Popehat

The California Supreme Court has just issued an opinion on the gay marriage issue. Litigants challenged California’s one-man-one-woman definition of marriage, approved by voters in the ballot initiative proposition 22.

The Court’s web site with the opinion is slammed right now. More when I can get the opinion.

Edit: downloading opinion now.

Edit: Woot!

Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

Edit: opinion here, hosted with us– in Word, because it wasn’t downloading in pdf. Analysis later.

Edit: A very little analysis:

1. This is a decision based on California’s constitution, not the United States constitution. The gay marriage issue illuminates the fair-weather-federalism of certain conservatives who, under the principles of federalism they normally celebrate, should encourage states (the laboratories of democracy) to create rights under their own constitutions.

2. The all-important remedies section: the court simply struck the restrictive language from the statute and directed the state to permit all marriages immediately:

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.
Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs.

3. 4-3 decision, with George, Kennard, Moreno (formerly one of my favorite federal judges), and Werdegar for the majority.

Edit: Andrew Sullivan points out that the ruling takes effect in 30 days. The ballot measure proposed by social conservatives — currently pending signature approval — doesn’t go up for a vote until November. Any same-sex couples who wanted to get married would have plenty of time to do so. If the ballot measure (which, unlike Prop 22, amends California’s constitution, and therefore would wipe out this decision) passes, there’s a dog’s breakfast of a legal mess left over — what’s the status of all the people who married in the interim?

In recent elections the gay marriage question has been used as a wedge issue, driving turnout in states in which gay marriage bans were on the ballot. I don’t think it can drive enough votes to swing California to the Republicans, though. It remains to be seen how it can be used as a wedge issue elsewhere this year.

To see some stereotypical social conservatives braying about the parade of polygamy, child molestation, and bestiality that they believe will follow, check out the comments on Malkin.

Last 5 posts by Ken

• UPS Sucks - August 21st, 2008
• The Call Center Cannot Hold - August 19th, 2008
• The Blog Abides - August 18th, 2008
• See You On The Other Side - August 15th, 2008
• Thursday's Child Is Definitely Starting To Lose It - August 14th, 2008

written by Ken \\ tags: Law, Politics & Current Events