G.M. wrote: "Philip, thanks for posting. Your comment on the issue is brilliant, definitive and much appreciated. If you allow me, I'd like to copy your post to other blogs and spread the word."

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Response:
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Of course you may. I'm sorry that I overlooked your request. Please feel free to repost it on other blogs, together with my name...

Fond regards,

PHILIP CHANDLER

We got married in SF in 2004; this is the last time I'm getting married (pre-November). I would like to quote John Lennon's God but if you already know it then you're qualified enough to know that I just believe in me, my partner and me, now that's reality. Things change people and either you change with them or you're unhinged entropic mystics.

No on Prop 8, the 14th century is over!

@ Spencer Ward --

Study history more. Marriage has, depending on culture and era, been a financially-based exchange of women (treated as property) between men of different families or tribes; the keeping of multiple women by one man; a permanent or temporary domestic arrangement between two or more adults; a householding arrangement between one man and one woman or between one man or woman and one third-gender person; or any number of other variations. The common thread is that marriage is a social and/or legal or religious process of establishing families.

Marriage has evolved, not through "redefinition" of a static institution but through natural social changes -- and this can mean improvement. Heterosexual marriage as now practiced in the U.S., as a relationship between two legal peers, is certainly preferable to older variations which make women subordinate. Opening up the legal institution of marriage to same-sex couples (the social and religious versions already being practiced by a large number of people) is just more progress towards a more equitable society.

And no, you're not being "persecuted" for your advocacy of a historically-ignorant heterosexual-supremacist model of marriage; you're being disagreed with in public. Hard as this may be for you to grasp, there's a difference.

As a conservative (not a Republican) my view is that the government should have little interference with the lives of Americans. Thus, I feel the government should not even be allowed to pass a law banning gay marriage, because it is none of the government's business, if a man marries a man, or a woman marries a woman. So long as no children are involved, and no one is being forced, what gives the government a right to act as the moral authority over this state and even country. The fantastic thing about being an American is that we not only have laws which protect our way of life, but we even have laws protecting the lifestyles we may disagree with (to a certain extent).

Marriage is a civil contract by California statute and not a constitutional right.

The California Supreme Court stated that if California were to recognize marriage contracts under its statues, then it must not discriminate against same-sex couples under its equal protection clause.

Proposition 22: ‘Only marriage between a man and a woman is valid or recognized in California’ for the November ballot would change the California Constitution to 'define' the word marriage as between one man and one woman. It would not change the constitution to make marriage a legal right to opposite-sex couples nor would it change the equal protection clause of the constitution to permit discrimination against same-sex couples. I do not see where it would overturn the court’s decision which addresses and would continue to address discrimination between the parties of the legal marriage contract, regardless of the definition of the word marriage.

Contract law invalidates contracts that violate California statutes, making them null and void. The State of California may not pass or maintain statutes in its criminal or civil codes that violate its constitution. If Prop 22 passes, the word ‘marriage’ in and of itself would become discriminatory according to the Supreme Court. I believe the Californian Legislature would be required to nullify all marriage contracts and perhaps substitute the word ‘marriage’ for ‘civil union’ throughout its civil code.

For example, it would be feasible (albeit unlikely) to pass a constitutional amendment with virtually the same wording as Prop 22 stating ‘Only a business owned by a heterosexual male is valid or recognized in California.’ Under this type of scenario, businesses would either become; 1) only heterosexual-male owned, or 2) illegal. I believe it would be the latter as the scenario is clearly discriminatory and would require all business licenses within the state become null and void.

If my hypothesis is correct, Prop 22 could be a huge victory for same-sex couples nationwide by annulling California’s 15 percent of the nation’s marriages. At least, I would call it a victory. It could create havoc at the federal level for people who found themselves no longer married. They’d find the loss of benefits would include their spousal pension, social security, inheritance tax, convenience of filing joint tax returns, elimination of deductions for stay-at-home spouses, some health insurances and about 997 other benefits and rights. And many of them would deserve it too. I’m not sure how it would affect those with survivor spousal benefits, as they are no longer married, but it could sure make it difficult for people who became widowed after the November election.

I think the bigots should go for their amendment and dump a bunch of their money into getting it to pass. I’m thinking about voting with them this time because I don’t think we’ll win the marriage war until a big group of opposite-sex couples lose their benefits.

Philip: Yes, thank you. I agree with G.M.

