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Okay, so if you're a gay person or part of a same-sex married couple in California, what happens to you?

Attorney General Jerry Brown has gone on record that he will uphold all same-sex marriages already performed. If you were married yesterday, you're still married today. City halls in at least some towns have stopped offering marriage licenses to same-sex couples as of today. I'm not sure whether, if you could talk someone into giving you one tomorrow, it would still count.

An interesting wrinkle: what happens if you paid for your marriage license already, but haven't actually gone and picked it up yet? When L. and I got married, we paid for the license online a week ahead of time, then had our ceremony at San Francisco City Hall and had it signed and dated there. San Francisco, at least, says that if Prop 8 passes, even if the results aren't determined till after November 5th, it will (probably) be effective retroactive to November 5th. So I hope everyone who was planning on entering into a same-sex marriage did so before today.

Now for the near future. feyandstrange shares the news that the ACLU has filed for an immediate stay of enforcement on Prop 8 (similar to what happened when San Francisco banned handguns). If the court grants the stay, then it's business as usual and you can go get your marriage license as long as all other qualifications are met (e.g., you're not already married, you're not marrying a minor, &c). The filing also requests that, if Prop 8 is determined to have passed, the Court render it null and void on the grounds that it "attempted to effect a revision of the Constitution without complying with the constitutionally mandated procedures for enactment of a revision set forth in Article XVII of the California Constitution".

So, this could go one of several ways, depending on whether the Court grants the stay and whether Prop 8 actually received a majority of votes. I think it's likely that they will grant the stay, given that two of the petitioners in the ACLU filing are a couple who have been planning to get married for a while, but one of them has a parent who has been too ill to travel for their wedding. I'm not a lawyer, but that strikes me as cause for immediate injunctive relief.

The worst-case scenario is the one where the Court grants neither the stay of enforcement nor the petition to nullify Prop 8 if it passes. That could happen. If it does, then we have to go to federal court to get this reversed, and that's going to be harder. Addressing this in federal court will either mean getting SCOTUS to consider same-sex couples a suspect class -- which thus far they've been unwilling to do -- or coming up with an argument that doesn't rely on the Equal Protection clause. The Full Faith and Credit clause won't work, because the Defense of Marriage Act specifically provides that states need not recognise same-sex marriages performed in other states (though this is a fine opportunity for a couple who's moved from Massachusetts or Connecticut to California to mount that argument against DOMA). I had this vague, crack-addled idea about using the Commerce Clause with respect to couples who traveled to California to get married, went back home, and found their California marriages invalidated, but if Brown doesn't invalidate existing marriages, then that point is moot. It's going to take hard work and a lot of research to get this before SCOTUS, if it comes to that.

That said, working this from the state angle first gives us the opportunity to stall for time; it will take several months at minimum for this to go through the courts, and while I don't think it's likely that we'll see a change in the makeup of the SCOTUS any time soon, we can still use that time to think of how to address this if it does have to go to federal court.

As a side note, one aspect of this filing that I find kind of shitty: the respondents named in the petition are the State Registrar of Vital Statistics, his Deputy Director who handles the forms for marriage licenses and certificates, and the Attorney General, all in their official capacities. The petitioners are asking that the respondents be held responsible for court and attorneys' fees. I hope this means that the Department of Public Health and the Attorney General's office have to shell out, because this is so not these people's fault personally.

rebbyribs (and my parents, incidentally) ask, "How does the State of California determine the sex (or gender?) of a couple getting married? If Prop 8 is applied, do intersex people lose the right to marry?" This is probably based on what's on whatever form of ID you present when you apply for your marriage license. Intersexed persons generally get put into one bucket or the other at birth (and the issue of whether this is at all fair or right is a whole 'nother can of worms); those who end up identifying as the gender other than the one on their birth certificate have to go through the same giant hassle that transfolk do.

