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Marriage Equality in California and How it Could Be Permanent

As a Californian for the first 18 years of my life I could not be more proud. Yesterday morning when the decision came out from the California Supreme Court, my mom and dad who still live there called me to say how happy they were about this landmark decision. It was pretty cute.

There are so many questions though surrounding the longevity of this decision considering there is a big possibility that anti-gay groups will have the signatures validated for a constitutional amendment defining marriage as between one man and one woman.

Here are a couple of tidbits I found out after researching the issue and how this court decision will play out.

  • Ruling goes into effect in 30 days, Governor Schwarzenegger who supports this court decision and opposes any constitutional ban, could take action and make the ruling effective sooner than that 30 day window.

  • Anti-gay groups could try to get a stay on this ruling until November, although I cannot see the court granting this motion seeing how bold their language in this ruling was.

  • If a constitutional amendment was to pass in November, it sounds as if the court could invalidate that as they have already ruled, that based on equal protection, same-sex couples have the fundamental right to marry.

  • In the decision it is mentioned that if there was an initiative passed by the electorate, that said marriage could only for for those couples of the opposite sex, that it would fly in the face of what the CA supreme court is now a constitutional right that is open to everyone. Therefore the constitutional ban, if passed could be invalidated and found unconstitutional.

  • A poll by Survey USA has found that 46% or Californian's agree with the decision, 46% oppose it.

  • The above number is a huge jump down from the 62% of Californian's who voted for Prop 22 in 2000 that made a statutory change in California law defining marriage between a man and a woman.

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  • By Blogger Queers United, at 5/16/08 11:01 AM

    im pleased to see the new polling shows that the issue is really 50/50 among voters it gives me hope if the amendment goes to the ballot


    By OpenID bridgeout, at 5/16/08 11:36 AM

    This is such exciting news! As a California native, kind of makes me wish I still lived there.
    Although I am still hoping that our DPs will stand firm here in Oregon ins spite of the IPs!    

    By Anonymous Anonymous, at 5/16/08 5:35 PM

    I actually saw something that put people for equality at 49% and the people who arent at 46% and unsure at 5%. The initiative will fail, I'm sure. Now what we really have to wait for is the same decision that the CA Supreme Court made at the federal Court, effectively overriding all the state consitutional bands and installing equality once and for all across the nation.    

    By Anonymous Anonymous, at 5/17/08 4:31 PM

    I agree it'd be harder for the anti-equality groups this time. Tens of thousands of same-sex couples would have gotten married by November and it'd be more difficult emotionally (just think of Ellen!) to take that right away from these couples, especially after they discovered that the sky didn't fall. I also like to think that people would treat amending the constitution more seriously than a statute. But it's going to be an expensive and nasty fight nevertheless.    

    By Blogger Andy, at 5/19/08 7:30 AM

    I think you're incorrect about the possibility of invalidating the constitutional amendment were it to pass. The court does not have the authority to change the consitution; the constitution is the document by which they derive their authority, and it is the yardstick by which the measure the rest of the law, but they have no power to amend it, and neither does the legislature. If the voters change the constitution, then the change is, by definition, "constitutional." If it were possible for courts to chuck out same-sex marriage bans in their constitutions, our legal landscape would look very different. Alas, if the ban passes in November, it will be part of the California constitution until the voters themselves repeal it.    

    By Blogger Bryan, at 5/19/08 10:36 AM

    Much of this info came from legal analysts in California. Honestly, I still think it is very unclear as to what or how the ruling would impact the proposed constitutional amendment in Nov.    

    By Blogger Andy, at 5/20/08 7:03 AM

    I think what's unclear is how the proposed amendment might affect marriages that are entered into legally in the six months before November. Just as you can't prosecute someone for breaking a law that wasn't passed until after they'd committed the act, it is highly unlikely that a fully legal marriage (as these will be, at least for a limited time) could be retroactively vacated. The language of the proposed amendment doesn't speak to that at all, so it would have to go back to the court for clarification. Just as the court found that Gavin Newsom's actions were illegal in the absence of a determination that Prop 22 was unconstitutional, they are likely to uphold the legal marriages. Especially since they went to the trouble of legalizing them in the first place. However, I do not think there is a question about whether the court could invalidate the amendment itself; if the amendment passes, it can only be repealed by the voters. I'm not one to counsel rushing into marriage, but Californians should MOVE on this and get legally hitched before November, just in case.    

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