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Same-Sex Marriage in CA by 'Judicial Fiat'

May 16, 2008

By a vote of 4-3, the California Supreme Court struck down a state ban on same-sex marriage changing the definition of marriage by judicial fiat.

The decision is a disappointing one and represents another example of an activist judiciary that overreached by taking this issue out of the hands of the state legislature where it belongs. 

The California high court failed to uphold what the state legislature and an overwhelming majority of California voters clearly understand that the institution of marriage is limited to one man and one woman. 

The majority opinion was written by Chief Justice Ronald M. George and the essence of the majority decision is summed up in this quote:  Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

In the majority opinion, the court held that the right to marry . . . gives same-sex couples the same substantive constitutional rights as opposite-sex couples to choose ones life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.

What is stunning about this decision is the fact that the court overreached and usurped the authority of the state legislature and the voters of California.

More than 30 years ago, the California legislature limited the access to marriage by adopting the phrase, between a man and a woman.  And in 2000, 61-percent of California voters approved Proposition 22 that said only marriage between a man and a woman is valid and recognized in California.

The Justices who dissented in the high court decision understood the distinction between the judiciary and the legislative branch of government.  In a dissent written by Justice Marvin R. Baxter and joined by Justice Ming W. Chin, the opinion concluded:   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.

The Baxter dissent also spelled out clearly that the decision of the majority is not only flawed but simply went too far.

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.

Baxter also added that 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.

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 added.

The Baxter opinion also correctly noted that the ruling creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory.

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? wrote Baxter.

Further, in another dissent opinion, Justice Carol Corrigan aptly asserted that restraint is the hallmark of constitutional review and added, [i]f 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.

It is the ballot box that will be the focus of the next round of same-sex marriage in California.  The attention is now centered on whats expected to be an important initiative on the California ballot in November.  The measure, which is only likely to gain additional support in the months ahead, would amend the California constitution to prohibit same-sex marriage.

Beyond California, this decision guarantees one thing:  the issue of legalizing same-sex marriage once again moves to the forefront re-energizing the public and legal debate nationwide.

Whether you live in Golden State or in another state, the California marriage decision underscores the growing problem of an activist judiciary.  How to define marriage must rest with the People and not become, as Justice Baxter in his dissenting opinion put it, an exercise in legal jujitsu.


Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), a Washington, D.C.-based law firm focusing on constitutional law.  The ACLJ, which is active in protecting marriage nationwide, has been involved in the legal fight to defend the state ban on same-sex marriage through the filing of friend-of-the-court briefs in California.


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