Sunday, 8 March 2009

California: Looks like Prop 8 will be upheld

Having had the benefit of watching the oral arguments in the California Supreme Court in the challenge to Proposition 8, the amendment to the California constitution banning same sex marriage, it seems pretty clear to me that the California Supreme Court is likely to uphold Proposition 8, as being a fundamental right of the people to overturn decisions of the courts.

Chief Justice George and Justice Kennard , two of the majority of 4-3 in the California Marriage Case, which upheld the right to marry as a fundamental right in California, hinted strongly that Proposition 8 should be upheld. Justice Kennard suggested as to the argument that the majority should of course uphold the invalidity of Proposition 8, because of the earlier decision of the California marriage case: "I don't see it that way".

Justice Kennard, who repeatedly made reference to the "14 words" of Proposition 8, seemed to question whether Proposition 8 invalidated the 18,000 same sex marriages that occurred between the decision int he California Marriage Case and the passing of Proposition 8.

It seems that the commentary of most observers is the same as mine.

Warning: the video of the coverage is very long (over 3 hours), and there is a 15 minute blurb at the beginning about the California Supreme Court.


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  2. The Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill of 2008 appears to have bearing on at least one question that Justice Chin raised during the oral arguments. The question concerns one of two "compromise proposals" on the right to marry that have gained recent currency in the U.S. media.

    The Blankenhorn-Rauch proposal of federal civil unions ( preserves state recognition of marriage. It appears to fall short of recognizing an equal right to marry, by preserving state-sanctioned, religious discrimination against same-sex marriages. In the oral arguments, Justice Chin asked Kenneth Starr about another, arguably more responsive remedy of equal protection concerns. The Kmiec-Saxer proposal ( This proposal would remove state recognition of a right to marry and replace it with state recognition of couples whose rights, benefits, and duties would otherwise have represented the legal scope of a right to marry. The state would recognize "espousals," not "marriages," reserving recognition of marriages exclusively to religious institutions. Law professors Douglas Kmiec and Shelley Ross Saxon would also provide protections for faith-based discrimination as exercises of religious conscience.

    Starr favors the Kmiec-Saxon proposal, even though he contended that the California Supreme Court must defer to our state legislature to make it a reality. (Starr's answer - "let the state legislature craft a remedy" - may have been what Justice Chin expected and wanted.)

    The Kmiec-Saxon proposal appears to resemble the idea of de facto legal relationships under Australia's new law, as the law's "changes provide for equality of treatment between same-sex and opposite-sex de facto couples." ( Does the comparison strike interested Australian attorneys as warranted? If so, does it suggest a viable way to the future of guaranteeing equality to same-sex couples in America?

    The Kmiec-Saxon proposal has an unsettling consequence. Marriage has been invested with the inherent dignity and status of a relationship with society. Religious faiths that discriminate against same-sex couples may be thought to diminish the dignity and status of their relationships within society. Kmiec and Saxon would let religious faiths decide whether or not to recognize the marriages of same-sex couples who wish to consecrate their love through marriage. As a result, because some religious faiths will not recognize same-sex marriages, only opposite-sex marriages would receive, in the U.S., a stamp of approval across all religious faiths. Kmiec and Saxon are prepared to accept this result for same-sex couples (and apparently for interracial couples, where churches discourage interracial marriages), because otherwise society could not uphold the right to free exercise of religion. Finding that marriage is a fundamentally religious institution, they maintain that freedom to practice religion implies a freedom to discriminate based on religion. "This freedom of religious conscience should be affirmed as strongly as the state's commitment to equality under law."

    On the other hand, the Kmiec-Saxon compromise has a long-term potential that may offset harm from its "religious conscience" protection of some faiths to discriminate against same-sex couples. It has the potential, over time, to allow "espousals" to become so commonplace that same-sex couples, by example, will have opportunity to change discrimination by some religious faiths. And the example of religious faiths that sanctify same-sex marriages may be expected to have the same influence on those that do not.

    Does Australia's Same Sex Relationships Bill have the same goal, or at least outcome, of the balance that Kmiec and Saxon propose between equal protection and religious freedom?

  3. The Australian legislation removing discrimination against same sex couples was very welcome.Commonwealth discrimination appears now to be gone ( or gone as of 1 July). There is one major discrimination left: it ignored the elephant in the room- some same sex couples want to have the same freedom to marry as straight couples. I think that the California Supreme Court got it right in the California Marriage Case - the right to marry is a human right. It is fundamental. It should not be removed from couples who want to exercise it. Yes, limits apply - incest for example should not be allowed, but the fundamental right to marry should not be trampled on so willingly.Jefferson said it so eloquently: "all men are created equal". The Coonecticut Supreme Court got it right - while civil unions are great and wonderful and fantastic, they are really second class versions - people should be free to marry. if there is such a problem marrying in a Church, marry in another Church or a civil ceremony.

  4. Two proponents of The Domestic Partnership Initiative may now circulate a petition to qualify it on California's 2010 ballot. ( Their undertaking appears unlikely to gain momentum. The initiative represents a less well-developed version of the Kmiec-Saxer proposal. Georgetown Law Professor Nan Hunter comments today on the initiative at She observes that it "doesn't take marriage away from anyone who wants a ceremony of marriage... it's a technical change in the law. And it is very close to what South Africa did, which lgbt rights advocates do not hesitate to claim as a victory for same-sex marriage." If the right to marry is fundamental, then, like other fundamental rights, it must have the constitutional guarantees of equal protection and due process. Pepperdine University law professors Kmiec and Saxer, and the initiative proponents, do not acknowledge that couples - whether straight or gay - have a fundamental right to marry, because they appear to see marriage as exclusively a religious institution. Under their proposals, couples would instead have a fundamental right to all the legal rights, benefits, and duties now associated with state recognition of marriage. California Supreme Court Justice Ming got the answer on this matter that he expected from Starr - that the Kmiec-Saxer "compromise" would confer equal protection to all couples, even if the Court can't order it. In fact, in In re Marriage Cases, the Court said that it would not decide "whether the name 'marriage' is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of
    marriage — the state were to assign a name other than marriage as the official
    designation of the formal family relationship for all couples." Kmiec and others have at least raised an important, if controversial question, about whether the state should recognize a civil institution for all couples that has, not just the same constitutional standing as marriage now does, but also equal protection.