This morning the California Supreme Court ruled that the state’s laws restricting marriage to heterosexual couples were unconstitutional. Following a close 4-3 decision, California has become just the second state in America (after Massachusetts) to legalize gay marriage .
The lengthy (174 page!) decision entitled “In re Marriage Cases” represented a consolidated appeal from six cases. You can read the full text of the decision here.
Californian homosexual couples were already entitled to virtually all of the same benefits available to straight married couples under the Domestic Partnership Act. The court, however, determined that the language and statutes governing “domestic partnerships” did not go far enough. The definition of marriage in California would no longer exclude homosexual couples.
At p. 120, George C.J. (Kennard, Werdegar, Moreno JJ. concurring) wrote:
… [W]e determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.
In an interesting dissenting opinion (for fans of the “legitimacy of judicial review” debate), Baxter J. wrote that the majority had engaged in “legal jujitsu” and had been overzealous in interpreting the constitution. He was of the view that there was nothing implicit or explicit in the constitution which allowed the recognition of marriage between a same-sex couple. Therefore, he wrote, the majority had erred in viewing the progressive changes made by the legislatures in recognizing domestic unions as creating an implicit constitutional principle that marriage should extend to homosexual couples.
At p. 5 of the dissent, Baxter writes:
Recent years have seen the development of an intense debate about same-sex marriage. Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support. Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.
In any event, gays and lesbians in California have won a significant civil rights victory today in California. Following the 30 day suspension period, they will be legally allowed to marry in that state.
Conservative groups must now petition for an amendment to the state constitution if they wish to challenge the court’s decision. According to the New York Times, these conservative groups have already gathered over a million signatures supporting a constitutional ban on gay marriage. The initiative will likely be put to the voters in November. Interestingly, despite vetoing two attempts by the legislature to recognize gay marriage, Gov. Schwarzenegger has said that he will not support the constitutional ban initiative.
I agree with judge Baxer. The justices shouldn’t be making new laws, even if they believe it is the right thing to do. It’s not their job. Canada’s Supreme Court was wiser: they put the ball back in Parliament’s court, and sure enough, Parliament passed the same-sex marriage bill. That’s the way it should happen. The end should not justify the means.
Jen:
Thanks for the comments. You could also argue the other way: the justices were not making new laws, just interpreting the constitution. It does not say in the California constitution that “marriage is between a man and a woman.” More than 20 states have already voted to amend their constitutions to reflect the anti-gay-marriage wording.
What I find interesting is that this case may do more to harm gay rights than to further them, in spite of the court’s decision. This is because the court’s decision will likely prompt a huge backlash from conservative groups. There’s nothing like a little “judicial activism” (if you want to call it that) to mobilize the right into coming to the polls. I don’t know for sure, but I believe that a state constitutional amendment requires the support of a bare majority of voters. Now, more than ever, this constitutional amendment is likely to pass.
Proposition 22, which defined marriage to be between a man and a woman and adopted by California voters on March 7, 2000 with 61.4% in favor, was hijacked along with the California Legislative Branch by the Tyrannical Justices of the California Supreme Court which legislated from the bench in direct violation of the California Constitution and managed to null the will of the people and declare Proposition 22 unconstitutional. It only took four tyrannical traitors to wrest the will of the citizen of California, these four judges are either being bribed, or blackmailed by the degenerates or they are homosexuals themselves.
Writing for the majority, Chief Justice Ronald M. George said: “In light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman†is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.â€
The black robed tyrants had the audacity and the recklessness to stick their tongues to the majority of California voters and without an ounce of shame declared that a marriage between a man and a woman is unconstitutional, but marriage between a man and a woman becomes constitutional when coupled with same-sex couples, what a bunch of crap, these judges must believe that the California populace are nothing more than a bunch of moronic retards.
The people of California must demand the heads of these tyrants, they should be unceremoniously thrown out of the California Supreme Court and they should be forced to sweep the street of San Francisco for the rest of their wretched lives.
If unrestrained, someday in the near future these dishonorable black robed tyrants will grant the salivating perverts in a silver platter the age of consent lowered to eight years of age. Eureka, now the degenerates will be free to marry innocent little boys, which would be the pinnacle of all perversions, and also would open the doors to all kinds of unimaginable atrocities. How would you react Mom, Dad when someday Johnny, your little nine years old says to you? Good old Fred our next-door neighbor and I are getting married. It will happen very soon, check it out at http://www.nambla.org the North American Man/Boy Love Association.
