quote:

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The court concluded that permitting opposite-sex couples to marry while affording same-sex couples access only to the novel and less-recognized status of domestic partnership improperly infringes a same-sex couple's constitutional rights to marry and to the equal protection of the laws as guaranteed by the California Constitution.

The decision directs state officials who supervise the enforcement of the state's marriage laws to ensure that local officials comply with the court's ruling and permit same-sex couples to marry.

---

I assume there will be court challenges?

Second response: Whatever. Marriage is an antiquated and flawed institution and reinforces patriarchy and capitalism and should be rejected, not embraced by all.

(I've always been pro-SSM by default.)

As for Clinton and Obama, yeah right!

quote:

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Marriage is an antiquated and flawed institution and reinforces patriarchy and capitalism and should be rejected,

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Do you actually think that lesbian marriage reinforces patriarchy?

Or gay male marriage?

And I'm sure I've attended, and cried at, more lesbian weddings than you. So there. I critique the patriarchy and cry at weddings. I'm a complex gal dontcha know.

California has not legalized same-sex marriage. California law bans same-sex marriage. The California Supreme Court has ruled that this law is in conflict with the constitution of California. The Court appears to have ordered officials to conduct SSM in spite of the current law.

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"The California Supreme Court has engaged in the worst kind of judicial activism today, abandoning its role as an objective interpreter of the law and instead legislating from the bench," said Matt Barber, policy director for cultural issues for the group Concerned Women for America, in a written statement.

"So-called 'same-sex' marriage is counterfeit marriage. Marriage is, and has always been, between a man and a woman. We know that it's in the best interest of children to be raised with a mother and a father. To use children as guinea pigs in radical San Francisco-style social experimentation is deplorable."

The organization said that a constitutional marriage amendment should be placed on the November ballot and that national efforts should be made to generate a federal marriage amendment.

"The decision must be removed from the hands of judicial activists and returned to the rightful hands of the people," Barber said.

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quote:

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In California, a 2000 voter referendum banned same-sex marriage, but state lawmakers have made two efforts to allow gay and lesbian couples to wed. Republican Gov. Arnold Schwarzenegger vetoed both bills.

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quote:

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Democratic presidential candidates Sen. Barack Obama and Sen. Hillary Clinton both oppose same-sex marriage but support civil unions. They also oppose a constitutional ban.

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quote:

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Matt Barber, policy director for cultural issues for the group Concerned Women for America

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[ 15 May 2008: Message edited by: Marc ]

If a court were to rule as a constitutional matter, that a fetus was a “human being” and thus entitled to all human rights that “born human beings” are entitled to, then the only way for the people to “overrule” the court would be to amend the relevant constitution.

If you support courts making fundamental decisions like the California Supreme Court just did, then as a matter of principle you couldn’t legitimately criticize the means by which such a fetus-equals-“human” decision would be made.

I criticize decisions like this as a matter of principle because these decisions are inherently undemocratic.

I don’t want courts ruling that gays have a constitutional right to marriage or that a fetus is constitutionally a “human”.

quote:

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Originally posted by Sven:

I criticize decisions like this as a matter of principle because these decisions are inherently undemocratic.

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Your concern is quite hypothetical, given that the courts in Canada have been uniformly and unflaggingly ahead of all the so-called elected representatives of the people - including notably various provincial NDP governments - in smashing discriminatory barriers against queer rights, not to mention abortion and other such matters.

Your "principle" was the same one invoked by conservatives who didn't want a Charter of Rights and Freedoms in 1982, because they didn't want courts telling them that they had to stop abusing civil liberties even if they had a majority government.

ETA: I guess you didn't like Roe v. Wade and Brown v. Board of Education and other such terrible instances where the courts in the U.S. went against the will of the [ughh...] "people", eh Sven?

[ 15 May 2008: Message edited by: unionist ]

What does the word "amendment" refer to in your posts? Why, the constitution.

quote:

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Originally posted by unionist:

Your concern is quite hypothetical, given that the courts in Canada have been uniformly and unflaggingly ahead of all the so-called elected representatives of the people - including notably various provincial NDP governments - in smashing discriminatory barriers against queer rights, not to mention abortion and other such matters.

