There may be more to Arnold Schwarzeneggerâs gay marriage story.
The California Governor last week came out for same-sex nuptials, saying that battling an amendment banning gay marriage would be a waste of time. The move surprised many, of course, especially considering that he has twice vetoed legislation that would allow homos to seal the deal. The former actorâs staff later reiterate an earlier statement: the Governor will uphold the Supreme Courtâs ruling on the controversially pro-gay laws. Justices have been deliberating since March.
While we could call Schwarzeneggerâs recent declaration political evolution, some say that the Supreme Court has internally passed the marriage matter and the Governorâs just trying to lay the foundations for a conservative uprising.
Journo Ryan J. Davis reports:
Sources wishing to remain anonymous in the California Court System indicate that the court, which has until June 2, 2008 to issue itâs marriage ruling, is considering issuing it on Friday, May 23, 2008, with the decision being written by Chief Justice Ronald George. The Court is readying itself for a backlash that may follow the rumored and bold decision. There is talk that the Court will not simply strike down Proposition 22, but will move the State of California toward full marriage, if not even granting full marriage rights for gays and lesbians outright.
Obviously aware of whatâs coming, Gov. Schwarzenegger came out swinging against the FRCâs proposed amendmentâŚ
The Governatorâs sure to have a shit storm on his hands. Davis informs us that 51% of Californians oppose gay marriage. Thatâs an eleven-point drop since 2000, when voters passed Proposition 22, which defined marriage as between a man and a woman.
How about we take this to the next level?
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Obviously no one can say for sure whether the Court will pass marriage â not on the record, at least â but weâre praying to the gay gods that it goes down. We gays deserve some good news, right? And, of course, equality, but that may be asking too muchâŚ
JPinWeHo
I almost wish I hadn’t read this, as I don’t want to raise my expectations for a positive result from the CA Supreme Court. Then again, this is the same court that was first in the nation to ban laws against interracial marriage – they may be upset that Mass. beat them to it!!
I’m also afraid of the backlash regarding this decision (although not so much that I don’t want the court do make a positive ruling). Hopefully we won’t have another presidential election affected by efforts to support gay marriage. I think that with either Obama or Clinton, though, we have a much stronger candidate than in prior years who may be able to weather the storm.
ggreen
Only douche bags call it Cali.
John K.
I was thinking yesterday…even if there is a favorable ruling and the conservatives are able to get the constitutional amendment on the ballot and it passes with 51% of the vote, what’s to stop Equality California from circulating its own petition the very next year to repeal that amendment…and every year after that until public opinion shifts two more percentage points? This isn’t like Florida where they need to pass it with 60% of the vote, which means if it passes with exactly 60% one year, public opinion would have to shift 40 points to change it instead of one. Also, I’m not aware of any restrictions in the California Constitution on rehashing the same ballot question year after year, as there are in some state constitutions. Obviously it costs money to get a question on the ballot, but even if they wait two or three years, we’re talking about two or maybe a few more percentage points. How long could it take?
Jesus christ
who gives a damn what the holy rollers think. Gays and lesbians will be legally protected! They can go to hell and find a new obsession.
Steve
I think Gov. Schwarzenegger recognizes that fair is fair, and that people are entitled to equal protection and equal treatment under the law. It isn’t a question of whether that happens, but of how. He has probably heard through a back channel that the decision will go to the gays, but that there might be some wiggle room in the details.
If the court stops short of full gay marriage, it almost surely would still enforce equal protection. There would be only one other way to do that — the court would have to order the state to change the law. It might even enjoin the state from recognizing any marriages at all until such time as the law is changed top allow all couples to marry.
Then Gov. Schwarzenegger would be forced to sign the new inclusive marriage statute. He doesn’t want to sign that law… so he would prefer that the court do the dirty deed for him, and just order the change directly by striking the unconstitutional restriction.
By saying that the courts should decide, he is asking the CA supreme court to go all the way.
WeTheSheeple
The Gov. is just covering his bases; trying to be on both sides of the issue as usual. First he vetoes the marriage bills, then comes out against the amendment. Typical politician.
GaySpouseDotCom
I’m surprised when people think it is great that California had to rely on its court to strike down the anti-miscegenation law (inter-racial marriage ban) in 1948. It was not the first state to get rid of its ban.
Pennsylvania (in 1780), Massachhusetts (in 1843), Iowa (in 1851), New Mexico (in 1857), Washington (in 1868), Rhode Island (in 1881), Maine (in 1883), Michigan (in 1883), Ohio (in 1887), all repealed their inter-racial marriage bans.
It would then take another 61 years until California courts got rid of theirs along with 13 other states getting rid of bans, until 1967 when the remaining 27 states had theirs finally struck down by the U.S. Supreme Court which had originally upheld all the laws back in 1883.
States should uphold equal marriage rights because equal protection under law is a requirement of democracy. Without it, no democracy exists.
JPinWeHo
GaySpouse – You are technically correct. Although you must give credit to California for reversing the trend and bucking popular sentiment at the time to ban inter-racial marriage in most of the country (and providing a template for the US Supreme Court to ban in nationally years later).
California broke a 60 year period in which laws against interracial marriage were on the rise (including a potential federal constitutional amendment). Many of the states you mentioned had legislation during that time proposed to ban inter-racial marriage.
