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Noted, but completely irrelevant to the discussion. Gay couples aren't lobbying for religious marriage. If that's all we wanted, we wouldn't be bothering with lawsuits. We could just jump a broom and say we're married. This is about civil marriage.
Actually, it is relevant, just not to the argument you made. Others have claimed that this is an example of the church unlawfully influencing the state in the application of what should be secular law. I'm showing that such a statement is incorrect in that the state law has nothing to do with religion; rather, it pertains only to the legal benefits of marriage granted by the state government, and by proxy, the federal government.
And this spells out the danger of judicial review, and why constitutional amendments are vital to the democracy of this country.And I agree with you that this is how the process works. Same-sex marriage passed the legislature and was vetoed, although Schwarzenegger stepped aside and said he wouldn't interfere when the courts said gay couples had to be allowed equal access. So the process worked.
If the ballot initiative can be proven improper -- and the courts declined to rule on it until they were faced with actual passage -- that's also the process working. Of course, I'm sure there will be howls of "judicial activism" if that happens. When it comes to civil rights, sitting around and waiting for the majority to give you the rights you're due out of the goodness of its heart means you're going to be waiting for a long time.
The opinion of 9 old men and women should be AT THE MOST a stop-gap measure to ensure that justice is served until such a time as an agreeable and just law can be passed, or the constitution amended.
Let us assume for a moment, that a standard law or ballot initiative requires a minimum of a 51% majority (either legislative or general populace), and that a constitutional amendment requires 67%. I know this varies from state to state, but let's just use these numbers for the sake of argument.
Amendment trumps judicial review trumps law, meaning....
67% trumps 9 people trumps 51%.
The opinion of nine people should not rule the desires of the majority of the populace in all but the most dire of circumstances. The very execution of judicial review should highlight the need for much broader debate and resolution at the constitutional level.
Unfortunately, we have made it a habit in this country to sit back and allow these very decisions to run parts of our lives (abortion being the most notable) without confronting the underlying problems and issues, and fighting it out in the forums of public debate until we can reach a satisfactory conclusion. Public policy should be made in the open, and not by shifting seats on the courts, hoping that one day, one set of judges will overturn the decision of another set of judges.
Back to the topic at hand, the people of California had the intestinal fortitude to show a true majority and pass a constitutional amendment to override the court's decision. Until such a time as the opposing side can achieve their own amendment (meaning they have the support of two-thirds of the populace), the will of the people must be respected.
The day we become a judiciary democracy is the day I leave this country. Judges are there to interpret law, not to create it.
Celv, I highly doubt gay couples want to get married in order to achieve the same rights as normal couples (the rights you mentioned). If that was the case, they would be happy with a civil union, get almost the same benefits, and then go on with their lives without protest.
I'd think they want to get married to have equal rights as the rest of the population, and to be considered equals. If a black couple tried to get married, and the church wouldn't allow it, all hell would break lose. Not allowing gay couples to get married is the exact same thing, you're telling them they aren't equal, don't have the same rights, as everyone else.
Now, I can see not allowing muslims to get married in a church (not that they'd want to, anyway), as that is another religion, but why wouldn't you allow a Christian gay couple to get married? A lot of so-called Christians that don't even believe in God are allowed to get married, and that, if anything, is a big giant slap in God's face, much more so then allowing homosexuals to get married in a church.
This isn't a matter of separate-but-equal. The crux of this argument is the legal benefits of marriage vs civil union.
This also has nothing to do with being married in a church or a mosque or what have you. It also has nothing to do with what religion you are. Gays can get married in whatever religious institution they want to, at the moment. What is denied them is the legal status of marriage, which as I discussed before, is nothing more than a package of benefits given out by the state, and as such can be withheld under the state's own criteria.
States already withhold marriage benefits to other demographics. You can be denied marriage benefits based on age and consanguinity (cousin marriage). Polygamists also face the same restrictions.
Bottom line, the people of a given state have the right to decide who they give marriage benefits to. If they wanted to, they could remove *all* marriage benefits to everyone, and make it nothing more than a religious function that has no bearing on state business. If I were Ah-nold right now, I'd put forward a proposition suggesting exactly that, just to prove a point.
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