foolish, foolish

[drangnon]

so it seems California can't even cleanly decide the gay marriage issue. instead we have a ruling that violates the equal protection clause 14th Amendment of the US Constitution.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No

Comments

[silent_e]

I'd agree with you, provided the state left all heterosexual marriages to the churches as well. But try and change all current state marriage licenses now to civil unions and the Mormon church and every other church as well will rise up and scream bloody murder. They very, very much want it both ways for themselves. They like having a hook in the law books. It's their foot in the door that keeps all the rest of their unofficial perks as established religions safe. It safeguards their tax-exempt status, it safeguards the word God buried in almost every legal document and legal proceeding. I'd love to see the government entirely out of the marriage business. But doing that will be a MUCH nastier fight than merely providing equal protection for LGBT people. That's as much as a century down the road yet. Whereas I'm wagering we manage more inclusive marriage, nationwide, in the next 20.

[drangnon]

that is what I want to see though. all marriages left to the churches. the state only manages civil unions.

Forbes, of all organizations, just published an opinion piece saying the same thing, citing that the litigation costs down the current path are just too much.

[silent_e]

I'd like to see as much as well. But I think getting churches to give up their little governmentally-sanctioned legitimacy and forcibly separating "marriage" and "civil union" would be even more difficult than getting them to accept gay marriage itself. Americans like the separation of Church and State but only up to a point. Take God out of the Pledge, or off the coins, or the Bible out of the courtroom, or the sacramental term off the tax-status, and suddenly people get pissy and deeply reactionary. Even more so than they do when they hear gays will soon be brainwashing all their kids in public school

[graymalkn]

so it seems California can't even cleanly decide the gay marriage issue. instead we have a ruling that violates the equal protection clause 14th Amendment of the US Constitution.

Eh... not exactly. At least not in a way that's consistent with past Supreme Court rulings. The US SC gives sexual orientation - like most other classifications except race, alienage, and gender - rational basis review, meaning there just has to be *some* rational basis for a law (or in this case constitutional provision) that discriminates based on sexual orientation. Generally, it means that unless a law can be shown to be born of pure animosity toward a particular group it'll be upheld.

Besides, the court can't rule based on something that the parties didn't raise in arguments, and it would be strategic suicide to make a federal EP claim, since that would have to be appealed to the US SC, which would rule against an EP right to same sex marriage, thus striking down state SC ruling in other states.

[drangnon]

Much as I wish prop 8 had failed, I think that by creating a special class of gay married couples, they have violated 14th Amendment. They should have dissolved the marriages if they were going to uphold prop 8 and the State would have to suck down the consequences of the resulting taking (as the financial results are nothing less than a taking).

Basically they are gambling that the prop 8 opponents don't have the balls to take the fight to the federal courts. They are probably correct, but all it takes is a few stubborn couples with deep pockets, it doesn't have to be the political organizations to do it. That's a big gamble, given how friendly the 9th circuit would be.

[graymalkn]

Ah, I took you to be referring to the equal protection issue of gay/straight but you're referring to married-gay/can't-get-married gay. My bad

[drangnon]

You are right that it's best to wait. But I don't think it will, necessarily. In order for that course of legal inaction to happen, you don't need most people to agree, you need every litigator involved to agree.

http://writ.news.findlaw.com/dean/20090529.html
http://www.politicsdaily.com/2009/05/28/bi-partisan-challenge-to-prop-8-filed-in-federal-court-is-the-ri/

[graymalkn]

let the state manage civil affairs and leave marriage to the churches.

Amen.

The only problem I see with civil unions of more than two people is how they'll deal with children - presumably some groups of three or more will want to all be recognized as parents, which would face huge resistance from the courts, totally separate from the question of marriage. For example, the current CA SC, though very friendly to gay marriage, has been very explicit in saying that as a matter of social policy a child can have no more than two parents. It'll be a long road.

[drangnon]

The courts would not create a social policy to override explicit legislation unless there was a constitutional basis. 2-parents certainly doesn't fall into that category.

That's a bunch of bullshit anyhow. What happens when parents divorce and remarry with 50/50 custody? That's effectively 4 right there.

[graymalkn]

Just to be clear, I'm not saying *I* would have a problem with 3+ parents, just that it's going to be a big hurdle to overcome before free-form civil unions are accepted.

What happens when parents divorce and remarry with 50/50 custody? That's effectively 4 right there.
Not for parentage. When parents divorce and remarry there are two parents and two step-parents who are not parents. Step-parents can, under certain circumstances, get some visitation rights (though the courts have to give weight to the preference of the parent) and even child support responsibilities, but that doesn't make them a parent