4 Calif. Justices Overrule the Vote of Millions

[razorsharp]

<p>

The California Supreme Court, striking down two state laws that had limited marriages to unions between a man and a woman, ruled Thursday that same-sex couples have a constitutional right to marry. </p>

<p>The court’s 4-to-3 decision, drawing on a ruling six decades ago that struck down the state’s ban on interracial marriage, would make California only the second state, after Massachusetts, to allow same-sex marriages.

</p>

<p><a href=“http://www.nytimes.com/2008/05/16/us/15cnd-marriage.html?_r=1&hp&oref=slogin[/url]”>http://www.nytimes.com/2008/05/16/us/15cnd-marriage.html?_r=1&hp&oref=slogin&lt;/a&gt;&lt;/p&gt;

<p>Who do you want passing laws? A few justices of a court or millions of voters following majority rule? I think laws should be passed by voters in a state, not by four justices. Before those of you who support gay marriage try to back this court decision, picture what the world would be like if conservative judges started imposing their personal opinions through judicial activism the way liberal justices do.</p>

[mathmom]

<p>Conservative judges do already, that’s how we got Bush as president.</p>

<p>Personally I’d like to see the state get out of the marriage business all together. Let the state recognized civil unions and let marriage be organized by religious institutions. Problem solved.</p>

[1of42]

<p>Actually razorsharp, I and many others really couldn’t care less how many people support a law - if that law violates a person’s constitutional rights, it could be the most popular law in the world and I would still consider it null and void. You can talk about “judicial activism” and “person opinions”, but at the end of the day most of us hold the Constitution as our standard, and if it doesn’t allow certain rights to be violated that is the end of the discussion.</p>

[repzolow]

<p>1of42 got it exactly correct.</p>

<p>If the nation’s supreme court decided to overrule the decision of a hundred million voters, I still would not care less if that law is simply wrong.</p>

[JHS]

<ol>
<li><p>It’s inherent in our system that the constitution limits the ability of the majority to enact laws they want to enact. That’s been clear all along. So you can’t complain about a structure in which a majority of judges on a state supreme court can rule legislation (or an initiative) out of bounds on constitutional grounds.</p></li>
<li><p>It’s perfectly legitimate to criticize the legal reasoning or judgment of the judges. But I don’t know what you think of that. All you say is that they are anti-majoritarian. That’s their job, or a big part of it.</p></li>
<li><p>Before complaining about this too much, how would you like to live in a state where a liberal majority could do whatever it wanted to restrict your freedom, and there was nowhere to go for relief?</p></li>
<li><p>If you want to read some old, but very good discussion – among Republicans, no less – about this issue, try to find an old Harvard Law Review article by Alexander Bikel called “The Least Dangerous Branch”, and the critique of it by Gerald Gunther called “The Subtle Vices of the Passive Virtues”. Bikel was a great advocate of judicial restraint. Gunther, although fairly conservative, questioned how judges are supposed to know when to be restrained and when not, focusing on the (shameful) decision of the Supreme Court in the 1960s not to invalidate Virginia’s anti-miscegenation statute.</p></li>
</ol>

[DonnaL]

<p>Remember that the California legislature – and, after all, under our system it’s really supposed to be the legislatures that legislate; we shouldn’t be governing by popular referendum – did actually vote to authorize same sex marriage, before Governor Schwarzenegger exercised his veto.</p>

<p>Also please remember that the majority of the California Supreme Court are, in fact, Republicans.</p>

<p>An “activist judge” is simply a judge whose decisions the speaker disagrees with. </p>

<p>I agree that the government should get out of the business of “marriage.” Let everyone have a civil union, and if they want to get married in a church, synagogue, etc., they’ll be free to do so.</p>

<p>No church will ever be forced to marry two men or two women if it doesn’t wish to.</p>

<p>And no same sex marriage hurts or damages anyone’s heterosexual marriage one iota.</p>

<p>Do you really believe that millions of straight married people in California are going to wake up tomorrow morning with a vaguely unsettled feeling, and then say to themselves, “By God, I know what it is – the sanctity of my marriage has been destroyed!”?</p>

<p>I’m sure we’ll be hearing the usual “the next step is that people will be allowed to marry their dogs” nonsesnse. (Why is it always dogs? Why never cats or parakeets?) So far as I’m concerned, though, if a dog can stand up and say, “I do,” then be my guest.</p>

<p>Donna</p>

<p>PS: Before you criticize the decision or its reasoning, go read it.</p>

[MidwestMom2Kids_1]

<p>

@mathmom

Personally I’d like to see the state get out of the marriage business all together. Let the state recognized civil unions and let marriage be organized by religious institutions. Problem solved.

