I was a Californian for 40 years, so I have to ask my former fellow citizens: Are you going to sit by and do nothing while four black-robed despots take away your right to govern yourselves?
By one vote, the California Supreme Court today rejected the expressed will of Californians to limit marriage to a man and a woman.
In 2000, a 61.4 percent majority of Californians passed Proposition 22, which limited marriage to a man and a woman and precluded California’s recognition of same-sex “marriages” consummated elsewhere. In a decision derided by a dissenting California justice as “legal jujitsu,” the Supreme Court majority held that the ban on same-sex marriage is an infringement of the fundamental state constitutional right to marry.
California is now the second state after Massachusetts where homosexuals will be allowed to “marry.” But unlike Massachusetts, California has no law that prohibits homosexual couples living in states that don’t recognize same-sex “marriage” from marrying in the Golden State. The California Supreme Court has opened the door to a legal battle royal across the nation. Homosexual couples will flock to California to marry, return to their home states, and file lawsuits to force the recognition of their Land of Fruits and Nuts marriages—and the destruction of the 1996 federal Defense of Marriage Act.
According to the California court majority, the state’s same-sex marriage ban violates the equal protection clause of the California Constitution because it discriminates on the basis of sexual orientation, which the majority declared “a suspect classification” akin to race, sex and religion. In Re Marriage Cases, S147999.
The 4-3 decision, written by Chief Justice Ronald M. George, rules that even though California’s domestic partnership (DP) laws give same-sex partners “all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage,” the DP scheme violates the California Constitution because of its “failure to designate the official relationship of same-sex couples as marriage.” George writes:
In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.
The “proper remedy,” according to the court, is “that 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.”
The court reversed the court of appeals and ordered it to issue “a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state” issue marriage licenses to same-sex couples.
Justice Marvin R. Baxter, joined by Justice Ming W. Chin, called the ruling a “startling” act of “legal jujitsu” that “oversteps judicial power” in his concurring and dissenting opinion:
I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error. Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid.
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. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.
I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power.
Justice Carol A. Corrigan writes in her concurring and dissenting opinion:
The voters who passed Proposition 22 not long ago decided to keep the meaning of marriage as it has always been understood in California. The majority improperly infringes on the prerogative of the voters by overriding their decision. It does that which it acknowledges it should not do: it redefines marriage because it believes marriage should be redefined. … It justifies its decision by finding a constitutional infirmity where none exists.
As important as the institution of marriage is for society in general, and children in particular, there is far more at stake in this ruling. The question for Californians is:
Are you going surrender your sovereign right to rule yourselves to four black-robed despots who’ve ignored your will and perverted your constitution?
And for clergy in particular, are you going to lead your people in taking righteous action, or hide behind a “nonpolitical” pulpit while God’s ordained and holy institution is profaned?
Although there is no relief available in federal court, and Gov. Arnold Schwarzenegger has already announced he will do nothing to terminate the ruling, the people of California can still act. This November, Californians can vote for a constitutional amendment, The California Marriage Protection Act, that will prevent this ruling from being enforced.
Californians can also initiate a recall vote for George and his three cohorts, Joyce L. Kennard, Kathryn M. Werdegar and Carlos R. Moreno, and send them packing as they did to former California Supreme Court Chief Justice Rose Bird and company.
And finally, all Americans who respect the rule of law should demand that Congress pass a constitutional amendment preserving traditional marriage, and send it to the states for ratification. It’s the only way to protect state sovereignty and the will of the people from judicial tyranny.