Also, be careful of which states deserve your praise – such as Massachusetts, a state that repealed its law in 1843, only to later ban out-of-state inter-racial marriages out of fear that such couples would come running to the state. That statute, of course, has now been applied to gay marriage as well – it’s unfortunate the Mass supreme never ruled that particular law unconstitutional, no?
hells kitchen guy
Schwarzenegger is like Mayor Bloomberg. He’s the head of a reliably blue state. As such, his whole administration has been a dance between the electorate (liberal) and his party (duh). If he wants to get re-elected, he knows it’s better to buck the party (which would nominate him if he divorced Maria and married a 19-year-old man, since it knows it can’t have a chance in hell of winning with anyone else) than the electorate.
Whatever else the guy is, he is not stupid. People have been underestimating him for years.
John
The 1948 decision is significance for this particular case, if not interracial marriage as a whole.
State high courts tend to give more weight to their own precedents and constitution than those of other states. Although they’ll sometimes rely on the federal constitution as well, they will only do so as a last resort. There’s a pragmatic reason for this. Such rulings are more likely to get appealed to the U.S. Supreme Court (USSC).
If the California Supreme Court (CSC) legalized same-sex marriage based on the equality clause of the state constitution and the 1948 case, the religious right will have a very difficult time trying to convince the USSC to intervene. This is precisely what happened with Massachusetts, when the right-wing’s application for judicial review was denied on the grounds that the ruling had nothing to do with federal law.
In contrast, if the CSC used the 14th Amendment of the federal constitution as the basis for their judgment, then the USSC might take up the case. And we don’t want that. Not with Scalia, Thomas, Alito, and Roberts around.
Craig
I’m responding to John’s comments regarding the US Supreme Court potentially taking up the case of California’s marriage laws.
Since marriage laws are a state matter, not a federal matter, the ultimate legal authority on this will be the California Supreme Court. The US Supreme Court has no jurisdiction in California law, and can only intervene if is it shown that California laws or court rulings contravene the US Constitution. As we saw in Massachusetts, there are no grounds for the US Supreme Court to intervene in a state court’s ruling on marriage law.
John K.
John:
Craig pretty much covered what I was going to say, which is pretty much what you said anyway except that you seemed to imply it was a closer question that it was about whether the USSC would intervene. It absolutely couldn’t. The only way it every could is if a federal constitutional ban on gay marriage were passed.
I also wanted to note that I don’t believe the California Supreme Court really has the option of striking prop. 22 or the marriage statute as a whole under the federal constitution because the plaintiffs specifically limited their arguments to the California Constitution precisely to keep the case away from the US Supreme Court.
Charlotte
Let’s see how this plays out. đ Here in Massachusetts where gay marriage is the law nothing
has changed except gay & heterosexual couples have equal rights. Marriage is a basic civil right that should be attainable by all Americans if they choose. For the truth about gay marriage check out our trailer. Produced to educate & defuse the controversy it has a way of opening closed minds & provides some sanity on the issue: http://www.OUTTAKEonline.com
John
Craig and John K.,
I agree with most of what you’re saying. I don’t think we’re that far apart. I don’t think the USSC will intervene out of respect for precedent and the 10th amendment.
However, I do believe that the ultimate authority over whether to accept an application for judicial review is within the competence of the USSC itself. That is, as a co-equal branch of government, they decide whether it’s constitutional for them to intervene or not. If they deem that the ruling has broader implications outside of California (or to the DOMA), they can take up the religious right’s appeal.
As we’re seen with the Guantanamo Bay situation, there’s really no external force prohibiting them from meddling. The GOP Congress tried to pass laws to strip them of all jurisdiction over the matter, but even that’s no guarantee. After all, who gets to interpret whether those limitations are constitutional?
So, I think there’s a logical reason why lawyers for these gay couples (and the cities) have shied away from the due process clause of the federal constitution. As slim as the chances of intervention are, they’re hedging their bets by refusing to even make the argument. It’s a smart move to shrink the scope of this case to the state constitution and Prop. 22.
queerunity
how can they possibly know what the court will decide?
http://www.queersunited.blogspot.com
John K.
John:
Oh, don’t get me wrong. If plaintiffs in state court advance an argument under the federal constitution, the USSC absolutely can intervene (and probably would). However, if only arguments under state constitutions are made, the only way the USSC could intervene is if there was a question as to whether the state constitutional provision was in violation of federal law. The USSC has no authority to actually interpret a state’s constitution for that state. It can only find an already interpreted provision to be in violation of federal law. The Defense of Marriage Act is the only federal legislation on the issue, and it quite explicity states that it only applies to the federal government.
I mean, you’re technically right, the Court can try to do wacky things if it wants. It could abolish judicial review altogether. It’s just not going to do it though.
JPinWeHo
John K. is completely correct. SCOTUS has no jurisdiction to hear an appeal of a state court action that did not explicitly argue application of a federal statute or constititional law. The CA marriage case did not argue such a thing. The buck stops with the CA Supreme Court.
QueerUnity – as to how such decisions could be leaked: every Justice has a few legal clerks assigned to them – i.e. someone who just graduated law school a few years back. The clerks actually do the legal research, and often, the writing for the judge, and more importantly often know which way their assigned judge might be leaning. They certainly would know if they had been assigned to draft the majority opinion for the Court. So – if you don’t buy the argument that the Justices themselves are leaking info – it’s quite possible that a legal clerk is. There are also numerous other lower staff who might have insider knowledge.
Charley
California State Marriage rights are a step away from the over 1,000 Federal Marriage rights. We just have to fight it constitutionally in the U.S. Tax Court.
Charley
The trouble with LGBT legal organizations, is that very few have approaced challenging the discriminatory tax code. Perhaps they want to vere away from the IRS out of fear they will lose their fundraising abilities and non profit status with the IRS.