Unfortunately, in the case of California's proposition, the amendment, if passed, will invalidate all the same sex marriages that have been performed in California. The only recourse will be to take it to the US Supreme Court, where I've no doubt this issue will end up eventually, whether this time or some other.

The federal government does in fact have jurisdiction over this in the sense that the US Constitution guarantees equal protection and equal treatment under the law for all citizens. Based on the court's history, even in recent conservative years, an excellent case can be argued that state laws forbidding marriage on the basis of gender of the contracting parties are invalid and unconstitutional. Churches are free to recognize or not recognize whatever they choose. Civil law does not have that liberty in the US.

There are solid precedents, going back to the court decisions that struck down all laws that blocked interracial marriages, and some federal court decisions (though not, I think, at the Supreme Court level) concerning the rights of transgendered individuals who have had physical sex change surgery.

The impact of Proposition 8 on couples married prior to November 4th is actually unclear. Some legal scholars are saying that Prop 8 cannot be applied retroactively, and that those couples' marriages will stand. Others, like the Berkeley professor interviewed in this NPR segment say that nobody knows what will happen to them, and that it will have to be decided by the courts.

Traditionally, marriage rights have been state's rights, so while the federal government certainly could come in and reverse a decision or overturn a law, it's a bit unlikely, from a historical standpoint.

For precedents of US Supreme Court decisions overturning anti-gay discriminatory laws, one could list Lawrence v. Texas (which struck down sodomy laws).

Food for thought ^_^

Traditionally, marriage rights are states rights, yes. But the federal courts have stepped in several times. Forgive me for not citing cases, as this is after all hardly a legal forum. But one such ruling required every state to recognize the validity of marriages contracted and solemnized in another state. This happened because states with laws forbidding interracial marriages were trying to deny the validity of such marriages when solemnized in a state that had no such ban. Eventually this led to rulings that struck down the laws regarding interracial marriage in all states that still had them.

I believe that same precedent was cited when the conservative Rehnquist court struck down state sodomy laws. It is equally applicable here, and that is what the social conservatives are so terrified about. Repeatedly in the last couple of decades, even the very conservatibe Supreme Court has stepped in to enforce "equal protection under the law" in spite of traditional states rights. They will have to violate their own precedents in order to affirm states' rights to deny marriage to same sex couples.

If a state were to attempt to compel churches to celebrate same sex marriage ceremonies, that would be different, and the courts would rule for the churches. But in this case, it's only a matter of time until a couple married in California sues Iowa or Nebraska to allow them to file joint income tax or some other such action. Likewise, federal claims are going to come up eventually. The Supreme Court is not going to be able to dodge this forever, or even for much longer. That's what has the social conservatives running scared and trying to create a "consensus" of states against same sex marriage. That Massachusetts and California should be first to recognize the right of gay couples to marry isn't too surprising. Based on what I learned when I was a law library staff member, New York, Michigan, and Illinois should already be in line to do the same thing. It's a sign of profound grip the arch-conservative movement has taken on the US that this hasn't already happened.

Yeah, folks have been suspecting that Obama, if elected, would move to overturn Clinton's '96 Defense of Marriage Act, which is what overrides the Full Faith and Credit clause in the Constitution (which enjoins states to recognize contracts signed in other states, etc.). With DoMa out of the way, there would definitely be a clearer path towards a Supreme Court decision enforcing the recognition of same-sex marriage nationwide.

It's not that the DoMA overrides the constitution (that's imposable for a mere federal statue to do) it's just that it's never legitimately been challenged. If it were then it would fall like the house of cards it is.

I definitely realize that DoMa and the Constitution are at odds, and a reasonable and forceful argument can and inevitably will be mounted against DoMa on the grounds that it is unconstitutional. I only meant to say that DoMa, inasmuch as it is still on the books as law, is a currently active defense for states not wishing to offer reciprocity in terms of recognizing out-of-state marriages. I certainly make no claim that that's a fair or reasonable policy ^_^

Hehe right, sort of the legal tissue paper they hold up to protect themselves from the bullet of a constitutional argument, which is why the religious right has been so keen on pushing for this Federal constitutional amendment to ban same sex marriage.

Mystech has you covered here. DoMA is unconstitutional, always was unconstitutional, and will not stand in court. Only a constitutional amendment can actually have valid force in this matter, and the conservatives know that. They have several times proposed such an amendment, and I have no doubt one is still on the table in Congress somewhere.

