Nova
Well-Known Member
- Joined
- Aug 18, 2003
- Messages
- 19,648
- Reaction score
- 4,630
Not a stupid question at all.
Kimster, the California legislature voted to legalize gay marriage several times, but since the matter was also pending before the courts, the governor vetoed the legislation. (True to his word, Schwartzenegger supported marriage equality once the court ruled in favor of it.)
In May of 2008, the California Supreme Court ruled that the state constitutions's equal protection clause mandated marriage equality. Gay marriages began in the state and 18,000 gay couples were married over the next six months.
In November of 2008, after an onslaught of very expensive TV commercials full of erroneous claims such as that churches would be forced to marry gay people, Prop 8 passed, banning gay marriage retroactively and in the future. The margin was 52% to 48%. Very narrow as you can see.
The vote was appealed to the California Supreme Court who then employed logic opposite to what it had said the previous year (suddenly "separate but equal" WAS equal) to uphold Prop 8 and ban gay marriage. EXCEPT that it ruled that no marriage could be annulled retroactively. Those of us who married during the 2008 "window" remain married.
Other lawyers took the matter to federal court in the 9th circuit, where the initial trial judge noted that opponents of gay marriage failed to show any harm it created. Prop 8 was ruled unconstitutional on federal grounds, basically on the ground that a majority can't vote to take rights away from a minority.
That ruling was then appealed to a 3-man panel in the 9th circuit court of appeals. They just ruled 2 to 1 in support of the lower court's decision. HOWEVER, they declined to rule on the issue of whether gays have a constitutional right to marry. Instead, they agreed that voters cannot target a minority and take away an existing constitutional right. Since gays in California had the right to marry in 2008, it was too late in November of that year to take the right away. As written, the ruling applies only to California (or another state in the same circuit, should the same events transpire in the future).
Next, opponents of gay marriage can either drop the matter (Ha!), appeal to the full court of appeals or appeal directly to the U.S. Supreme Court. In the latter event, the U.S. Supreme Court has the right to hear the case, decline to hear (and therefore leave marriage equality in effect), to "certify" the decision (which would make it precedent elsewhere) or not to certify it (which would leave it to apply only in the 9th circuit).
I'm not a lawyer, but I have discussed this at length with an appellate lawyer and this is my understanding. (BTW, she predicts the U.S. Supremes will not hear the case and will not certify it, allowing gay marriage in California but not forcing it elsewhere. We'll see.)
I understand your reluctance to have courts overturn the will of the voters. But our system has always been based on the idea that it is the function of the courts to protect minorities from the tyranny of the majority. That principle is very much at the heart of these court decisions.
