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Full Equality.

Thomas

If you have not read it, Autumn at Pam’s House Blend linked the decision in In re Marriage Cases, the California Supreme Court case that made marriage equal for all Californians irrespective of sexual orientation. She has up a long quote which I will not repeat. I liked this part from page 6:

[W]e conclude that … the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish – with the person with whom the individual has chosen to share his or her life – an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage…

(Emphasis in original.)

What might get overlooked, I wanted to highlight under the legal maxim of est majorifico fuckin dealio:

[W]e must determine whether sexual orientation should be considered a “suspect classification” under the California equal protection clause, so that statutes drawing a distinction on this basis are subject to strict scrutiny. As pointed out by the parties defending the marriage statutes, the great majority of out-of-state decisions that have addressed this issue have concluded that, unlike statutes that impose differential treatment on the basis of an individual’s race, sex, religion or national origin, statutes that treat persons differently because of their sexual orientation should not be viewed as constitutionally suspect and thus should be subjected to strict scrutiny. The issue is one of first impression in California, however, and for the reasons discussed below we now conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons diffeently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.

(Opinion at pp. 95-6, footnotes omitted.)

This isn’t “just” marriage equality. This is full equality, as far as California law can effect it.

So often, our nation’s, our people’s and our institutions’ reach exceeds their grasp; we fail or refuse to live up to our promise and potential. But on this, in one state, on this day, we did the right thing.

(Thanks to Holly, Jack & Co. for letting me guest-post occasionally. I very much appreciate the privilege.)

31 thoughts on Full Equality.

  2. I would be way more excited about this if I didn’t know how fucking nuts our voters are here in California. It’s more than possible that the Democrat could win California by a large margin and a constitutional amendment banning gay marriage could pass, also by a large margin. The only way to get a surefire defeat is to write a tax increase into the amendment.

    They’ve already got all of the signatures they need to get a constitutional amendment on the ballot for November, so the circus is about to begin.

  3. LOL, Mnemosyne, you’re right about the tax increase.

    I’m excited, and my friends and I are throwing a party tonight, but I’m far from giddy. The proposed constitutional amendment, the “California Marriage Protection Act” (ew), needs only a simple majority this November to put the discrimination right back in place. Those of us who can, should start donating to the key advocacy organizations now. The opposition will have a lot of money, and we’ll need our share too.

  4. How smart are the Cal supremes?

    As I said above, they not only made marriage equal, they also made all sexual orientation discrimination subject to strict scrutiny, the same as race, religion and (in California but not the federal Constitution) sex, permissible only to serve a “compelling state interest.”

    As Radfem pointed out in the comments to Mandolin’s post at Amp’s place, the forces of evil already have the necessary signatures to amend the constitution, 8% of the gubernatorial vote last cycle. But that initiative says this:

    November 2007
    LIMIT ON MARRIAGE. CONSTITUTIONAL AMENDMENT.
    Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state. (Initiative 07-0068.)

    That would not reverse the application of strict scrutiny, just make a carve-out for marriage.

    So, do the forces of evil scrap the bird in hand, and scramble for signatures for a broader initiative?

    Or do they stick with this one, that even if they get it through only claws back part of what the good people won today?

    Heh.

    Either way, it’s going to be an every-vote fight on the ballot initiative.

  5. Reading legal opinions makes my eyes blur, so I haven’t gone through and checked for myself, but do you know if the strict scrutiny for sexual orientation-based distinctions was in the concurring opinion as well? From the news I see, the decision wasn’t straight 4-3 but (3+1)-(2+1), with four actual opinions produced.

  6. ProtectMarriage, the group which brings California it’s upcoming anti gay marriage amendment has announced they are already working on a stay of this decision. Stand by for the continuing saga of some of us just trying to have equal rights.

  7. I’m excited, and my friends and I are throwing a party tonight, but I’m far from giddy.

    Absolutely have a party tonight (mojito, anyone?) Then we’ve got to start working to block the initiative to amend the constitution.

