Ban on Gay Marriage Overturned

[>:^|]

WASHINGTON - Massachusetts became the first state to smash the legal barriers to gay marriage when its highest court ruled Tuesday that such prohibitions are "incompatible" with the principles of personal freedom and equality found in the state's constitution.

The ruling, coupled with the U.S. Supreme Court's recent decision to strike down bans on gay sex, marks a legal watershed that some scholars say is as important to gays as legislation on civil rights and voting rights was to blacks in the 1960s.

It tossed fuel on an already incendiary argument over one of America's most contentious issues. Religious conservative groups and Republican lawmakers vowed to pursue an amendment to the U.S. Constitution to ban gay marriage. The debate seems certain to rage into next year's presidential campaigns.

While President Bush repeatedly has voiced opposition to gay marriage, the Democratic presidential candidates are outspoken advocates of gay rights.

full story at http://www.miami.com/mld/miamiherald/7294153.htm


Gay rights, eh? What about gay marriage?

The major Democratic presidential candidates continued to back legal rights for gays but declined to go as far as the Massachusetts Supreme Court and endorse gay marriage.

Only underdog candidates Dennis Kucinich, Al Sharpton and Carol Moseley Braun support laws that would allow same-sex couples to wed.

The leading candidates for the nomination oppose gay marriage, but most say gay couples should get all the legal rights of married couples. It may seem like a dubious distinction, but it's the same position taken by the majority of Americans in public opinion polls.

* * *

Joe Lieberman, Dick Gephardt, John Kerry and John Edwards issued statements Tuesday restating their opposition to gay marriage.

full story at http://www.bayarea.com/mld/mercurynews/news/politics/7293516.htm

The proposed constitutional amendment barring gay marriage, H.J. Res. 56, now has 96 co-sponsors!

see info at http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h.j.res.00056:

[cmar]

Good news. Shame on the democratic frontrunners for not supporting equal rights. Gays and Lesbians should switch their support to Kucinich, Sharpton or Moseley Braun.

[myself808]

all the dem candidates support civil unions in some form or another, Dean signed a civil union law in Conn. expect the conservatives to go balistic over this one.

[ism]

all the dem candidates support civil unions in some form or another, Dean signed a civil union law in Conn. expect the conservatives to go balistic over this one.

Vermont... and yeah if he wins the primary it will surely be a major point of contention. Personally, I think it will lose him the election. With the upcoming election, I can't really blame the Dem candidates for not speaking out for this decision. While Bush has veered to the right, I don't think that's enough of a difference to overcome the resistance to gay marriage. The ones who have kept quiet are simply employing a common Bush tactic of not saying anything until it's absolutely required.

[kasia]

for sodomy, they had to strike down bowers v. hardwick based on our fundamental right to privacy. would the same theory apply to gay marriages? i'm skeptical that they would go so far. i think, in order for them to find that gays have a right to get married, they will actually have to use the 14th Amendment and argue that gays are a protected group.

do any lawyers/law students agree?

[>:^|]

Hmm ...

Well, state courts have typically either refused to consider constitutional issues or they have declared that marriage between same-sex partners is not a right. And even if partners win the right to marry in their state, the state can always pass a constitutional amendment specifically prohibiting same-sex marriage (like Hawaii did). I believe that it will eventually either take a Supreme Court decision or a Constitutional Amendment before this right will be accorded.

While most of the Democratic candidates say they support civil unions, I find it discouraging and disheartening that the majority will not back marriage among same-sex partners. While recognizing civil unions is a step in the right direction, it does not afford the participants the same rights and privileges as married people.

If you haven't already done so, please write your representative and tell him or her that you oppose H.J. Res. 56.

[etcj]

Frankly, I haven't been celebrating too much about this whole thing. I don't think gay marriage solves all the problems that GLBT folks encounter in society and I also believe that marriage is almost always a privilege experienced by those who have the means. Just as with straight people, marriage often isn't about churches and wedding bells.

Seeing as how marriage is often conducted as a family-oriented affair, it just doesn't seem complete if gay couples are just getting married with family being presented. It's great to have some propose to you, but isn't that joy best shared by being able to tell your parents or relatives? That's why I sometimes think gay marriage can sometimes to be a hollow victory for society if we simply interpret it as inheritance rights, hospitalization vistitation rights, or whatever...

Also being a life-long resident of Massachusetts, I can tell you that people here aren't as liberal as the media would like to depict. There are many conservative individuals and communities that make it very clear that this isn't what they want. Of course, the same people are usually the ones who consistently vote. This is why all our politicians in the state government are actively opposing the ruling - they want to appease the voting public.

[Faithless]

You know this aint the last of these court decisions.

