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Same-sex marriage updates


The New Hampshire state Senate has approved the governor's religious-protections amendment to the same-sex marriage bill! (I'm slightly oversimplifying for brevity.) The vote was 14-10, along party lines. (The last vote on the previous bill passed by only 13-11, so there was a little concern about whether today's amendments would go through. Whew.)

The amending bill is now before the House; if it passes there, the bills could be on the governor's desk by the end of the day. For those just tuning in, Gov. Lynch has said that he would sign the amended bill.

Fingers crossed. More news as I hear it. Keep an eye on WMUR's website for news updates.

UPDATE: ARGH! The vote failed in the House, 188-186. It now goes to committee; if I understand right, there'll be another vote within the next two weeks. Feh.

News that I missed last month: Congressional Leaders Mull Partial DOMA Repeal. They're basically talking about repealing part of DOMA so that the US gov't would recognize marriages that are recognized by the states (which DOMA currently prevents the US gov't from doing). For example, it would mean that same-sex couples who are legally married could file Federal taxes as married. It may take a while, but at least things are in progress:

Sources declined to discuss the exact timing of when such a bill might be introduced, but they generally agreed it would be before the end of the year and probably within the next several months.

Meanwhile, US Rep. John Conyers (D-Michigan), chair of the House Judiciary Committee, now says that he has the votes within the Committee to get through a repeal-of-DOMA bill. As Conyers notes, that doesn't mean he has the votes in the full House or in the Senate, but I still see this as an encouraging sign. (Note that the headline on that article is very misleading, and got my hopes up much further than turned out to be warranted.)

The California Supreme Court has only until June 5 to issue a ruling on the validity of Proposition 8. They apparently generally file opinions on Mondays and Thursdays, and announce the impending arrival of filings a day ahead of time on their website. There's no announcement today, so the decision won't arrive tomorrow. So it could be either Tuesday or Thursday of next week (Monday being a holiday), or Monday or Thursday of the first week in June.

The expectation is, alas, that the Court will uphold Prop. 8. Equality California, one of the organizations that opposed Prop. 8, is currently surveying members as to whether (in the event that the Court doesn't overturn Prop. 8) we should put a Prop. 8 repeal on the ballot for 2010 or 2012. I had been in favor of 2012, but it turns out there are some pretty good arguments for 2010. I'm now uncertain. But more on that in another entry when I have more time.


To overturn a state constitutional amendment on the basis of state constitutional grounds is a tough sell in any state court. Courts have always deferred to the people's right to amend the constitution. Indeed, not even the definition of cruel and unusual punishment was beyond the reach of amendment.

Of course, the people can overturn the amendment for any reason they feel like as long as procedure is followed; the people are not bound by precedent, unlike Supreme Court justices. That is in general a good thing, even if you do not like the result.

As I understand it, the question before the CA court is whether Prop 8 was an addition to or an alteration of the pre-existing state constitution. An alteration requires more signatures to get onto a ballot (although, oddly, still requires just a plurality of votes to be passed), and Prop 8 was placed on the ballot as an addition.

Still a tough sell, but it's on a point of constitutional procedure, not content.

"the US gov't would recognize marriages that are recognized by the states"

OMG OMG OMG THAT WOULD BE AMAZING. Federal taxes, federal benefits, IMMIGRATION RIGHTS. (I take your point about how far off it is, but that it's even on the table!)

Michael E: Well, that was essentially the question that was argued before the Court, and as Dan pointed out, one of the main issues in question was exactly whether this particular change was the kind of change that the people can legitimately make. Everyone agrees that there are some changes to the constitution—"revisions" rather than "amendments"—that the people cannot legitimately make without doing more work; the question is whether this was such a change or not. The Court will answer that question soon.

And although I agree that it's within the people's rights to overturn the amendment, I think you're leaving out an important underlying issue: in California, it's ridiculously easy to amend the state constitution, compared to a lot of other states. Some might argue that it's much too hard to amend the state constitution in some other states, but I think it's fairly widely agreed in California that it's too easy here. A simple majority vote seems like an awfully low bar for such a significant step as amending the constitution.

Dan: Close, but not quite precisely accurate. One of the legal questions presented to the court was indeed whether Prop. 8 was a "revision" or an "amendment"; a revision requires that 2/3 of each house of the state legislature approves it (in addition to a majority—not plurality—of voters), which obviously is not going to happen with Prop. 8 (given that the legislature has passed bills legalizing same-sex marriage twice in the past few years). The Court seemed unimpressed with the idea that Prop. 8 constituted a revision, but we won't know for sure what they think until they issue their ruling.

There were also other questions before the Court (see that Wikipedia link for details), including two issues related to whether it's legitimate for the people to take away rights from people.

Jessie: Yeah—I don't know whether the partial repeal of DOMA will end up providing all of those things, but it seems plausible, and seems likely to provide at least some of them. If, of course, it happens. I agree that the prospect is very exciting!

Ah, thanks for the correction! ...and I admit, "plurality" was a bit of snark on my part, because when the vote is Yes/No, plurality and majority are the same -- except not everyone who votes in the election votes on a particular measure, so you might even see a constitutional amendment pass with less than 50% of all voters casting a Yes vote.

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