[Vision2020] California Supreme Court to Take Up Gay Marriage
Bruce and Jean Livingston
jeanlivingston at turbonet.com
Fri Nov 21 16:21:02 PST 2008
I think Roger is mostly right here in his analysis of what is a state constitutional issue and what is a federal constitutional issue and in which controls what. The anti-gay marriage initiative in California directly amended the California state constitution through an initiative election passed by the state's voters. This is mostly a state constitutional issue regarding the amendment of the Callifornia state constitution by its citizens. Only to the extent that the federal Constitution clearly trumps a contrary provision of the state constitution is the federal constitution involved (or the state constitution affected and invalidated). Otherwise it is a state issue.
That being said, just because the voters voted for an amendment does not automatically make the amendment valid under the state constitution. In that respect, I would disagree with Roger that the voter-passed inititive prohibiting gay marriage necessarily passes state constitutional muster. An amendment passed by the voters might violate some other conflicting provision in the same state constitution and thus create ambiguity over which provision controls.
Issues within the California constitution, for example, hypothetical conflicts between a state "equal protection" provision and a state "denial of gays right to marry" provision, would raise state questions that would need to be resolved by the state courts. Typically, various adages regarding "rules of construction" would be applied by the state court to resolve ambiguities and conflicts within the state constitution. The court might side with those opposing gay marriage by following the adage that the specific provision (in this case, "no gay marriage allowed") controls over another more general provision that might apply to the specific gay marriage situation (e.g., state may not deny citizens the right of "liberty" or "equal protection of all laws"). On the other hand, the state court might decide that the equal protection, due process or non-discrimination provisions that may be present in the California Constitution are fundamentally more important and therefore control over the recent voter-passed provision that denies the right, conferred on the many (heterosexual marriage), to the few who are now prohibited from exercising that right (those seeking gay marriage).
It is my understanding that the U.S. Constitution has never been interpreted by the U.S. Supreme Court with respect to gay marriage and whether gay marriage can be legally prohibited. The Fourteenth Amendment's Equal Protection Clause (state may not deny to any person the equal protection of its laws) or the liberty interest of the Due Process Clause (state may not deny life, liberty or property w/o due process of law) might well control and prohibit the discrimination experienced by gays through laws denying them the right to marry. The analysis in reaching that conclusion might be that allowing heterosexuals to marry the unrelated, consenting adult they chose, while denying that right to homosexuals violated the gay persons' right to equal protection. Then again, the Supreme Court might rule entirely differently. It might accept that marriage is a relationship that exists only between a man and a woman, and that there is no unlawful discrimination or denial of equal protection in prohibiting men from marrying men or women marrying women, when marriage does not include same-sex marriage and when any woman can marry any man that she chooses and any man can marry any woman that he chooses.
Two cases from the Supreme Court will likely form the linchpin for any decision finding that prohibitions of gay marriage are unconstitutional.
The closest case that I can recall that might inform this debate is Lawrence v. Texas, from 2003. Here is a link to it:
http://supct.law.cornell.edu/supct/html/02-102.ZS.html. Although Lawrence was decided in favor of the homosexual petitioner, the case does not purport to reach gay marriage. Rather, the Court found unconstitutional a law prohibiting private sexual contact between two consenting adult homosexuals in the privacy of one's home.
Thus far, there is no controlling Supreme Court precedent that has found anti-gay-marriage laws invalid. Several state courts have found such laws violate their state's constitutions (Massachussetts, Connecticut and California). Such a case has yet to be decided by the U.S. Supreme Court, however, and accordingly, no U.S. Supreme Court case mandates that the federal constitution explicitly controls over all state constitutions on this issue. Therefore, the California Supreme Court is not bound by any federal decision that would automatically endorse or invalidate a California state constitutional provision outlawing gay marriage.
It may well be the case that the Fourteenth Amendment to the U.S. Constitution does prohibit state laws that forbid gays to marry, but the U.S. Supreme Court has not announced any such interpretation of the Fourteenth Amendment to this point in time. Another important case that might provide a line of analysis that could be adopted pretty easily to extend the right to marry to people of all sexual orientations is Loving v. Virginia, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html. Loving challenged a Virginia state law that prohibited white and black people from marrying each other. The Supreme Court ruled the Virginia law violated the Fourteenth Amendment's Due Process and Equal Protection Clauses.