Court invalidates California's ban on same-sex marriage (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/archive/2005/03/14/samesexruling14.TMP)

Bob Egelko, Chronicle Staff Writer * Monday, March 14, 2005

Gay and lesbian couples in California have a constitutional right to marry, a San Francisco Superior Court judge ruled Monday.

The ruling by Judge Richard Kramer is just the first step in a case that is headed for the state Supreme Court, probably sometime next year. But it marks the first time that a California judge has declared unconstitutional the state law that defines marriage as a union between a man and a woman.

"I never thought I would see it in my lifetime," a jubilant Kate Kendell, executive director of the National Center for Lesbian Rights, said outside the courthouse. "It's an amazing day for justice, an amazing day for lesbian and gay families."

The ruling comes more than a year after about 4,000 same-sex couples exchanged marriage vows at San Francisco City Hall after Mayor Gavin Newsom ordered that the city clerk issue them marriage licenses. The state Supreme Court declared the marriages invalid last August and ruled that Newsom had exceeded his authority in giving the marriages the go-ahead.

Monday's ruling did not revive those marriages but - if it stands - will allow same-sex couples to marry in the future. Currently, only Massachusetts allows same-sex couples to wed. A trial judge in New York has ruled that state's same-sex marriage ban unconstitutional. That decision is on appeal, and a decision on same-sex marriage is pending in Washington state.

In his 27-page decision, Kramer - an appointee of former Gov. Pete Wilson, a Republican - said the state's ban on same-sex marriage violates "the basic human right to marry the person of one's choice," and has no rational justification.

Rejecting California Attorney General Bill Lockyer's argument that California is entitled to maintain the traditional definition of marriage, Kramer said the same explanation was offered for the state's ban on interracial marriage, which was struck down by the state Supreme Court in 1948.

The judge also rejected arguments by opponents of same-sex marriage that the current law promotes procreation and child-rearing by a husband and wife. "One does not have to be married in order to procreate, nor does one have to procreate in order to marry," Kramer said.

[hooligan]

I just read about this today. I wonder what this will mean for the rights of the LGBT community. I've always wondered how you can "ban" marriage.

[lethal]

What's the composition of the California Supreme Court look like these days?

[Arex]

^--- I dunno, but I've said it from day one that there does not appear to be any sort of legitimate, secular basis for depriving consenting adults of the right to marry whoever the hell they want to. Good for Judge Kramer!

RX

[Faithless]

I just read about this today. I wonder what this will mean for the rights of the LGBT community. I've always wondered how you can "ban" marriage.
According to the LA Times (http://www.latimes.com/news/local/la-me-marriage15mar15,0,5482057.story?coll=la-home-headlines)
The ruling does not mean that gay couples in California can immediately wed. The decision will be stayed to allow an appeal, which opponents of gay marriage say they plan to file. The case is likely to end up before the California Supreme Court, which is not expected to rule until next year.

And according to the NY Times (http://www.nytimes.com/2005/03/14/national/14cnd-gays.html)
Attorney General Bill Lockyer has said he expected the case to reach the California Supreme Court, The Associated Press said. It may first go to the State Court of Appeals, or it is possible the high court will bypass the appeals court and take the case directly. In any case, Robert Tyler, a lawyer with the conservative Alliance Defense Fund, which joined the case in support of the ban on same-sex marriages, told The A.P. his group would undertake an appeal. Two bills are pending before the California Legislature that would put a constitutional amendment banning same-sex marriage on the November ballot, The A.P. said. If California voters approve such an amendment, as did those in a dozen other states last year, the issue would largely be out of the reach of legislators and the courts.

California's court structure:

http://www.courtinfo.ca.gov/reference/guide.htm

According to answers.com (http://www.answers.com/topic/supreme-court-of-california)
Political, Gender, And Ethnic Diversity

Reflecting the state that it serves, the Court is very diverse, with three women justices, one Asian justice and an African-American justice. The Court currently has 6 Republicans and 1 Democrat, although the Republicans tend to be moderate. Perhaps the most notable exception is the more extreme Janice Rogers Brown, who has occasionally clashed with the more moderate Chief Justice George and others on the bench. This tendency has gotten her noticed by President George W. Bush, who has nominated her to the U.S. Court of Appeals for the 9th Circuit. Democrats have successfully blocked her nomination, along with the nominations of a handful of other Bush nominees that Democrats charge are too conservative.

SFgate.com article about the justicies on the CA Supreme Court (http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/05/23/ING9T6NCRN1.DTL)
...
The high court lineup

The six California Supreme Court justices who will join Chief Justice Ronald George in a May 25 hearing on the same-sex marriage case:

Joyce Kennard, 63, a Republican appointed by Gov. George Deukmejian in 1989. She is an independent-minded moderate and a frequent dissenter who sometimes dominates questioning at oral arguments.

