Election thingies

[tahnan]

Yes, I'm excited. Yes, I can breathe again. Yes, this is a hell of a lot better than, say, 2004, when my wife and I were hoping for a better wedding present from the electorate.

But I don't understand how CNN gives the figures as 60.5 million to 54 million, i.e. maybe 115 million votes, when the turn out in '04 was 122 million and the numbers are supposed to be so much higher this year. And I really, really don't understand how California could have gone 53/47 in favor of Proposition 8, which is where it is now and which is how it looks like it's going to go.

(And I'd really, really like to see someone challenge the amendment, which reads in full Only marriage between a man and a woman is valid or recognized in California., on the grounds of the ambiguity discussed in this LanguageLog post. In particular, I was struck by the same reading that Aaron Dinkin found, i.e. "It's only marriage that is recognized between a man and a woman in California", which entails that California doesn't recognize "dating" as a valid relationship between a man and a woman, but leaves entirely open the question of what's recognized between two men or two women. I'm not remotely a lawyer and I'm fairly sure that there's a "reasonable interpretation" basis for not allowing that kind of challenge, but (a) if you write something semantically ambiguous, you should suffer the consequences, and (b) frankly, anything that would get rid of this abomination of an amendment is just fine with me.)

Maybe when I wake up, things'll be clearer. As it happens, the PA Attorney General race changed significantly since the point at which the state was called for Obama: at the time, the Democratic challenger was up by about ten points, and now the Republican incumbent is up six. I voted for the Republican, incidentally. I wasn't impressed by any of the ads I saw, which were entirely attack ads from both sides. But the Dem's website stressed three issues—restricting parole for violent offenders, cracking down on illegal immigrants, and making it illegal to be a member of a gang even if one's actions are otherwise entirely within the law. These all struck me less as issues and more as posturing (and the third one worried me on First Amendment grounds; I gather that a federal court ruled that gang membership isn't a first amendment right, but it seems to me to be, if not a free speech issue, at least a free assembly issue, and mostly it seems a little like thoughtcrime.)

Right. Bed.

Comments

[cyranocyrano.livejournal.com]

One of the possible paths I'm reading about is that the court will have to weigh this amendment with the 'fairness' clause that caused the ruling in the first place, and declare that California cannot participate in 'marriage' at all. Domestic Partnerships for everyone.
(California does not recognize the union of two weasels as marriage.)

[tahnan.livejournal.com]

Part of the effect of that, though, is that if my wife and I move to California, they won't recognize our marriage. That's...deeply weird.

[tinhorn2.livejournal.com]

Oh, the litigation on this will be awful, even apart from the Language-Loggy hypotheticals that as a practical matter will never really be taken seriously by a court, but are fun to discuss (I raised with a lawyer friend a couple months ago the issue of whether a man entering a business contract with a woman might be able to avoid it under Prop 8, because, hey, only *marriage*, not a business contract, is valid between a man and a woman).

But consider this possibility: while under Prop 8 California might not (will not?) recognize a same-sex marriage, that does not mean the marriage was not validly performed. (Stay with me for a moment.) For example, a same-sex couple married in Massachusetts who then moves to California does not have their marriage invalidated, only non-recognized by California. If they then move to another state, that new state presumably would still recognize the (valid) Massachusetts marriage (if there is no similar Prop 8 type rule in the new state).

So -- suppose after litigation California concludes (some 2 years down the road) that it will not recognize same-sex marriages performed in California in the summer of 2008 (when they were clearly valid). That (arguably) does not *undo* those pre-Prop-8 marriages, it only renders them not recognized in California. So, perhaps our same-sex couple moves to State X, which does not have a Prop 8 type rule. Is their marriage recognized there? Recall that Prop 8 (arguably) does not undo the pre-existing marriage, only renders it not-recognized *by California*. So, our couple argues to State X that their marriage is still perfectly valid, and that State X should recognize it (as states typically recognize valid out-of-state marriages absent some express rule against them). But someone challenges this, and after 2 more years the Supreme Court of State X decides that no, since California declined to recognize the marriage, State X will decide not to recognize the marriage out of "respect" to California's view on its own marriage (even though the marriage was never invalidated). So now our determined couple, with a valid marriage but one that is not recognized in 2 states, moves to State Y, and ... well, you get the picture.

I find it deeply saddening that a group with money and incentive can amend the state constitution on a 50% vote. Apart from the merits or lack thereof (I believe lack thereof) of Prop 8, this is just a bad way to run a state. Does that mean we get to see Prop 17 in 2010, designed to repeal Prop 8? And then, whoever loses, tries Prop 24 in 2012? UGH!

