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California Supreme Court Declares Democracy Unconstitutional
by American Phoenix | May 16, 2008
The California Supreme Court declared yesterday that homosexuals have a constitutional right to marry. What they really did was declare democracy unconstitutional. In fashioning a new right out of whole cloth, the California Supreme Court banned democracy and ignored the majority of California voters, who have voted that marriage should be reserved for one man and one woman.
Marvin Baxter’s dissent makes it quite clear.
… 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conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid. 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. I cannot subscribe to the majority’s reasoning, or to its result.
In other words, the Court bootstrapped their argument by assuming the premise it was supposed to prove. Baxter continues:
…
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that [democratic] 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. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental — article III, section 3, the separation of powers clause. This clause declares that “[t]he powers of state government are legislative, executive, and judicial,” and that “[p]ersons charged with the exercise of one power may not exercise either of the others” except as the Constitution itself specifically provides. (Italics added.)
History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise — the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves. Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution.
The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.
The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex. Statutes enacted at the state’s first legislative session confirmed this assumption, which has continued to the present day.
…
Of course, only the People can amend the Constitution; the Legislature has no unilateral power to do so. (Cal. Const., art. XVIII.) However, the effect of the majority’s reasoning is to suggest that the Legislature can accomplish such amendment indirectly, whether it intends to do so or not, by reflecting current community attitudes in the laws it enacts.
The notion that legislation can become “constitutionalized” is mischievous for several reasons. As indicated above, it violates the constitutional scheme by which only the People can amend the state’s charter of government. It abrogates the legislative power to reconsider what the law should be as public debate on an issue ebbs and flows. And, for that very reason, it may discourage efforts to pass progressive laws, out of fear that such efforts will ultimately, and inadvertently, place the issue beyond the power of legislation to affect.
…
Though the majority insists otherwise, plaintiffs seek, and the majority grants, a new right to same-sex marriage that only recently has been urged upon our social and legal system. Because civil marriage is an institution historically defined as the legal union of a man and a woman, plaintiffs could not succeed except by convincing this court to insert in our Constitution an altered and expanded definition of marriage — one that includes same-sex partnerships for the first time. By accepting that invitation, the majority places this controversial issue beyond the realm of legislative debate and substitutes its own judgment in the matter for the considered wisdom of the People and their elected representatives. The majority advances no persuasive reason for taking that step.
…
In a footnote, the majority insists that, though same-sex couples are included within the fundamental constitutional right to marry, the state’s absolute bans on marriages that are incestuous (Fam. Code, § 2200; see Pen. Code, § 285), or nonmonogamous (Pen. Code, § 281 et seq.; Fam. Code, § 2201) are not in danger. Vaguely the majority declares that “[p]ast judicial decisions explain why our nation’s culture has considered [incestuous and polygamous] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry. [Citations.]” (Maj. opn., ante, at p. 79, fn. 52.) Thus, the majority asserts, though a denial of same-sex marriage is no longer justified, “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. [Citations.]” (Id, at pp. 79-80.)
The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.
That approach creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory. Who can say that, in ten, fifteen, or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer
constitutionally justified?In Re Marriage Cases, ___ Cal. ___ (May 15, 2008), Concurring and Dissenting Opinion by Baxter, J., Italics in original. Emphasis added.
This is exactly what United States Supreme Court Justice Scalia warned about in his 2003 dissent in the Lawrence v. Texas case, which I wrote about in 2006.
It would not be unreasonable to expect more attempts to legitimize polygamy in the aftermath of this case.
Is my marriage equivalent to a gay couple? Or perhaps in some future year to a polygamous or incestuous couple? Not if you ask me.
A Day of Infamy indeed!
If you want to get involved to protect the institution of marriage as between one man and one woman, please visit ProtectMarriage.com and vote in favor of the initiative which amends the California Constitution to protect marriage. It has qualified and will be on the ballot in November 2008.
Topics: California, Culture of Death, Family, Homosexuality, Law, Politics, Polygamy |
May 29th, 2008 at 2:07 pm
The Court could have simply ignored the issue of polygamy, saying that it is not material to the case before them.
Instead, they laid down the state’s justification for banning polygamy, which is absolutely identical to the state’s justification for baning same-sex marriage.
The Court stepped in it big time.