“In a sharp rebuke to supporters of a contested state ballot measure that banned same-sex marriage, the California attorney general said Friday that the measure was constitutionally indefensible and should be overturned.
“The attorney general, Jerry Brown, had previously hinted of his opposition to the measure, Proposition 8, but made his legal opinion concrete on Friday in a brief to the California Supreme Court, which is reviewing the measure. “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Mr. Brown said in a statement.
“Opponents have argued that the proposition fundamentally altered the state Constitution by taking away the right to marry from same-sex couples, who had been free to do so since May, when the California Supreme Court legalized such marriages. Proposition 8 overturned that decision by defining marriage in California as between only men and women.
“Supporters of Proposition 8 asked the court in a separate legal brief filed Friday to invalidate the approximately 18,000 same-sex weddings performed before the ban was passed.
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“The language, policy, history and intent of Proposition 8 do not permit recognition of some same-sex marriages but not others,” read the brief, which was also written by the prominent conservative lawyer Kenneth W. Starr. “None are valid or recognized in California.” [NYTimes]
Rock
ASSHOLES!
rick
gee, they lied. they said they weren’t going to do it yet they did it. just like in michigan where they said the gay marriage ban had nothing to do with benefits and yet it turned out it had everything to do with benefits.
this is not going to fly. people went and got a marriage license and PAID for it. they did so legally under the law. there was no fraud involved. it cannot be revoked retroactivly.
by trying to pull this they are setting it up for the supreme court of the united states. and they will lose. and all anti gay laws will fall.
the christian right does not have one valid legal argument. they have traditional and religion. no matter how they try to spin things it isn’t going to work.
obama should be applauded for picking rick warren btw. it has given warren a bigger platform and the more of his nonsense that comes out the better. it shows these people up for what they really are. he picked the most mainstream of them yet he his linked to sarah palin’s with hunter buddy just as all the rest of them are. they are going to be undergoing a good long hard look and people are not going to like what comes out. especially when the financial records get looked at.
we are undergoing a culteral shift. it is going to take some time for things to be equalized, but the process has been started and the election of obama is going to speed things up.
churches are already under investigation by the congress on where all that money is going to.
one needs to look at the broader picture and observe all the trends. these people are showing themselves for the frauds and charltons that they are.
love the warren clip where he talks about if it is proven gays are born gay. it shows how stupid these people are and how flimsy their biblical justification is.
the end was neigh for the right as soon as sarah palin’s name was announced and they all endorsed her. i have to agree with poster number one, they are assholes and they are going to be proven and branded as such as time goes by.
step back and look at the gay rights movement timeline. look at the court cases to get from where it was illegal to be in groups of 2 or more in public and private to where we are now. it isn’t so very long ago.
there is my rant on the issue.
BrianPrince
What about that pesky, “…no ex post facto law or bill of attainder” thing in the U.S. Constitution?
jack
i would surely love to see some legal readings on this from qualified legal experts. for instance, what exactly is the effect of the AG stating that he cannot prosecte have on the amendment part of the complaint?
how exactly would a state go about invalidating 18,000 plus marriages legally entered into?
BrianPrince
I neglected to read the other responses prior to posting my previous one, so I ask that you pardon my dual responses in such rapid succession… but I’ve got a few comments (as usual).
First… I agree… what Assholes.
Secondly, the primary issue at hand is one of state law, so it will most likely be debated in state court, however — if somebody with balls and a quarter of a brain cell jumps on board, and realizes that it violates the U.S. Constitution’s Ex Post Facto law… then there will be an issue.
The problem with that, however… is that in order for the U.S. Supreme Court to hear the case in the first place, somebody would either have to petition the court for dismissal and refile… or the CaliCourt would have to approve the motion and retroactively ban gay marriages… nullifying those already completed — then somebody would have to sue, in the U.S. Supreme Court, alleging that the court overstepped its bounds, and that there was a great violation of the “ex post facto” clause.
In my ‘great’ state (OH-IO…) we have certain ex post facto laws, which haven’t been struck down by the Supreme Court of the U.S. — that are based solely on public protection — I suspect that may well be the case elsewhere… protecting the public, however, from stylish ceremonies and monogamous gay couples is not necessarily in the best interest of the public.
I don’t think, and the second commenter proposes, that an action by the Supreme Court with regard to the denial of the retroactive nullification motion would, by any means, strike down other gay laws, elsewhere — the legal issue at hand is nothing gay… it’s about the motion, itself, and its retroactive application — and that will most definitely be the focus of the U.S. Supreme Court.
I do agree with him, however, that we have made remarkable strides, as a group, in an extremely short amount of time. Not enough… clearly — and we’ve got miles to go — but we’re well on the way.
