Some 10 days ago, four black-robed members of the California Supreme Court trashed traditional marriage of one-man-and-one-woman. But that opinion has to be translated into changes in state law, forms, and procedures before any actual same-sex “marriage” can take place, and that hasn’t happened yet and might not for some time, according to a pro-family organization.
For example, one of the legally established forms in California involving marriage issues reflects several references to “bride” and “groom” and “husband” and “wife” that must properly be filled out by “qualifying” individuals before state law allows it to be recognized, according to Randy Thomasson of the Campaign for Children and Families.
And state law demands, “Every person who knowingly procures or offers any false or
forged instrument to be filed, registered, or recorded in any public
office within this state … is guilty of a felony.” Thomasson believes that leaves a formal change in state statutes as the only way the state can implement what the court has expressed in its opinion.
Just part of the form requesting a copy of a California marriage certificate, referencing “bride” and “groom” as well as “husband” and “wife”
State officials had a different thought on the matter.
Richard Stapler, a spokesman for Assembly Speaker Karen Bass, told WND, “It is my understanding, with their ruling, it was the remedy for their finding that local entities were to make changes to licensing [forms and procedures] to conform with the court’s ruling.”
He said his understanding was that “no legislative action” was needed for the “remedy of the opinion.”
Kate Kendell, of the National Center for Lesbian Rights, also told the Associated Press she isn’t worried.
“The T’s crossed and I’s dotted on the form are the least of our concerns,” she said.
But Thomasson told WND that part of the reason that the same-sex “marriage” licenses granted by San Francisco mayor Gavin Newsom in 2004 were invalidated by the state Supreme Court is that the state forms hadn’t been changed legally, and the state’s laws ban making individual alterations on such forms.
He said the laws cannot be changed arbitrarily.
“The courts give their opinions. They cannot make the Legislature do something,” he said. “The Legislature can respond and pass legislation, but the democratic process must be followed.”
Mark Horton, director of the state Public Health Department, oversees the state’s Office of Vital Records, and spokeswoman Linette Scott simply stated, “We are going to be in compliance with the court order.”
But Thomasson already has faxed Horton a letter concerning the forms, and changes to them:
“The standard marriage application form and processes cannot be changed from a ‘bride’ and a ‘groom’ or a ‘man’ and ‘woman’ without the Legislature first putting a bill on the governor’s desk that he signs,” Thomasson advised.
“The authority of California statutes was clearly understood by your office in 2004 when the city of San Francisco created altered forms which were out of compliance with the marriage statutes governing this process. Even with the Supreme Court’s May 15 ruling, only the Legislature can change the statutes which govern those forms,” he wrote.
“The California Constitution clearly limits lawmaking power to the Legislature and the voters. This foundational requirement of our democratic process applies now to changing the marriage forms in response to the court,” he said.
The state’s marriage forms create complications for those who would simply use their own judgment and initiative to create, or change, a form. They already read: “Make no erasures, whiteouts or other alterations.”
“These statutes are in the California Family Code, placed there by the Legislature and the people through the initiative process, which, according to the California Constitution, are the only two legislative powers in the state,” Thomasson’s organization said.
In 2004, during the month of San Francisco’s “marriages,” a spokesman for the state agency that registers marriages confirmed that the standard application form is required, “and if it has been altered in any way, then it will not be registered and recorded.”
The official said forms with “bride” and “groom” crossed out and alternatives written in cannot be recognized.
“We have to follow the law when we process these forms. It’s part of the public statute,” said Nicole Evans, spokeswoman for Kim Belshe, the California Health and Human Services secretary.
“Unlike Massachusetts, which has no statutes on marriage licenses, forms and processes, California cannot change its standard marriage form or processes until the Legislature passes and the governor signs legislation in response to the Supreme Court’s ruling,” Thomasson said.
Thomasson also said there could be complications with the legislative process right now, since the specified effective date for any legislation pending in the California Legislature now would be Jan. 1, 2009. That could be changed by a two-thirds vote supporting the issue as an “emergency,” but he said minority Republicans probably would not be willing to do.
Thomasson said the American people also must learn from the ruling.
L to R: Carlos R. Moreno, Joyce L. Kennard, Kathryn Mickle Werdegar, Ron M. George participated in the majority opinion declaring a one-man-one-woman limit to marriage unconstitutional. Ming W. Chin, Marvin R. Baxter and Carol A. Corrigan of the California Supreme Court filed dissents
“We cannot just live as Americans and believe when a judge rules, we have to submit. There are very many virtuous people throughout history who have said ‘no’ to unjust commands, unjust orders,” he said.
“The Supreme Court can’t require the Legislature to do anything,” added Gary Kreep, executive director of the United States Justice Foundation.
“All the court could do is declare a statute unconstitutional, although in this case there was no basis for it. After that, it’s up to the Legislature or the voters to respond. The Schwarzenegger administration can’t do anything to the marriage form and processes until the Legislature passes a bill changing the existing statutes,” Kreep said.
That concept even was cited in a dissenting opinion in the May 15 opinion. Associate Justice Carol Corrigan noted the principle of judicial restraint “protects the people against judicial overreaching. It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.”
Corrigan suggested, “If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”
That was requested because voters probably will have before them in November a proposed constitutional amendment that would, if approved, limit marriage to one man and one woman. Such an approval essentially would nullify the court’s ruling, because even the courts cannot declare the state’s constitution unconstitutional.
Supporters of that ballot issue have turned in 1.1 million signatures to put it on the statewide election ballot. About 750,000 signatures are needed, and county clerks are in the process now of verifying those.
The state’s high court ruled the voter-approved Proposition 22, the California Defense of Marriage Act, which defines marriage as the union of one man and one woman, is unconstitutional. Alliance Defense Fund attorneys who defended Proposition 22 note that the outcome illustrates precisely why a state law alone is not sufficient to protect marriage.
“Amending the state constitution is ultimately the only avenue to ensure that no one interferes with the will of the California people on the meaning of marriage,” Senior Legal Counsel Glen Lavy said. “We hope that the court will allow the California people to have their say on the amendment without enduring the potential problems associated with implementing the court’s decision before then.”
Of 28 states where such an amendment has been considered, it has been approved 27 times.