The gay marriage flap in California summarized
John Armor in the Sun–Sentinel gives an excellent summary of the controversial case in California over gay marriage, where judges have ignored the separation of powers, trying to create laws from the bench. He begins:
The recent decision on gay marriage handed down by the California Supreme Court will have long-lasting and widespread effects far beyond the issue at hand. It creates a dangerous precedent justifying judicial violation of the separation of powers and demonstrates the increasing inclination of some judges to usurp the lawmaking powers reserved for the legislature and the people.
Creating laws is clearly designated as a legislative function in both the California and U.S. constitutions. For example, it is the business of California’s legislators (or the people, in the case of a referendum) to vote for, or against, gay marriage. Enforcing the laws and applying the Constitution is the role of the courts. But as Justice Marvin Baxter wrote in his dissent, in handing down this decision, “the majority places this controversial issue beyond the realm of legislative debate and substitutes its own judgment in the matter for the considered wisdom of the People and their elected representatives.” …
Sadly, some of our judges have become black-robed politicians who happen not to be elected and who serve for life. They have turned their courtrooms into ad hoc statehouses, handing down laws that appear to have more to do with their personal beliefs than the Constitution.
The rest can be read here. My view: if a schmuck like me outside the US understands the legislative function, democracy and the separation of powers, how come those four judges don’t?
Whether or not you agree with gay marriage, this is an assault on democracy and the principles of the Founding Fathers.
If I were an American, I’d be very worried—dodgy politicians on the one hand, and contemptuous judges on the other.
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The article you are quoting is a biased and incomplete analysis of the California Supreme Court decision which includes same-sex couples in the already established right to marry.
I recommend reading the opinions to understand the history and extensive case law that led the majority to their decision. This includes the following extracts from the majority opinion that show due consideration of the separation-of-powers doctrine and the resolution that it operates as designed to prevent a direct redefinition of marriage by the legislature, while at the same time allowing constitutional review of existing statutes that embody the current definition of marriage. This are the extracts that illume these points best (all bold and underline emphasis is mine):
In contrast to the position advanced by the Proposition 22 Legal Defense Fund and the Campaign, the Attorney General and the Governor recognize that the California Constitution does not define or limit the marriage relationship to a union of a man and a woman. These officials acknowledge that the Legislature (consistent with the constitutional limitations imposed by the initiative provisions) or the people (through the exercise of the initiative power) have the authority to revise the current marriage statutes to permit same-sex couples to marry. The Attorney General and the Governor maintain, however, that because the institution of marriage traditionally (both in California and throughout most of the world) has been limited to a union between a man and a woman, any change in that status necessarily is a matter solely for the legislative process. Thus, they suggest that the separation-of-powers doctrine precludes a court from modifying the traditional definition of marriage.
[...]
Although, as noted at the outset of this opinion (ante, at pp. 4-5), we agree with the Attorney General and the Governor that the separation-of-powers doctrine precludes a court from “redefining” marriage on the basis of the court’s view that public policy or the public interest would be better served by such a revision, 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. On the contrary, under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve” (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53), a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.
[…]
Accordingly, we reject the contention that the separation-of-powers doctrine renders judicial scrutiny improper because the statutory provisions in question embody an integral aspect of the definition of marriage. By the same token, the circumstance that the limitation of marriage to a union between a man and a woman embodied in section 308.5 was enacted as an initiative measure by a vote of the electorate similarly neither exempts the statutory provision from constitutional scrutiny nor justifies a more deferential standard of review. Although California decisions consistently and vigorously have safeguarded the right of voters to exercise the authority afforded by the initiative process (see, e.g., Associated Home Builders, etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591), our past cases at the same time uniformly establish that initiative measures adopted by the electorate are subject to the same constitutional limitations that apply to statutes adopted by the Legislature, and our courts have not hesitated to invalidate measures enacted through the initiative process when they run afoul of constitutional guarantees provided by either the federal or California Constitution.
Apart from this cogent and compelling argument from the majority on the basis of constitutional review, it is also worth recalling that the California State legislature has twice passed bills mandating marriage equality for same-sex couples. The legislature has already taken up their responsibilities on this issue so the separation-of-powers argument and the cries of "judicial activism" and "legislating from the bench", even if they had merit, seem moot in the face of the actions of the legislative branch.