    Though if any couples in Southern California want to get married in the interim between now and November, may I recommend the church we got married at, Neighborhood Unitarian Universalist Church in Pasadena? Lovely setting, wonderful minister, and you know from the moment you pass under the rainbowed “We Support The Right to Marry” banner that you’re not going to get any weird treatment from the staff.

  9. Everyone in our office jumped up and cheered like crazy!! Bust out the champaign, ya’ll!! Anyone in LA going to the rally tonight in WeHo? There shall be cake 🙂

  10. Whatever the specific consequences of the decision, this sentiment:

    “[W]e conclude that … the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.”

    is really regressive, and we shouldn’t be pleased the courts are advocating this idea.

  13. Actually my previous post is far too moderate. It’s absolutely evil to say marital rights and their traditional legal associations are set in stone and shouldn’t be triffled with by voters or elected politicians. God forbid this becomes accepted by the courts. You can all cheer that gay marriage is go; but the same same decision may have just given protection to a very large class of unjust and indefensible rights which will consequently be very hard to dismantle in the years to come.

    Whatever victory has been won has come at a very large cost.

  14. I totally understand the scepticism some have voiced and wholeheartedly support raising money to oppose the amendment, but I hope this makes people more optimistic: in Massachusetts, the so-called “marriage defenders” put forth an amendment that the congress eventually voted against putting on the ballot. And in the story I read, Schwartzenagger (sp) said he would not support an amendment, which is a very good sign. People can’t vote on the amendment if it doesn’t go on the ballot. Let’s cross our fingers. In the meantime, congrats on joining Mass, Cali –and on going the extra mile!

  15. Ok, how long until queers are blamed for pushing this issue forward in an election year (as if there is any choice in a legal appeals process, you file by the deadlines given, or you don’t file at all?)

    Clinton and Obama’s responses come at a great time. For a tiny moment today, I was tempted to scrape a bit of my semi-monthly paycheck into a donation to the Democratic party. I guess I’ll send it to a local queer youth group instead.

  16. Wall-flower: As far as I know (which is, admittedly, not much) the bar for a state constitutional amendment in California is much lower than it is in Massachusetts. Here one only needs to get a certain number of signatures, and then it needs to get a simple majority on the ballot. Which is silly, because it’s a constitutional frakking amendment, not a school bond measure, but I think that’s how it works here.

    Anyone who knows more than I do about these things, feel free to correct me!

  17. O/T: Mnemnosyne, I love Neighborhood Church, and live about four blocks away.

    We’ve got parental notification on the ballot in November; we’ve got farm animal protection, and we’re gonna have a chance to stand up for equality. We need a Democratic tidal-wave, but I think we can win this one. A lot has changed since 2000, when we last voted on this. If Obama — the near-certain nominee — can generate the youth vote the way everyone says he can, we’ve got an awesome shot of joining Massachusetts.

  18. They have a million sigs so even if some get tossed out b/c they aren’t valid, they’ll probably get enough to cover what’s needed. The people collecting them in my area which is very conservative also collected fot the parental notification and even paired them together as something truly unholy trio with something else in their sales’ pitch. It was a bizarre several months or so b/c they were everywhere.

    And like Karen, I heard about the stay or injunction or whatever. They were inundated with calls in L.A. and the legal counsel for L.A. is working on the guidelines. Still, it’s exciting but in Cali, you always to keep on what’s going on.

    There needs to be a push in the inland valleys in my opinion to get people out b/c there will be a lot of people who’ll support the amendment.

  19. As far as I know (which is, admittedly, not much) the bar for a state constitutional amendment in California is much lower than it is in Massachusetts. Here one only needs to get a certain number of signatures, and then it needs to get a simple majority on the ballot. Which is silly, because it’s a constitutional frakking amendment, not a school bond measure, but I think that’s how it works here.

    It’s harder to get a school bond measure passed, actually. Until a few years ago you needed a two-thirds majority. Now, if you meet certain requirements, you only need a 55% majority.

    A constitutional amendment, on the other hand, only needs a 50%+1 majority.