Anyway. For the next few days, keep reading the news, hold your head high, and don't give up the ship. The ACLU knew this was a possibility; nobody puts together a 64-page brief in one day, especially when there are eight different groups of counsel in three different cities involved. (If I'm wrong on that, then holy shit these people are machines.) Now is a great time to learn more about your legal process, how it works, and your rights as a citizen, and to educate your friends and family. We've spent the last several months of our lives passionately involved in the electoral process, which is a central aspect of American citizenship. We have the opportunity now to move that fire and momentum into the judicial process and just keep the train a'rollin'.

We're making history here, folks. Today, Prop 8 feels like a defeat. In ten years, it will be a footnote.

Creative Commons License
This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 United States License.

Comments

( 44 comments — Leave a comment )
jmkelly
Nov. 6th, 2008 09:09 am (UTC)
I think I love you.
(Deleted comment)
maradydd
Nov. 7th, 2008 04:58 am (UTC)
You're very welcome. I'm pleased with those decisions too; the Justices really left no stone unturned. (Alas, the same cannot be said for Romer v. Evans, though in that case there weren't really a lot of stones that had to be turned over -- the Colorado amendment in question was blatantly unconstitutional prima facie.)
feyandstrange
Nov. 6th, 2008 09:53 am (UTC)
I'm also sort of curious about what would happen (as someone asked elsewhere) if the marriages are invalidated; what about the $89 fee to the state for that marriage license? There's another angle, but for a later attack.

CA allows intersex or trans folks to change their gender on their ID and birth certificate, thus changing their legal status. Since CA does allow gender changes, I expect that MF marriages will be legal, but MM or FF will not. But that's another interesting loophole: If a lesbian asks for her driver's license to go M instead of F so she can get married, is that fraud? Can she still get married? Is there any other problem with her deciding to claim to be male on her ID but otherwise living as female? This angle may piss off some of the transfolk, but most of them have run around the ID and marriage problems themselves, and understand that this affects many transfolks as well.

Bear in mind that the other side seem a little confused as to whether the intended Prop 8 to invalidate same-sex marriage "now and forever" (as the text of the prop said at one point, I believe) or merely any time after Nov 5.

And yes, now would be a lovely time to attack DOMA. Although I am personally hoping that a few particularly horrid old Supreme Court justices decide to retire or step down some time soon... I can dream. I can dream about them catching nasty diseases...

I'm pretty sure that the ACLU were already concerned even before the polls started slipping, and at that point they probably made some phone calls. There was at one point a personal plea (via email) from the ACLU's director (who is gay) asking that folks vote no on 8, which was an unusually personal message compared to what I'm used to seeing in their emails.
maradydd
Nov. 7th, 2008 05:16 am (UTC)
If a lesbian asks for her driver's license to go M instead of F so she can get married, is that fraud? Can she still get married?

Good question. I don't actually know the answer. I know that several of my trans* friends (and my girlfriend, actually) have driver's licenses stating the gender they identify as, but I don't know what it took to get that, as I don't like to pry about those kinds of things. (I did once get into a discussion with one of my trans* friends about the hurdles one has to jump in order to get surgery, but she brought it up and specifically said she didn't mind my picking her brain about it.)
feyandstrange
Nov. 7th, 2008 05:18 am (UTC)
Transgender Law Center has some good info:
http://www.transgenderlawcenter.org/publications.html

It doesn't look too tricky in this state. I hear it's much worse in others.
maradydd
Nov. 7th, 2008 05:34 am (UTC)
According to their guide to changing your gender, irreversible surgery is required. That could make things tricky.
(Anonymous)
Nov. 8th, 2008 05:01 am (UTC)
The California DMV has a simple form that has to be filled out and signed by a physician (*not* a therapist) to allow gender change on State ID's and drivers licenses.

SRS (sexual Re-assignment Surgery, aka Gender Re-assignment Surgery) is required for a change of gender on birth certificates (if one's birth state allows such, many don't) and passports. A legal name change may also be required, and is generally a good idea anyway.

I apologize for the anonymous post, but I'm not out on LJ as trans.

maradydd
Nov. 8th, 2008 08:45 am (UTC)
Thank you for the information! I appreciate it.
mantic_angel
Nov. 9th, 2008 11:30 pm (UTC)
When getting my California ID, my gender was "please just pick one" because my birth certificate says "male" but my out-of-state Oregon ID says "female." So, basically, if you can present legal documentation that you're female (or male), they'll accept you as female (or male).

