In the wake of Tuesday’s narrow same-sex marriage ruling, it seems that the issue may be decided as much by evolution in societal acceptance as by the courts….

There seems to be some question now whether Tuesday’s ruling by the U.S. 9th Circuit Court of Appeals striking down California’s ban on same-sex marriage will lead to a hearing before the U.S. Supreme Court. Because the 9th circuit made such a narrow ruling that does not decide the whole issue, the high court might not choose to bother with the case, it has been reported.

Meanwhile, the trend has been for more and more jurisdictions to recognize same-sex marriage in the United States and worldwide. It could be that society as a whole will make the decision instead of the courts. Of course societal opinion is often to a large extent what eventually moves courts to change their thinking or to decide on matters that come before it.

UPDATE: And as if to underscore what I said about the trend toward  allowing same-sex marriage, after I wrote that it was reported that both houses of the the Washington State legislature have now passed a pro-same-sex marriage bill and it is going to the governor, who supports it. This would be the seventh state to approve same-sex marriage. The vote was 55-45 in the Washington State House, and 28-21 in the Senate. One republican lawmaker who voted in favor indicated she came to support the concept after finding out her own daughter was homosexual (I realize the preferred word these days is “gay”). And that is the way it often goes. That is part of what has changed the thinking in society. Homosexuals have come out of the closet and their families are confronted with the fact that they are their loved ones.

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In this post I give some admittedly sketchy background and then offer my opinion on the matter.  Most of this was written yesterday not long after I read of the decision that had just been handed down by the appeals court:

UPDATE (Tuesday, 2-7-12):

Earlier I had blogged that the same-sex marriage issue was getting ever closer to the U.S. Supreme Court with a ruling today by a federal court, but maybe not, at least not via the Prop. 8 case. But both sides on the issue continue their efforts. And it would seem that sooner or later the high court will have to decide the matter.

Or, it occurs to me, changing attitudes in society may already be at work and the issue might take care of itself, even without the courts, as more states move to make same-sex marriage legal.

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CALIFORNIA BACKGROUND:

In May of 2008 a majority on the California State Supreme Court held that same-sex marriages were allowed under the state’s constitution. In November of 2008 voters in the state narrowly passed Prop. 8, banning same-sex marriage (52 percent to 48 percent ). The issue has been before the courts ever since and same-sex marriages have been put on hold in the state (I comment on that at the very bottom of the post).

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There is an understandable resistance to change in our culture that accepts same-sex marriage and it makes a great political wedge issue too for conservatives who would like to use it as a weapon to fight anything that means change of the status quo.

The reports I have now read indicate that the question of same-sex marriage may not be headed to the U.S. Supreme Court even though a U.S. appellate court panel today ruled that California’s Prop. 8 ban on same-sex marriage was unconstitutional. The ruling was narrow and basically said once given the rights, they cannot be taken away, at least that is what I seem to be reading. So in states and locales where it was not legal, things would remain the same. Meanwhile, a legal stay remains in effect preventing same-sex marriages in California from resuming while the issue is still in the appeals process. It could go on to a further appeals panel or directly on to the Supreme Court, although some expect now it may not go to the high court, at least not via the present case.

WHAT I REALLY WANTED TO SAY, MINUS THE BACKGROUND:

But what this is all about really is two things: politics (left vs. right) and a resistance to culture change, and by saying the latter I am not at all implying that such resistance is wrong. To the contrary, I personally have a problem with the idea that homosexuality is to be simply treated as a normal part of life and should never be portrayed as abnormal.

By the same token it seems to me the clear evidence is that people are born homosexual or at least with homosexual tendencies and that they should not be denied rights given to any other group.

So there you have it, a dichotomy of sorts.