Yeah, I just clarified my point there, thanks. And while I'm not aware of any active motions for a federal ban on same-sex marriage, I have heard Palin say that she'd push for one, should she be elected, so you're right -- it's definitely still a very real possibility, and could be just around the corner.

Luckily I think that the idea of amending the constitution to ban same sex marriage more or less died out when the Democrats took over both houses of the Congress in 2006. If they sweep in to an even larger majority as is largely expected this election then I think it's even less likely that we'll ever hear anything of that awful bit of legislation for a very long time. Who knows, maybe by that time campaigning to ban same sex marriage will seem like campaigning to ban interracial marriage (as it well should).

Oh man, the thought of a 60-seat, filibuster-proof Dem majority in Congress gets me so hard...

"it's only a matter of time until a couple married in California sues Iowa or Nebraska to allow them to file joint income tax or some other such action."

Tell me about it! I'm surprised this hasn't happen already. I mean what sort of defense could possibly be bought against that defense? Naturally they'd site the Defense of Marriage act of 1996 which says that one state doesn't need to honor a marriage license issued to a same sex couple in another state, but naturally this is completely in violation not only of the Constitution's full faith and credit clause, but also arguably the 14th amendment which bans gender discrimination (the discrimination here being against the gender of one member of the marriage).

Lord help us, by the way, when a gay married Canadian couple moves down state-side, as we have treaties with Canada which says we must honor certain documents they issue, such as marriage licenses, and of course international treaties are an even higher legal authority than the Constitution itself.

How this ridiculous patch-work system we've got going on now has managed to last so long already is a complete mystery to me.

I don't see why people need to meddle in the affairs of others.

Religion has its place and its not in the government dictating which is and which is not accepted. The seperation of church and state seems to be only a one way road...

The law was established so the church would not be meddled with by the government, such as what happened in England. The Founding Fathers wanted a place where religon could be tollerated and accepted.

However, people who control government attend church, they almost have to. Politicans have to maintain a squeaky clean public image and there are those devout religious congressmen, assemblymen, Senators, etc, who truely feel that Prop 8 should pass because it's what their faith tells them to.

I don't get it. I thought equality was for everyone. The government better tread very lightly. Homosexual rights being given and then repealed, the only active form of discrimination left in the government system...

A new social movement could form equaling that of the Civil Rights of the 50's and 60's.

Yes, I'm gay. I have a bias opinion toward this proposition, but if I ever find someone to really love and love me back I should have the same rights as my fellow Americans to marry them if that's what we want. Why should my freedom be limited?

The gay rights movement has already formed and is well underway! And you're right to ask why your rights should be curtailed, and why people don't realize that the 1st Amendment's religious protection applies to everyone, including people who want to be spared of discrimination based on the religious views of some conservatives.

You're preaching to the choir, man.

Still gotta preach ^_^ If I manage to influence just one new person to take action here, it's well worth it.

Arizona is also one of the states with a "save marriage" proposition on the ballot this year. Ours is Prop 102. The amazingly contrasted arguments for and against it have been a source of amusement for me. Basically, those for Prop 102 argue, "Marriage is between one man and one woman. Because. Just because." Those against it argue, "Prop 102 is discriminatory and full of crap. This is why."

I've already voted (early voting ftw!), and if I could've put a more emphatic "no" on that ballot, I would have. I'm keeping my fingers crossed for November 4th.

Yay for early voting! And yeah, it's pretty stark to compare the vagueness of the Pro-8 arguments with the hard facts of the Anti-8 campaign.

I'll have my fingers crossed too ^_^

Good god, hasn't the ad campaign for prop 102 just been completely insipid? They show happy families going on picnics, hiking in the mountains, a woman smiling as she's proposed to and then just says "Yes on 102, protect Arizona's families". I don't fucking get it, how does letting gays get married ruin any of that? Are they trying to say that fags ruin everything? That's the only message I'm coming away from those commercials.

What they should have done is kept every segment going a little longer and have the camera pan over to two dudes sucking eachother's dicks and completely scarring everyone else for life - because let's face it, that's really what they are trying to say.

