The California Gay Marriage Decision: The Court of What's Happening Now

The California Supreme Court presumed today to write new law, ushering in the brave new world of gay marriage for our nation's most populous state.  An activist majority on the court decided to sway with the prevailing cultural breezes.

For those who maintain that it will not happen in North Carolina, I suggest the opposite.  It, in fact, will eventually happen here if we persist in electing judges who will be predisposed to this type of mischief.

Comments

[Spag]

Actually Joe, the California court went against the prevailing cultural breezes as the people of California specifically rejected gay marriage in 2006. That key fact about the will of the people and popular sentiment was ignored by the Court who decided that gay marriage was deeply rooted in the California constitution when in fact there is no such right nor has there ever been such a right.

[Stormy]

It will happen here as soon as North Carolina people go to California, get married under California law, and return to North Carolina. They then can demand that their marriage be recognized, as all states are expected to recognize, as legal, marriages in other states.

Spag is right in what he says above, but the practical matter is that unless the people of California go to the ballot box and pass a law overturning it, the courts have made new law. This smells much like Rowe v. Wade. While Roe was federal, and this decision is state, this law spread to other states as they have to recognize marriages in California. When that happens, as you suggest, liberal judges will have cover to become activist and rule the same here.

[Joe Guarino]

Sam, of course you are right, but the cultural breezes to which I was referring happen to be those prevailing in the popular culture and among the political left. Those are the breezes with which the California judges are undulating.

Apparently, the state's voters are considering a constitutional amendment to remedy the situation in the fall, but I do not know how likely it is that it will pass.

But this was yet another bold expropriation of political power by the judiciary-- exactly the contrary of judicial restraint and humility and modesty. It was hubris-- pure and simple.

Stormy, the federal Defense of Marriage Act is supposed to protect states like North Carolina from having to honor gay marriages that were legal in other states. But guess what...

It turns out that Barack Obama would like to repeal the Defense of Marriage Act.

And it is not unthinkable that the federal courts-- especially with a couple of Obama appointees-- would seek to spread this type of jurisprudence nationwide, as you suggest.

[Doug]

From commenter "justcorbly" at Ed Cone's blog:

"Here we have a seven-member court, six appointed by Republicans, all confirmed in their positions in wide margins by the voters, making a ruling that, in effect, stands by decisions that the democratically elected California legislature has twice made."

http://edcone.typepad.com/wordup/2008/05/pro-marriage-in.html#comment-114855492

Joe, I'm not clear how this is the result of "activist" judges, to use your term.

[Stormy]

Joe,

AS usual, Obama feels strongly on both sides of the issue, at least publicly. The man wants to play it both ways at least until he gets elected. You can bet, though, that once he gets elected, he'll work to overturn DMA.

[Joe Guarino]

Doug, recent California history gives us a tradition of moderate/liberal Republican governors-- folks like Schwarzenegger and Pete Wilson. It would be unsurprising if they were to nominate judges who would do this. Even conservative Republican chief executives have nominated squishy judges.

If a strongly Democratic state legislature passed gay marriage in California, it is not necessarily the will of the people. The fact that the voters reversed it on a ballot question would suggest that this particular legislature was not reflecting the will of the people.

I use the term "activist" to refer to when judges decide in a manner that deviates from the text, structure and logic of the constitution as it was originally understood. While I am not an expert on the California constitution, I strongly doubt that a rigorous interpretation as outlined above would call for gay marriage. Sam Spagnola had some interesting comments on that same thread to which you linked.

[Doug]

well, it does seem a complicated legal and political issue. I am unable to study Sam's posts too closely due to being at work.

And I certainly can't speak to the will of the people in California!

[Stormy]

"The majority gives lip service to this contradiction, but only vaguely responds that "the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment" (p. 79)."

How can the courts justify sanctioning gay marriage as legal, and continue to ban polygamy and incestuous relationships? This is, indeed, a slippery slope. If I was running a polygamous colony, I would be packing-up to head to California. I see no way that the court's ruling can withstand a challenge from polygamous marriages. If the "right to marry" exists, how can it be legally limited to only two people, if three or more choose to marry? As I said earlier, this court has brought on another Roe vs. Wade decision that will bring confusion to our society.

Doug, I would have to say that such an ill-considered decision is the result of activist judges, whether made by Democrat or Republican-appointed judges. The fabric of our society just got muddled.

[just saying]

I may have a somewhat different opinion than the majority of people here. I tend to look at things from a libertarian/small government perspective, so keep that in mind.

I completely agree that the courts are in place to interpret laws, not make laws. Making laws is a function of the legislative branch. I'd also agree that judicial activism is a negative trend that, unfortunately, we've seen more and more of in recent decades.

However, protecting the rights of the minority from the "tyranny of the majority" has always been a valid function of the courts. In this case, the California Supreme Court decided that the state law banning gay marriage unlawfully denied rights to some citizens that other citizens enjoy.

If you think the Supreme Court made the wrong decision, that's fine. Maybe they did. But that's not the same as "judicial activism."

The court didn't say "we want gay marriage" -- they said "the current law was unconstitutional, as we understand the Constitution." Other judges may have held a different view, but I don't think they overstepped their bounds by making this call.

