Great article on California gay marriage decision

Human Events has a great article on the California gay marriage decision, including some coverage of the dissenter's opinions.

“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conclusion that the age-old understanding of marriage -- an understanding recently confirmed by an initiative law -- is no longer valid.  California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

“The majority’s mode of analysis is particularly troubling. The majority relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute.  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.

“In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute . . .  Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians -- including domestic partnership rights which, under [Family Code] section 308.5, the Legislature could not call ‘marriage’ -- the Legislature has given ‘explicit official recognition’ (maj. opn., ante, at pp. 68, 69) to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5.

Comments

[Don Sherfick]

"If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means."

I understand, though don't agree with, the yelling about "unelected activist judges" (though it is interesting to note that all of the judges in California were re-confirmed by the voters by a significant margin). So I understand your endorsement, Kurt of the minority position in that respect

But I am indeed now very puzzled about something else. The "evolution" the minority opinion you endorse is one coming from of what it calls "the ordinary process of legislative consderation". I'm all ears to hear, then, why you are adamant that any amendment in Indiana bar BOTH the judiciary and the General Assembly. What is it that you don't trust about democratically elected legislatures?

[Chris Douglas]

As even the language you cite above implies, Kurt, nobody necessarily (I suppose) has a right to marriage delineated in the Constitution. What everyone has is a right to the equal protection of the laws.... that is not a new right; it is a fundamental right.

When you establish for some citizens the protections of marriage, you extend to all citizens an equal right to marriage. The judges in referring to other measures are observing that the question of whether gay citizens should be recognized as a class of citizens for the purposes of equal protection has long since been established in California, and therefore they must be treated equally.

That's called justice for all, by the way. The justices are adhering not only to their oath of office, but to the Pledge of Allegiance. It is interesting to me that for you they seem merely to be hollow words.

[Ed Fox]

While it is true that judges who ignore the law, or stretch it, can be accused of activism, it is important to remember two points that bear on the California decision: 1) The Constitution, be it the United States Constitution or a state constitution, is the most profound expression of the will of the people, not some alien document imposed from afar, judges are employed to decide between conflicting laws which applies, or which should prevail: that is their job; 2) judges who defer to the legislature to the point of absolutism, as it would seem the Indiana court has a history of doing, effectively repeal that constitution by rendering it moot. Is there any more "activist", anti-democratic, stance that that?

The California court did not invent a new constitutional right ("gay marriage") it found that marriage is a fundamental right (something that it had done in Perez in 1948, and the United States Court in Loving, in 1967) and that it was impermissibly denied gay couples on an equal basis with the rest of the population. "Gay marriage" only exists in propaganda. The plaintiffs in the marriage cases do not, I have read them all, sue for "gay marriage", they sue for equal rights and equal marriage. You may very well believe that they are wrong, or that they do not deserve equal rights, but it is dishonest to transform the argument to favor your prejudice.

Marriage has not remained unchanged for millennia. It is instructive to read the brief of the historians in Goodridge to learn about all the various changes that have occurred over the years. Certainly no one who reads the Bible will agree that it has always been one and one woman. It is very likely that there has been marriage between people of the same sex in the past (Boston marriage is one instance) but it has been denied by people who want it to go away. Moreover, until very recently, marriage in the United States was an unequal contract specifying gender roles. Such a union that for centuries offered no benefits to same-sex couples had little attraction for them. Recent evolution in marriage, has removed the inequality, abolished the gender roles, and now incorporates more than one thousand benefits, many of which have nothing to do with heterosexual couples more than any other couples. So it is the very change in marriage that has brought about the claims for marriage equality.

[Chris Douglas]

Well put, Mr. Fox.

[Kenn Gividen]

I await the court's decision on polygamists rights.

[Kurt Luidhardt]

Kenn: So do I. And how about David Orentlicher's suggestion that it be OK for a man to marry his mother? Or what will be the fate (I can't resist) of the cloned babies he supports for homosexual couples?

If the courts recognize the so-called "equal rights" that Mr. Fox, Mr. Douglas, and Mr. Sherfick argue for then they must by definition offer the same rights to polygamists and incestuous marriages. For how do we deny them the same rights that everyone else has? For these folks would have established a new constitutional right for every living adult.

In reality, we have never in this country recognized a right for ANY two individuals to get married.

In fact, it's a classic example of the "living constitution" that our liberal friends consistently argue for.

[Kenn Gividen]

Kurt,

I was never fully aware of the extreme to which militant gay activist to go in their effort to attack those with whom they disagree -- until Bil and his friends launched their Internet smear campaign. I thought such tactics were reserved for likes of Dan Quayle and Anita Bryant.

As it turns out militant gay activists will not tolerate even the slightest variance from the gay agenda.

To their credit, Mr. Fox, Mr. Douglas, and Mr. Sherfick have not (to my knowledge) participated in such hate tactics. Sadly, none has openly condemned Bil and his ilk for the visceral hatred directed at me and my family.