Marvin Baxter, 64, a Republican appointed in 1990 by Deukmejian, whom he formerly served as appointments secretary. Conservative.

Carlos Moreno, 55, a Democrat appointed by Gov. Gray Davis in 2001, and a former federal judge. Moderate to liberal.

Kathryn Mickle Werdegar, 68, a Republican appointed by Gov. Pete Wilson in 1994. She is a moderate who wrote a ruling last August upholding a second- parent adoption procedure commonly used by gays and lesbians.

Ming Chin, 61, a Republican appointed by Wilson in 1996. A conservative who occasionally votes with the more moderate justices, he joined George, Kennard and Werdegar in a 1997 ruling striking down a state law requiring parental consent for minors' abortions.

Janice Rogers Brown, 55, a Republican appointed in 1996 by Wilson, whom she formerly served as legal affairs secretary. She is a conservative and the first African American woman named to the court. President Bush has nominated her to the federal appeals court in Washington, D.C., a nomination being filibustered by Senate Democrats who object to her decisions on abortion, civil rights and the role of government. She dissented from both Werdegar's adoption ruling and George's abortion ruling.

[Shuriken]

THE EQUALITY ISSUE

Los Angeles Times editorial


Before the talk-radio showmen sink their fangs into Monday's state court ruling overturning California's ban on gay marriage, and before too many celebrations in front of San Francisco's City Hall, we'd like to say that Judge Richard Kramer reached the right decision. That doesn't mean having judges decide such explosive social issues settles them.

The historical definition of marriage, by itself, the judge said, cannot justify the denial of equal protection to gays and lesbians. The San Francisco Superior Court ruling was the result of a pair of lawsuits that focus on a voter initiative, passed in 2000, that amended state law to limit marriage to a union between a man and a woman.

Those uncomfortable with the concept of gay marriage — and according to opinion polls, that includes a majority of Americans — may argue that marriage is an unnecessary step because California law already grants same-sex couples who register as domestic partners virtually the same state rights and responsibilities as married couples. That argument further undermines any reason for states to make the moral judgments about which adults can marry and which can't. Let priests, rabbis and imams decide which marriages should receive their blessing, but as to legal and social rights, the state has no business discriminating.

The legal battles over same-sex marriage are not the first time that the courts have gotten ahead of public opinion on social issues. This nation's long civil-rights history is one of two steps forward, backlash, another step or two forward.

Kramer is the fourth trial judge across the country to decide in recent months that same-sex couples should have the right to marry. Those who oppose his ruling, and similar decisions elsewhere, are betting that higher courts and voters will ultimately settle the issue in their favor. Indeed, efforts to place a measure on the November ballot carving a gay-marriage ban into California's Constitution no doubt got a big boost from Monday's decision.

Last November alone, voters in 11 states passed such mean-spirited measures, and President Bush says he still backs an amendment to the federal Constitution defining marriage as a union between a man and a woman. So far, only Massachusetts recognizes same-sex marriages.

Opponents of Monday's decision will be quick to denounce it as judicial activism and result-oriented jurisprudence. They will point out what is indisputable: that the authors of the identical words in the U.S. and California constitutions guaranteeing "equal protection of the law" never envisaged the possibility of gay marriage, let alone making it a constitutionally guaranteed right. The judicial power to overturn the popular will is extraordinary and potentially dangerous medicine. But "use with care" doesn't mean "never use at all." The "equal protection" words are there, and are there to be used. Respect for democracy and the Constitution — as well as simple prudence (judges can do things you don't like, as well as things you do) — requires us to consider the reasoning of a decision, however much we may like the result.

In the coming days, that reasoning will receive close scrutiny. The judge argues that forbidding same-sex marriage is gender discrimination. A better argument would be that gays are a classic example of a group that needs constitutional protection from the tyranny of the majority. There is no special reason to assume that the Constitution's framers would disagree with that analysis if they were living in today's society.

[Faithless]

Maryland Judge Voids Ban on Same-Sex Marriage; State Quickly Appeals (http://www.nytimes.com/2006/01/21/national/21marriage.html)

By ADAM LIPTAK | Published: January 21, 2006

A Maryland judge yesterday struck down a state law banning same-sex marriage, saying the measure violated a state constitutional amendment prohibiting sex discrimination.

The judge, M. Brooke Murdock of Baltimore City Circuit Court, stayed her ruling to allow Maryland officials time to appeal, and they immediately did so.

The equal rights amendment to the State Constitution was ratified by Maryland voters in 1972. Judge Murdock ruled that a state law enacted the following year that says "only a marriage between a man and a woman is valid" could not be reconciled with the amendment.