In keeping with the prerogatives of the executive branch, Governor Schwarzenegger vetoed both marriage equality bills when they reached his desk.
The majority opinion relied heavily on comparisons to the previous ban on interracial marriage (Perez) and considered in that light the ruling seems reasonable and has ample precedent. Did Perez violate separation-of-powers? Should the ban on interracial marriage in California still be in place instead of falling in 1948 with Perez? Any fair and sane person must answer no, and no.
I’m not certain whether your opinion, deeply flawed in my view, is the result of ignorance, laziness, or an anti-gay bias. I’d ask you to bear in mind that prior to the ruling in Perez vs. Sharp, Asian’s and Filipinos as well as Blacks were not permitted to marry a “white” person in California and, while this was frequently justified on Christian religious grounds with citations found in the bible, the true basis for this was racism growing from a white supremacist ideology.
History judges. As with that time, so with ours.
In time, the roots of anti-gay prejudice will be laid bare. Justice and equality will be given to same-sex couples and families.
This issue being discussed isn't about gay rights. It's about how the court overstepped it's judiciary bounds, which was succinctly stated here:
"Creating laws is clearly designated as a legislative function in both the California and U.S. constitutions. For example, it is the business of California’s legislators (or the people, in the case of a referendum) to vote for, or against, gay marriage. Enforcing the laws and applying the Constitution is the role of the courts. But as Justice Marvin Baxter wrote in his dissent, in handing down this decision, “the majority places this controversial issue beyond the realm of legislative debate and substitutes its own judgment in the matter for the considered wisdom of the People and their elected representatives.” …
You obviously feel strongly about this subject, but unfortunately, the best you have done here is quote the ruling itself, which is what this article is attacking as incorrect, not "gay rights" themselves.
It's too bad that you have to hide behind a false vox profile in order to state your opinion rather than having a strong enough constitution to state what you believe in as "yourself". Perhaps it's because you are angry and feel as though you need to attack and insult... or perhaps it's because you work for Vox... perhaps it's because you are just a very small person?
At any rate, I find it ironic that you attack Christianity but you seem to have forgotten that marriage originated from Genesis, when got created man and woman and married them in the first book of the Bible. Without Christianity, there would be no discussion on marriage in the first place, because there would be none.
You're not bright. Allow me to educate you. No rational person can criticize the Court's decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of -- and contempt for -- how the law works.
As the Court made clear, whether someone believes that "marriage" should include same-sex couples is completely irrelevant. It is equally irrelevant whether one believes that the U.S. Constitution can be read to require same-sex marriages. There is one issue, and only one issue, that matters here: are the provisions of the California State Constitution, in light of how they have been interpreted by that state's Supreme Court in prior decisions, violated by the exclusion of same-sex couples from the legal institution of "marriage"?
Equally misinformed will be anyone arguing that this is some sort of an example of judges "overriding" the democratic will of the people. The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their "marriage" laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed "it is up to the state Supreme Court" to decide the issue.
Polls have found substantial support for gay marriage in California, with dramatic trends toward favoring gay marriage. While there was a referendum passed in 2000 limiting marriage only to opposite-sex couples, five years later (in 2005), California's state legislature became the first in the country to enact a same-sex marriage law without a court order compelling them to do so. Thus, even leaving aside constitutional guarantees (which, in a constitutional republic, trump public opinion), this ruling is consistent with that state's democratic processes and public opinion, not a subversion of it.
Two weeks ago, the highest court in our nation's biggest state got it right: Excluding loving committed couples from marriage harms them and their families and helps no one. Exclusion also violates the constitution's command of equality for all. American values of fairness and inclusion really do matter and apply to gay and non-gay people alike.
When the anti-gay industry attacks judges for doing their job, they are attacking the independent judiciary that keeps us all free and equal. In the words of California's chief justice, the constitution is "the ultimate expression of the people's will." Judges monitor the safeguards we the people set forth in our constitution, protecting against trespasses by erring politicians.
In fact, the decision came from a judge's judge on a court's court with a reputation for being fair and cautious, indeed conservative. Six of the seven justices are Republican appointees, including the chief justice (originally named by Ronald Reagan). They ruled only after the legislature twice passed marriage bills that the governor vetoed, saying that the judges should decide.