I personally would think that homosexual couples should be afforded the same rights as straight married couples, but only by way of official domestic partnerships or civil unions. But the problem, I guess, is that for some reason that has not always seemed to work. The domestic partnerships don’t always have the same status of marriage and may not be recognized universally among the states in the nation. In addition, homosexuals feel they are unconstitutionally discriminated against by not being allowed to be married or to be called “married” in the same sense as heterosexual couples.

Some have suggested that marriage ought to be restricted to a religious ceremony where appropriate, or for those who want a religious ceremony and sanction, but that the actual contract that gives each partner legal rights and protections ought to be a civil function and not called marriage, but something like civil union. But marriage, the term and practice, and so on, has a long history and is part of our culture and it would seem difficult to impossible to simply change it now.

I do also have a problem with government-enforced cultural change. I’m primarily talking about the school text books I hear so much about — actually have never seen one — that portray homosexuality as normal, when in fact it is abnormal, a fact of life in a certain percentage of the population, and more accepted these days by society as a whole, but a deviation from cultural and biological norms.

It’s a difficult subject. If a parent has a child and if that child is homosexual, the parent by all that is human and decent has no choice but to accept such and love the child as he or she would love a child who is not homosexual. But by the same token it would seem a parent should not be forced by public education to subject his or her straight children to the idea that homosexual practices are just a normal thing.

Like I said, it is a difficult subject to address – that is , without, on the one hand, sounding far-out liberal and throwing out all cultural values, and on the other hand, sounding as if one is some kind of bigot.

As a society I wished we, or some of us, would not spend so much time trying to control the lifestyles of others and at the same time I wished the government would stay out of the cultural brainwashing business.

P.s.

What I meant about politics being in this is that conservatives will fight anything that smacks of liberalism simply to discredit the movement on all issues, to include taxes, government regulation on business and the environment and so on.

P.s. P.s.

Another aspect of the legal battle was a challenge to the original appeals court ruling striking down Prop. 8 on the grounds that the justice who ruled on the decision was biased in that he was homosexual himself and did not reveal that until after his ruling. The appeals panel held that there was no conflict there. I’m having a hard time figuring out what they would consider to be a conflict. And I am really fairly neutral on all this nonetheless.

AND ONE MORE THING:

I find it curious that same-sex marriages already in existence are recognized, in California at least, at the same time the justice system in trying to decide whether it is okay for homosexuals to marry. It would seem the decision has already been made.

Gay Republican federal Judge holds that one man, one woman restriction in marriage is an ‘artifact’ of the past …

ADD 1:

It did not sink in until I read a sentence in the LA Times story this morning on this issue that the judge in this case was gay (homosexual) and a Republican appointee. I had heard a reference to his gayness yesterday on TV but it flew right past me. It seems as though that would make him biased, but then again, if he were straight, one could say he was biased the other way. And a Republican appointee — that’s ironic, seeing as how so much of the opposition in pro-gay issues often comes from the Republican right. But another story I read referred to President Obama (a Democrat) saying during his bid for office that he was against gay marriage, although he lauds civil rights for gays, nonetheless (wants it both ways).

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The most interesting part to me of the federal court ruling quashing the California Proposition 8 ban on same-sex marriage was the part on social change.

Federal District Court judge Vaughn R. Walker in San Francisco held not only that the same-sex marriage ban violated due process and equal protection clauses in the U.S. Constitution but that the exclusion of same-sex couples from conventional marriage was out of date.

He wrote in part:

“… The exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”

If you are reading this on my blog site then you should be able to read my initial reaction to the ruling by scrolling down below this post.

The judge issued a stay that, as I understand, means that gay couples still may not be able to go out and get married just yet.

This issue is headed eventually to the U.S. Supreme Court.