Same-sex marriage is available in the United States only in Massachusetts, though courts in California, New Jersey, New York and Washington State are also considering the issue.

Courts have generally been unreceptive to the argument that the prohibition on gay marriage is a form of sex discrimination.

But Ken Choe, a lawyer with the American Civil Liberties Union's Lesbian and Gay Rights Project, which represented the plaintiffs in the Maryland case, said men and women were indeed treated differently under the law Judge Murdock struck down.

"A man can marry a woman, but a woman can't marry a woman," Mr. Choe said.

Judge Murdock relied on a 1967 decision by the United States Supreme Court, Loving v. Virginia, which struck down bans on interracial marriages. The State of Virginia had argued that its ban was not discriminatory, because it affected blacks and whites equally. Maryland made much the same argument with regard to the marriage law's effect on men and women.

William B. Rubenstein, a law professor at the University of California, Los Angeles, and author of "Sexual Orientation and the Law," said Judge Murdock's analysis of the Loving decision could be viewed in two ways.

"On a formal level it makes sense," Professor Rubenstein said. "But it hasn't had as much of an intuitive appeal."

Mr. Choe said the equal rights amendment provided a sound basis for Judge Murdock's ruling even if the people who had voted for it did not know they were endorsing same-sex marriage.

"The voters of Maryland in the early 70's enacted a broad prohibition on sex discrimination," Mr. Choe said. "The test is not whether a voter thought of every conceivable fact pattern that could have come up."

Gov. Robert L. Ehrlich Jr., a first-term Republican, issued a statement saying the state would "begin a vigorous appeals process."

"I firmly believe the institution of marriage is for one man and one woman only," Mr. Ehrlich said.

Judge Murdock wrote that "the court is not unaware of the dramatic impact of its ruling." But she rejected all the arguments offered in favor of the law, among them that children are best served by one male parent and one female parent.

"Prevention of same-sex marriage," she wrote, "is not rationally related to the state's interests in promoting stable families and protecting the best interests of children."

"Tradition and social values alone cannot support adequately a discriminatory statutory classification," she added. "When tradition is the guise under which prejudice or animosity hides, it is not a legitimate state interest."

The plaintiffs - nine gay or lesbian couples and one individual - sued court clerks in five Maryland counties who had denied marriage licenses to same-sex couples. Their inability to marry, they said, had caused them legal, financial and emotional harm.

One plaintiff, John Lestitian, the chief code compliance officer in Hagerstown, Md., said Judge Murdock's decision "is a step in a very long process."

"As a 40-year-old man," Mr. Lestitian said, "I should be able to decide who my family is."

[hooligan]

I'm not entirely sure of the validity of the quote, but hey, if it is true it bears repeating.

On Wednesday, March 1st, 2006, in Annapolis
at a hearing on the proposed Constitutional
Amendment to prohibit gay marriage, Jamie
Raskin, professor of law at AU, was requested
to testify.

At the end of his testimony, Republican Senator
Nancy Jacobs said: "Mr. Raskin, my Bible says
marriage is only between a man and a woman.
What do you have to say about that?"

Raskin replied: "Senator, when you took your
oath of office, you placed your hand on the Bible
and swore to uphold the Constitution. You did
not place your hand on the Constitution and
swear to uphold the Bible."

The room erupted into applause.

[mizhi]

Awesome quote, thanks for posting.

http://www.365gay.com/Newscon06/03/030206mdAmend.htm

[Arex]

"As I read Biblical principles, marriage was intended, ordained and started by God - that is my belief," Jacobs declared. "For me, this is an issue solely based on religious principals."Nice. Based on Constitutional principles, that statement alone should pretty much sink the amendment.

[stickyriceHK]

The most revolutionary and powerful thing that a gay person can do, is to come out. Comming out is the last thing homophobes want us to do They depend upon us being fearful and letting a small minority fight our battles.
By and large our battles have been won as our fellow citizens become aware people we are everywhere. If the other 75% of us had the courage to come out, there would be few families, few meeting rooms, few school rooms, few audience, consumer markets etc etc, where they could get away with ignoring our existence.

To some degree rights, including right to marry are a function of our numbers and our economic power. We have both but we will only be fully counted as we count ourselves. We haven't come so far that what happened in Germany couldn't happen here..
s

[Faithless]

Come out and go to Bush's Easter White House lawn party! :cool:

[Michelle101]

leave em alone. if they wanna get married, let them as long as its not a clear and present danger to society

[stickyriceHK]

leave em alone. if they wanna get married, let them as long as its not a clear and present danger to society

While It's not clear what you mean or what your concern is with the "clear and present danger" condition, Would you condition heterosexual marriage similarly? Why not condtion all relationships subject to passing a clear and present danger test,why not condition all rights on such test?
S