[Joe Guarino]

Just Saying, it really depends on what your approach toward constitutional interpretation is. It is not satisfactory, in my mind, to judge a decision by whether you like the outcome. Instead, you have to decide whether the case was decided according to the type of rigorous approaches championed by outstanding judges like Roberts and Scalia. It is not right for judges to read into the text-- and the history behind the text-- what they would like it to be.

[Stormy]

Just saying,

How do you say that you can not deny gay people their rights to be married, and at the same time, and say that banning polygamy is lawful? That would seem to be a contradiction. I'm not saying that polygamy should be lawful, but how do you deny the people's rights to marry in that form and allow it in a gay form? How do you limit the "right to marry" if it is in fact a right?

[Joe Guarino]

I agree on your point, Stormy, regarding the inevitability of polygamy being a legal right as a consequence of the gay marriage jurisprudence, if it takes further hold around the country. The polyamory crowd has not been as well organized as the homosexual community, and is not yet certifiably one of the interest groups backing one of the major parties, but it may only be a matter of time.

[just saying]

Stormy, that's a good question and I don't have a good answer for you.

My point wasn't that the judges made the right call here. I think reasonable people can disagree on that point.

My point simply was that, as I see it, the Calif. Supreme Court were within their rights to make a call on this issue. It may not be the right call and many people may disagree with it, but I don't see it falling in the category of "judicial activism." That's all I was trying to say.

[Stormy]

Just saying,

When the majority of the judges said that "the current law was unconstitutional, as we understand the Constitution.", but then parsed the ruling to include gay marriage, but exclude polygamy and incestuous relationships, they denied the same rights to the latter groups that they said belonged to the former group. If it is unconstitutional to deny the right of marriage to gays, then how do you deny the same right to others? If it is a constitutional right, then it should apply to everyone.

One dictionary defines judicial activism as "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent." This ruling seems to meet the that definition.

The judges should have left this matter up to legislative action, and not made it a constitutional right. Once they ruled that marriage is a constitutional right, how do they then deny that right to certain groups? Let's face it, marriage is a legal union governed by the laws of the state. The judges created a social nightmare by finding a new right to marriage, where they did not have to that. Sure looks like judicial activism to me, every bit the same as Rove Vs. Wade.

[Spag]

"However, protecting the rights of the minority from the "tyranny of the majority" has always been a valid function of the courts. In this case, the California Supreme Court decided that the state law banning gay marriage unlawfully denied rights to some citizens that other citizens enjoy."

That is true, but the threshold issue here is whether there is even a "right" at stake. Prior case law suggests otherwise. Even though California may afford greater protection than the federal government, the opinions the California court relied on do not support the result.

This is particularly disturbing when there has been state legislation directly to the contrary that undermines the rationale whether it be based on state or federal law.

"That is true, but the threshold issue here is whether there is even a 'right' at stake. Prior case law suggests otherwise."

Exactly.

"Gay marriage" is one of many imaginary/invented rights that are part of a certain worldview's political/social/economic agenda.

[Bubba]

The comment above is mine.

[Spag]

There is nothing preventing the legislature or governor from ignoring this ruling except the politics.

The legislative branch could argue that the California Supreme Court violated the separation of powers with this ruling by usurping the legislatures constitutional authority to regulate marriage.

People often forget that each branch of government are co-equal, and the legislature has every bit as much right to assert their authority in the face of a court decision that violates the separation of powers. This is very similar to the decision in Bush v. Gore where the Florida Supreme Court tried to circumvent authority that was specifically vested solely in the Florida legislature.

We are getting to the point with judicial activism where I think that respect for judicial decisions is increasingly at risk as legislatures see courts overstepping their authority and legislating from the bench.

The role of the Court is to say what the Constitution is, not what it should be and to interpret law when there is a conflict. But that law comes from the legislature, and they could just as easily say that the court interpreted the meaning of their legislation incorrectly. Further, they could also claim that the Constitution vests certain rights in the legislature that the Court cannot assume, therefore any court ruling that violates the authority given to the legislature is invalid.

The Court cannot simply run roughshod over authority granted to the other two branches of government. The are co-equal and the Court must respect the other two if they are to be respected.

This won't happen of course, but it did come close to happening in Florida in 2000, and is increasingly likely as the Court continues to legislate from the bench. This will lead to a constitutional crisis of sorts, but it will be one of the courts making when they try to substitute their judgment for the judgment of the people.

[Joe Guarino]

Bubba, you are precisely right when you describe this as an invented right.

Spag, I agree with your comments. Given the nature of the politics in California, the only hope for overturning this is the constitutional amendment process. While it appears that this will be considered during the November election, I have not seen anything that describes what kind of supermajority of voters is required to amend the California constitution.

In a state like California, it might be very tough to get a strong supermajority if it is required.

[Joe Guarino]

Correction: An AP article in the paper this morning indicates only a simple majority will be required, which seems unusual to me for a constitutional amendment. That makes it more likely to pass.

[Brenda Bowers]

Joe I saw that and just took it that the AP article was incorrect. Then I looked it up in Wikipedia: First, the state legislature may pass an act which is signed by the governor, proposing a state constitutional amendment, which is then submitted to the voters as a referendum at the next statewide election. If more than 50% of the voters approve the referendum then the constitutional amendment is approved and goes into effect.
BB