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California's 'judicial fiat' condemned – by judge

Posted By Bob Unruh On 05/15/2008 @ 7:30 pm In Front Page | Comments Disabled

Two members of the California Supreme Court, which earlier today ruled the state cannot prevent homosexuals from “marrying,” have condemned the decision as “judicial fiat.”

“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,” said the dissent written by Associate Justice Marvin R. Baxter and joined by Associate Justice Ming W. Chin.

“Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right,” the opinion said.

The majority opinion, written by Chief Justice Ron George, who was appointed to his office by former Republican Gov. Pete Wilson, trashed society’s traditional and biblical institution of marriage, opening up the option for same-sex duos to be “married” because retaining the historic definition “cannot properly be viewed as a compelling state interest.”


L to R: Carlos R. Moreno, Joyce L. Kennard, Kathryn Mickle Werdegar, Ron M. George, Ming W. Chin, Marvin R. Baxter and Carol A. Corrigan of the California Supreme Court

The majority in the 4-3 decision explained the justices based their reasoning on several factors, including society’s feelings about, or perception of, the issue.

Joining George in the majority opinion were Carlos R. Moreno, Joyce L. Kennard and Kathryn Mickle Werdegard. Carol Corrigan wrote a separate dissent.

The court found that excluding homosexuals from “marriage” is not needed, and would, in fact, “impose appreciable harm on same-sex couples and their children,” the court said.

“Because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples,” the court said.

“Retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in some respects ‘second-class citizens’…”


Officials with the American Family Association of Pennsylvania pointed out the problems that now have been created by the decision.

“The judges found there is a ‘fundamental right to form a family,’ where does such a statement end? How is family defined? Are families formed by incest between a father and his daughter, an uncle and niece, or by group marriages, one man three women, one women 10 men – how is a family formed under such a ludicrous court decision?” the group asked.

“These California judges have created chaos of marriage in that state and it will have ramifications across the country. There is no residency requirement in California nor do they have a Massachusetts-type law that says if your marriage is not legal in your state, you cannot marry here. The door has been opened for Pennsylvania’s and all other state’s Defense of Marriage Acts to be challenged. Same-sex commitment ceremonies in Philadelphia in November and State College in March have laid the groundwork for just such a challenge,” the group said.

The opinion came in response to a series of lawsuits filed against the state after voters in California voted 61-39 percent that marriage should be recognized only between a man and a woman, and then the mayor of San Francisco started issuing marriage licenses to same-sex duos.

The court stopped him from doing that, but only because the question had not been properly submitted, which it now apparently has been.

“I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry,” the dissent said. “In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.

“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,” Baxter continued. “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.”

Baxter said the majority’s logic was 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…”

He explained: “The question presented by this case is simple and stark. It comes down to this: Even though California’s progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy … they reserve the label ‘marriage’ for opposite-sex legal unions? I must conclude that the answer is no.”

He said the people have every right to adopt laws changing the definition of marriage. But that didn’t happen. Instead, it was a “judicial fiat,” he concluded. “I cannot join this exercise in legal jujitsu.”

“The majority … 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.”

The dissent itself confirmed the worst fears emanating from Pennsylvania:

“Who can say that, in 10, 15, or 20 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?” the Baxter opinion said.

Further, Baxter continued, “it is certainly reasonable for the Legislature, having granted same-sex couples all substantive marital rights within its power, to assign those rights a name other than marriage. After all, an initiative statute adopted by a 61.4 percent popular vote, and constitutionally immune from repeal by the Legislature, defines marriage as a union of partners of the opposite sex.

House Speaker Nancy Pelosi, an ardent supporter of homosexual activism, said she welcomed the “historic decision.”

“I have long fought against discrimination and believe that the state constitution provides for equal treatment for all California’s citizens and families,” she said.

However, a flood of comments from pro-family groups landed on the other side.

“In 1863, Abraham Lincoln said in the Gettysburg Address that ours is a government ‘of the people, by the people and for the people.’ Well, not in the state of California, where four imperious and unelected justices have just overridden the will of the voters,” said James Dobson, chief of Focus on the Family, a Christian publishing and broadcast empire.

“In 2000, Proposition 22 defined marriage as being exclusively between one man and one woman; the initiative passed by an overwhelming margin of 61 to 39 percent. That emphatic expression of the will of the people has now arrogantly been declared null and void,” he said.

