California Supreme Court braver than it's Massachusetts Counterpart

Aug 12, 1:28 PM (ET)
By DAVIT KRAVETS
SAN FRANCISCO (AP) - The California Supreme Court on Thursday voided the nearly 4,000 same-sex marriages sanctioned in San Francisco this year and ruled unanimously that the mayor overstepped his authority by issuing marriage licenses to gay and lesbian couples.

The court said the city violated the law when it issued the certificates, since both legislation and a voter-approved measure defined marriage as a union between a man and woman.

At last -- a Supreme Court that actually considers the LAW when deciding a case (as opposed to the Massachusetts Supreme Court's blatant efforts at legislating from the bench last fall).

The justices separately decided with a 5-2 vote to nullify the marriages performed between Feb. 12 and March 11, when the court halted the weddings. Their legality, Justice Joyce Kennard wrote, must wait until courts resolve the constitutionality of state laws that restrict marriages to opposite-sex couples.

Of course the marriages are invalid -- the marriage licenses were not properly issued because the mayor had no authority to issue them to the participants. In essence, the entire San Francisco fiasco was nothing more than a publicity stunt.

The same-sex marriages had virtually no legal value, but powerful symbolism.

Not true. While valid, they allowed holders of the license to sue for spousal benefits, divorce, etc. They also entitled that couple to move to another state and demand legal recognition of their status as a married couple.

Their nullification by the high court dismayed Del Martin and Phyllis Lyon, the first same-sex couple to receive a marriage license in San Francisco.

"Del is 83 years old and I am 79," Lyon said. "After being together for more than 50 years, it is a terrible blow to have the rights and protections of marriage taken away from us. At our age, we do not have the luxury of time."

Nobody took that right from you, Phyllis. You have ALWAYS had the right to get married. You simply DO NOT have the right to 'get married' to a person of the same gender.

Oh, and I hate it when the Left tries to drag out the Children or the Elderly to support their ideology. Try arguing the facts and avoiding the emotional pablum, 'kay?

The court did not resolve whether the California Constitution would permit a same-sex marriage, ruling instead on the narrow issue of whether local officials could bypass state judicial and legislative branches.

Chief Justice Ronald George noted that Thursday's ruling doesn't address "the substantive legal rights of same sex couples. In actuality, the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authorities granted to them as officeholders."

Without seeing the petition, it is difficult to criticize this aspect of the decision. If, indeed, the issue as to the constitutionality was not raised by the litigants (though I find that difficult to believe) then the Court properly refrained from ruling on that issue.

The justices agreed to resolve the legality of the weddings sanctioned by Mayor Gavin Newsom after emergency petitions were filed by a conservative group and the state's top law enforcement official, Attorney General Bill Lockyer.

San Francisco's gay weddings, which followed a landmark ruling by Massachusetts' top court allowing gay marriage - prompted President Bush to push for changing the U.S. Constitution to ban same-sex marriage, an effort that has become campaign fodder this election year.

Will someone PLEASE inform Senator Kerry of this development? Please? I mean, his campaign website refuses to take ANY stand on the issue (though he is opposed to a federal constitutional amendment defining marriage as only existing between a man and a woman AND he opposes conservative judges -- you do the math).

John Kerry now says that he opposes an amendment to the United States Constitution because he believes "the American people deserve better than this from their leaders." Note that he neatly sidesteps the issue as to why an Amendment is necessary -- to prevent out of control courts like that in Massachusetts from forcing gay marriage on the rest of the nation due to Article IV, Section 2 of the United States Constitution -- the Full Faith and Credit Clause. The Full Faith and Credit clause mandates the official acts of one state (such as granting of a marriage license) be given full faith and credit in every other state.

John Kerry understands that. In fact, that is the very argument he gave on the floor of the United States Senate regarding the Defense of Marriage Act (DOMA) back in 1996:

DOMA is unconstitutional. There is no single Member of the U.S. Senate who believes that it is within the Senate's power to strip away the word or spirit of a constitutional clause by simple statute.

DOMA would, de facto, add a section to our Constitution's full faith and credit clause, article IV, section 1, to allow the States not to recognize the legal marriage in another State. That is in direct conflict with the very specific understandings interpreted by the Supreme Court of the clause itself.