ADD 2:

Some, including me, in the past may have thought offering homosexuals civil unions, as opposed to regular marriage, would suffice, but from what I have read those two contractual arrangements are not equal and are not equally recognized in all states and jurisdictions, and if they were the same there would be no reason to have two designations — think about it. The whole thing is really a question of changing social values, and just as importantly,  a more modern understanding of human biology and sexuality. At one time I thought, and I think I suggested, that maybe the government should get out of the marriage business and only perform civil unions which everyone who is joined together would get for legal protection and those who wanted their union sanctified by the church would have separate weddings, calling that marriage. But then there would be confusion because of the history that has already taken place. Sometimes we have to accept change. And while I am not religious in the conventional sense, I do believe in God or a higher power and I don’t know what you can make of the  teachings of the Bible in things such as the tale of Sodom and Gomorrah, but the sins there were not just homosexuality (whoops, I guess the Bible does see that as a sin, nonetheless), as I recall.

P.s.

I was always taught that the word gender actually refers to masculine and feminine in grammatical terms not in human sexual terms. But modern usage has seen gender to become essentially synonymous with sexual designation in human terms and my American Heritage College dictionary notes this, although it has some extra details and cautions that the issue has not been resolved by all word experts.

P.s. P.s.

And back to the same-sex ruling. I’m somewhat uncomfortable with the government decreeing a change in social mores, but I can also see the rights to equal protection and due process and I think it’s obvious homosexuality is not a choice — and for the benefit of at least one reader I add that people as far as I can see do not choose to be homosexual, rather they are born with that trait (and there may be degrees — don’t know).

Homosexual marriage proponents get victory in California, but maybe don’t get the license just yet…

While gay marriage in California was given a victory today when a federal judge in San Francisco overturned a ban on gay marriage in the state, I have also just learned that he has issued a stay against any immediate action on that, meaning that gays can’t get married just yet, as I understand it. If they did, they’d be in legal limbo.

But since this is a ruling by a federal court it could have implications nationwide. The judge ruled that the opponents of gay marriage failed to show how gay marriage would damage conventional marriage.

Gay people should be allowed to be married (at least in California), a federal court in San Francisco has just ruled. This news is so new that as I write this I have not seen word of it on the web yet, but I am catching a CNN TV report.

Of course this fight is not over until the U.S. Supreme Court has its say — and this is headed there.

What I have blogged previously on this subject is that although as a straight person I may have some resistance to the gay life style, I recognize it as a natural fact — people are born that way. And as such you cannot or should not discriminate against a class of people.

I understand that even though California voters passed a ban on same sex marriage, Proposition 8, current polls show that if the issue came before them now (even before today’s ruling) a majority might well vote to allow same sex marriage.

As I understand it, the federal court ruled that California’s Propositionb 8, banning same sex marriage, violated the equal protection and due process clauses of the U.S. Constitution.

And even though there are provisions in most states, I think, for civil unions for gays (or homosexuals), I have blogged that probably civil unions don’t make up for the fact that gays are banned from having regular marriage — separate is not equal, it was decided by the highest court in the early 1950s in Brown vs. the Board of Education, in a ruling that outlawed segregaged schools (black and white).

But of course this issue is not at its end yet — both sides had vowed to take it all the way to the Supreme Court — oh, I just heard that it is headed now to the Ninth Circuit Court of Appeals, which has a liberal history.

I’ll probably have more to write on this when I get harder info.

Same sex marriage fight continues in California; North Korea beats the drums of war — what do we do???

What I really want to blog about right now is the continuing threats from North Korea, but first I must note that the fight over same sex marriage continues in California. I understand that two attorneys today are going to (or already have) file a brief in U.S. District Court in California to among other things get an injunction against the ban on same sex marriages.

In addition, I believe there are plans to mount yet another ballot measure, this time to re-instate same sex marriage.

As I blogged yesterday, I am not and out and out supporter of same sex marriage as such, but I do believe that the law should be clear on this. Right now we have a situation in which the state’s high court HAD declared that same sex marriage was protected under the state’s constitution, but then upheld a ban on such marriages that came as a result of a voter initiative. But another voter initiative could be mounted and the vote could go the other way. Opinion on the matter I think is fairly well evenly divided in the state. Prop. 8, which banned same sex marriages, passed, but part of that was from voter apathy and even confusion on the measure itself, as I recall.

