About a month ago, the California Supreme Court, in a 4-3 decision, issued a declaratory opinion that Proposition 22, which states that, “Only a marriage between a man and a woman is valid and recognized in California,” enshrined into statutory law by 61.4% of California voters in 2000 (over four million voters), was “unconstitutional” on the basis that "gender discrimination" violates the equal protection clause of the state constitution.
The LA Times reported that:
"The California Supreme Court struck down the state's ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation."
Sadly, many of the leading "conservative" and "Christian" pro-family organizations such as AFA, Liberty Council, ADF, FRC, ACLJ, and Focus on the Family have been in full surrender mode conceding this same liberal talking point that the court "legalized same-sex marriage in California" and that the only way to ensure preserving traditional male-female marriage is through a state constitutional amendment scheduled to be on the ballot in November.
The California Supreme Court issued a declaratory opinion that, in the view of the bare majority, banning same sex couples from marrying was unconstitutional and that the language of the initiative statute limiting marriage to one man and one woman must be stricken from the statute. Unfortunately however, the court doesn’t have the constitutional authority to re-write the marriage statute nor any other initiative statute for that matter. According to the California Constitution, only the people can revoke or amend an initiative statute such as Prop 22. Same-sex “marriage” remains, therefore, illegal.
The court said the plaintiffs were entitled to the issuance of a "writ of mandate" but issued no actual writ to state officials to perform the ministerial act of issuing marriage licenses to same-sex couples. Even if they had issued a "mandate," state officials are sworn to execute the law and not effectuate a court's opinion. Moreover, any court mandate or "order" would have been both unenforceable and invalid, since, according to a recent California Court of Appeals ruling from April of 2008, Sondermann Ring Partners v. Buenaventura, the court can declare an action of the legislature unconstitutional where such action exceeds the limits of the Constitution, but the courts have no means and no power to avoid non-action. In other words, the court is not constitut