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Archive for Saturday, March 7, 2009

Ruling could mean civil unions for all same-sex couples in Calif.

March 7, 2009

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— The California Supreme Court could decide that there are two kinds of same-sex couples: those who can’t get married, and those who already did.

A ruling that upholds both voters’ November decision to ban gay marriage and the 18,000 same-sex marriages conducted earlier in California could come off as a safe compromise. But it also promises to keep alive an issue that has split the state as few others have.

Such a decision would give same-sex marriage advocates an avenue to pursue a federal appeal, and an argument for compelling the state to, as Associate Justice Ming Chin put it, “get out of the marriage business.”

Justices on the high court appear hesitant to overturn Proposition 8, while also reluctant to invalidate same-sex marriages performed before it passed, legal observers agreed Friday.

During Thursday’s oral arguments on a trio of lawsuits seeking to overturn the ban, Chin and Chief Justice Ronald George seemed to anticipate the difficulty in reconciling the state constitution’s promise of equality with its commitment to giving voters wide discretion to pass laws.

Chin, who was not part of the court majority that ruled last year to legalize same-sex marriage, twice asked whether the court should direct the state “to employ non-marriage terminology” and instead make only civil unions or domestic partnerships available to all.

Gay-rights lawyers and Pepperdine University law school dean Kenneth Starr, who was representing Proposition 8’s sponsors, agreed that making marriage the province of religious institutions was one way, however unanticipated, around the problem.

“There is a long tradition of requiring different parts of the California Constitution to be harmonized,” said David Cruz, a constitutional law professor at the University of Southern California who is not involved in the case. “It’s not necessarily what the voters intended — their only clear intent was to stop gay people from getting married.”

Although the 14-word measure holds that “Only marriage between a man and a woman is valid or recognized in California,” the justices indicated their discomfort with dissolving the unions of gay and lesbian couples who married before the election.

Having some gay couples allowed to stay married while others are prohibited from saying “I do” would provide legally plausible, if politically debatable, grounds for an appeal under the equal protection clause of the U.S. Constitution, according to Cruz.

Comments

grammaddy 5 years, 9 months ago

Kenneth Starr is now and always has been an abomination to the legal profession. How can anyone knowingly take rights away from an already persecuted minority??!!

canyon_wren 5 years, 9 months ago

The headline is misleading. I don't think most people--even a majority of those voting for Prop. 8--have a problem with the concept of "civil unions." The headline makes it sound like that is the term the Calif. Supreme Court would accept--the actual story says something different.

just_another_bozo_on_this_bus 5 years, 9 months ago

"Gay-rights lawyers and Pepperdine University law school dean Kenneth Starr, who was representing Proposition 8’s sponsors, agreed that making marriage the province of religious institutions was one way, however unanticipated, around the problem."

This is the one and only compromise that makes any sense. Civil unions for all, and if you want to get "married," find the church, synagogue or coven of your choice.

gccs14r 5 years, 9 months ago

That would be incredibly funny if marriage were made unconstitutional as a result of Prop 8. Be careful what you wish for.

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