All I can say is I love the state of California right now.

After 7 long years with my partner, we're finally getting married.  I'm not going to hold my breath for Virginia or, unfortunately, DC.  

Where are you getting married?

My brother lives in San Francisco.  So we'll probably head out there and have a big party when we get back.  

Thanks for the well wishes.  

The CA Supremes destroyed the premise that marriage is only for those who can procreate:

There is, however, no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry.  Such a proposition clearly is untenable.  A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted reproduction, and the constitutional right to marry ensures the individual the opportunity to raise children in an officially recognized family with the person with whom the individual has chosen to share his or her life.  Thus, although an important purpose underlying marriage may be to channel procreation into a stable family relationship, that purpose cannot be viewed as limiting the constitutional right to marry to couples who are capable of biologically producing a child together.48

I hope you get the chance if you're up to it.

Now that the focus of the bad guys is the "Illegals", they have no stomach for  discriminating against  the Gays. A small step for equality all over, a large leap for sanity.

Go WEST, Young MEN!

First and foremost about a couple that wants their loving union recognized by law as equal citizens. Now, fight the right-wingers' amendment to ban it, Cali!

I in no way want to creat a fire about this at all, but I wonder will there not be a "states-rights" claim to this given California voters passed a proposal not to allow such marriages. Is this another FL where we see our courts, this case 4 judges, upsurp the will of the voters of a State. Whether we agree on the merits of this or not, how many up on the stage early in this Primary season was quoted as saying "Its a state issue, the States should decide for themselves"...well did not California decide? Someone help me understand this from a legal perspective on states-rights.

I don't see this as a states' rights issue.  It was a California court that made this ruling and not a federal one.  On the federal side, the federal government allows states to not recognize same-sex marriages officiated in other states.  The federal government also does not recognize same-sex unions, so same-sex, married couples in California will not be able to file a married-filing-jointly tax return (among other things).  Interesting in the Enron debacle, this prevented the Feds from going after the financial assets (ill-gotten gains I might add) of the gay lover of Michael Kopper.

California has a messed-up process called the "Initiative."  This allows citizens to create law or amend the state constitution without an act of the state legislature.  So, their state's highest court has not denied them any power.  It was just interpreting their state constitution, which is the role of every State Supreme Court.  Was it a states-rights issue when the VA Supreme Court stuck down the taxation authority of Regional Transportation Authorities?  The citizens of California still have numerous remedies at the fingertips.  The best being the initiative.  They can create a ballot initiative to amend their state constitution and effectively clarify and enforce their will.

On top of that, California's Supreme Court Justices are subject to a retention vote during the general election every 12 years.  So, Californians have a whole lot of power on the individual level to determine their government.  So, not a states-rights issue because there is no federal interference (unless the US Supreme Court takes some action).  And not a people's rights issue, as Californians have the power to basically remake their government nearly at will.

In my view, this is an issue that should be decided at the state level.  In this case it was.  I never thought I would agree with Bob Barr on anything, but even he (who is anti same-sex marriage) said this is how it is suppose to work.  State courts/legislatures decided at the state level.

In short, the federal government should not make a law restricting OR enabling gay marriage.  Let each state decide.  

The federal government should focus on protecting rights that the Constitution protects.  If I am to believe this is a federal issue, I must first be convinced that same sex marriage is protected (or denied) by the Constitution.  I don't think it does either.

mandates equal protection for all persons within all states via the 14th Amendment. If you feel, as I do, that when a state legislates that gay citizens may not form the same type of relationship compacts as straight citizens that it is not affording equal protection of the laws to all of its citizens, then the 14th Amendment is being infringed upon and it becomes a federal issue.

The 14th Amendment to the Constitution is what makes us a Republic where the minority cannot be discriminated against by the whims of the majority at the time. It is the most revolutionary, radical, and libertarian amendment to pass, and what makes our Constitution so beautiful.

The reasoning that the California Supreme Court (which also rested on equal protection grounds) in my mind is the exact same reasoning that could be used by the federal judiciary to strike down all state laws and constitutional provisions that make it 'legal' to discriminate against homosexuals. I am emphatically for that happening -- but that is probably at least 20 years away due to the current composition of the federal judiciary. But I look forward to the day when such a ruling is finally handed down. The good news is that, when it finally occurs, it will probably not be nearly as controversial as Roe v. Wade or other 'activist' judicial decisions, because a large number of states will already have legalized gay marriage.  

but I do not think this is correct. Among other things, the equal protection clause of the 14th amendment does protect the minority from the tyranny of the majority, but only insofar as the rights being protected are identified elsewhere in the Constitution. I do not believe the EPC creates any new right vis a vis the states in and of itself.

Otherwise, any law that was aimed at a particular group would be unconstitutional, wouldn't it? The salient issue, as I recall it from a long-ago Con Law class,  is whether the classification that the law uses is Constitutionally permissible, using whatever tests the courts define to determine that..

Amendment 9 states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  So, not all rights are listed in the Constitution.  It depends then on what we agree are rights.

