THIS IS IT. Gay Marriage Goes B4 Cali Supreme Court Today!

[innerSpaceman]

Today, the California Supreme Court finally takes up the matter of gay marriage, and whether denying homosexuals the right to marry each other violates the California Constitution.

Woo vs. The State of California has had quite the tortured history since it was filed in state court several years ago by a lesbian couple who were denied a marriage license at the Beverly Hills courthouse. A gay couple who were denied recognition of their legal Canadian marriage joined the suit, and the suit was later joined by eight gay and lesbian couples who had their San Francisco marriages annulled by the state.

Conservative Republican Judge William Kramer ruled in favor of gay marriage back on March 14, 2005, citing the case of Perez v. Sharp, which struck down California’s anti-miscegenation laws. The ruling was reversed by the California Court of Appeal in a 2-1 decision ... and now, today, March 4, 2008, 10 days shy of 3-years since the original ruling in favor of gay marriage, the issue finally comes before the Supreme Court for the ultimate California determination of this vital civil rights issue.


The California Supreme Court is thought to lean conservatively, but the original ruling by Kramer demonstrates that conservatives can see the plain constitutional test for what it is.

Naturally, I fervently and passionately hope the Supremes do the right thing. Despite the religio-fundamentalist tilt in this country, the calendar remains at 2008. Even if gay marriage is legalized in California, it will be decades before it is made legal in the U.S., and still hundreds of years of bigotry and hatred lie before us until the spirit of the law follows the letter ... if the example of racial civil rights laws in this country provide a reasonable example.


This is a struggle for human rights and liberty as vital as any in the history of America and the World. The time has clearly come for the next positive step in this long process, with many more battles and countless heartaches and triumphs still to come.

[Snowflake]

fingers crossed, iSm.

[Chernabog]

I, for one, will be praying today that the plaintiff's attorneys win their case, and that the Supremes don't let conservative religious hogwash get in the way of doing their jobs correctly.

Of course, if Arnold Schwartzenfoofer had been doing his job correctly and legalized gay marriage instead of vetoing it (Ve hav to listen to dee vill of dee people!.... ummm ok Mr. Governor, then if you had the ability you would also have vetoed the Civil Rights Act of 1964?) then the cases would have been moot in our favor... but we always gotta deal with the "here and now." :)

[Cadaverous Pallor]

Here's hoping.

[NirvanaMan]

I would far prefer that the Supreme Court declared they have no business recognizing the institution of marriage all together, regardless of ones personal choice to be hetero, homo or whatever might proceed the "-sexual" in this particular case.

But, approving gay marriage would be a close second I suppose.

[innerSpaceman]

Well, who would then get to decide who has all the rights and privileges that accrue automatically to spouses?

Would corprorations be free to decide who gets the retirement benefits of a deceased employee? Hospitals get to pick and choose who has visiting rights? The FTB and IRS get to determine who gets tax breaks? Ha! Love that last one!

There would be a mish-mash of most-likely crappy decisions of differing, prejudicial, greedy and cruel natures towards people in dire circumstances.

Much as it's far from perfect, I think it's best that these decisions be codified in LAW as opposed to left up to financial or whimsical interests.

[alphabassettgrrl]

I'd be in favor of separating the legal and the church stuff; you want to file for legal partnership, cool. You get the tax benefits and the hospital visitation and all that. Regardless of orientation. You want to do it in a church and call it marriage? Cool. Each church gets to define it how they like. Some churches will therefore honor same-sex couples.

I don't expect that's a popular opinion, but it would solve things. So legalizing same-sex marriage (or rather, the lack of banning it) would be the next best thing. Call it equality, and call it a day.

[Kevy Baby]

I strongly believe that homosexuals should be afforded the same opportunity for a miserable marriage and ugly divorce of straight couples!

[Alex]

Contracts already exist for almost all of the stuff that marriage makes implicit. In fact, marriage is just a contract that includes the federal, state, and local laws by reference.

If the state got out of the business of defining marriage an industry of standard contracts would quickly arise and the institution would be infinitely malleable to the needs, desires, and situation of the involved parties (and the next battles of group and incestuous marriage also go away).

Since the government has created a definition it has become a shorthand for private institutions but they'd quickly adjust.

The only real need for government intervention remaining is on behalf of the children and child custody and obligation laws have already been almost completely redesigned to work independently of the institution of marriage? Why, because the government definitions to match reality to a different part of the government said "screw them." It's time for all the parts and the private sector to say the same thing.


But that won't happen any time soon.

I think in the long run it is a bad idea for the battle over gay marriage to be won judicially instead of popularly but I certainly won't be upset if the CA Supreme Court settles it in the affirmative. I just think it is more likely to inflame things like Roe v. Wade did than settle them.

