Activist Judges rob us all

The Supreme Court of California ( many of them Republican appointees ) decided two weeks ago that their Constitutional role as interpreters of laws was insufficient. The Majority on the Court, like so much of the liberal apparatchik in California declared the voters be damned. In effect, they said “We will decide what is best for you little citizens. Go back to your pedestrian tax creating jobs, while we create a liberal utopia”

What did they do? They found “rights” in our State Constitution that do not exist, allowing the invalidation of not only hundreds of years of legal precedence, but the total invalidation of Proposition 22, codified as Civil Code section 308.5. The proposition was approved in 2000 by 52 of California’s 58 counties and 61.4% of the voters. Calaveras, Tuolumne, Amador and Stanislaus Counties approved this measure by an average of 73.5%.

Proposition 22 was exactly 14 words long: ‘Only marriage between a man and a woman is valid or recognized in California.’ The very convoluted Supreme Court decision is 121 pages long. Yes, I read it all the way through, and it is the strongest non-narcotic sleeping aid I have ever experienced.

The California Supreme Court though, has no constitutional right to “legislate from the bench” Only the Legislature through the passage of bills or the people through the initiative process can make new laws. Consider that the California Constitution states “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution”

The reality is the California Constitution says nothing about any rights of same-sex couples to marry. On the contrary, as even the majority conceded, our original Constitution, effective from the moment of statehood, affirmed 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.

The California Supreme Court declared in 1952’s DeBurgh v. DeBurgh “The family is the basic unit of our society, the center of the personal affections that ennoble and enrich

Human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people. Since the family is the core of our society, the law seeks to foster and preserve marriage.”

The first run at gay marriage came in 1971 when our oh-so politically correct legislators decided to eliminate references to “male” and “female”. They created a new marriage definition that stated “any unmarried person of the age of 18 years or upwards, and not otherwise disqualified is capable of consenting to and consummating marriage.” Gay activists seized upon this as an opportunity to show up in various county clerks’ offices in California requesting marriage licenses. When the Legislature realized their oversight it was quickly corrected, and the definition of marriage was again reaffirmed explicitly as between a man and a woman.

To accommodate gay couples that want to be legally identified as in a committed long term relationship California enacted comprehensive domestic partnership legislation. These laws allow a same-sex couple to enter into a legal relationship that affords the couple all of the same substantive legal benefits and privileges of married couples. It also imposes upon them all of the same legal obligations and duties that California law imposes upon married couples. Here is that statute. “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”

To quote an argument forwarded by Justice J. Baxter of the California Supreme Court in this case…”The bans on incestuous and polygamous marriages are ancient and deep rooted, 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 deep rooted 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?

I believe that the people of California made their decision clear in Prop 22. In November there will be a chance to again vote on an initiative to define marriage, in our State Constitution as between one man and one woman. But, until we rid ourselves of Judges who ignore the will of the people our votes are essentially meaningless.