One thing we have found out here in California is that it is far too easy to change our constitution. The anti-same sex marriage forces (including money from out of state and including help from the Mormons) were able to successfully argue that their ballot measure was an amendment, not a revision. Under state law an amendment can be made by the voters, but a revision requires a two thirds vote of the legislature and then a majority vote by the electorate.

To add confusion to all of this, some 18,000 same sex marriages performed before the ban are still legally recognized under yesterday’s court ruling. That seems rather odd to me, to say the least. Some same sex couples can be married others not. There is no precise legal definition in state law that makes it clear as to what the differences are between an amendment and a revision. The revision is supposed to be more all encompassing. Well anytime a class of people are said to have rights and then those rights are snatched away from them seems kind of a major deal to me, kind of like a “revision”.

It is argued that same sex couples have the right to civil unions and are afforded the same (or essentially the same) protections as opposite sex married couples. I doubt that such is accurate. And I doubt that California civil unions are recognized in all states, whereas marriages are (except possibly same sex marriages?).

Recognizing same sex marriages and calling them marriages is a major cultural change. And that is the problem. But it needs to be resolved by something better than a court ruling that same sex marriages can be allowed, but then disallowed by voters, but then maybe allowed again.

What if all the protections we have under the federal constitution’s Bill of Rights could be changed each election or in special elections at the voters’ whims? Fortunately it is a lot harder to amend or revise the federal document. Maybe California’s way of doing things needs to be revised.

AND NOW TO NORTH KOREA:

Just read an article on the web that said the North Korean army has declared the 1953 armistice null and void and that the Korean War is on again. And I think that this was in reference to some plan to intercept shipments dealing with nuclear proliferation to or from North Korea, that South Korea joined in. North Korea has threatened to attack U.S. and South Korean ships (I would hope we would respond to an attack better than we did in the Pueblo incident).

Well, it’s just threats for now.

An underground nuke test (and it is not generally known really how powerful it really was) and some more missile test launches and a lot of tough words have and are coming out of North Korea. And I read today that everyone, and especially the U.S. and China, which are key players here, seems baffled or befuddled as to what to do about the whole thing. North Korea is supposed to be China’s ally, but it is making that nation’s leaders uncomfortable with all of its threats that it is ready to use nukes to get its way. China does not want to cut off food and other aid on which North Korea depends for its survival. Fore one thing, China is afraid that if North Korea collapsed its million-man army might turn into armed marauders. The U.S. has to be concerned that North Korea might do something crazy like attack South Korea (a major ally of ours and one we saved at great cost to us back in the early 1950s). Or they might eventually, if left unchecked, launch a nuke at us, or sink one of our ships, or who knows?

I have read that the U.S. is depending upon China to do something about North Korea because we here in the USA don’t have many options. On the one hand, it might be hard to exert pressure on China since we are so much in debt to them for all the outstanding loans they have made us. On the other hand our whole relationship with that communist nation is symbiotic. Although we seem to depend upon them for money and our consumer goods, they depend upon us for trade, that is for buying all of their products.

While I am not for a lot secret dealing in international relations, maybe if it is necessary we should be doing some with China. As I have blogged many times – give nations like North Korea or Iran a secret ultimatum that allows them to change course but save face at the same time. Maybe we could do this with China. Make it plain to them that we, the USA, do not intend to simply wait until North Korea actually has the power to make good on its threats.

And if you read my blogs, I know you’ve read this one before: I like Teddy Roosevelt’s idea that we should speak softly and (but) carry a big stick. John McCain, as I recall, said he liked that approach too. So in that respect, if he really believed that (and with his singing, bomb, bomb, Iran, I don’t think he did so much), in the field of foreign relations he might have been a better pick for president. But there were so many other issues, such as the economy, for which he did not seem to offer acceptable alternatives to his own political party’s bungling (and yes, the Democrats bungled too, but they had a new face and something that appeared more like change).