[alphabassettgrrl]

It's significantly more difficult to draw up each contract and there are some things not available at all under contract, only by marriage. I think those are about inheritance and some Federal benefits. I haven't looked into it for a while.

Same-sex marriage needs to be equalized. Nothing else is fair.

[lashbear]

I want DP to do the centrepieces for mine. When it happens. Eventually.

...our government are slow-movers on this issue too.

[tracilicious]

I recently saw Alix Olsen, spoken word artist and political activist, perform wearing a shirt that said, "No Divorce For Straights." It was pretty funny. I agree with most everything said in this thread. Here's hoping!

[Chernabog]

Updates on what's going on (the questions asked, etc.):

http://www.mercurynews.com/ci_8449536?source=most_viewed

[Alex]

Obviously, those things would change if the official government institution went away. But all the "by marriage" inheritance rules are just shortcuts that are easily handled in the estate planning you should be doing anyway.

But yes, there'd definitely be a period of transition where things have to get figured out. Just as the invention of gay divorce is proving to have all kinds of unconsidered quirks in those places where it was just adjudicated into law (especially because the state rules don't match the federal ones).

But if it happened, in very short order there would be standard tested pre-made contracts that most people would just fill in various blanks and sign. But I have no problem with it being a hurdle. Drop the hurdle for making emotional commitments to each other but it is probably a good thing if people actually thought through the financial and long term implications of what it means to join together into those ways.


Anyway, it's all moot since it will never happen. Government does not give up authority it already has.

[Ghoulish Delight]

It's significantly more difficult to draw up each contract Why would it be difficult? Just take the language that applies to marriages, slap it in a standard "legal partnership form", sign the dotted line. Voila.

and there are some things not available at all under contract, only by marriage. I think those are about inheritance and some Federal benefits. I haven't looked into it for a while. Only because current marriage law prevents it. Remove the marriage laws and private parties could make whatever agreement they please.

[Gemini Cricket]

In Boston, when the issue came up before the courts, I watched the back and forth between the protesters in front of the city capital. I found it interesting that the pro-gay marriage protesters were local people and the anti-gay marriage people were carted to the capital in shuttles, were from either out of state or out of the country (some barely spoke English) and were paid to be there. Actually, I think there was one nun there on the anti-marriage side who was from a local parish.

[Chernabog]

[COLOR=Black]Why would it be difficult? Just take the language that applies to marriages, slap it in a standard "legal partnership form", sign the dotted line. Voila.

Only because current marriage law prevents it. Remove the marriage laws and private parties could make whatever agreement they please.

No, no, no, no, no.

You're asking to abolish marriage entirely and have the entire system be contractual only, which completely ignores the fact that the government, OR ANY OTHER ENTITY (lets say hospitals, funeral homes, etc.) as a third parties, don't have to do diddly sh*t with respect to that contract.

Plus you ain't gonna do away with marriage entirely. It is too ingrained in our society. (It would be like, let's do away with the concept of blood relatives and family...yeah that's really gonna fly) Accept it and move on.

Two women have a baby. They "contract" that the baby is both of theirs. Congratulations. Then the women grow bitter of each other. The "birth mother" decides that the baby is hers, and hers only, and...wow the law is going to side with her as long as she isn't smoking crack in her bedroom (and even then, it may be okay). But ho-ho! They have a CONTRACT! Ummm sorry sister, not legally binding!!!

Or maybe John is in the hospital, family members only (if we haven't abolished the concept of family in this alterna-world). Mark, his life partner, wants to see him. Hospital staff says no. But ho-ho! They have a CONTRACT!!! Good for Mark, but do you see the HOSPITAL's signature on that contract? Please, please find it for me. Sorry Mark, you get to wait in the parking garage while John's family makes decisions about how John was in no capacity to write that will giving everything to Mark. Ooopsie!

In a contract, parties make an exchange of promises to do things for consideration (i.e. money). I can't contract with Not Afraid for Disneyphile to bring me bon-bons to eat every Sunday, unless Disneyphile owed Not Afraid the bon-bons every Sunday to begin with.

Gays and lesbians have been trying for many years to create a "quasi-marriage" relationship via contract -- you think a regular family law divorce is bad? Try dissolving that stuff when it's contractual only. I've been to seminars which talked about this -- and the legal nightmare that is created in trying to "divorce" and/or enforce the contract would turn your curly hairs white (and that's BEFORE you get the attorney's bill).

[Ghoulish Delight]

Hospitals are already adapting to the emerging concept of a living will. The only reason they get away with ignoring other agreements is that they are supported by existing laws that can override them. If those didn't exist it'd be a different story.