Look at Roe v. Wade -- is there an explicit right to abortion or, more generally, right to privacy in the Constitution? Roe was absolutely correctly decided, but you can argue that it was not the Court's best intellectual output. The question becomes, how seriously do you take the following admonition: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That's the 9th Amendment to the Constitution, part of the Bill of Rights. Certainly, the right to privacy is never explicitly 'granted' in the Constitution, but it can be textually and structurally inferred from the rest of the document (incl. obviously the 4th Amendment). If you take the 14th and 9th Amendments seriously, and if you believe that the rights to "life, liberty, and the pursuit of happiness" from the Declaration of Independence are indeed part of our constitutional canon, then the decisions made in cases like Roe make a lot more Constitutional (and libertarian) sense.

The Courts definitely use balancing tests in determining whether or not a law/provision construes an infringement upon the 14th Amendment -- under 'strict scrutiny', 'intermediate scrutiny', or 'rational basis review'. The main questions are, is there a 'suspect classification' involved (and, if the grouping is homosexuals, I'd strongly argue the answer is 'yes'); and is there a 'compelling state interest'. Conservatives would argue there is a 'compelling state interest' to preserve the sanctity of marriage and families, or something to that effect. I don't find that persuasive at all.

At the end of the day, the reasoning used in Roe, used in Loving v. Virginia (which struck down anti-miscegenation/marriage statutes), and lesser so in Lawrence v. Texas nicely sets the stage for striking down state laws that discriminate against gays by preventing them from marrying. Roe, Loving, and a number of the Warren Court's 'activist' decisions were never based on explicit rights granted in the Constitution, and are thusly derided by conservatives. The strength of our Constitution is that the 14th Amendment does not explicitly rest on those grounds, and provides an avenue for minorities to protest and sue against provisions that unjustly target them. And we are a stronger country for having a Court that struck down racial segregation (is there a right to attend schools with kids of other races?), that struck down laws that prevented marrying someone of another race (is there a right to marry someone of another race?), that struck down laws that prevented women for being able to privately determine the course of their own lives and health with respect to having or not having children when they want, etc.

In my opinion, the equal protection argument for gay citizens against these marriage laws is just as, if not more, compelling at the federal level as what was brought to bear against the state of California. Now, pragmatically, the country may not be 'ready' for such a ruling at the federal level (and, realistically, this Supreme Court would never rule in such a fashion), but when has the country ever really been ready for the Court's striking down discriminatory laws? The South surely wasn't ready for Brown v. Board of Education, but we all recognize now that it was the just result. Maybe in 10 years, such a result will be possible.  

I don't know too much about Constitutional Law, but I would make the following points:

1. The rights of life, liberty and the pursuit of happiness are not part of the "Constitutional Canon" (at least I don't think so, as I'm not quite sure what the expression means). But in any event, the rights in the Constitutional are quite explicitly legal and political rights, and very different from the "inaleineable" rights of the Declaration, which exist merely by virtue of the fact that we exist (i.e., they are not dependent upon any political structure as to, say, freedom of speech).

2. You misunderstand the 9th Amendment. All the Ninth Amendment was really saying was that government was limited, and that unless a power was specifically enumerated, the government did not have it. I might be wrong, but I don't think there is a single instance of the Ninth Amendment by itself conferring any kind of right.

3. In Loving v. Virginia, the fact that the classification was based on race was quite significant. As the court said:

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.

   

In other words, eliminating racial discrimination was one of the 14th Amendement's specific purposes.

As you would have it, Supreme Court Justices could just sit up there and decree whatever rights they thought were appropriate to be rights.

4. The supreme court did not just come up with a "right to privacy" for Roe v. Wade. Rather, Roe v. Wade was the culmination of a series f rulings that sought to establish a right to privacy in a number of shpreres concerning sexual activity and reproductive rights. Even with that said, Roe v. Wade has been a political disaster.

I'm glad the Court ruled as it did, because it saved millions of people from much misery. The policy is espouses seems sound to me.

But as a piece of Constitutional law, it is paradoxically both not very convincing and a sublinme work of legal genius (on the part of Justice Douglas, not Blackmun).

You wrote:

1. The rights of life, liberty and the pursuit of happiness are not part of the "Constitutional Canon" (at least I don't think so, as I'm not quite sure what the expression means). But in any event, the rights in the Constitutional are quite explicitly legal and political rights, and very different from the "inaleineable" rights of the Declaration, which exist merely by virtue of the fact that we exist (i.e., they are not dependent upon any political structure as to, say, freedom of speech).

Well, we wouldn't have had the Constitution without the Declaration of Independence, so that makes the DoI part of our 'Constitutional canon'. Furthermore, many legal scholars, foremost amongst them the late Charles Black, deeply believed that it does so belong, and a well known contemporary of his, Justice Thurgood Marshall, also wrote about this pov eloquently in his dissent in Bakke (U of Cal. Board of Regents v. Bakke).