Your "principle" was the same one invoked by conservatives who didn't want a Charter of Rights and Freedoms in 1982, because they didn't want courts telling them that they had to stop abusing civil liberties even if they had a majority government.

ETA: I guess you didn't like Roe v. Wade and Brown v. Board of Education and other such terrible instances where the courts in the U.S. went against the will of the [ughh...] "people", eh Sven?

---

I disagree with the jurisprudence of Roe v. Wade (and my view is shared with many lefty legal scholars). I agreed with Brown because it simply overruled the Plessy v. Ferguson (1896) decision (which was clearly inconsistent with Fourteenth Amendment--and so Brown simply corrected and earlier incorrect court ruling).

quote:

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Originally posted by Sven:

Why are so many on the Left, the supposed champions of "the people", so distrustful of "the people"? Instead, they want courts to determine what's best for "the people" because "the people" are too stupid and bigoted to know better.

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Yeah, the "people" of the United States who lynch blacks and treat the Indigenous people like shit and assault and ostracize queers and view women as sacred vessels of new tiny neo-con white pricks and who join the armies that maraud the world over - I'll take the courts and the Constitution over those "people" any old time. That's just the kind of elitist supercilious leftist I am.

quote:

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And, when "the people" act, the legitimacy of those actions is never seriously questioned.

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quote:

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Originally posted by jrootham:
Sven, you are contradicting yourself.

What does the word "amendment" refer to in your posts? Why, the constitution.

What the court in California did was to determine what the meaning of the existing (California) constitution is. See Glenn Greenwald for a careful explanation of the ruling.

---

I don't need to read salon.com to learn about the constitutional reasoning of a court case, my friend. I've read hundreds of constitutional court cases. Besides, when most journalists "explain" the meaning of a court case, they usually don't know what they're talking about.

As to this comment specifically:

quote:

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Originally posted by jrootham:
What the court in California did was to determine what the meaning of the existing (California) constitution is.

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Right. And as much as Unionist may think a Supreme Court ruling that a fetus = a "human" is far-fetched, such a ruling would "merely" be a court determining "what the meaning of the existing...constitution" is.

quote:

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Originally posted by unionist:
Just watch me.

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quote:

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Originally posted by Sven:

Spoken like a true defender of "the people", who are just a bunch of morons and bigots that have to be told what to do, like sheep, by their intellectual and moral superiors (AKA the Left).

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The elected government of the people of California are morons and bigots who want to keep treating queers as less than human.

You can defend the "people" who elected them.

The onus of proving they are not morons and bigots in squarely in their court.

quote:

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Originally posted by unionist:

The elected government of the people of California are morons and bigots who want to keep treating queers as less than human.

You can defend the "people" who elected them.

The onus of proving they are not morons and bigots in squarely in their court.

If a bigoted majority votes to oppress queers and women and blacks and aboriginal people, you can put on your big "democratic" hat and strut around praising the choice of the "people". I will call them by their proper name - enemies of humanity - whether they are 50% + 1 of the inhabitants or not.

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quote:

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Originally posted by Sven:

Of course, you can't begin to explain how the Fifteenth and Nineteenth Amendments were possibly ratified, can you?

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quote:

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Originally posted by unionist:
I will if you prove Riemann's Hypothesis.

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Wonderful non-answer.

It's like this dialogue:

A: I can pretty much explain everything there is to know about a car.

B: Really? How does a car's engine burn gasoline?

A: I'll tell you if you first prove the existence of black holes to me.

ETA: Ok, Sven, I'm going to pretend you're one of us and suggest the following:

When the courts in California order state officials to defy Schwarzenegger's laws and start conducting marriages between partners of the same sex, you're supposed to say:

Good for them!

Sorry to preach the party line to you, but I kind of thought that we Canadians had turned that page and were pulling for our team to win all over the world.

Please tell me I wasn't mistaken.

[ 15 May 2008: Message edited by: unionist ]

quote:

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Originally posted by Sven:
Unionist, I fear that you are doing a disservice to the Left by exposing the utter distain that most of the elite Left really feel for the average Jane and Joe.