    Welcome to the fucked-up world of the California constitution.

  20. To fight this bastard initiative give to http://www.equalityforall.com/ , they have been fighting this initiative since it was first mentioned.

    We have a real chance of winning this at the polls. While it’s true prop 22, the old marriage discrimination initiative passed with 65% of the vote it started out with 62 or 63% in the polls. Right now we lead 49% to 48%. A razor thin edge but an edge nonetheless. Another point is that 22 passed in an off year election with relatively low turnout. This is a presidential election year that has already seen record turnout. The higher the voter turnout the better for us generally. So we will fight and win and break the back of their argument that marriage equality can not win at the polls.

    I’m just a gender queer trans woman with a hart full of hate

  21. November 2007
    LIMIT ON MARRIAGE. CONSTITUTIONAL AMENDMENT.
    Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state. (Initiative 07-0068.)

    Would the current inaccuracy of the bolded part of the description be enough to invalidate it and make them get new signatures for a new amendment? Certainly the “a yes vote costs no one any money” part would now be false advertising, the “no change to current law” could confuse people into not being sure whether it’s “yes” or “no” that restricts marriage, and I’m pretty sure it would be unethical to get people to sign a petition for one wording and then change the wording and use those same signatures to back up the new version.

    Granted, they’ll probably still get it, but money and time and effort spent chasing after more signatures is money and time and effort not spent in more damaging pursuits.

  22. Well, they weren’t just gathering signatures for the Marriage Protection Act, they were gathering them for round kazillion of the parental notification act for abortions. I don’t know if they got enough signatures for that bill yet. They were quite busy for the last few months.

  23. Pingback: The drinks absolve our sins : Exquisite Intent

  24. Would the current inaccuracy of the bolded part of the description be enough to invalidate it and make them get new signatures for a new amendment?

    I think they probably will only need to resubmit it to the analyst.

  25. I was so excited to hear about this. Two down, 48 to go! But I wonder how they can pull off having sexual orientation under strict scrutiny when sex is only under quasi. Just a though.

  26. I was so excited to hear about this. Two down, 48 to go! But I wonder how they can pull off having sexual orientation under strict scrutiny when sex is only under quasi. Just a thought.

  27. In California state constitutional jurisprudence, there is no “intermediate scrutiny.” In California, race, religion, sex and now sexual orientation get strict scrutiny, while most things get rational basis, there is no in between. In federal constitutional jurisprudence, sex gets intermediate scrutiny.

  28. I commend and agree with your celebration, but I’d disagree that it’s full equality. Because legally the queer community can now buy into the system? I mean, I’m not anti-same-sex marriage, but it’s a far cry from equality.

    To quote from a queer politics (OUTRAGE) e-mail that was sent to me; author unclear:
    Queer politics is against assimilationism. The integrationist strategy of lobbyists for homosexual equality assumes that lesbian and gay freedom is about queers adapting to, and being accepted by, straight society. In other words, it means homosexuals conforming to heterosexual laws and values. That’s not liberation. It’s capitulation!

    Sure, it is conformity on an equal basis rather than an unequal one. That’s one step better than inequality. But it is conformity none the less. _We_ comply with _their_ system.

    feminist love,
    jen

  29. FJ, to be clear, I wrote the title not because I don’t hear or don’t understand the arguments about mainstreaming (though I see how much marriage means to some people I care about and I am ultimately persuaded), and not because I think marriage equality is itself full equality, but rather to highlight that the decision itself had a legal impact for gay lesbian and bi folks that went far beyond just marriage, to the application of strict scrutiny to discrimination based on sexual orientation. It’s not full social equality, which we don’t have for anything, really. But it’s full legal equality insofar as the California Supreme Court can provide it.

  30. Just a quick fly by…

    The silence concerning gender identity and or expression is deafening here…

    hmmm.

  31. The silence concerning gender identity and or expression is deafening here…

    By “here” do you mean in this post or this blog in general? Because if you mean the blog, then I suspect that you are in fact flying by and have never actually read what we write about.

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