OC Political

A right-of-center blog covering local, statewide, and national politics

Posts Tagged ‘marriage’

Proposition 8: Tyranny of the Majority or Preservation of Marriage

Posted by Brenda Higgins on February 13, 2012


I am a family law attorney and occasional polititican. Which means that I have been Certified by the California State Bar as a Specialist in Family Law and for the majority of my mornings in the past 16 years I have been in a court house in Orange County or one of the surrounding counties, with people who are facing the difficulties of dividing their time with their children, facing an often uncertain financial future, and allocating income in such a way that children are financially provided for. I have been a lifelong Republican, raised in the Southern Baptist Church. I was a young republican attending Baptist college when I went to my first rally in which the movie Silent Scream was shown and Randall Terry was the speaker. I ran for local office in 2010. My unique juxtaposition as conservative, and a lawyer involved directly with family and relational issues, has lead me to be increasingly concerned with where the Republican party is, and is going. It seems that the loudest voices of the party think that the party was built upon bigotry and exclusivity. It was always my belief that the party of Lincoln and Reagan was the champion and not the enemy of civil rights

I have been asked frequently about my views of Proposition 8, the California ban on same sex marriage. It is the single most futile effort employed by conservatives that we have seen in recent years. As the 2008 election dragged on, and I saw people who normally do not get involved in political campaigns, get increasingly involved in the Prop 8 battle, I continued to encourage people to throw their new found political stamina into the presidential and local congressional races, to no avail. As we all know, the proposition passed, and as I predicted, it has been in litigation since. As I also predicted, the Ninth Circuit has now declared the ban on gay marriage unconstitutional on the obvious basis that the statutory framework in California violates equal protection.

The fundamental rights that emanate from the U.S. Constitution can not be infringed upon by the government, OR by the majority of the people. The most prevalent argument I hear regarding the recent ruling are that about state’s rights, the 10th Amendment, and the vote/voice of the people and that this ruling was activism by of this judges.

It has historically been the third branch, the judiciary, that acts to curtail infringements upon fundamental constitutional rights, precisely because, such a situation arises from the tyranny of the over-zealous majority. There were certainly a majority of people who believed that slavery and segregation were okay in those times. We progress by policing our own ideals. Imposing a legislative morality that is dictated by one point of view or one religion, endangers the freedom of us all. We are free by virtue of the fact that we all, not just some of us, or the most popular of us, or the most activist of us, are free. We all must be free or none of us are free.

It is well established that there should be no limitation on who is permitted to avail themselves of elective medical interventions to bear children. There is no debate that we protect, recognize and allow individuals to exercise their right to procreate in whatever way is medically available to them. In opposite sex relationships where issues of infertility would otherwise render a couple childless, we proclaim the providence of God and miracles of medical science when they find a way to overcome infertility. We do not attempt to limit the classes of people who undertake these procedures. We can not. If the technology is available to one class of people, it must be available to all, married, unmarried, heterosexual, homosexual, and differently abled in any capacity.

In a more practical view of the application of Proposition 8, I have had the actual displeasure of encountering and considering the difficulties of families in which the parents are the same sex.

Two women undertook to have a long term committed relationship. During their relationship, each of them decided to exercise their right to procreative freedom, and bore a child. The children were raised as siblings, in the same household, with the same set or same sex parents. Much like 75% of heterosexual marriages, the relationship between these two women ended. Also, like a large percentage of the heterosexual marriages that end, it ended explosively, with each party claiming that they had been a victim of violence at the hand of the other, litigation and almost no out of court resolutions.

A Domestic Violence case was filed and restraining orders were granted to each of them.

In the course of their relationship that had obtained a California Registered Domestic Partnership, so another legal procedure to dissolve the partnership, similar to a divorce, had to be filed. That dissolution of Domestic Partnership had no ability to address the needs of their children. This couple had not taken the additional and necessary legal step for same sex couples, to initiate cross adoptions. In that way, the legal rights of the children and their non-biological parent would be clear. These adoptions are much like a pre-nup, not a conversation people in love want to have, the possible end and decline of their relationship. Also, Like most couples who don’t get a pre-nup, they never believed or anticipated their relationship would fall into the statistics of failure.

Without the legal adoptions in place, the only ability these parents had to facilitate continuing contact with their (non-biological) child, and the children to continue having contact with each other, was to file cross guardianships in the Probate court. Unfortunately, the guardianship process that arises under the Probate and not the Family Code, and has a different standard of proof and remedies than a Family Court child custody case. In order to preserve the relationship with the non-biological child, each mother would have to prove in the Probate court that the biological mother’s care of the child was “detrimental” to the child and that the non-biological parent should have effective sole custody of the non-biological child. There is no provision in the guardianship statutes for “visistation” or shared custody.

They both lost their bids for guardianship of the other’s child. They each failed to show “detriment” to the child, essentially the court found that each child would be safe in the care of the biological parent. There was no determination or consideration of the “best interests” of these children. No determination of their interests in maintaining a relationship with both of the parents they have come to know. No determination of their respective rights to maintain a relationship with the only sibling they had ever known. Each of these children’s relationship with the parent that they had known, and the sibling they had known was effectively terminated.