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quote:

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Right. And as much as Unionist may think a Supreme Court ruling that a fetus = a "human" is far-fetched, such a ruling would "merely" be a court determining "what the meaning of the existing...constitution" is.

I don't want courts making decisions like that. I have far more confidence in "the people" than their supposed protectors have in them.

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If that's what the constitution says, that's what the constitution says. The assumption here is that the judges are honest. Given history, you could argue that's not a given. OTOH in the presence of dishonest judges, just about all bets are off.

ETA

One of the things that Greenwald points out is that arguments like yours specifically support judicial activism. That is, evaluating judicial decisions by how much you like the result rather than how correct they are. This is about judicial reasoning concerning the constitution, the statute at issue, and prior rulings, not about whether the result is a good idea or not.

If you don't like the results of constitutional rulings, amend the constitution, don't complain about the judges.

[ 15 May 2008: Message edited by: jrootham ]

quote:

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Originally posted by jrootham:
If that's what the constitution says, that's what the constitution says. The assumption here is that the judges are honest. Given history, you could argue that's not a given. OTOH in the presence of dishonest judges, just about all bets are off.

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Generally, I don't question the honesty of judges, regardless of where they fall on the political spectrum. I think that the vast majority of judges are honest, hard-working, and well-meaning and that they sincerely want to do the best job they can.

quote:

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Originally posted by Boom Boom:
Regardless of the legalities, I saw an excerpt on CNN tonight of happy gay and lesbian couples in California joyously celebrating an unexpected victory. Let's be happy for them, and hope this spreads around that country. 48 states to go.

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The "legalities" are important, though (kinda like the "legality" of "innocent until proven guilty").

In a constitutional democracy, legislatures can enact laws but they are always subject to judicial oversight.

quote:

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Originally posted by John K:
To clarify a point raised by Unionist above.

Under the Canadian Constitution, defining who may marry is within the exclusive jurisdiction of the federal government, not the provinces.

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I think you're confused.

By the time Parliament adopted its 2005 law, the courts (not the politicians) had already legalized equal marriage in several provinces and territories, just as the court in California has just done:

quote:

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2002 - The Ontario Superior Court of Justice (Divisional Court) issued an unprecedented decision that the common-law rule defining marriage as the union of one man and one woman represented an unjustifiable infringement of section 15 of the Charter. The Court found that a “separate but equal” regime offering equivalency of benefits is not an equitable solution for same-sex couples deprived of equal access to the rights and benefits associated with marriage. ...

- The Cour supérieure of Quebec ruled that the characterization of marriage as a heterosexual institution in section 5 of the federal Federal Law-Civil Law Harmonization Act, No. 1, which applies only in Quebec, represented an unjustified violation of Charter equality rights, concluding that the province’s new civil union regime was not equivalent to the institution of marriage.

2003 - The British Columbia Court of Appeal unanimously reversed the lower court judgment upholding the common-law rule barring same-sex marriage. It found that the rule effected substantive discrimination under section 15 of the Charter that is unjustified, in part, because procreation as an objective no longer justified restricting marriage to opposite-sex couples. Like the Ontario and Quebec rulings, the decision of invalidity was suspended to enable a legislative response. ...

- The British Columbia Court of Appeal lifted the suspension of remedies it had initially imposed, immediately reformulating the common-law definition of marriage in British Columbia as “the lawful union of two persons to the exclusion of all others.”

2004 - In March, the Quebec Court of Appeal ... lifted the suspension of remedy imposed by the lower court, thus enabling same-sex couples to marry legally in the province with immediate effect.

...

- From July to December, courts in Yukon, Manitoba, Nova Scotia, Saskatchewan, and Newfoundland and Labrador legalized same-sex marriage in their respective jurisdictions on constitutional equality rights grounds.

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I may have missed a few provincial court decisions, but you get the picture.

Source.