</p>

<p>Sounds good to me.</p>

[xiggi]

<p>The history of the rise and fall of Rome should provide plenty of inspiration.</p>

[tega]

<p>I support gay marriage, but I think they should have waited till after the elections. The Republican Party will be using this to fire up their evangelical base. I think evangelicals hate liberal activists judges more than they hate MacCain, and the Republican Party will remind them that if they don’t come out to support MacCain in November, Democrats will be appointing liberal jugdes to the supreme court.</p>

<p>I also agree with Mathmom.</p>

[razorsharp]

<p>

An “activist judge” is simply a judge whose decisions the speaker disagrees with.

Nothing could be further from the truth than the above statement.</p>

<p>The Calif. Supreme Court’s job is to interpret the Calif Const. to determine the intent behind the language that appears in that Const. When that Constitution was written only a man could marry a women. How the Court can look at the wording of the Constituion and conclude that those who wrote it intended to permit gay marriage is simply crazy. If the authors of the Calif Constituion intended it to permit gay marriage, they would have stated that in the Calif. Constitution or they would have had a law in place at the writing of the Consitution authorizing gay marraige. What 4 Justices did was to look at a Constitution written by someone else and impose a new intent that corresponded with the intent of those 4 liberal Justices.</p>

<p>The dissent is correct when the dissenter says:</p>

<p>

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.

</p>

<p>Many of you are forgetting who writes a Constitution. It is enacted through the will of a majority of the citizens. In other words, it is the majority who gives rights to the minority.</p>

[toblin]

<p>

Personally I’d like to see the state get out of the marriage business all together. Let the state recognized civil unions and let marriage be organized by religious institutions. Problem solved.

</p>

<p>Correct.</p>

<p>Marriage is a religious “construct”. Ergo the government can not “marry” anyone, and a religion can’t bind a civil union. In this country, when a priest, rabbi, or any other cleric marries two people he also is acting in a civil capacity as he is licensed by the state to do so. In most Christian countries after a couple is married in a church ceremony by a cleric they then have to go to city hall to have their “civil union” recognized by a government official.</p>

[ellemenope]

<br>

<blockquote>
<p>Actually razorsharp, I and many others really couldn’t care less how many people support a law - if that law violates a person’s constitutional rights, it could be the most popular law in the world and I would still consider it null and void.<<</p>
</blockquote>

<br>

<p>I’m with you, razorsharp. A law must be constitutional, first and foremost.</p>

[DonnaL]

<p>As I said, the California legislature did already authorize same sex marriage.</p>

<p>Anyone who thinks that in interpreting a constitution (whether state or federal), the judges are supposed to limit the scope of the individual rights it protects to whatever the drafters of the constitution specifically had in mind at the time it was written, completely ignores the fact that the “original intent” of the framers was, in fact, to use deliberately vague and broad language. I’ll turn it around: if the framers of the federal constitution had intended the “equal protection” clause to be limited to, say, former slaves, they could easily have said so. They knew how to be specific and limiting when they wanted to be. But they didn’t. They knew damn well that they were writing a Constitution – a living document – not a statute. There’s a difference.</p>

<p>So, as far as I’m concerned, “original intent” does <em>not</em> support your argument.</p>

<p>By the way, the idea that so-called conservative judges don’t bring their subjective inclinations to the table is nonsense. Are you telling me that the decision to apply the “rational basis” test rather than “strict scrutiny” isn’t based on value judgments? Please.</p>

<p>I guess all the strict constructionists believe that the second amendment only protects the right to bear the “arms” that were in existence in 1789, right? I don’t think so.</p>

<p>Donna</p>

[marite]

<p>CA judges are appointed but need to be confirmed by the electorate:</p>

<p>

All seven members of the California court have been confirmed by the voters. Kennard – confirmed 2006 with 74.5% Corrigan – confirmed 2006 with 74.4% Werdegar – confirmed 2002 with 74.1% Moreno – confirmed 2002 with 72.6% Baxter – confirmed 2002 with 71.5% George – confirmed 1998 with 75.5% Chin – confirmed 1998 with 69.3%

</p>

<p>And six of the seven were appointed by Republicans.</p>

[jcll2002]

<p>popular vote? Why do you think the electoral college exists?</p>

[razorsharp]

<p>

As I said, the California legislature did already authorize same sex marriage.

</p>

<p>That’s not the law in Calif. In 2000 the citizens of California passed a referendum banning gay marriage. The will of the people trumps the will of the legislature.</p>

<p>

Anyone who thinks that in interpreting a constitution (whether state or federal), the judges are supposed to limit the scope of the individual rights it protects to whatever the drafters of the constitution specifically had in mind at the time it was written, completely ignores the fact that the “original intent” of the framers was, in fact, to use deliberately vague and broad language.

