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View Diary: Equality for All: There's still Hell to Pay (80 comments)

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  •  I don't think they could be nullfied (2+ / 0-)

    ...there's precedent that they would be valid.  But it brings up a good question--could those people get divorces?  Or would the courts be forced to pretend they don't exist?

    More interestingly, CA Supreme Court has said you can't treat gays and straights differently with regard to marriage.  The Hate Amendment defines marriage in such a way as to deny it to gays.  By logical extension, you'd have to deny marriage to both sides to fulfill the Equal Protection Clause, nyet?

    Rubus Eradicandus Est.

    by Randomfactor on Sun Oct 19, 2008 at 10:07:58 AM PDT

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    •  Pretty much! (4+ / 0-)

      Prop 8 will eventually eliminate marriage for everyone, if it passes. The State Supreme Court pretty clearly telegraphed what would have to be done if California tried to reserve "marriage" to a single group of people. It'd have to be taken away and all marriages converted to civil unions. I quote:

      When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. A court generally makes that determination by considering whether extending the benefit equally to both classes, or instead withholding it equally, would be most consistent with the likely intent of the Legislature, had that body recognized that unequal treatment was constitutionally impermissible. [. . .] In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation. In view of the lengthy history of the use of the term "marriage" to describe the family relationship here at issue, and the importance that both the supporters of the 1977 amendment to the marriage statutes and the electors who voted in favor of Proposition 22 unquestionably attached to the designation of marriage, there can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state’s general legislative policy and preference.

      The SC chose the more expedient route of saying "These rights apply to all comers, gay or straight, and it would be a real hassle to change everything to 'civil union,' so gays also have the right to marry. That's the easiest, least expensive route to take, here." However, they did say what the other option was: withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.

      That's what these idiots are toying with, by trying to pass Prop 8. It would result in the Supreme Court saying "Okay, we have NO marriages in California. They're all civil unions." That would also have the effect of making it impossible for anyone in California who is civilly unioned to claim marriage exemptions on their federal taxes.

      And won't that set the cat among the pigeons?

      Comfort the disturbed. Disturb the comfortable.

      by Killer of Sacred Cows on Sun Oct 19, 2008 at 10:45:02 AM PDT

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      •  That would cause a lot of uproar, but (1+ / 0-)
        Recommended by:
        Killer of Sacred Cows

        it would last only until the next election, whereupon a clearer constitutional amendment would be passed by an overwhelming majority.

        Sadly, I don't think there can be a deus ex machina on this one. We live or die by the ballot box on November 4.

      •  More important than filing Fed taxes jointly... (0+ / 0-)

        Isn't one of the 1100 federal benefits of marriage preferential tax treatment of inheritance when an estate passes to a spouse instead of a 'non-relative'? After all, CA domestic partnerships have no recognition under federal law.

        Estate planning lawyers all say vote yes on 8!

        Also, remember the "We're so persecuted! We're a briiiiiide and a grooooooom, not party A & B!" couple? Can you imagine their reaction to being told they're not married, they're 'civil unioned'? These people best hope they lose.

        Put me down for another $200.01 for equality.

        We've replaced John McCain's regular running mate with Folger's Crystals. Let's see if anyone notices the difference.

        by evil claims rep on Sun Oct 19, 2008 at 03:16:44 PM PDT

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