[ 17 May 2008: Message edited by: unionist ]

quote:

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Same-sex marriage has been legal:

* in the province of Ontario since 12 June 2003;
* in the province of British Columbia since 8 July 2003;
* in the province of Quebec since 16 March 2004;
* in the Yukon territory since 14 July 2004;
* in the province of Manitoba since 16 September 2004;
* in the province of Nova Scotia since 24 September 2004;
* in the province of Saskatchewan since 5 November 2004;
* in the province of Newfoundland and Labrador since 21 December 2004;
* in the province of New Brunswick since 23 June 2005

Passage of the Civil Marriage Act made same-sex marriage legal in the provinces of Alberta and Prince Edward Island and the territories of Nunavut and the Northwest Territories effective July 20, 2005.

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Provincial NDP governments could not have legalized same sex marriage even if they wanted to, because it was not within their jurisdiction.

The reason same sex marriage became legal in different provinces on different dates is two-fold.

One, even though Courts of Appeal are federal, Ontario Court of Appeal rulings only apply to the province of Ontario, etc. It was only when the Court of Appeal rulings went to the Supreme Court of Canada that a truly national decision could be rendered.

quote:

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Originally posted by John K:
Unionist, all of the courts you cited that dealt with the same sex marriage issue were federal, not provincial, courts.

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Are you denying that these courts legalized equal marriage province by province? Explain to me how that is possible under your thesis, please.

quote:

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Provincial NDP governments could not have legalized same sex marriage even if they wanted to, because it was not within their jurisdiction.

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quote:

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A fundamental role of the courts is to ensure that minorities receive equal treatment under the law, and to strike down any laws that violate this principle.

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And this is what Sven is willfully ignoring for some reason. There is no such thing as "the people". We live in a stratified society where power is disproportionately in the hands of some people while other have none. So to make arguments that "the people" have to decided on the course of social change by electing representatives to write legislation what Sven is really saying is that his people (middle-class, voting, lawyer types; i.e. comfortable with the system) should be the ones who get to control society.

He is of the same mind as those who think that direct action is wrong because people should use "the democratic channels" to settle their differences. His opinion displays an utter ignorance of how oppressive our society is and he adds an exclamation point to that with this comment:

quote:

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Generally, I don't question the honesty of judges, regardless of where they fall on the political spectrum. I think that the vast majority of judges are honest, hard-working, and well-meaning and that they sincerely want to do the best job they can.

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Wikipedia has quite a good article on the Canadian court system and "its intricate interweaving of federal and provincial powers."

quote:

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The Court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial.

The Canadian constitution gives the federal government the exclusive right to legislate criminal law while the provinces have exclusive control over civil law. The provinces have jurisdiction over the administration of justice in their territory. Almost all cases, whether criminal or civil, start in provincial courts and may be eventually appealed to higher level courts. The quite small system of federal courts only hear cases concerned with matters which are under exclusive federal control, such as immigration. The federal government appoints and pays for both the judges of the federal courts and the judges of the superior-level court of each province. The provincial governments are responsible for appointing judges of the lower provincial ("inferior-level") courts.

This intricate interweaving of federal and provincial powers is typical of the Canadian constitution.

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quote:

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Originally posted by unionist:
The elected government of the people of California are morons and bigots who want to keep treating queers as less than human.

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The elected representatives of the people of California passed legislation in support of equal marriage. Twice. It was the Governator who vetoed it, twice, and said the state supreme court should decide it.

Link courtesy of Glenn Greenwald.

[ 17 May 2008: Message edited by: pogge ]

quote:

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Originally posted by pogge:

The elected representatives of the people of California passed legislation in support of equal marriage.

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quote:

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Originally posted by unionist:
Are you denying that these courts legalized equal marriage province by province? Explain to me how that is possible under your thesis, please.

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The reason is that the law limiting marriage to a man and a woman was not a specific federal statute, but the common law. The provincial courts found that this common law was not constitutional, which they were entitled to do, but they could only enforce their decision within their province.

One important point is that, starting with the Yukon decision, instead of looking at the Charter issue, the provincial/territorial courts simply regarded equal marriage as settled law throughout Canada: that is, the previous courts had found that the law was unconstitutional everywhere (as there is only one definition of marriage throughout Canada) but could only give effect to that within their own province.

The subsequent courts simply ruled that this fact of the law had to be given effect equally within their province as it was in others. (This was also a component of the B.C. decision.)