Wolf
They really are EVIL and we must not give up and keep fighting. These religious wingnuts will not be satisfied ubntil we disappear!
This is the reason I think that Boycotts and Civil Actions are justified. They must be cut off at the knees.
Larry
More than anything, this is further proof that the religious right can’t be trusted. We should anticipate that if they win this one, their next target will be civil unions, and they won’t stop until sodomy laws are back on the books, with harsher punishments than ever for “offenders.”
Dennis629
We owe Jerry Brown a big kiss for his courage to take an unpopular position while running for Governor, courage our President-elect couldn’t muster even with his 75% approval rating and his post-election honeymoon.
Mark
@rick:
Nice. I’ve been looking for a ‘good’ reason for the Warren pick, and utterly failed to see that it would be ‘good’ because he’ll be totally exposed to a much larger audience.
They need to be shone sunlight. Sunlight makes cockroaches scatter.
mark
this shows what a BIG WHORE Ken Starr is, ANYTHING for a BUCK
Dave
This is why we need to push the proposed equality legislation in Utah because they’ll be stuck between the media’s attention and their own bigotry. If the Mormons or the far right in general attacks or tries to side-line the legislation we’ve got them. In point of fact we should be pushing for equality laws regarding employment, and other non-matrimonial type issues, because it will be a PR nightmare for many of these organizations where they’ll need to appease the bigots of their base while not showing their true colors and being discredited on a national stage. We may not be able to make significant gains on marriage or civil unions this year but that’s no reason not to turn up the heat on employment and health related legislation that will recognize and affirm our rights.
Martin
Our marriage license from the State of California only says Party A & Party B. No gender is specified anywhere on the license. How could anyone go through all the marriages preformed between May and November and pick out the same-sex couples. Names are not an indication of gender i.e. Pat, Leslie, Stacy etc.
rick
brianprince, all cases won by gays have been won at the supreme court level. one way or another this will cause gay rights to get to the supreme court and equality will be attained.
mark, i do so hope that you were not being sarcastic. now the really asinine stupid things warren has said will be all over the youtube, just like sarah palin’s crazy assed shit was.
the end started when people looked this broad up while she was still on television the day her name was announced yammering away. turns out she pals around with meth dealers/makers.
we are undergoing a major paradigm shift. it started all the way back to oscar wilde and gathered speed with the advent of the 20th century and was firmly established with the begining of world war one. we went from people being the only gay in town down on the farm to just oodles of people who were thinking the same thing all together in a big city.
at the same time you had reproductive rights being slowly established (birth control and birth control information, i love you margaret sanger!), obscenity laws being slowly overturned (from lady chatterly being in a bookstore to being able to send information in regards to homosexuality in the mail).
it used to be illegal for gays to gather together for a quiet party at someones apartment. you could be arrested for touching a person of the same sex in a gay bar. you could be arrested for being in a gay bar. straights and the mob owned the bars, now we own the bars and get paid to throw the straights parties for them.
we have gone from a cbs reports on homosexuality and the tv movie that certain summer on television, to jack mcfarlen on will and grace and ellen the queen of nice on daytime television.
some have come from behind the jewelry counter to be respected and admired. (i have had evita on the brain since the last night of the republican convention).
all of the loving opposition to the gay agenda is starting to be seen for what it is, hate speech justified using a book they do not enforce the rules of for any other group. and they are doing it for the money. they can’t enforce any of the other rules or laws which come before and after their favorite leviticus. the new testament arguments aren’t valid and they know it. gay sex ranks up there right along with using magic (the real kind that doesn’t exist, not david copperfield) for pesonal gain and profit as a sin. (that point should be pressed more rather than the shrimp thing as magic isn’t real and has never been real and yet the bible says it is real and a sin).
i loved what rick warren said about what if gays are born gay. it should be repeated endlessly for it is endlessly stupid. it shows how much his god sucks. that is some god who makes gay people and then expects them not to be gay. seems to me that makes them special. just like slaves. born and expected to accept you are owned. the gay rights movement is exactly like the civil rights movement.
but, this is all happening in a much larger context. it is the demise of the outmoded extreme conservative christian republican right. the politicals have grabbed their money and leaving town. turns out they were all liars, crooks and closet cases out to make a buck. the preachers are not far behind them.
it is going to take a little time but things are going to work out in the end for the gays.
well, there is my little rant. part two.
oh, one last thing, on the topic of this article. if they invalidated the marriages retroactively it would be a direct violation of the constitution of the united states and the bill of rights. also a violation of contract law.
we have them on tape saying they weren’t going to do it, so that should help too.
they keep there stuff up and they are royally going to piss off a lot of straight people with gay relatives and people who don’t think like them with gay neighbors.
no matter how long it takes this is a win win situation for gays.