Americans must reintroduce the Word of God in Public Education, also they must reverse legalized “premeditated murder†on demand, and they must agree with God with one mind and write it into the law of the land that homosexuality is an abomination and by overthrowing Executive Order 13087 signed by President Clinton, who with Bible in hand bypassed the U.S. Congress and the populace and inflicted on society one of the many things God abhors the most, cramming homosexuals, bisexuals, and the transgendered in the federal and civilian workforce, in an attempt to normalize what once was cosidered an immoral and filthy addiction. Homosexuals must also be prevented from corrupting the minds of the youth, therefore they must be prohibited to adopt, coach, teach or have any direct contact with children, and they must be redirected back to the closets they came from, where most appropriately belong.
Legalizing relationships between two consenting adults, irrespective of their genders, is entirely a distinct issue of relationships with minors.
And last time we checked America was still a secular nation, and has been for its entire history.
Mr. hnrast:
Beneath the articulate surface of your comment bubbles a deep well of hatred and bigotry.
But I will not confine myself to the ad hominem; you took the time to voice your opinion and in turn, I will take the time to field a reply.
I’ll dispose of the NAMBLA issue quickly. First of all, as my friend has said, gay marriage and relationships with minors are very different things. Beyond that, NAMBLA is a tiny organization which is for the most part defunct. More importantly, your attempt to connect NAMBLA to mainstream homosexuality is not only disingenuous, it is offensive. There is no relationship between homosexuality and pedophilia; the latter is abhored by gay and straight people alike. While I don’t have statistics on this, I’m sure that the vast majority of child sexual abuse involves males abusing female family members.
Let’s move on to the other parts of your argument.
Let me begin by reiterating what my friend has said: namely that the United States, which you love so dearly, was founded on principles of secularism. The separation of Church and State is an absolutely fundamental constitutional concept.
Not only does this prevent the reintroduction of the “Word of God in Public Education,” it also means that laws cannot have scripture as their basis.
Of course, it is also highly presumptuous to think that your version of “the Word of God” is necessarily the correct one. Part of what makes the United States so beautiful is that so many differing religious and irreligious viewpoints are represented. Many religions do not share the belief that “homosexuality is an abomination.” Until (and if) you meet him/her, you really have no way of knowing what “God abhors most.”
The rejection of your version of “the truth” is not merely limited to other religions: many Christians also believe that homosexuality is acceptable. The point is that the Bible, like the constitution, is a text written and interpreted by human beings.
The irony is that you lambaste the judges for their interpretation of the constitution, and then in the same breath, you claim that foisting your particular view of the Bible on others is legitimate.
Whereas the judges have the authority and the duty to interpret the constitution, you do not.
The separation of powers is another fundamental constitutional principle in America. You seem to have a problem with the institution of judicial review as a whole. It is your belief that “four tyrannical traitors … wrest[ed] the will of the citizen[s] of California.” Again, that is not only the right of the four judges as authorized by the constitution; it is their duty.
Judicial review exists in part to overcome the so-called “tyranny of the majority.” As an institution, it is present in most (if not all) developed nations and probably most developing nations as well.
Finally, as the article points out, you have a recourse. As you are clearly unsatisfied with the court’s ruling, you may petition for a constitutional amendment to overturn it. That is the safeguard built into the separation of powers system, and it is open to you to make use of it.
When the amendment comes up on the ballot in November, I urge you to exercise your democratic right and vote in favour of it. While I may not agree with your opinion, I would respect your making use of legal and democratic institutions to voice it.
Incidentally, just because 61.4% of voters in 2000 voted “yes” to proposition 22, does not mean that this vote was an accurate view of the Californian public’s opinion on gay marriage. It is one thing to vote that marriage is “between a man and a woman”. It is quite another to vote in favour of a constitutional amendment to that effect.
Only 31% of Californians over 18 voted on prop. 22. The “yes” vote represented only roughly 19% of the voting population.
With a constitutional amendment, the stakes are much higher. We can expect a higher voter turnout. We can also expect that opinions have changed in the eight years since 2000. The general rule is that views become more liberal/tolerant with time, not more intolerant.
Ultimately, the true will of the Californian people remains an open question.