Now, what it takes to get a court ordered change of gender IN California is beyond me. Just my 2 cents from personal experience on gender changes. (And this will all vary dramatically based on the biases of the DMV employee you get, and his/her supervisor's biases!)
solar_diablo
Nov. 6th, 2008 12:31 pm (UTC)
Surfed in from tdj's journal, and decided to add you, if that's cool.
spookyhandle
Nov. 6th, 2008 03:00 pm (UTC)
Ditto, actually.
ilcylic
Nov. 6th, 2008 01:27 pm (UTC)
*grr*

That is all.
shabda
Nov. 6th, 2008 01:37 pm (UTC)
Really appreciate you posting the last couple of posts... I am going to repost this in my LJ with a link and credit to you, for my own historical benefit and those who want to know what happens to my marriage since prop 8 passed.

Thank you Maradydd.
maradydd
Nov. 6th, 2008 05:07 pm (UTC)
You're quite welcome. Congratulations on your marriage, btw!
jered
Nov. 6th, 2008 02:12 pm (UTC)
I appreciate the analysis, but I'm concerned about the whole "revision" vs. "amendment" challenge. If the court invalidates the proposition, that would be the kind of hypocrisy and lack of respect for democracy generally reserved for Republicans, and seems like it would just fire them up more -- nobody like a court order that they have to be nice. It really seems like the best strategy overall would be to just wait 2 years, as depressing as that is.

From where I sit, also, it seems like the No On 8 campaign was horribly, horribly managed. (I did donate money to them, all the same.) They were massively outclassed in terms of both organization and quality, and I think this reflects a failing of the progressive community.
maradydd
Nov. 6th, 2008 05:14 pm (UTC)
that would be the kind of hypocrisy and lack of respect for democracy generally reserved for Republicans

I'm sure it will fire up the Prop 8 supporters even more, but evaluating whether an initiative amendment is actually an amendment or a revision does fall under the scope of CA Supreme Court judicial review. In 2007, the Court conducted a review of Prop 35 as part of Professional Engineers in California Government v. Kempton et al to decide whether Prop 35 constituted an improper revision. In Engineers, the Court found that 35 was proper; I'm doing some more research to understand their standard of review.
(Anonymous)
Nov. 6th, 2008 08:51 pm (UTC)
I agree the commercials against prop 8 alone convinced several of my freinds who originally did not care enough to vote to vote for it.
fionnghal
Nov. 6th, 2008 04:22 pm (UTC)
California sometimes makes me think that Alexander Hamilton was right when he thought there was such a thing as "Too much Democracy". It should be much harder to pass this sort of thing.
maradydd
Nov. 6th, 2008 04:32 pm (UTC)
"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." -- H.L. Mencken
(Anonymous)
Nov. 6th, 2008 09:55 pm (UTC)
As Aristotal and Plato explind that a pure democracy is an inferior form of government because it does not concern itself with virtue (to be interpreted as truth or right) rather with mob rule.
maradydd
Nov. 6th, 2008 09:58 pm (UTC)
The Republic was required reading in my Political Theory class in undergrad, for exactly this reason. :)

Edited at 2008-11-06 09:58 pm (UTC)
gramina
Nov. 6th, 2008 04:37 pm (UTC)
Thank you so much for this post, both for the information and for the attitude. Just what I needed.
caramida
Nov. 6th, 2008 04:52 pm (UTC)
Thank you for your very clear and cogent posts explaining the law behind the Prop 8 opposition. I very much enjoyed them, and look forward to reading more from you.
liandriel
Nov. 6th, 2008 05:33 pm (UTC)
Sent by tdj. Do you mind if I add you?
maradydd
Nov. 6th, 2008 05:35 pm (UTC)
Feel free.
dv_girl
Nov. 6th, 2008 05:45 pm (UTC)
Just a side note on trans* people. There are some of us who had the misfortune of being born in some backwater cesspool state like Oklahoma who cannot even get our birth certificates amended, so we live in limbo even if we've had surgery and had all our other documents changed. It also makes foreign travel difficult. :/
(Anonymous)
Nov. 6th, 2008 06:10 pm (UTC)
We're making history here, folks. Today, Prop 8 feels like a defeat. In ten years, it will be a footnote.

Damn straight. (Uh... pun actually not intended. Heh.)

Thank you so much for this post and the last. You've clarified things for me a lot.
liannanshith
Nov. 6th, 2008 07:09 pm (UTC)
First off, kudos.

Secondly, as far as I know you're not a lawyer,
one thing that I haven't quite figured out is how the Federal Government handles determinations over one's sex for immigration needs. I presume that they'll honor the state's marriage certificate and requirements (IDs of those present at the time) but it gets ever more so confusing given what I've heard the USCIS department pull off.

I would just hate to find out that I suddenly have no rights to marriage and immigration.

It's just another level of where things get fuzzier after what rebbyribs asked.
liannanshith
Nov. 6th, 2008 07:10 pm (UTC)
I ended up here through 's journal, through a comment you made. Although, at this point, she's forwarded to your further writings on the matter.
maradydd
Nov. 6th, 2008 10:17 pm (UTC)
I am indeed not a lawyer. As Glenn Greenwald points out, under DOMA the federal government doesn't honor same-sex marriages performed in other countries for immigration purposes.

A relevant case for your question is In re Jose Mauricio Lovo-Lara (link goes to Google's cache of the Department of Justice's PDF), where a MTF from North Carolina married a guy from El Salvador. DHS initially denied her husband's visa application. The DoJ overturned this decision and allowed him a visa on the grounds that since North Carolina recognised the sex change, the laws of the state permitted the marriage and thus DHS was required to recognise it as a valid marriage.

It's a slightly weird area, as the individual states are responsible for both vital statistics records (e.g. birth certificates) and marriages, but the federal government is responsible for immigration. Luckily (well, for people from sane states, anyway), it appears that case law favours states' rights in this situation.
kenshi
Nov. 6th, 2008 07:30 pm (UTC)
I don't have a dog in this hunt, so I'm not particularly partisan about it one way or another, but doesn't the argument that a constitutional amendment is unconstitutional strike you as a bit of a stretch? I was under the impression that the CA state constitution is explicitly allowed by law to be amended by referendum.
maradydd
Nov. 6th, 2008 09:44 pm (UTC)
It is allowed to be amended by referendum, but it can't be revised by referendum, and the distinction is the degree to which the constitution is modified. The argument is not that Prop 8 is "unconstitutional", but that adopting it would require modifications to or change the meaning of other parts of the constitution, thus making it a revision. There's a different, more stringent process for revisions.
(Anonymous)
Nov. 6th, 2008 10:04 pm (UTC)
I am not sure I fully understand the difference between modification (2/3 majority?) and revison(simple majority?). Would the supreme court of CA decide? Who would decide which a prop should be before it is voted on?

The authors of the constitution obviously did not intend to allow same sex marriage, and I think a judge reversing that interpretation is a bit undemocratic, however I am Libertarian and think people should be able to live however they want with minimal interferance from others. I don't think the government should be able wasting their time and our money regulating somthing such as marriage.
maradydd
Nov. 6th, 2008 10:30 pm (UTC)
N.B.: I am also a libertarian. Thus I end up talking out both sides of my mouth when I discuss topics like this, as I'm talking about how things are as opposed to how I think they ought to be. So, with that in mind:

The state maintains that it has an interest in regulating marriage, as marriage has an effect on taxation and other aspects of state law. That said, marriage AFAIK has not been mentioned in the state constitution up to this point; I'm almost positive it wasn't in the constitution as originally authored, and it certainly isn't in the Federal constitution. I've said here and elsewhere that the Constitution is not a family law document, and I think that marriage-related amendments don't belong in a constitution. The people get to decide this, though, not me.

An amendment must be a simple alteration which has no substantial effect on other aspects of the constitution. Think of it as an atomic change. It requires a simple majority, and can be placed on the ballot by a 2/3rds vote in each house of the legislature or by an initiative of the voters (petition signed by a number of registered voters equal to 8% of the number of voters who voted in the last gubernatorial election).

A revision is a more substantial change. Before 1962, this required a constitutional convention; after 1962, a revision can be placed on the ballot by a 2/3rds majority of each house of the legislature, but cannot be placed on the ballot by petition. Revisions must also be approved by a simple majority of voters.

And, yes, the supreme court can decide whether a measure constitutes an amendment or a revision; they've done so in the past. They were asked to do this back in June, when Equality California petitioned to have Prop 8 taken off the ballot, but they declined certiorari without comment (i.e., they decided not to review the petition and didn't say why). No news yet as to whether they've decided to hear the current petitions -- there are three of them.
kenshi
Nov. 6th, 2008 11:05 pm (UTC)
Hmm. I'm not a lawyer, but that sounds like a stretch. I'll be very curious to see how that plays out.
thewronghands
Nov. 6th, 2008 07:57 pm (UTC)
Good for you for gathering all this info together and presenting it coherently. Bravo, voice of reason during uncertain times.
lilamp
Nov. 6th, 2008 08:21 pm (UTC)
any thoughts on new administration getting DOMA repealed before (if) this makes to SCOTUS?
maradydd
Nov. 6th, 2008 10:00 pm (UTC)
No news on that front yet (it's too early), but Glenn Greenwald has a good article on this in Salon today.
kavavita
Nov. 6th, 2008 08:27 pm (UTC)
sent over here by lilamp -- great writeups, thanks for the information and clarity. Adding you!
skippy_fluff
Nov. 6th, 2008 09:24 pm (UTC)
Certified election
You say above:

" San Francisco, at least, says that if Prop 8 passes, even if the results aren't determined till after November 5th, it will (probably) be effective retroactive to November 5th. So I hope everyone who was planning on entering into a same-sex marriage did so before today."

I have heard at least one argument about the effective date of the legislation being determined by the certification of the election results (which gives a few extra weeks), but I can't find the relevant statement on how this is determined. In some cases, the initiatives contain an explicit statement of the date on which the would come into force if passed. For those that do not, is their case law that says it is "immediate" or is there case law that says it is backdated to the first day past the election? The link you had might have had such a thing, but it appears broken now.

Thanks for your analysis!
maradydd
Nov. 6th, 2008 09:47 pm (UTC)
Re: Certified election
Sorry about that, I fat-fingered an extra quote mark into the URL.

Here's the text there now:
Under the California Constitution an amendment becomes effective the day after the election at which the voters adopt the amendment. Based on this provision and on the Secretary of State's report of the semi-official results of the November 4 election relating to Proposition 8, the County Clerk has ceased issuing licenses for or performing civil marriage ceremonies for same-sex couples.

The City and County of San Francisco and other parties have initiated litigation challenging the adoption of Proposition 8. The County Clerk will comply with any court orders or directives from state agencies with regulatory authority over the issuance of licenses for or the solemnizing of civil marriages.
Yesterday the message was a bit different and more uncertain, but I can't remember exactly what it said. :( Unfortunately archive.org doesn't have a copy, either.
karine
Nov. 6th, 2008 10:09 pm (UTC)
Excellent posts, Maradydd. I linked some friends to it. Not much I can do from up here but cheer for you and all other people working so hard for equal rights.
syrusb
Nov. 6th, 2008 11:34 pm (UTC)
I came here to read once again via karine.

Your posts are always well thought out, expertly written and simply amazing. If only those that were for Prop 8 would take the time to consider the position you put forth here, but I fear too many of them are too closed-minded to care or listen.

Still, Thank you.
viesti
Nov. 7th, 2008 06:19 am (UTC)
I wanted to thank you for all the research and thought and dissemination of information over the past few days. This has helped me keep my own emotions level.
( 44 comments — Leave a comment )

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