The clause states-simple words-"Full faith and credit shall be given"-not " may be given," "shall be given"-"in each State to the public Acts, Records and judicial Proceedings of every other State." It says:
And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

142 Cong. Rec. S10100-02, S10107.

Later, in that same speech, he noted that DOMA was unnecessary:

Right now, as we speak, there is no rash outbreak among the States to recognize same-sex marriage.
In fact, States-one after another-are moving in the opposite direction. For example, the State of Michigan passed a law which defines marriage as the union between a man and a woman and declares Michigan will not recognize a same-sex marriage conducted in another State.
This bill is a solution in search of a problem.
Madam President, even if the Hawaiian Supreme Court decides to recognize same-sex marriage, Michigan and a dozen other States have spoken against it. Resolving this tension rests squarely with the judicial branch, not the Congress. This is a power grab into States' rights of monumental proportions

Id.

And of course, we can't have a Constitutional amendment that might impair the court's ability to create a right to gay marriage, can we?

Note: the above transcript from the Congressional Record can be viewed (in .pdf format) by going here, clicking on the appropriate volume (1996 Congressional Record Volume 142) and entering the page number (S10107)in the appropriate blank.

The California court sided with Lockyer's arguments, ruling that Newsom's actions would foment legal anarchy and sanction local officials to legislate state law from city halls or county government centers.

When the justices agreed in March to hear the case, they said they would decide only whether Newsom overstepped his mayoral powers for now, but would entertain a constitutional challenge - that gays should be treated the same as heterosexual couples under the California Constitution - if such a lawsuit worked its way to the justices through the lower courts.

And such a lawsuit is as inevitable as the sun rising in the morning.

Gay and lesbian couples immediately acted on that invitation, suing in San Francisco County Superior Court alleging laws barring them from marrying were discriminatory. Mayor Newsom filed a similar lawsuit.

The now-consolidated cases are unlikely to reach the California Supreme Court for at least a year or more. California lawmakers have refused to take a position on the matter, and have left the politically volatile issue to its Supreme Court.

See what I mean.

Newsom argued to the justices in May that the ability of same-sex couples to marry was a "fundamental right" that compelled him to act. Newsom authorized the marriages by citing the California Constitution's ban against discrimination, and claimed he was duty-bound to follow this higher authority rather than state laws banning gay marriage.

Right. The fact he was an elected political official of the city with one of the largest gay populations in the nation had nothing to do with his decision, right?

The Arizona-based Christian law firm Alliance Defense Fund, a plaintiff in one of two cases the justices decided Thursday, had told the justices that Newsom's "act of disobedience" could lead other local officials to sanction "polygamists."

Absolutely. If the state cannot discriminate against issuing licenses to same-sex couples, what is the compelling interest in limiting licenses to two people per marriage? If no line is drawn here, then why does anyone think one would be drawn there?

Frankly, there's more historical and cultural arguments to support polygamy than gay marriage. But let's not let that stop these activists.

Newsom's defiance of state law created huge lines at City Hall by gays and lesbians waiting to be married, and ignited a firestorm engulfing statehouses and ballot boxes nationwide.

Missouri voters this month endorsed a state constitutional amendment banning same-sex marriage - a move designed to prevent that state's judiciary from agreeing with the arguments Newsom is making in California.

A state constitutional challenge by gays in Massachusetts prompted that state's highest court to endorse the gay marriages that began there in May. A judge in Washington state this month also ruled in favor of gay marriage, pending a resolution from that state's top court.

Louisiana residents are to vote on the same issue Sept. 18. Then Arkansas, Georgia, Kentucky, Mississippi, Montana, Oklahoma, Oregon and Utah are to vote Nov. 2. Initiatives are pending in Michigan, North Dakota and Ohio.

Four states - Alaska, Hawaii, Nebraska and Nevada - already have similar amendments in their constitutions.

And none of those constitutional provisions will matter one whit unless we amend the United States Constitution. Oklahoma may have a constitutional provision barring gay marriage, but if a gay couple gets married in Massachusetts, then moves to Oklahoma, Oklahoma must recognize that marriage under Article IV, section 1 of the United States Constitution.

So where do you stand, John Kerry? The crisis has come, and you must decide whether you are opposed to gay marriage and are willing to do something about it or whether you agree that a leftist court in a small state should have the right to impose gay marriage on the rest of us.

I'll be waiting for an answer, but I won't hold my breath.
- posted by MrSpkr @ 13:50