Simply because something is vague does not mean you get to interpreted it however you wish and ignore the context in which it was written.</p>

<p>

I’ll turn it around: if the framers of the federal constitution had intended the “equal protection” clause to be limited to, say, former slaves, they could easily have said so. They knew how to be specific and limiting when they wanted to be. But they didn’t.

Now you’re talking about the Federal Constitution. The 13th amendment abolished slavery. The 14th amendment created equal protection with the assumption that slavery had been abolished. </p>

<p>

They knew damn well that they were writing a Constitution – a living document – not a statute. There’s a difference.

One of the biggest lies told to our students is that the US Constitution is a living document meaning that each generation of justices gets to redefine the constitution however they wish. Nothing in the U.S. Constitution says it is a living document. This Framers however gave us an opportunity to change the constitution – it’s called an amendment process and it has nothing to do with the judicial branch.</p>

<p>

By the way, the idea that so-called conservative judges don’t bring their subjective inclinations to the table is nonsense. Are you telling me that the decision to apply the “rational basis” test rather than “strict scrutiny” isn’t based on value judgments? Please.

Where in the Constitution is the rational basis test or strict scrutiny test created? The answer is it’s not there. A bunch of justices made this stuff up. Saying that homosexuality is a fundamental right is also made up by a bunch of justices.</p>

<p>

I guess all the strict constructionists believe that the second amendment only protects the right to bear the “arms” that were in existence in 1789, right? I don’t think so.

Defining arms to include semiautomatic pistols that did not exist in 1789 is not judicial activism. Homosexuals existed in 1789 and they existed at the time California adopted its constitution.</p>

[mamenyu]

<p>Just for clarification, all but one judge on the California Supreme Court (Moreno) is a Republican – most of the former majority Democratic court was voted out in a recall election in the mid 1980’s on the issue of the death penalty. The current judges were appointed by Republicans Deukmejian, Pete Wilson, and Schwarzenegger (Moreno was appointed by Democrat Gray Davis). The opinions were all drafted by Republican judges (Moreno concurred in the opinion of Chief Justice Ronald George). The vote was actually 5/2 on the issue whether the California Constitution requires equivalency between heterosexual and gay unions – i.e., they are entitled to the same bundle of rights; it was 4/3 on whether the union between gays must also be called marriage. Three of the current justices are up for reelection in November.</p>

[marite]

<p>Here is an analysis of the decision, with extracts from the ruling. The CA Supreme Court argued on the constitutionality of the gay marriage ban and found that it contravened the CA constitution:</p>

<p>

In a landmark ruling (.pdf) certain to spark far-reaching political and legal consequences, the California Supreme Court today ruled, by a 4-3 vote, that it is unconstitutional to exclude same-sex couples from the legal institution of “marriage,” even if such couples are granted the right to enter into “domestic partnerships” or “civil unions” which provide most, or even all, of the same rights as “marriage.” The Court is comprised of six out of seven Republican-appointed judges. The ruling had nothing to do with the U.S. Constitution, but instead was based on the California State Constitution’s guarantee of the “right to marry” and its guarantee of “equal protection” under the law.</p>

<p>Critically, the Court emphasized at the outset that its ruling had nothing to do with the political views of the judges with regard to gay marriage, but rather, was based solely on its legal analysis of past precedent interpreting the relevant provisions of the state Constitution (emphasis in original):</p>

<pre><code>[O]ur task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership, but instead only to determine whether the difference in official names of the relationships violates the California Constitution.
</code></pre>

<p>Only after exhaustively analyzing California judicial precedent on these constitutional questions – over the course of 121 pages – did the Court conclude that the state statute “limiting the designation of a 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 to both opposite-sex and same-sex couples.” The ruling, in effect, compels state and local officials to begin issuing marriage licenses to same-sex and opposite-sex couples equally.

[California’s</a> marriage ruling – what it means and what it doesn’t mean - Glenn Greenwald - Salon.com](<a href=“http://www.salon.com/opinion/greenwald/2008/05/15/california/index.html]California’s”>http://www.salon.com/opinion/greenwald/2008/05/15/california/index.html)</p>

[coureur]

<br>

<blockquote>
<p>I’m with you, razorsharp. A law must be constitutional, first and foremost.<<</p>
</blockquote>

<br>

<p>I think you were actually disagreeing with Razorsharp and agreeing with 1of42.</p>

<br>

<blockquote>
<p>The history of the rise and fall of Rome should provide plenty of inspiration.<<</p>
</blockquote>

<br>

<p>Yes, we should not make the same mistakes the Romans did, and thus we should definitely be very wary of invading Visigoths.</p>

[xiggi]

<p>Nice one, Coureur.</p>

<p>While our civilization no longer has to fear tribes led by Alaric, the dangers of social, cultural, and especially moral decay are still very real. </p>

<p>O Tempora! O Mores! </p>

<p>Indeeed!</p>