Thursday, May 15, 2008

California Supreme Court Takes on Mantle of Legislature and Makes Bad Law. Rest of Country Yawns.

Calif. Supreme Court rejects gay marriage ban
Constitutional initiative drive under way in state to restrict unions

updated 1:18 p.m. PT, Thurs., May. 15, 2008
SAN FRANCISCO - In a monumental victory for the gay rights movement, the California Supreme Court overturned a voter-approved ban on gay marriage Thursday in a ruling that would allow same-sex couples in the nation's biggest state to tie the knot.

Anyone who is surprised by this, speak up. *crickets chirp*

Domestic partnerships are not a good enough substitute for marriage, the justices ruled 4-3 in an opinion written by Chief Justice Ron George.

Yeah. What the hell do those legislators know, anyway.

Outside the courthouse, gay marriage supporters cried and cheered as news spread of the decision.

I'll withhold comment.

"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," the court wrote.

The city of San Francisco, two dozen gay and lesbian couples and gay rights groups sued in March 2004 after the court halted San Francisco's monthlong same-sex wedding march.

You mean the illegal one? Hhhhmmmm. I wonder why a court would do that?

"Today the California Supreme Court took a giant leap to ensure that everybody — not just in the state of California, but throughout the country — will have equal treatment under the law," said City Attorney Dennis Herrera, who argued the case for San Francisco.

The City Attorney demonstrates his incisive legal acumen, thus showing why he works for San Francisco instead of the private sector, where competent attorneys work. The California Supreme Court can affect California law, but not that of other states, especially the 26 or so that have passed variations on the DOMA acts.

As for equal treatment under the law, this was never at issue. Men were free to marry women, women were free to marry men.

Coalition to challenge
The challenge for gay rights advocates, however, is not over.

A coalition of religious and social conservative groups is attempting to put a measure on the November ballot that would enshrine laws banning gay marriage in the state constitution.

Damn those voters. Damn them, I say. Who the Hell do they think they are, anyway?

The secretary of state is expected to rule by the end of June whether the sponsors gathered enough signatures to qualify the marriage amendment, similar to ones enacted in 26 other states.

And if 26 states have passed laws against it, there isn't exactly a ground swell of support for the idea, as the pink swastika brigades would have you believe. Don't bother trying to tell them that, however. Facts are only cause to shout down who ever has the temerity to share the party sharing them.

If voters pass the measure in November, it would trump the court's decision.

As it should be.

California already offers same-sex couples who register as domestic partners the same legal rights and responsibilities as married spouses, including the right to divorce and to sue for child support.

So they get the benefits and the burdens without having to redefine what married people have, but of course this isn't good enough. They simply must be referred to in the same way or their riiiiiggggghts are being viiiiiolated. Wake up call, Nancy boy. He may live with you and get your health insurance and the right to screw you over in a nasty divorce, but it still ain't marriage. Thanks for cheapening mine, however.

But, "Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," Chief Justice Ron George wrote for the court's majority.

So, unlike Massachusetts, which at least took a stab at a legal reason with a technical argument, California is legislating from the bench based on emotion. I think every professor I had in law school said "Emotions make great cases, but bad law." And here, California had to go and prove it. Of course, this is the same court that rejected such hallowed common law concepts as coming to the nuisance, so anyone paying attention wouldn't be too terribly shocked by this ruling.

In a dissenting opinion, Justice Marvin Baxter agreed with many arguments of the majority but said the court overstepped its authority. Changes to marriage laws should be decided by the voters, Baxter wrote.

A Justice on the Court who has a sense of restraint? Who understands that there is a separation of powers for a reason? A novel concept indeed.

Massachusetts is now the only U.S. state to allow gay marriage. Connecticut, New Hampshire, New Jersey and Vermont permit same-sex civil unions that grant largely the same state rights as married couples but lack the full, federal legal protections of marriage.

What federal protections of marriage are you talking about? This is and always has been the purview of the states. The feds have only gotten involved when the states have tried to tie the privilege to Race (Loving v. Virginia) or Unrelated Offenses (Zablocki v Redhail){where a party was denied the right to marry because he was behind on child support payments}.

"I respect the court's decision and as governor, I will uphold its ruling," said Gov. Arnold Schwarzenegger in a statement. "Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this (ruling)."

But of course, he doesn't have to. If it is put to the voters, and it passes, then he doesn't win votes by opposing it (doing something) but he can pay lip service to his disappointment (an old trick used for decades by politicians in Quebec when they speak about sovereignty).

Let's be clear. I oppose this ruling because it does not appear to be supported by a legal rationale. Instead, the Court seems to have made, sua sponte, a decision to change the law because it doesn't match the majority's opinion of society today. If we let judges and not voters or legislatures make these determinations, then we abdicate our roles as citizens in a republic. Separation of powers exists for a reason. Courts have the right to overturn laws because they violate the Constitution, not because they do not feel them to be appropriate. However, the left long ago adopted the strategy of asking the courts to grant them what they want and could not get from legislatures or the voters. We continually allow a tyranny of a minority, with the express and explicit collaboration of a branch of government that fails to properly understand and act in accordance with its assigned role and limitations. If this continues, we may as well do away with legislators. Or elections, for that matter.