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Susan Estrich
The Legal Road Ahead
Susan Estrich 11/21/2008
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The California Supreme Court's decision to hear argument as an "original" matter in three of the lawsuits challenging the adoption of Proposition 8 means the issue of gay marriage will soon be back in the courts. With one Justice voting not to hear the cases challenging Prop 8 at all and one voting to stay its enforcement (and thus allow gay marriage to continue) pending a court decision, tea leaf readers are left with few clues as to what the majority will do once the case is heard.

There are ultimately two issues presented, although they are not always easy to separate. The first, and the obvious one, is whether it is fair to distinguish as a matter of civil law between the committed relationships of heterosexual and homosexual couples.

Under California's domestic partnership law, it is possible for gay couples to secure most, if not all, of the benefits of marriage without actually being married. They can have commitment ceremonies, wear rings, and make critical legal and medical decisions for each other. But few principles are more well-established in American law at this point than that separate but equal is inherently unequal — particularly when the separation is borne of prejudice and misunderstanding, if not outright bias and hatred as this one so clearly is.

I'm
fine with boys schools and girls schools, and sports teams separated by sex, and separate dorms for boys and girls. But no similar rationale exists in support of denying gays the right to marry. I know, two men can't procreate, at least not in the same way a man and a woman can. But marriage is not limited to those of childbearing age, nor would anyone ever suggest that it should be, rendering the procreation argument little more than a fig leaf for a limitation that has its basis in religion, stereotype and bias.

The second issue is one of process. We lawyers are very big on process. The California Supreme Court has already decided the fairness issue, at least in the first instance, by its holding that the state constitution's guarantee of equality prohibits discrimination on the basis of sexual orientation in civil marriage. The process issue now presented to the Court is whether the voters of California have a right to disagree with them and amend the constitution by a majority vote, or whether doing so is such a fundamental revision of our constitutional plan that it must be considered as a "revision" to the constitution, which requires a two-thirds vote of the legislature in the first instance, followed by approval either by the voters or by a Constitutional Convention.

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By Patrick O'Connor - The Los Angeles Daily News * Posted 11/12/2008 12:00:00 AM
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Posted By: Dorian  on Monday, November 24, 2008

THEY DO NOT HAVE A RIGHT TO MARRY!!!!!!!!!!!! If they do manage to get it called a marriage in most states, then I will lead the charge to get heterosexual unions called something different, like a holy union, or Uniteds in GOD!!!!! THEY WILL NOT WIN!!!!!!!! So you and your ILK can go F#$@$# yourselves!!!!

Posted By: Good Life  on Monday, November 24, 2008

Dorian--How about some logic?

Posted By: Bob  on Monday, November 24, 2008

I find it interesting that the author states that she would like to see the issue settled by the people, as long as the people "reach a fair result".  Of course, in this instance, "fair result" means one which agrees with the opinion of the author.  Although I think we have far more important issues to deal with in this country (true love is hard enough to find in this world, why should we limit it to heterosexual relationships?  And this is coming from someone in "clinging to guns and religion" Pennsylvania) to be spending so much time on this one, I think the author's stance regarding the "democratic" argument reveals far more of her political philosophy than anything else- and what it reveals does not encourage me to agree with her.

Posted By: Dorian  on Monday, November 24, 2008

"And this is coming from someone in "clinging to guns and religion" Pennsylvania"



Do not call yourself a christian if you support homosexuality, for that is an oxymoron. I am so tired of people who pick and chose what they want to believe in the bible, and ingore that which they do not. If you are so willing to accept gay marriage, then what next? Are you going to accept poligamy, or marrying someone under 16, or maybe beastiality? This is a path that will ultimately lead to the destruction of all the western civilizations. Maybe that is what they need.

Posted By: Stug  on Monday, November 24, 2008

Little did George and Frank know at the time, but their marriage was to ultimately lead to the destruction of all western civilizations.

This lead directly to the spread of eastern civilization to encircle the globe, at which point, was it still eastern civilization?  Unable to cope with such a heavy philosophical question, eastern civilization also promptly collapsed.

This resulted in a couple of Bonobos in the jungles of the Congo to be overheard quietly chanting: "Go Georgie, Go Frankie".

Posted By: jack sprat  on Monday, November 24, 2008

Suzie Q

"Sure, if they reached the fair result."

I guess only your result is "fair".

Whats 1600 lawyers on a sinking ship in the middle of the ocean?

A good start.

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