Unfortunately Alex is right that the odds of the government giving up that control are low. I'm with NM that the ideal solution would be for the government to butt out, for people to be allowed to make their own decision as to who their legal partner is. With the concept of government recognized marriage non-existent, hospitals and other entities would have no choice but to go by those agreements. But it's all too ingrained in the culture at this point for that to ever happen.

[Chernabog]

With the concept of government recognized marriage non-existent, hospitals and other entities would have no choice but to go by those agreements.

LMAO... why? Health Insurance Co., of which Party A is a member, is going to pay for Party B, just because Party A and B have a contract together? Absolutely not, at least there's no legal requirement to. Plus, anyone could just contract with anyone for health insurance benefits... hell, how about multiple contracts with multiple partners? Health Insurance Co. is going to pay for Party B (and Parties C-Z because they also have contracts) because it's nice customer service? One thing I know about Health Insurance Companies is how much they loooooooooooove to pay out on claims that they aren't required to by the contract that THEY actually signed. :rolleyes:

But it's all too ingrained in the culture at this point for that to ever happen.

Exactly... I'm just being, you know, "reality" based ;) hehe "Just get rid of it all and do it by contract" or "just keep the current system and do it all by contract" are either unrealistic solutions or are riddled with nuclear legal landmines for the simplest of situations.

[innerSpaceman]

Why would hospitals have no choice but to go by those agreements? Where are you getting that?

And corporations? Would they have no choice but to go by the contract they are not party to, so as to give retirement benefits to the so-called life-partner of a dead employee of theirs? Nice try.


With all due respect, Cherny's the lawyer here. So let's take a look at the issue of contracts with an eye towards giving him the benefit of the doubt.



In any event, and not to steer the conversation in one way or another, but the fantasy realm of Marriage Should Be Abolished Altogether or The Government Should Get Out of the Marriage Business Altogther is the same realm where Jim Sturgess falls madly in love with me, making the issue of gay marriage one I barely care about anymore.


ETA: posted at the same time as Cherny's, so he most likely addressed G.D. with far better logic than I.

[JWBear]

That's the thing I've never gotten about Libertarian ideals. They never seem to take Human nature into the equation. They seem to be saying that, if we do away with all these laws and government controls, then everyone will just co-exist in perfect harmony. I'm sorry, but IMO, that is incredibly naive.

[Alex]

I have no expectation that we'll co-exist in perfect harmony.

It is interesting that the things that would be difficult to maintain in the absence of state defined marriage are the very aspects of traditional marriage that we are told don't really carry in weight when deciding to expand it to include gays.

Why do retirement benefits continue with a surviving spouse? Traditionally, because of the assumption that the non-earning spouse gave up any attempt at earning an income so that they could run the household of the breadwinner. What does that have to do with modern marriage?

So far as I know, Health Insurance Company A has no obligation to pay for the medical bills of a spouse (Lani's certainly doesn't pay for me unless we pay more for her insurance) except insofar as that is negotiated. Besides, get your blessed universal single-payer healthcare and that issue goes away.

Again, I have no illusion that the transition would be easy. Nor would the result be the exact same system we have now. But it would be a lot less stupid than the system we have now.

[Alex]

Gays and lesbians have been trying for many years to create a "quasi-marriage" relationship via contract -- you think a regular family law divorce is bad? Try dissolving that stuff when it's contractual only. I've been to seminars which talked about this -- and the legal nightmare that is created in trying to "divorce" and/or enforce the contract would turn your curly hairs white (and that's BEFORE you get the attorney's bill).

But I would argue that a large reason this is difficult is because it is forced to operate within the existing structure where government has carved out for itself the primary responsibility for establishing control over such relationships and therefore private contracts must be something less significant.

Also, responsibilities towards children have already been largely rewritten to exist independent of marriage exactly because government defined marriage has proven inadequate to the realities of how people actually live. So I would say it is the current institution of marriage that doesn't seem to take human nature into account and not vice versa (I know it wasn't you that said that part).

But you're right. The idea of state sanctioned marriage and looking to your politicians to define the obligations thereof is way too ingrained to go away. But then, the inherent assumptions of societies sometimes change very quickly so I'll hold out hope.


But again on the topic at hand, good luck and I hope everybody doesn't regret getting what they wished for.

[alphabassettgrrl]

I say it's more difficult to deal with because the contracts have to be drawn up and filed individually, with a filing fee and lawyer time (or a paralegal).

Filing a marriage: one license ($35), filing at the Social Security Office (free), and change my name at the DMV (small fee). Quick, easy, and done. I get all kinds of benefits; marriage is a shortcut to them. I'm not even sure what all that includes.

[Alex]

Yes, it is more difficult to deal with. Unless you want to be married without the financial entanglements. Then it is much easier to deal with.