Dave
If anyone’s interested in reading the AG Brown’s brief it can be found on the California Attorney General’s website ( http://ag.ca.gov/newsalerts/release.php?id=1642 ). He makes his argument for overturning 8 on page 75 of the document (in the pdf that’s page 91). He knocks the notion of retroactive application on its ass as well. His argument also would more clearly establish a distinction of the difference between an amendment and a revision according to Californian state law.
Charles J. Mueller
I’ll just bet Harvey flipped over in his casket when he heard the news that Prop. 8 passed.
Pragmatist
@Martin: Realistically, it’s not as if the California government (which is flat broke) would hunt down all 9,000 of you and rip up your certificate. All that would happen is the Supreme Court would issue a blanket declaration that all same-sex marriage certificates are invalid. Thereafter, the next time you interact with state or local government in a way that references your marriage, the agency you’re dealing with will refuse to honor it.
Steve M
Here’s the deal, invalidate my marriage, then we and 18,000 other couples want the license fee back.
And I really don’t give a damn how broke California is.
natriley
@Wolf: They want us to disappear into a dark closet or in “education” camps. The threat is real and watch Sarah Palin survives the arrest of her daughter’s mother-in-law. They have a national figure that can threaten the Republican Party and they have a third political party — The Constitution Party or it’s variant, the Independence Party that they can elevate if they bolt the GOP.
Brent
All is fair. Shouldn’t those that have been divorced or known to have committed adultry have thier marriages revoked?
We know these are “chosen’ behaviors” and have an enormously more detrimental effect on families and the sanctity of marriage. Why the concern with such a small group who’s lifestyles have yet to be proven a threat to hetero marriages?
This is just another example of the darker side of human behaviors. To blame problems on the weaker group weather they are to blame or not. Everyone needs a scapegoat and at this time the gay community looks the easiest. Who’s next? As has been the case throughout the history of all religions there must always be someone to blame thier unhappiness on besides themselves.
rick
@natriley: sarah palin is going to go down in flames. her supporters will be known as palinites and be endlessy mocked as their support of this lying freak from alaska with her witch hunting ways will endlessy play on the interwebs and the youtubes. they will all look like stupid fools for supporting this woman. they were sucker punk’d by karl rove.
Brian Prince
Rick,
I fail to see a grand number of cases falling from the U.S. Supreme Court which guarantee rights for gays…
In re: Charles B. – Ohio
In re: Marriage Cases – California
Goodridge et al. v. Department of Public Health – Massachusetts
You assert that the majority of gay rights come from the U.S. Supreme Court. The first time, as a matter of fact, that a Federal Court (of any level) ruled on gay marriage, was in 2005, when a Federal District Judge ruled that Nebraska’s DOMA statute was unconstitutional.
There is a very compelling legal reason for this. In the establishment of our nation, the founders were wise enough to recognize the potential diversity of the future inhabitants. As such, the power that was afforded to the federal government is VERY limited… there’s a clause in the U.S. Constitution referred to as the “remainder clause” which essentially gives everything else (being all the stuff that wasn’t specifically given to the federal government) to the states.
Marriage is one of those things. There are certain instances, I’m sure you’re thinking of, when the federal gov. has stepped in, with regard to civil rights, in general (Brown v. Board of Ed. Topeka Kansas, Roe v. Wade)…
Some of those cases are appealed from the trial level in the states all the way to the U.S. Supreme Court… others, however, were primarily federal in nature (Slaverly, for example, involved trade between the states… which is regulated by the Federal Government…).
Essentially, sir, the court which makes the ruling is determined by the law being broken… the legal issue at hand.
While there is most definitely an issue, civilly and morally in stripping thousands of people of their marriages… the legal issue isn’t so much whether or not gay people can get married… the petitioners have already made that impossible in California (for now). The issue is… whether or not the already performed marriages will be illegal, or not — they are asking for retroactive application of Prop.8.
That… could be a violation of the State Constitution, — I’m not sure, I haven’t read California’s Constitution, and I’m not nearly as well versed in California law as I am in Ohio or Federal Law… but on the Federal Level, (which is where I’d be dragging these people), the issue is the ex post facto clause of the U.S. Constitution.
I do not oppose gay rights, by any means — I do not oppose marriage, or equality for any group of people… so I’m not opposed to somebody attempting to completely and totally demolish the California Constitutional Amendment (or the Ohio DOMA)… but the legal issue at hand isn’t marriage… it’s the retroactive application of a law, against the U.S. Constitution.
Chloe
@Brian Prince: I hate to nitpick, however you’re not correct here. You’ve forgoten Lawrence V Texas (2003) U.S. Supreme Court.
BrianPrince
@Chloe: Lawrence v. Texas was about gay butt-sex and privacy, not marriage.