And my hypothetical above, which raises thorny issues, is certainly not the worst of it. Right now there are tens of thousands of married people in California who do not know what their rights are or whether they will remain legally married once Prop 8 works its way onto the books. And, I understand, couples in civil unions had to give up those civil unions in order to get married -- if/when Prop 8 is given effect, do they no longer (currently) have *any* legal relationship? Do they now need to dissolve their marriage and re-form their civil union to avoid the possibility that their marriage will not be recognized at an inopportune time?

As for how California voted for Prop 8, I believe it is a combination of (1) it would have been close under any circumstances, (2) the commercials in favor of Prop 8 used some pretty distasteful scare tactics falsely claiming that school kids would be battered over the head with teachings about same-sex marriage and homosexuality (though, what's really wrong with teaching such matters?), and (3) according to many news reports, African-Americans who not surprisingly came out in large numbers to vote for Obama tended to break very heavily (about 70% according to reports) against same-sex marriage, largely on religious grounds.

So, there it is then. From a legal standpoint, the battles and the issues raised will be interesting and plentiful for years to come. It is a pity that this means that real people with real lives and real feelings will have to suffer so much uncertainty and upheaval in the process.

[tahnan.livejournal.com]

I find it deeply saddening that a group with money and incentive can amend the state constitution on a 50% vote. Apart from the merits or lack thereof (I believe lack thereof) of Prop 8, this is just a bad way to run a state. Does that mean we get to see Prop 17 in 2010, designed to repeal Prop 8? And then, whoever loses, tries Prop 24 in 2012?

These things struck me, as well. Especially because Massachusetts requires two separate votes to amend its constitution, and it doesn't even make it to the ballot without a legislative vote put it there...so yeah, I realized that (a) this was no way to run a state and (b) presumably it's just as easy to repeal as it was to pass. Not that the process was easy, or pleasant, but yeah.

And the rest of what you said is, of course, well-phrased and well-reasoned, and the last couple of sentences pretty well capture my feelings. (Well, perhaps replacing "be interesting" with "lead to recognition of gay marriage", but yeah.)

[zanthrin.livejournal.com]

So ... first off, let me apologize to the rest of the nation on Kim and my behalf. Behalfs? Stupid language.

Anyway, to babble at you for a bit... one of the other sucky things is that while it takes only a 50.x% vote to amend the CA constitution, it takes, I believe a 2/3 vote to change/overturn it. Which, of course, is darn unlikely. Sigh. So we're really, really rooting for any of these challenges to work.

Other notes -- while California is considered liberal, it's really the Bay Area / San Francisco region that is most leftward-leaning. Thus, the SFBA voted overwhelmingly against the measure, but LA (damn them!) voted in favor.

And -- yes, this is my biased view -- the pro-8 side not only had major out-of-state funding from Utah (Mormon church) and Knights of ... of what, Columbus? I forget. Anyway, a very, shall we say, strongly-opinioned group. And the advertisements continued to say things like, "if you don't pass this, your school children will be REQUIRED to learn about gay marriage, and they MAY NOT OPT OUT!!!!! Also, monsters! Run! Run and vote yes!!!!!"

Okay, that's enough ranting from me. I'll close, as I began, by apologizing on behalf of my (retarded) state.

[tahnan.livejournal.com]

Behalves. No, not really. But in any case, I don't blame you; rest easy. :-)

[tahnan.livejournal.com]

...OK, I just read with no small interest the ACLU's petition (http://www.aclu.org/lgbt/relationships/37706prs20081105.html) to strike down Prop 8 on the grounds that it's not a mere amendment, it's an actual revision (and revisions do have to have the kind of legislative support that they do in MA). I'm still not a lawyer, though I'm starting to wonder if I should regret that decision, but the argument certainly looks like it could be valid...

[tinhorn2.livejournal.com]

Eugene Volokh discusses the "amendment vs revision" issue here:

http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1225923130

I don't think the argument is legally a winner, but it's worth a shot, and perhaps the same court that upheld the right to same-sex marriage under the California Constitution in the first place (by a stretchy argument, in my view, even though I support same-sex marriage) will determine that it would be better to buy this argument than to unleash the problems that would accompany allowing Prop 8 to take effect.

[tahnan.livejournal.com]

Yeah, that's fair. I admit I didn't necessarily find it convincing, but I at least found it to be not laughable (cf the challenges to Obama's citizenship).