President Obama is no peacenik. He has not ended the war in Iraq and is strengthening our effort in Afghanistan (and Pakistan). And I think he may well realize that at some point we will have to do something about North Korea. Mean words from that nation will not hurt anyone, but nukes controlled by a nut case of a dictator could (and that applies to both North Korea and Iran).

What’s to stop California voters from restoring same sex marriage in the future? and some initial reactions to high court events…

(Note:  if you feel you may have read this post before, you may have, but I’ve added a few things.)

Two major court decisions today, one on the federal level and one in California. But since I live in California, I will give an initial and only initial reaction on it first.

Seems like the California Supreme Court has stood law or logic on its head by on the one hand upholding a statewide ballot measure to ban same sex marriage and on the other hand ruling that existing same sex marriages before the ban remain legal. Reportedly there are 18,000 still legally recognized same sex marriages.

It seems that since they recognize the legality of the previous same sex marriages then they are admitting that a class of people, gays (or homosexuals, if you will), have had their rights taken away from them.

But that is only an initial reaction. I will have to read the full accounts of the whole thing.

Add 1:

Well, I did go ahead and read at least part of the text of the California high court decision before I became extremely fatigued. But apparently the court held that Prop. 8, which banned same sex marriages by amending the state constitution, was okay because it was in their determination an ”amendment” and not a “revision” of the state constitution. Under California law voters can make amendments but  revisions, as I understand it, would require a two thirds vote by the legislature and then a simple majority by the voters. I think they can also be made in something called a constitutional convention. And as you can tell, I am hazy on all of this, but that’s the best I can come up with now and what I have just written is a slight modification of my original post on this subject. But suffice to say, amendments are easier to to do than revisions. Interestingly, there is no hard and fast definition of what a revision actually is. But, according to the high court, amendments make “discrete” changes, but revisions amount to wholesale changes in governmental plans and framework — whatever. The fact remains, as far as I can tell, that there is one law for straights and one for so-called gays. Gays are still allowed civil unions and the existing marriages were upheld (like I say, I don’t quite get the reasoning or logic).

Add 2:

Not that he has any credibility left, but Gov. Schwarzenegger supports same sex marriage and I understand recent polling shows increasing support for it as well (opinion on this issue was volatile even before Prop. 8).  So it would seem activists (this time for the other side) could push through another measure and voters could turn around and approve same sex marriage (and the court seems to think it’s up to the voters) and so, here we go again.

While I personally am not an advocate of same sex marriage, I am not sure that civil unions afford the same advantages as marriage and I would support some coherent and equitable and solid public policy on the matter. This government by initiative or current whim of the voters is hard to follow.

NEXT:

I like the fact that President Barack Obama has chosen a person who is both a woman and an Hispanic as his nominee to sit on the high court. We desperately need a better representation of both sexes and more of a cross section ethnically so we can get away from the conventional white male Anglo-Saxon domination in this branch of government that makes so many far reaching decisions on our personal lives.

I know little about nominee Sonia Sotomayor. One thing that concerns me, though, is that she took part in a controversial decision that as I understand it threw out the promotions of white firemen (to include one Hispanic) on the grounds that since no black firefighters scored high enough the test must have been discriminitory (no one was promoted — in my initial post I erroneously asserted that minority firefighters had been promoted). Seems to me that such reasoning is counter to the best interests of both majorities and minorities.  Who would want to think he or she was promoted on the basis of race, rather than fitness for the job? And how would that be in the best interests of public safety? I’ll need to study up on that decision and other areas of her background before making my final judgment (and of course no one is waiting on my judgment – but I am a concerned citizen). That firefighter case, Ricci vs. DeStephano, is currently awaiting a ruling by the U.S. Supreme Court.

A big news day!