I anticipate that the Supreme Court will address this issue in the next 10 years.
Bruce Livingston
----- Original Message -----
From: "lfalen" <lfalen at turbonet.com>
To: "Joseph Campbell" <josephc at wsu.edu>; "Kai Eiselein, Editor" <editor at lataheagle.com>; <kjajmix1 at msn.com>; <vision2020 at moscow.com>; "Tom Hansen" <thansen at moscow.com>
Sent: Thursday, November 20, 2008 5:18 PM
Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage
> You both have a point. One should be protected from the tyranny of the majority. In this case though, I think that the California Constitution states that it can be amended by an initiative. It is clearly constitutional according to the state constitution. Therefore the question becomes does the US. Constitution trump a state constitution. It of course does.
> A judge should decide the case on the basis of a strict reading of the US Constitution, not on the basis of writing law from the bench.
> Roger
> -----Original message-----
> From: Joseph Campbell josephc at wsu.edu
> Date: Thu, 20 Nov 2008 13:37:51 -0800
> To: "Kai Eiselein, Editor" editor at lataheagle.com, kjajmix1 at msn.com, vision2020 at moscow.com, Tom Hansen thansen at moscow.com
> Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage
>
>> That is not the issue. The issue is who decides whether gay marriage is OK?
>> The general CA public, by popular vote? Or the California Supreme Court? I
>> think that the latter is a better judge. Why? Let¹s ask the same question
>> about your right to free speech, or mine. I don¹t want the general CA public
>> to decide whether or not I have that right, and I¹m sure you would agree.
>> What makes marriage different? I don¹t want them to tell me who I should
>> marry either. Do you? Tell me that you don¹t see a problem with letting the
>> public decide who you can and cannot marry?
>>
>>
>> On 11/20/08 12:23 PM, "Kai Eiselein, Editor" <editor at lataheagle.com> wrote:
>>
>> > Let's then.
>> > The issue is gay marriage, not free speech.
>> >
>> > From: Joseph Campbell <mailto:josephc at wsu.edu>
>> > Sent: Thursday, November 20, 2008 12:20 PM
>> > To: Kai Eiselein, Editor <mailto:editor at lataheagle.com> ; kjajmix1 at msn.com ;
>> > vision2020 at moscow.com ; Tom Hansen <mailto:thansen at moscow.com>
>> > Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage
>> >
>> > The question is who should decide matters of law: the people, by popular vote,
>> > or judges, who have knowledge of the Constitution and legal precedent? I think
>> > the latter. Personally, I feel that most of the things below that you find
>> > absurd are in fact absurd. More the reason not to leave the vote up to the
>> > general public.
>> >
>> > Notice you did not answer whether or not you think that your right to free
>> > speech hinges on their opinion. Do you? And if not that right, why others?
>> > Let¹s stick to one issue at a time, and deal with the others later.
>> >
>> > Joe
>> >
>> > On 11/20/08 12:05 PM, "Kai Eiselein, Editor" <editor at lataheagle.com> wrote:
>> >
>> >> Do societies not have the right to decide what is acceptable and what isn't?
>> >> Why not make polygamy legal?
>> >> Why not let brothers marry sisters or first cousins marry first cousins?
>> >> (Other than the inbreeding issue)
>> >> Why not just make an amendment stating a marriage can be between ANY
>> >> consenting adults? That would be the best way, wouldn't it?
>> >> I can just hear the champagne corks popping as divorce lawyers celebrate the
>> >> thought of multiple wives divorcing a husband.
>> >>
>> >> From: Joseph Campbell <mailto:josephc at wsu.edu>
>> >> Sent: Thursday, November 20, 2008 11:57 AM
>> >> To: Kai Eiselein, Editor <mailto:editor at lataheagle.com> ; kjajmix1 at msn.com
>> >> ; vision2020 at moscow.com ; Tom Hansen <mailto:thansen at moscow.com>
>> >> Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage
>> >>
>> >> According to Wikipedia, ³Due process (more fully due process of law) is the
>> >> principle that the government must respect all of the legal rights that are
>> >> owed to a person according to the law of the land, instead of respecting
>> >> merely some or most of those legal rights.²
>> >>
>> >> Do you think that rights are better served by allowing the general public to
>> >> decide who has the right to speak, to vote, to wed? If to wed, then why not
>> >> to speak? Why shouldn¹t the general public be allowed to determine whether
>> >> or not you have the right to speak?
