gay marriage ruling, the sequal?

So you probably have read that the California Supreme Court has ruled that gay marriage is a protected right under the California state constitution. Since I worked at for a Massachusetts legislator when the Massachusetts Supreme Judicial Court made a similar ruling and helped my boss when there was Constitutional Convention regarding the issue, I wanted to clear up some confusions people might have.

1. Like the SJC, the California supremes based their ruling on their state constitution. This means that even if all nine U.S. Supreme Court justices think it was a terrible opinion and disagree, they can't do anything about it. State courts are the final arbiters of their own state constitutions, and while the U.S. Supreme Court can declare a state constitutional provision to be in violation of the Federal constitution, if a state constitution grants the people more rights than the federal constitution (for example, many states have a constitutional right to quality education), that's that state's business. It's called federalism.


2. And since the ruling is based solely on state case law and the state constitution, it will have zero effect on other states or the federal government. Now, I am sure this case will have some persuasive effect on other liberal states' justices, just as Goodridge had on the California justices. But DOMA is still the law of the land until some gay couple from California or Massachusetts moves to another state and seeks recognition of their marriage under the Full Faith and Credit Clause. [I doubt anyone will challenge DOMA until the ideological makeup of the U.S. Supreme Court becomes at least 5-4 liberal]


3. Unlike federal judges and Massachusetts' justices, California's are popularly elected. If Californians don't like how these justices rule, they can vote against those justices who ruled in favor of gay marriage when their terms are up. And they might even be able to recall them like they did to Gov. Gray Davis.


4. Also unlike Massachusetts, the California legislature twice passed bills granting Californians same-sex marriages. Gov. Schwarzenegger vetoed the bills twice, in 2005 and 2007. In Massachusetts, the legislature essentially sat on its hands during the years that the SJC considered Goodridge. Arguably, had MA legislators passed a civil union bill, Goodridge might have turned out differently.


5. In Massachusetts, in order to amend the state constitution, the legislature must meet in Constitutional Convention (state House and Senate together) and vote for the same amendment in two successive sessions. That still is yet to happen since Goodridge came down. California, by contrast, allows any yahoo who collects enough signatures (and these days has a lot of money to get said signatures)to get a state constitutional amendment on the ballot. In fact, there is already a initiative in the works to overturn the CA Supreme Court's decision, an initiative that Schwarzenegger supports. So does John McCain


6. In California, the court overturned a proposition that enacted a state law banning gay marriage. In Utah, the people voted for a state constitutional amendment banning gay marriage. This means that even if the Utah Supreme Court agreed with the reasoning of California's supremes, they couldn't strike down Amendment 3.
7. Barrack Obama's support of civil unions and support of the California court's decision are not inconsistent. Although the court said that civil unions would subject same-sex couples to "second class citizenship," Obama is supporting the rights of states to decide the gay marriage issue for themselves. Obama's federalist argument is something Bob Barr, author of DOMA and now presumptive Libertarian Party candidate, agrees with even though he himself is opposed to even civil unions.


8. This will not help the GOP in November. Bush already milked gay marriage for all it was worth to conservatives in in 2004, especially in swing states like Ohio and Missouri. Those states can't have another constitutional amendment on the ballot this year to say the same thing. And California won't be in play for Republicans any time soon, no matter how much John McCain wishes it so.


9. Vermont, Connecticut, and New Jersey allow for civil unions for same sex couples (Hawaii used to as well); only Massachusetts and California (as well as Canada, Great Britian, South Africa, and few other countries) have legalized gay marriage.


10. After San Francisco Mayor Gavin Newsom tried to marry same sex couples in early 2004, the California Supreme Court struck him down, but now they reversed course. Why? Well, George W. Bush appointed the California version of Clarence Thomas--Janice Rogers Brown--to the D.C. Circuit (which is considered the stepping stone court for those judges to become U.S. Supreme Court justices). I can't imagine getting an arch conservative off the CA court wouldn't change the vibe, let alone the ideological make up. Just look what happened after Chief Justice Warren came on board, Brown v. Board became a unanimous reversal (when before it was narrow affirmance). So arguably, if you wanted to blame anyone for this decision, the fault would lie with Bush and Senate Republicans, who went to the mat for this nomination despite repeated filibuster.

I hope that clears things up. Any questions?