Anyway that's why for the past few weeks I've made it my mission to cut down and deface beyond repair every "Yes on 102" and "Se a la 102" sign between Chandler Blvd. and Baseline Rd (my usual commute) in the central valley. I like that some of the posts I left behind after cutting the signs down and slashing them up, have been put to use by other candidates ensuring that 102 can't put a sign back there. I'm actually going to vote for those people who put up their own signs next to a cut up 102 sign.

What they should have done is kept every segment going a little longer and have the camera pan over to two dudes sucking eachother's dicks and completely scarring everyone else for life - because let's face it, that's really what they are trying to say.

Internets to you for that, fellow Arizonan. Win.

The entire "Yes on 102" campaign makes me sick. It wasn't cool when people were down on interracial marriages either, but somehow it's okay to show the same discrimination toward same-sex couples. Go figure. Beware teh gheys, they'll rape your children and feast upon your entrails if we give them marriage rights.

I've had a few friends rip down/deface signs around here, too. Considering how conservative my area is, I doubt it will do much good, but it sure brings a smile to my face.

My little sister, who's always been quite supportive of me, woke me up today with a text message to tell me that she had torn down a bunch of yes on 102 signs on the ASU main campus, haha, A shame that the election is so close - we should have turned this into a wider campaign of civil disobedience sooner.

"As someone said, that would feel like handing someone a wedding certificate just to take it away with a "oops, kiddin'!". How cruel would THAT be?"


If you'll recall this already happened in California a few summers ago in San Fransisco started issuing marriage licenses to same sex couples as ordered by Mayer Gavin Newsom. A few months later all of those marriages were declared null and void.

I don't know the exact wording of prop 8 but if it specifically contains the language about defining marriage then it WILL be retroactive and all same-sex marriages issued up to this point will be made null and void. I very much doubt that the religious right wing wackos that drafted this proposition threw in a grandfather clause, after all the whole point of the prop is to screw over gays, so why bother with that small mercy?

On the bright-side California has a great track record for human rights and progressive issues in general. You guys have consistently been well ahead of the curve, and the amount of money and big name support for NO on 8 has been pretty impressive. We in the rest of the country don't have it half so good!

Take my home state of Arizona for instance, same-sex marriage is already (as it is in every state in the US except California, Massachusetts and just recently Connecticut) by way of state statute. The fact that it's already illegal however hasn't stopped religious nut-jobs from getting a proposition on this ballot (102) which would amend our state constitution to further ban same sex marriage. . . even though it's already illegal and has been upheld in challenges in state courts.

Arizona's measure is expected to pass by a landslide, and the real shit of it is that it doesn't DO anything. Not a god damned thing! It isn't making anything illegal that wasn't already illegal, all it is is a big "FUCK YOU" to the queers in Arizona. Quite a sorry state.


Anyhow I wish you and all my other furry friends in California the best of luck, you be sure to get out there and make sure your vote counts!

Just a quick reminder though - I'm in Madagascar, not California (but my man is there).
Here in Madagascar, homosexuality is "legal", as in "no point making it illegal if it officially doesn't exist"... Better or worse than in the US? I dunno. Anyway, my country's very strongly heterocentric by both tradition and religion so, illegal or not, it's far from easy to live a same-sex relationship without hiding here.

Ah wow I didn't realize, I simply assumed you were in California. It sounds like things there are a good bit worse than here. Homosexuality is certainly recognized to exist, and it's something we can talk about and fight for openly and loudly without things seeming too out of the ordinary even if a good lot of people are completely backward and retarded about it.

I do live in California. I really wish I didn't.

I'm honestly surprised that there is such a devout movement against gay rights here considering West Hollywood and SF. I don't live anywhere near either but... I don't know. /sigh

I see a lot of for and against adds, I've seen propoganda by the church of couples claiming to be arrested if they tried to stop their child from learning homosexual rights and I've seen people condemn it as being the salvation for the state.

I live on campus at a University and walking up the hill to campus you can see, hanging in various student windows, No on 8! or Yes on 8! Save our Children, etc in the various dorm windows. The line seems so venimously divided on people who support and are against Prop 8. I don't know how it will turn out. I really hope Prop 8 fails.

Bleh. I want to change my nationality. I'm growing excessively tired of living in a country that is intollerant, slow to change, doesn't use the metric system. =P

Peace.

Yeah, I almost forgot that - vote yes on the metric system too, whenever you can