>> >>
>> >> I¹m trying to bring the issue home to something you might relate to
>> >> personally. Something to engage your empathetic imagination.
>> >>
>> >>
>> >> On 11/20/08 11:37 AM, "Kai Eiselein, Editor" <editor at lataheagle.com> wrote:
>> >>
>> >>
>> >>> I'm going to play Devil's advocate for a moment, and to be clear I don't
>> >>> give a rip about gay marriage one way or another. Hey, if if gay couples
>> >>> want to keep divorce lawyers in business by forking over thousands of
>> >>> dollars in fees and spend months going to hearing after hearing after
>> >>> hearing, well, welcome to the hetero world. Toss in a child or two and
>> >>> becomes even more fun.
>> >>> ...No State shall make or enforce any law which shall abridge the
>> >>> privileges or immunities of citizens of the United States; nor shall any
>> >>> State deprive any person of life, liberty, or property, without due
>> >>> process of law; nor deny to any person within its jurisdiction the equal
>> >>> protection of the laws."
>> >>> Doesn't a referendum come under "due process"?
>> >>>
>> >>> --------------------------------------------------
>> >>> From: "Tom Hansen" <thansen at moscow.com>
>> >>> Sent: Thursday, November 20, 2008 11:16 AM
>> >>> To: <editor at lataheagle.com>; <kjajmix1 at msn.com>; <vision2020 at moscow.com>
>> >>> Subject: Re: [Vision2020] California Supreme Court to Take Up Gay
>> >>> Marriage
>> >>>
>> >>>>> >>From Article 6 of the US Constitution -
>> >>>> >
>> >>>> > "This Constitution, and the Laws of the United States which shall be
>> >>>> made
>> >>>> > in Pursuance thereof; and all Treaties made, or which shall be made,
>> >>>> under
>> >>>> > the Authority of the United States, shall be the supreme Law of the
>> >>>> Land;
>> >>>> > and the Judges in every State shall be bound thereby, any Thing in the
>> >>>> > Constitution or Laws of any State to the Contrary notwithstanding."
>> >>>> >
>> >>>> > -------------------
>> >>>> >
>> >>>>> >>From the 14th Amendment to the US Constitution -
>> >>>> >
>> >>>> > "All persons born or naturalized in the United States, and subject to
>> >>>> the
>> >>>> > jurisdiction thereof, are citizens of the United States and of the
>> >>>> State
>> >>>> > wherein they reside. No State shall make or enforce any law which shall
>> >>>> > abridge the privileges or immunities of citizens of the United States;
>> >>>> nor
>> >>>> > shall any State deprive any person of life, liberty, or property,
>> >>>> without
>> >>>> > due process of law; nor deny to any person within its jurisdiction the
>> >>>> > equal protection of the laws."
>> >>>> >
>> >>>> > -------------------------------------
>> >>>> >
>> >>>> > Now, which part of the US Constitution are you struggling with, Kai?
>> >>>> >
>> >>>> > Tom Hansen
>> >>>> > Moscow,
>> >>>> > Idaho
>> >>>> >
>> >>>> > ---------------------------------------------
>> >>>> > This message was sent by First Step Internet.
>> >>>> > http://www.fsr.com/
>> >>>> >
>> >>>> >
>> >>> Kai Eiselein
>> >>> Editor, Latah Eagle
>> >>>
>> >>>
>> >>>
>> >>>
>> >>> =======================================================
>> >>> List services made available by First Step Internet,
>> >>> serving the communities of the Palouse since 1994.
>> >>> http://www.fsr.net
>> >>> mailto:Vision2020 at moscow.com
>> >>> =======================================================
>> >>
>> >> Kai Eiselein
>> >> Editor, Latah Eagle
>> >>
>> >
>> > Kai Eiselein
>> > Editor, Latah Eagle
>> >
>>
>>
>>
>>
>
> =======================================================
> List services made available by First Step Internet,
> serving the communities of the Palouse since 1994.
> http://www.fsr.net
> mailto:Vision2020 at moscow.com
> =======================================================
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