But now the opponents of equality trot out their customary anti-courts rhetoric. They have no good answer to the court's findings: Marriage is so important that it should not be denied to same-sex couples. In truth, there is no good reason for withholding civil marriage licenses. Domestic partnership, civil union and other alternatives don't work to protect families. The families and love of gay Americans must not be relegated to "second-class citizenship."
The real issue for fair-minded people now is not that California's court did its job, but, rather, will we act to protect all families, or acquiesce in rolling back the clock?
Anti-gay forces are pushing an amendment to cement discrimination into the state constitution — something even the nation's most popular Republican, Gov. Arnold Schwarzenegger, opposes. If Californians do have to vote this fall, it will be an informed vote. As happened in Massachusetts, once it becomes real, people see that gay couples don't use up all the marriage licenses and that there's enough marriage to share.
Californians are fair and will not take away the marriages joyously celebrated under law, with equality for all.
T. G. C.: thank you for posting the other side of this. Contrary to what Madonna said in her most recent comment, it is important to post the other side of the argument. (I am curious to know why she has bothered, if she feels you shouldn’t have.) This is a blog, and anyone who has ever visited a blog knows that readers will read the main article and contrary comments to get informed. On that, I thank you.
Madonna, I’m heading out but I’ll read through your comments in greater depth. Your links will be helpful but they’ll take me some time to get through.
Frankly, I do not know the sexual orientation of Voxers, presently or formerly, except in a couple of cases. Funny, I never seem to ask or care. If they tell me, or if I see a same-sex couple together, then I know. If there are ‘“ex-gay” head cases’ then I feel saddened you need to label or criticize people for their choices.
This article posting was not bigotry. There is obviously an issue about gay marriage in California. I don’t know much about it, being neither gay nor Californian nor even American. I go to Google News, and it’s on the front page. I read it, I posted it. Simple as that. No hidden agenda, no gay-bashing, no bigotry.
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.
After having read the majority opinion, I remain unconvinced. While I agree the article is biased, I have to come to the same conclusion as Justice Baxter, principally for many of the reasons I outlined above.
This may be time, now, to address Madonna’s points.
First, Madonna, your attack on another commenter is unwarranted, and it’s a shame you would deny her her opinion from the outset without putting your reasoning first. It would not be unfair to dismiss anything that came afterward from you.
I can equally attack you with your words:
No rational person can criticize the Court's decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of -- and contempt for -- how the law works.
Precedents do not govern, they persuade. And if you do look back at Californian decisions, regardless of whether the issues are as controversial or not, they show a gradual, progressive moving forward of the law, catching up to public opinion in many cases. I believe you are ignorant of this basic fact of how the law has worked in California and, indeed, your own country, based on this very general, sweeping proposition. Indeed, Perez itself shows this, and I find the lead judgement in particular to be very, very clever.
These precedents which I have at least enquired into do show some persuasiveness but none of them get around the problem California has with the Governor’s vetoes. The fact that the ‘a man and a woman’ definition has been placed in really do not help supporters of gay marriage. So we are essentially stuck with the position that I stated in my comment to the Gay Curmudgeon.
Effectively I believe that the law has been circumvented, and not very cleverly, the majority judges trying to bury the core issue with legalese.
Your bill argument is unconvincing. If the Governor’s position is so dead wrong, then vote the man out. I come back to the basic idea: the judge’s role is to interpret the law. And a bill is not law.
As are your arguments, from a legal standpoint, about polls (not really a consideration generally for courts, though they are slightly persuasive), while another state’s court ruling is based on the legislation of that state.
It is also irrelevant which party appointed the judges.
The position I had in the above post, then, is the one I must take. Perez shows how a clever court gets around restrictive legislation. You obviously believe that the law is restrictive and unfair here and perhaps even offends public policy. I respect your view. Common law precedents are littered with cases where the court has got around such law. The court in this latest case has not done its job and I would say that if the majority had an agenda to accept marriage for same-sex couples, then it has done it in a clumsy way that opens the case for future attacks.
Even if I were on your side totally—and I am not saying I am totally against you, either—I would advise you both to continue campaigning for your cause, because this judgement is weak when compared with others that have, let’s say, pushed the law in a certain direction.
Your battle is far from over though given current trends in the California, you may yet win. However, I will guarantee you now that it won’t be on this decision.