The definition of marriage being a federal responsibility is the reason that Quebec decided to implement civil unions in 2002, before the marriage decision. It could not change the definition of marriage itself, but it could create a new status, as part of its provincial jurisdiction over civil status.

[ 17 May 2008: Message edited by: montrealais ]

The best summation I could find is contained in the Ontario Court of Appeal ruling:

quote:

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[26] Before turning to the issues raised by the appeal, we make four preliminary observations.

[27] First, the definition of marriage is found at common law. The only statutory reference to a definition of marriage is found in s. 1.1 of the Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, which provides:

For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.

[28] The Modernization of Benefits and Obligations Act is the federal government’s response to the Supreme Court of Canada’s decision in M. v. H. The Act extends federal benefits and obligations to all unmarried couples that have cohabited in a conjugal relationship for at least one year, regardless of sexual orientation. As recognized by the parties, s. 1.1 does not purport to be a federal statutory definition of marriage. Rather, s. 1.1 simply affirms that the Act does not change the common law definition of marriage.

[29] Second, it is clear and all parties accept that, the common law is subject to Charter scrutiny where government action or inaction is based on a common law rule: see B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Salituro, [1991] 3 S.C.R. 654; and Hill v. Church of Scientology, [1995] 2 S.C.R. 1130. Accordingly, there is no dispute that the AGC was the proper respondent in the applications brought by the Couples and MCCT, and that the common law definition of marriage is subject to Charter scrutiny.

[30] Third, the issues raised in this appeal are questions of law. Accordingly, the standard of review applicable to the decision of the Divisional Court is that of correctness: Housen v. Nikolaisen, 2002 SCC 33 at para. 8. As explained by Iacobucci and Major JJ. at para. 9: “[T]he primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill [these] functions, appellate courts require a broad scope of review with respect to matters of law.”

[31] Fourth, this court is not the first court to deal with the issues relating to the constitutionality of the definition of same-sex marriage. In addition to the judgments prepared by the three judges of the Divisional Court, courts in two other provinces have addressed the same issues we must face.

[32] In Hendricks v. Quebec (Attorney General), [2002] J.Q. No. 3816 (S.C.), Lemelin J. declared invalid the prohibition against same-sex marriages in Quebec caused by the intersection of two federal statutes and the Civil Code of Quebec on the basis that it contravened s. 15(1) of the Charter and could not be saved under s. 1. She stayed the declaration of invalidity for two years.

[33] In EGALE Canada Inc. v. Canada (Attorney General), [2003] B.C.J. No. 994, released on May 1, 2003, the British Columbia Court of Appeal declared the common law definition of marriage unconstitutional, substituted the words “two persons” for “one man and one woman” and suspended the declaration of unconstitutionality until July 12, 2004, the expiration of the two-year suspension ordered by the Divisional Court in this case.

[34] We want to record our admiration for the high quality of the reasons prepared by all of the judges in these cases. As will become clear, we agree with a great deal of their reasoning and conclusions on the equality issue. Our reasons can be shortened, given the clarity and eloquence of our judicial colleagues.

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The fact remains however that the federal Liberal government sneakily tried to define marriage as opposite sex only when it amended federal legislation in the year 2000 to comply with the M v H decision. Only the Bloc and the NDP opposed adding this definition.

quote:

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Originally posted by John K:
The fact remains however that the federal Liberal government sneakily tried to define marriage as opposite sex only when it amended federal legislation in the year 2000 to comply with the M v H decision.

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Well, M. v. H. was in 1999, and you must have noticed that the NDP governments in Manitoba and Saskatchewan only moved afterwards to provide provincially-regulated benefits to same-sex partners. In Manitoba, that included adoption. What stopped them from doing the right thing when we were still in the 20th century??

The NDP has been much better at proclaiming equality rights of this nature when in opposition than when in government.

quote:

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Just another reason why I am not sad that Bob Rae is now a Liberal.

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quote:

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Originally posted by unionist:
You're correct. But they're not the government.

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The elected representatives of the people of California aren't the elected government of California?

quote:

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Originally posted by pogge:
The elected representatives of the people of California aren't the elected government of California?

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Uhhhhhhhhh no, no more than the House of Commons is the government of Canada...........