A Gay Marriage Cartoon

Today the California Supreme Court began considering the constitutionality of gay marriage. The overwhelmingly Republican court is expected to deny the pleas of dozens of plaintiffs hoping the state will sanction their marriages. A decision is expected in about 3 months, so this shouldn’t drag on forever and with any luck I’ll remember to follow up on it when the results are in. In the meantime, I can hope against hope that the court will extend the same rights and liberties to everyone.

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  1. They were showing the oral argument at my school, and I watched most of it. One of the lawyers for the petitioners was just phenomenal; she was really quick in responding to the justices, and she managed to clearly lay out the best arguments for her side.

    The justices were interesting to watch, too. When they questioned the petitioners they seemed very skeptical of just about every argument, and when they questioned the respondents they seemed very skeptical of just about every argument. I would guess, just from the arguments, that at least three justices will vote for marriage. Kennard and Moreno seemed like solid votes (Kennard in particular was ruthless and giddy in questioning the respondents; we had quite a few laughs as she left the lawyers speechless on several occasions.) Chief Justice George offered up lots of excellent arguments and evidence against the respondents when questioning them, but was also pretty stubborn when questioning the petitioners, so he seems hard to read. Werdegar was sort of the opposite: quite sympathetic to the petitioners, but then almost totally silent when questioning the respondents. Maybe neither will vote for marriage, or maybe both will.

    The issue, really, is that the constitutional case for same-sex marriage just isn’t that strong when you look at precedent. The way equal protection cases are handled for sexuality discrimination, it just isn’t clear that limiting marriage to heterosexual couples would be found unconstitutional.

    The best argument, I think, which maybe is supported by the Chief Justice, is that there is a fundamental right to marriage. In response to an argument by the respondents that there is a right to marriage, but there is no right to same-sex marriage, the Chief Justice offered that in Lawrence v. Texas, SCOTUS specifically overruled Bowers v. Hardwick, where it was held that there was no fundamental right to homosexual sodomy, and that homosexual sodomy fell generally into a fundamental right to intimate association. He argued that this indicates that the high court wants to read these rights broadly, and that talking about same-sex marriage doesn’t make sense because people should be allowed to marry someone of any sex under the fundamental right to marry. It’s a strong argument, based on precedent, although it is kind of dismissed in the Lawrence opinion itself, where there is a disclaimer that essentially says, nothing in this opinion should be construed to allow same-sex marriage.

    While part of me definitely hopes that the justices rule in favor of marriage, I am worried about possible backlash and a constitutional amendment in California banning it (and even domestic partnerships.) But I have faith in California: I don’t think it would pass. I’m just afraid that it would.

    I may have more comments on this later.

    • Alan says:

      I am worried about possible backlash and a constitutional amendment in California banning it

      I’m not. The California legislators have tried twice to make gay marriage legal without the courts’ intervention. Things will need to change a lot before they start trying to make it illegal.

      Then again, you appear to know much more about the issue than I do. What class was this in? How is it that you’re so familiar with all these previous legal cases? Can you point me to a reference online where I can get that kind of background, too?

      • I’m not. The California legislators have tried twice to make gay marriage legal without the courts’ intervention. Things will need to change a lot before they start trying to make it illegal.

        I was thinking about a constitutional amendment by initiative, which I believe only needs a simple majority of voters to pass (stupid rule). Because of the way California’s districts are set up, it is entirely possible for the people to significantly disagree with what
        the legislature does and yet not be able to vote them out because even though they might have the majority in all of California, they won’t have a majority in the right districts.

        Then again, you appear to know much more about the issue than I do. What class was this in? How is it that you’re so familiar with all these previous legal cases? Can you point me to a reference online where I can get that kind of background, too?

        The oral argument wasn’t shown for a class, a group just set it up in an open classroom. In fact, I skipped a class to go watch it.

        Most of the above information I just got from the oral argument itself, but I got a good background on it all from my Constitutional Law class. I’ve read the Lawrence opinions myself, but not Bowers. I would definitely recommend reading the Lawrence opinion, concurrence, and dissent, and then look up concepts like “equal protection” and “substantive due process” on Wikipedia.

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