But easier doesn't mean better when easier also comes with all kinds of built in discrimination as to who is entitled to the ease.

[alphabassettgrrl]

http://www.now.org/issues/marriage/marriage_unions.html compares civil marriage with civil partnership. Most of them deal with taxes and financial arrangements; not available to civil unions.

If you're going to keep totally financially separate, it's hardly worth being married, right? To pass on your money to someone else when you die, separate health insurance, whatever.

But easier doesn't mean better when easier also comes with all kinds of built in discrimination as to who is entitled to the ease.

Thank you.

[Alex]

If you're going to keep totally financially separate, it's hardly worth being married, right?

I don't know, I try not to define for others what it means to be married.

As far as I am concerned I was married to Lani for years before we bothered to get the state involved and what I consider essential to us being married has absolutely nothing to do with the entwinement of our health insurance (which, despite being married, still hasn't happened) or the dispensation of our estates when we die (which, despite default inheritance laws we have done our best to supersede with alternate contracts in the form of living trusts, wills, powers of attorney, etc.).

Since the institution of state marriage exists I support completely it being expanded to include gay couples. But I also support it being extended to include any combination of consenting adults.

[I Heart Disneyland]

This issue makes me so angry! Why government has to get in the way of gay marriage blows my mind!!! I have so many wonderful gay friends who deserve the right to be married the same way as much as me and my hubby of 21 years.

[Morrigoon]

Alex: all that you suggest may make sense on a purely intellectual level, but in a real world translation, you now have additional marital discrimination, since many low-income people cannot afford the lawyers for all these contracts, making "marriage" such as it is in your world, only for the rich. It also provides yet another disincentive for citizens to enter into an institution which is recognized as contributing to social and emotional stability in our society.

It also leaves out the fact that, by definition, marriage is a way of declaring your relationship to one person as superceding all blood ties (defining one person as your "closest relative", and granting all rights therein). I have yet to see a contract that can do all that a marriage can do in one fell swoop. Shall we start adopting each other then? Is a wife to be declared a daughter? Does that blur the line between what you can do with an adopted daughter (provided Woody Allen hasn't already blurred it enough).

Marriage IS the contract. It defines those rights without having to lay them all out individually.

I find it terribly ironic that the "defense of marriage" people are doing more to threaten the existence of marriage by causing us to have to even discuss possibilities like this, than simply allowing gay marriage ever would.

[Alex]

Alex: all that you suggest may make sense on a purely intellectual level, but in a real world translation, you now have additional marital discrimination, since many low-income people cannot afford the lawyers for all these contracts, making "marriage" such as it is in your world, only for the rich.

I disagree, there would quickly be standard contracts that cover what most people want out of it, just like there are for other common legal relationships. But it is moot in the real world, I agree.

It also provides yet another disincentive for citizens to enter into an institution which is recognized as contributing to social and emotional stability in our society.Recognized by whom? And if it has reached that recognition under its traditional definition then maybe it is important that we not mess with the traditional definition?

I have yet to see a contract that can do all that a marriage can do in one fell swoop. Again, I would argue that the biggest reason such does not already exist is that in the current system it has traditionally been unnecessary.

It's kind of like saying there was no purpose in inventing cars since there were no good roads to drive them on.

Shall we start adopting each other then? Is a wife to be declared a daughter? Does that blur the line between what you can do with an adopted daughter (provided Woody Allen hasn't already blurred it enough).This just makes no sense. But of course, the idea that your closest living blood relative automatically has some claim on your stuff and decision making is itself absurd.

Marriage IS the contract. It defines those rights without having to lay them all out individually.Yes, marriage is a contract where tradition has created the rules. The rules are all laid out individually in statute and judicial precedent. So I fail to see why the idea of using a different contract where the participants create the rules is so absurd. Though it is moot.

I find it terribly ironic that the "defense of marriage" people are doing more to threaten the existence of marriage by causing us to have to even discuss possibilities like this, than simply allowing gay marriage ever would.This also doesn't make any sense. I fail to see how any threat has been made against marriage by the suggestion that its definition be left to the parties rather than to the state.

There is no absolute definition of marriage and what it entails, it has varied widely over time and geography. All we're relying on currently is tradition with one party arguing they should be included in the tradition while continuing to exclude the other forms. I say just let all the forms in, since it really isn't anybody else's business anyway. And the only way to keep it that way is if the state stays as far out of it as possible.

The first offense is that we even have to ask permission to get married. It is only the second offense that the government isn't fair in granting it. And even if gay marriage is allowed, it will still be unfair in granting it, just in ways currently more palatable to some people.


I know what I think is the best way will never happen. I'm not operating under some delusion it will, though I think in a hundred years group and, possibly, incestuous marriage will likely also be allowed. But I find it an interesting thing to discuss.