A decision by the California Supreme Court that concluded the state could not constitutionally deny same-sex couples the right to be “married” will move back to the Court of Appeal, and the public interest advocates at Liberty Counsel have asked the judges there to stay the ruling until voters decide the issue in November.
WND reported the Supreme Court’s ruling in May, which was accompanied by a sharp rebuke from Justice Marvin Baxter, who contended in his minority opinion that the theory of marriage evolution majority justices cited in their argument now also could be used to support allowing incest or polygamy.
The state Supreme Court previously rejected a request to stay its own ruling until voters decide on a proposed marriage amendment in November, but officials with Liberty Counsel are appealing the decision.
That court will regain jurisdiction of the case at 5 p.m. June 16. The order from the Supreme Court directs the Court of Appeal to take “further action consistent with this opinion,” according to Liberty Counsel.
“The Supreme Court did not and cannot actually remove the language from the statutes, which must be done by the legislature,” the organization said. The Supreme Court itself recognized that earlier, in a case in which the justices ruled the power to write laws belongs to the people and political branches of government, not the judiciary.
“Moreover, the Supreme Court’s decision addressed only two statutes. … There are many more relevant statutes that were not before the Supreme Court and were not within that Court’s power to address,” Liberty Counsel said. “The Supreme Court cannot rewrite statutes and cannot remove language from the statutes; such must be done by the legislature.”
California administrators, however, already have made changes in state-mandated marriage forms and instructed county clerks to start issuing licenses to same-sex couples as soon as the 30-day period expires and the Supreme Court opinion is “implemented.”
“The Supreme Court’s decision has created a mess of the law regarding marriage,” said Mathew D. Staver, founder of Liberty Counsel and dean of the Liberty Universitiy School of Law.
“Hundreds of laws apply to marriage. The Supreme Court addressed only two,” he said. “It is inconceivable that by striking down two statutes, the myriad of other marriage laws are automatically changed. They are not. The legislature must act before same-sex marriage is authorized, and the people should be permitted to vote before the legislature acts.”
In the November election, California voters will decide the future of a state constitutional amendment proposed by ProtectMarriage.com.
The amendment reads: “Only marriage between a man and a woman is valid or recognized in California,” and if approved by voters would override the Supreme Court’s recent decision.
Officials for a family group that has worked on the plan, California Family Council, say “the vast majority of research continues to state that California’s voters favor keeping marriage as it is, protecting its historic definition between only a man and a woman.”
“The November ballot will give opportunity for citizens to respond to the State Supreme Court’s decision, by solidifying traditional marriage in the California Constitution. Californians are a tolerant people,” said Ron Prentice, the CEO for CFC. “But we also know that marriage is between a man and a woman, as the voters reaffirmed just a few years ago.”
Californians in 2000, with a 61.4 percent vote, approved Proposition 22, which defined marriage as between one man and one woman. The vote established the law that was declared unconstitutional by the recent Supreme Court ruling.
“Many Family Code sections which govern state agencies and government employees were not addressed and are still binding,” Liberty Counsel said. “The Supreme Court held in an earlier related case that local officials cannot refuse to enforce those statutory provisions based upon a belief that they are also unconstitutional.
“Local government officials do not have the power to issue [same-sex] marriage licenses until the legislature addresses these statutes,” the group said. “Liberty Counsel asks that the Court of Appeal order that no marriage licenses be issued to same-sex couples until the language cited by the Supreme Court is stricken by the legislature and until there is a judicial determination that the other statutes are unconstitutional.”
In the Supreme Court’s majority ruling, Judge Ronald George concluded “an individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.”
As WND reported earlier, officials with the Campaign for Children and Families are working with United States Justice Foundation to encourage county clerks, who are assigned the duties of issuing marriage licenses, to refuse to issue licenses to same-sex partners.
“We’re encouraging the clerks to abide by the express will of the written California constitution and the man-woman marriage statutes, and to respect the democratic process which will be decided at the ballot box in November, by not issuing marriage licenses to anyone but a man and a woman,” said Randy Thomasson, president of CCF.
“We’re asking that you please decline to issue marriage licenses to same-sex couples unless and until the Legislature changes the marriage statutes, the people change the constitution, and/or all legal options have been exhausted,” Gary Kreep, executive director of the USJF, wrote to the clerks.
In Marvin Baxter’s dissent to the majority opinion in California, he called the majority logic “legal jujitsu” that “oversteps judiciary power.” Another dissent, from Carol Corrigan, said the conclusion simply was “judicial overreaching.”
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
Baxter’s dissent raised even further warnings of chaos in the institution of marriage unless judicial and executive activism is reined in.
“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,” he wrote. “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.
“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?”