I believe the tide is turning away from conservatism as the popularity of G . W. Bush and his corrupt cronies continues to falter close to single digits . People are tired of the self - righteous dictatorial Christian right and the power it has taken for granted in the past 7 years of this disastrous presidency . A similar amendment failed in Arizona and I believe it will fail here as well .

It is about time!

Mass. did not fall off the earth when they assured marriage equality.

California will survive too, I promise!

I have been described by some people as a “gay rights activist,” so it will come as no surprise to read that I fully endorse and approve of the California Supreme Court’s decision to strike down the ban on gay marriage in that state. To those who argue that “unelected judges” have no place “usurping the will of the people,” I point out the following – nine unelected judges handed down a case in 1954 that changed the American legal landscape forever. I refer to the nine unelected Justices of the US Supreme Court, who handed down Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), striking down the pernicious “separate but equal” doctrine and overruling Plessy v. Ferguson, 163 U.S. 537 (1896), thereby paving the way for racial integration across the country.

Those who oppose desegregation today are correctly viewed as racist bigots, and the “separate but equal” doctrine enunciated with approval in Plessy (supra) stands as a monument to national shame. The same tired arguments were made then as are made now – arguments to the effect that “unelected judges” should not “usurp the will of the people” and force social change on American society. Those arguments are baseless – the Justices are unelected, and have lifetime tenure with a guarantee that their wages cannot be reduced as long as they sit on the courts, precisely so as to insulate them from the will of the people, so as to permit them to interpret the US Constitution (and US statutes) free from concerns as to how such interpretations could impact (ruin) their careers. The Constitution vests in Article III judges broad powers of judicial review, recognized since the US Supreme Court handed down the landmark decision of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In this decision, the Court made it unambiguously and explicitly clear that Article III judges possess this power, declaring that “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

This was not an act of “usurpation,” as so many social conservatives love to whine. This is a bedrock principle of constitutional law, and it would be remiss of the federal courts to shirk their responsibilities for fear of political fallout. While state court judges are usually elected (or, in some cases, appointed either by the governor or by committees of judges), they are the final arbiters of state constitutional interpretation, and the same principle applies to them. Those who argue that the California Supreme Court “usurped” the will of the people either forget, or fail to understand, that these judges are tasked with interpreting the state constitution and determining whether statutes challenged by plaintiffs are congruent with the state constitution. If a state statute violates one or more provisions of the state constitution, state court judges have the duty to strike down the state statute as violative of the state constitution. The Chief Justice of the California Supreme Court (Ronald M. George), who authored the majority opinion in in re Marriage Cases, S147999 (striking down the ban on gay marriages) is a conservative Republican appointee – certainly not somebody whose opinions in other areas of the court’s jurisprudence are regarded as radical or extreme. Yet he recognized the injustice implicit in the denial of marriage licenses to gay couples, and he (and three of his colleagues on the bench) held that the ban on gay marriage violated the California state constitution. Although he referenced decisions handed down by the US Supreme Court, he took pains not to place reliance on any of these decisions or to implicate these decisions in his analysis – he limited his analysis to interpretation of the due process and equal protection guarantees of the California state constitution (which contains an explicit privacy clause, unlike the US Constitution)., and limited his references to US Supreme Court cases to comparisons and analogous reasoning. This is crucial – under the US system of judicial federalism, the US Supreme Court may not review cases that are premised on state constitutional law and that place no reliance on US constitutional law or US statutory construction; the US Supreme Court may only review cases decided by state courts to the extent that those cases involve adjudication of provisions of the US Constitution or of US statutes. By taking pains not to place reliance on federal case law, the majority immunized this decision from further review by the US Supreme Court.

After an initial surge immediately following the release of this decision, support for a state constitutional amendment that would limit marriage to one man and one woman only, thus nullifying the state high court’s decision, is dropping and is continuing to fall. Quite simply, more and more Californians no longer regard gay marriage as loathsome or morally wrong – what is particularly striking about this attitudinal change is that it is definitely generational. Younger voters are much less likely to vote to deny gay couples the right to marry than are older voters. This finding was also observed in 2003 when the Supreme Judicial Court of Massachusetts (the state’s highest court) overturned the Massachusetts ban on gay marriage (see Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)). Quite simply, the cancer of discrimination and bigotry is literally dying as more and more young people go to the polls and vote their policy preferences into law, and as more and more young people replace older voters.

Two down, with 48 to go.

PHILIP CHANDLER