In a perfect world, the parents would have seen the error of their ways, put their differences aside and figured out a way to share their children, to devise a plan that preserved the relationships the children had come to know and rely upon. Much like most of the heterosexual parents I have represented, they did not take the high road, they dug into their positions and differences and exercised their right to have a person in a black robe define their situation. They weren’t oppositional because they are gay, they were oppositional because they are human. The process and “best interests” standard in the Family Code is designed to protect the interests of children when their grief and anger stricken parents can not or will not do so. The Family Code did nothing to protect these children. It did not apply to them because their parents relationship fell under the “separate” statutory framework. Clearly these children were not provided with an “equal” access to justice, and were denied a judicial determination and the protection that children of opposite sex parents would have had.

Children of parents who are the same sex have clearly not been treated the same as children os opposite sex parents. They are not guaranteed a best interests determination, they are not afforded a hearing on the continuity and stability in their life, they are not granted a consideration of the presumption that separating siblings is not in their best interests. This is inherently unfair and just plain wrong. There have been successful efforts recently to amend the presumed parent statute to apply to parents of any sex, but the recent ruling from the Ninth Circuit cuts to the real core.

Separate is not equal.


Footnote: I have a published article on the legal impediments, and detriment to children of “Separating Siblings”, 2008 in the Orange County Lawyer, it appears on my website, http://www.bmccunefamilylaw.com

Posted in California | Tagged: , | 1 Comment »

Putting Yesterday’s Prop 8 Ruling in Perspective: It Means Nothing Until We Hear from Anthony Kennedy

Posted by Chris Nguyen on February 8, 2012

After yesterday’s ruling from the U.S. Ninth Circuit Court of Appeals, Prop 8 supporters jeered, and Prop 8 opponents cheered.  The news showed jubliant same-sex marriage supporters celebrating the ruling and resolute traditional marriage supporters vowing to appeal.

In the May 2009 California Supreme Court ruling in Strauss v. Horton, the result was the opposite, with Prop 8 upheld.  The August 2010 U.S. District Court ruling in Perry v. Schwarzenegger struck down Prop 8.  Yesterday’s ruling by a three-judge panel of the U.S. Ninth Circuit Court of Appeals in Perry v. Brown upheld the District Court.  Prop 8 proponents have 90 days (well, technically, 89 as of this morning) to decide whether to appeal to an 11-judge en banc panel of the U.S. Ninth Circuit Court of Appeals or to appeal directly to the U.S. Supreme Court.

If there’s any lesson to be learned from all the court battles involving Prop 8, it’s that it doesn’t matter what a particular court rules, the side that wins hails the ruling as a historic victory in defense of the legal concepts they support while the side that loses vows to go to another court.  The only way this cycle ends is to take this to the highest court in the land: only the United States Supreme Court can decide this issue once and for all.

In all likelihood, U.S. Supreme Court Justices John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito will vote to uphold Prop 8 while Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan will vote to strike down Prop 8.  This means that whether marriage means one man and one woman or whether it means two people of any sex in California and in America rests in the hands of one man: U.S. Supreme Court Justice Anthony Kennedy.

There’s a certain irony that Kennedy will be the key to this issue, since Prop 8 comes from California, and Kennedy is a native Californian who spent the majority of his life in this state and was appointed to the Supreme Court by fellow Californian Ronald Reagan.  A Catholic educated at Stanford University and Harvard Law School, Kennedy was a lawyer in private practice and has been a law professor at McGeorge School of Law during his time as a lawyer and continuing to the present day.

Kennedy’s judicial track record does not make it clear how he’d come down on this issue.

In Beller v. Middendorf (1980), Kennedy (a Ninth Circuit Court of Appeals Judge back then) wrote the decision that upheld the ability of the U.S. Navy to discharge sailors for “engaging in homosexual acts.”  In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), he joined a unanimous Supreme Court opinion allowing the St. Patrick’s Day Parade to exclude an Irish gay group.

In Romer v. Evans (1996), Kennedy wrote the decision invalidating a Colorado ballot measure prohibiting sexual orientation from becoming a protected class (protected classes include race, religion, etc.).  In Boy Scouts of America v. Dale (2000), Kennedy voted to uphold the right of the Boy Scouts of America as a private organization to exclude gay men from being scoutmasters.

Both sides of the issue can find favorable parts of Lawrence v. Texas (2003), where Kennedy wrote, “the Texas [anti-sodomy] statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” but also wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”  So Lawrence v. Texas tells us that Kennedy opposed attempts to regulate the conduct of consenting adults but also wanted to make clear that the decision did not affect marriage.

In Christian Legal Society v. Martinez (2010), Kennedy joined a court decision that allowed a public school to refuse recognition to a student group that wished to exclude gay members.

Kennedy’s dizzying array of court decisions leaves little clarity as to how he will rule.  However, there is little doubt that the fate of Proposition 8 and of the definition of marriage in California and America rests in the hands of one Californian above all others: Anthony Kennedy.

Posted in California | Tagged: , , , | 1 Comment »

%d bloggers like this: