Gay marriage in CA is illegal, unless you are already married? wtf?

[uppityperson]

how can they
aw hell, words fail me
damn them all

[bobburgster]

1. Amazing isn't it?

Only in America!

[Booster]

2. A really stupid decision. Your post is exactly why this decision

will not stand up. How can the court say it's ok for the ones already married, but not for gays who want to get married. That little bit of discrimination is almost worse than saying gays can't marry at all. WTF is right.

[uppityperson]

4. I bet it is really pissing fundies off. I am glad they at least have that part there as it shows

the discrimination and, hopefully, will be of use in the future to make marriage a civil right for us all

[MurrayDelph]

3. It's the only good part of a bad decision

I have a couple of friends who have been a couple for 27 years. One of them is dying (or may have already died at this point, she was THAT close).

Without the only good part of a really bad decision, my friend's wife would have been stuck with inheritance taxes on her own house.

[gratuitous]

5. Solomon cut the baby in half

Prior to the passage of Proposition 8, the law of the land in California was that two people could get married, whether they were gay married or, as Miss California called it, opposite married. No laws were being broken at that time, and there is a prohibition in the U.S. Constitution against ex post facto laws.* So the 18,000 couples remain married.

But the state ballot initiative process is quite definite. If a constitutional amendment is passed by a majority of the citizens, it becomes part of the constitution, even if it conflicts with other portions of the same state constitution. It's up to the state supreme court to figure out where to draw the line between competing parts of the state constitution. Even though Prop 8 was clearly in violation of the "equal protection" clause of the California state constitution, the people enacted Prop 8 anyway, and it was up to the justices to decide how to interpret the two conflicting portions of the constitution. Since they're both part of the constitution, they are by definition constitutional, and not subject to judicial re-writing.

I'm not sure what the mechanism is for repealing a constitutional amendment, whether it can go through the legislature, or if another ballot measure can invalidate Prop 8, but I'd suggest doing just that: Introduce a ballot measure repealing Prop 8, get it on the ballot, and vote it out.

This is part of why it's not such a very good idea to legislate by ballot measure. Unintended consequences, conflicts of law, and the usual apathy and ignorance of the voting public make the system ripe for manipulation. Laws written by a legislature may resemble sausage-making, but at least there's a better chance that controversial proposals like Prop 8 would get a thorough vetting, expert testimony submitted, and a decision rendered by the legislative body after due consideration of the various facets of the proposal.

Bottom line: This ruling sucks, but I don't see how the California Supreme Court could have ruled any other way. The people amended the California Constitution via Prop 8; the people can amend it again.

*Ex post facto, meaning after the fact. If you walk across a grassy park on Tuesday, and the City Council passes a law against walking on the grass on Wednesday, you can't be cited for walking on the grass the day before.

[uppityperson]

6. Thank you for the explanation. I hope this can be used to change things further

"If a constitutional amendment is passed by a majority of the citizens, it becomes part of the constitution, even if it conflicts with other portions of the same state constitution."

Having 2 conflicting parts in a constitution seem illegal, inappropriate, not sure the right term beyond wrong.

As far as your comparison about walking across a grassy park, this is not a valid comparison in this way: once you get married, you stay married (until you divorce). It is a permanent condition. Whereas walking across that grass yesterday, today you are not on it. Perhaps camping on the grass would be more valid. If you put up a tent there yesterday and started living there, and today they said you couldn't camp there.

I understand the point of what is legal/illegal now not having bearing on acts of yesterday, but marriage is not just a temporary state of being like walking on grass is.

But, I do thank you for the explanation (nice to have a nice thing after a "but"). I hope this ruling can be used to point out the nature of the discrimination to some who may have not been outraged before.

[gratuitous]

7. What I meant . . .

Is that when the 18,000 marriages were entered into, it wasn't against the law (the California State Constitution as amended by the passage of Prop 8) for the couples who got married. Now that the California Supreme Court has ruled that Prop 8 is a proper amendment to the state constitution, no same sex marriages entered into after Prop 8's effective date are legal.

In addressing the marriages that took place between the time the legislature passed the law allowing same sex marriage and the people changed the constitution disallowing same sex marriage, the California court ruled that those 18,000 couples did a legal act at the time they did it (they walked on the grass on Tuesday, walking on the grass became illegal on Wednesday). The analogy isn't perfect, of course, because as you say the responsibilities, rights and benefits of being married continue even after the passage of Prop 8 for the lucky 18,000. But as far as the action of getting married is concerned, it wasn't unconstitutional at the time. Maybe a better analogy would have to do with a new Prohibition in that you could get rip-roaring drunk on Tuesday, have alcohol become illegal on Wednesday, and still be drunk from Tuesday's bender. Not that I have any personal experience with such a thing, but I've heard stories.