“It will be up to the people of California to preserve traditional marriage by passing a constitutional amendment in the November elections,” he said. “Only then can they protect themselves from this latest example of judicial tyranny.”

At Americans for Truth, officials now are lobbying for a Federal Marriage Amendment, saying only that “would establish a national standard preserving the historic institution of marriage as one-man, one-woman.”

A WND reader said, “The appropriate response from California citizens should be to remove these clowns from office and appoint people who aren’t influenced by rich perverts. The majority of Californians have already spoken in the polls, marriage is for men and women. Now they need to let the politicians know that they mean business.”

Another WND reader was brief in his concern:

“Four vs. 4,618,673. The four won,” he said.

“The California Supreme Court has engaged in the worst kind of judicial activism today, abandoning its role as an objective interpreter of the law and, instead, legislating from the bench. It’s absurd to suggest that the framers of the California state constitution could have ever imagined there’d be a day when so-called ‘same-sex marriage’ would even be conceptualized, much less seriously considered. If anyone then had suggested the absurd notion, early Californians would have laughed their smocks off,” said Matt Barber, policy director for cultural issues at Concerned Women for America.

“So-called ‘same-sex’ marriage is counterfeit marriage. Marriage is, and has always been, between a man and a woman,” he said.

“The people of California decided eight years ago that marriage in our state will be defined as between one man and one woman. Four arrogant, elitist, activist judges decided that they know better than the people how marriage should be defined,” said Karen England, of Capitol Resource Institute.

“It is certainly disappointing that the court, in declaring a right to same-sex marriage in the California Constitution, has shown an outrageous lack of respect for a majority of California voters and ignored a long history of legal precedent supporting traditional marriage,” said legal counsel Jennifer Monk of Advocates for Faith and Freedom, one of the organizations that worked on the case.

California Assemblyman Bob Huff, R-Diamond Bar, said, “With the passage of Proposition 22, the voters of California agreed that marriage is ‘between a man and a woman.’ PERIOD. The court’s decision today is further proof that some activist judges value their own beliefs over the will of the people.”

“This ruling defies logic. It is a gross departure from the rule of law. It is outrageous. Traditional marriage is common sense. Yet, this decision is nonsense,” said Mathew Staver, chief of Liberty Counsel, which also worked on the case.

The ruling disposed of several individual challenges to California’s marriage statutes that arose after the state’s voters, by a margin of 4.6 million to 2.9 million, adopted a law that states California would recognize only marriages involving one man and one woman.

That same plan now is being proposed for a constitutional amendment by the ProtectMarriage.com campaign, a broad-based coalition of pro-family organizations, churches and individuals.

That’s now needed, the campaign says, because even though voters overwhelmingly passed the Proposition 22 law, that was a “regular statute” within the outlines of the California Family Code. But politicians and judges have been bypassing it, and chipping away at it, to ignore the will of the voters, and now the courts have gutted it entirely.

A constitutional amendment, however, cannot be changed by either legislative or judicial “fiat.” The campaign already has collected enough signatures to be on this fall’s ballot, and only awaits verification from the state.

The battle dates to 1996, when then-Assemblyman William J. “Pete” Knight introduced legislation to protect traditional marriage. It failed by one vote in the state Senate.

He later led the Protection of Marriage Coalition to gather more than 600,000 petition signatures and qualify Prop 22 for the ballot, an effort that was approved by 61.4 percent of the voters in 2000.

It reads, “Only marriage between a man and a woman is valid or recognized in California.”

State lawmakers and judicial activists, however, have been moving to undermine that vote ever since.

Rev. Rob Schenck, of the National Clergy Council, called for voters to be involved not only in pursuing a constitutional amendment, but ejecte a few black robes from the courthouses.

“California citizens can take bad judges off the bench by voting no when their names appear on the ballot,” he said. “Citizens must get directly involved in choosing who will sit on their highest state courts.”

Randy Thomasson, of Campaign for Children and Families, said the court simply “exchanged the rule of law for the rule of unbridled power to destroy all that is good and sacred.”

“Gov. [Arnold] Schwarzenegger should resist any temptation to sign any bill opposing the people’s vote on marriage,” he suggested.


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