court will rule in a manner that will allow for gay marriage or legal civil unions, with all rights heretofore reserved for married couples. I wonder what their rationale will be. And I wonder how long it will be after that when that decision joins Dred Scott and Plessy v. Ferguson as an infamous bad high court decision.
Also, is it true that the bedrock of the Arlo/Kelly relationship is Arlo's uncanny ability to overcome the salty taste, bleach aftertaste paradigm?
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