I would disagree with your second sentence pretty emphatically. I don't think the Framers (incl. the Framers of the Amendments at the time they were enacted) were interested in discussing hypothetical rights -- they were interested in securing these rights via constitutional mechanisms. I find it inconceivable that they went about discussing how best to secure many of these rights, and discussing the 'privileges and immunities of citizenship' (see, e.g., Article IV, Section II; language echoes in the 14th Amendment).

And how do I back this up? Well, look at the language of the 14th Amendment -- "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Life, liberty, or property pretty clearly echoes 'life, liberty, and the pursuit of happiness'.

Next, you write:

2. You misunderstand the 9th Amendment. All the Ninth Amendment was really saying was that government was limited, and that unless a power was specifically enumerated, the government did not have it. I might be wrong, but I don't think there is a single instance of the Ninth Amendment by itself conferring any kind of right.

No. That's the 10th Amendment. The 9th Amendment pretty explicitly says that there are unnamed rights that go with the named rights. I am assuming the Framers did not intend to waste words for poetic effect, but that they in fact meant those words to have meaning. Thus, there are inherent rights within the sphere of the Constitution that are just as worthy of protection as the rights to press, speech, or religion -- and frankly, I think you could roll ALL those rights into the general realm of the 'right of liberty'. That's why the 14th Amendment is so powerful and revolutionary and radical. But WE have to decide to take it seriously.

Next, you write:

In Loving v. Virginia, the fact that the classification was based on race was quite significant.  ... In other words, eliminating racial discrimination was one of the 14th Amendement's specific purposes.

Point me to the part of the 14th Amendment that discusses race (aside from 'Indians not taxed' in Section 2).

As you would have it, Supreme Court Justices could just sit up there and decree whatever rights they thought were appropriate to be rights.

.

No, as I would have it, judges will decide when laws, either federal or state, impermissibly infringe upon the explicit right to liberty discussed in the 14th Amendment, especially in ways which do not afford equal protection of the law to all of its citizens, ESPECIALLY the politically disfavored groups. That is the most important role of the judiciary in a republic such as ours -- to ensure that the rule of the majority does not morph into the tyranny of the majority by unconstitutionally revoking or infringing upon the inalienable rights to which ALL citizens are to be entitled.

The tests that the federal courts have constructed to weigh equal protection violations are rational and logical. Before a legislature may revoke or reduce someone's liberty, they must prove there is a compelling state interest for the good of the whole of the society that outweighs the reduction in liberty.

What you write in #4 may well be true, but you still haven't gotten around the central contradiction in your pov -- the rights that the Court decided were impermissibly being denied to women in the decision in Roe v. Wade are not explicitly stated in the Constitution. But that's true of almost all of the 'liberty' or 'privacy' rights that we're talking about here. In our system, there is nothing untoward about the Courts explicating and deciding such matters -- that is EXACTLY their role in our constitutional setup, to check the excesses of the legislature and the executive. It is, I'll admit, a bit of an elitist pov on my part, but that elitism is purposely built into our governing structure.

You seem happy that certain decisions were reached, decisions that could perhaps more rationally and intellectually consistently have been decided under equal protection grounds. Equal protection of the laws when it comes to the right to liberty of all citizens is in fact quite a rational basis to do so.

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If you're more interested in some of the better arguments regarding exactly what the 14th Amendment is supposed to stand for, the seminal case in 14th Amendment jurisprudence is the Slaughterhouse Cases of 1872 (just as in Plessy to come, the Court took the reactionary viewpoint). The decision can be read here. Read the dissent of Justice Field, it's beautiful. The other two dissents are also quite good.

The other case to read is the Bakke decision. It is here. Read especially Thurgood Marshall's dissent, it gets to the heart of what equal protection jurisprudence should be about wrt racial classifications.  

But, I'm glad I prompted this debate.  Very interesting.  I'm still digesting it all.  You are obviously more versed in the law than me, so I would like to see someone equally versed with an opposing position debate you.  That would be interesting.

State and federal governments should not legislate marriage at all.  This is an issue of religion - and actually that is where I think it does tie into the Constitution.

Because marriage (for many religious people) is a covenant with God, this is something that the state should have no role in.  It is a protected right.  You will find ministers all over the country who will conduct same sex marriages/ceremonies.

There is also a practical side to this.  Marriage also happens to have tax implications, healthcare implications, etc.  I think there needs to be a distinction between marriage and civil unions.  Civil unions are basicly a contract between two people to split property and inheritance rights (among other things).  

I don't see anything wrong with two people of the same sex agreeing to have joint ownership of property.  

So if we had my perfect world where the state did not legislate marriage, the question now becomes do the Constitutional arguments still hold up for civil unions?  

Let's take a different scenario.  Since I believe civil unions to be a contractual relationship, could a court rule that a man could not enter into a contract with another man?  Or a woman with another woman?  It would be like saying two lawyers could not form a legal partnership because they are of the same sex.  Imagine that.

The problem is that our country has a long history of regulating marriage.  That should be broken.