A follow-up on the gay marriage post

The following is a comment in response to the exchange from my earlier blog post on gay marriage in California. I believe it is important (for my own ego!) to address charges that I am prejudiced against gays or am a bigot. It is a pity that while I am open to seeing the other side of the argument in favour of gay marriage in California, as a heterosexual man I am already labelled (prejudged) as being incapable of that.
   I am going to Lawcrawler to see if I can find this controversial judgement and will give my thoughts on it later.

T. G. C., I am reading your extract short of seeing the full judgement, and I find it somewhat unconvincing.
   Let me address one point: the article I posted is an article I posted. Simple. I do find it somewhat offensive that you and Madonna would attribute its position to me when even I have not done so. Yes, you may feel it has a personal endorsement by its mere appearance here. In that case your opinion of me is forgiveable. I can understand that the article inflames certain passions. However, it is my opinion that if the article were fair, then the judges in this case do not understand their jobs.
   A bit about my history, so at least we can get on the same page here. I have a fairly good grasp of the law as I am qualified with an LL B. I live in a country that was an early pioneer in homosexual law reform and has a proud tradition of embracing lifestyles that traditionalists would be appalled at. I could probably even find you two gay couples who would attest to my views on the subject that I would say most gays (here) would believe are reasonable and fair.
   My posting an article is for promoting understanding, certainly my own, and certainly, too, to contrast the way your country handles legal positions against the way my one does.
   Let me take one of your highlighted points:

we disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-of-powers doctrine precludes a court from determining that constitutional question

   Obviously without reading the statute I am less informed, but this is fairly true: in general, in most common law jurisprudence, courts to interpret laws in line with (state or federal) constitutions.
   Then, however, we have a conflict if the definition of marriage is codified, and this is perhaps the stem of the conflict more than anything.
   Traditionally, even when legislation is interpreted in the spirit of a constitutional document—a familiar argument here given the Treaty of Waitangi—it is not done by completely violating the wording of that legislation.
   To you and Madonna, it may be an issue of what the public wants, but if you have a Governor who keeps vetoing such bills, then I find it unconvincing that we rely on those bills in legal interpretation. In fact, this fact alone illustrates the law’s insufficiency at this present stage for those supporting gay marriage.
   The judicial task when faced with wanting to respect the will of the people and equal-rights doctrines in a constitution is to find third ways, clever exceptions that provide citizens with what they want without violating the legislation before them. This is a given in common law.
   While this means that gay marriage will take far longer to be recognized if this is the prevailing trend, law is something that takes decades to remould, but it should not be short-circuited.
   The law of negligence is a classic example in tort: probably most law students will recall this took decades before the landmark Donahue v. Stevenson case in 1928 and Lord Atkin’s classic judgement.
   Laws are slow, they are often reactive, but it is the system we are laboured with. An ideal world would be one without laws and with self-regulation between people acting with their complete free wills. I hold this to be an ideal and it matters, at the end of the day, little what definitions state about this word or that—but it does matter to me that while we have our current system, it is conducted fairly until the people decide on another system again.
   You bring up Perez v. Lippold. You are right that this is actually highly convincing and I thank you for reminding me of it. I do know a little about this case but there are some distinctions based on religion, the Fourteenth Amendment and constitutional interpretation, and these really helped the couple there. The respondent also presented some heavily biased opinion that the court saw through.
   There was indeed a law written in statute that barred the marriage of the couple in that case, one that was, admittedly, steadily eroded by the courts as it expanded the definition of marriage to increasingly more races.
   The court held (inter alia) that the sections in that legislation were too vague especially when it came to racial classifications—which was how ultimately it got around the interracial ban.
   You see, there was no legislating from the bench: the judge in Perez showed how lacking the legislation was, how it offended the basic tenets of the requirements of American law, and it was effectively a challenge to the legislature that: if you want to block us, revisit the law and redraft it if you dare. This I accept as this fight goes on all the time in a democracy.
   This is why I asked you and Madonna to find me the judgement, though since I haven’t heard back, I’ll have a trawl through Lawcrawler myself in a sec.
   Without clever methods of finding a way around fairly strictly worded statutes, I do believe from what little I know (yes, maybe I shall accept the ignorance charge) the judges crossed the line here.
   Contrary to your and Madonna’s biased views of me, I retain an open mind.